Trials@uspto.gov
`571-272-7822 —
`
`,
`
`Paper 12
`Entered: April 28, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TWITTER, INC. and YELP INC.
`Petitioner
`
`V.
`
`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
`
`Case IPR2014-00092
`Patent 7,010,536 Bl
`
`Before KALYAN K. DESHPANDE, TREVOR M.JEFFERSON,
`BRIAN J. MCNAMARA,NEIL T. POWELL,and
`GREGGI. ANDERSON,Administrative Patent Judges.
`
`DESHPANDE,Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822 —
`
`,
`
`Paper 12
`Entered: April 28, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TWITTER, INC. and YELP INC.
`Petitioner
`
`V.
`
`EVOLUTIONARY INTELLIGENCE, LLC
`Patent Owner
`
`Case IPR2014-00092
`Patent 7,010,536 Bl
`
`Before KALYAN K. DESHPANDE, TREVOR M.JEFFERSON,
`BRIAN J. MCNAMARA,NEIL T. POWELL,and
`GREGGI. ANDERSON,Administrative Patent Judges.
`
`DESHPANDE,Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`Case IPR2014-00092
`Patent 7,010,536 Bl
`
`I.
`
`INTRODUCTION
`
`Twitter, Inc. and Yelp Inc. (collectively “Petitioner’’) filed a Petition
`requesting an inter partes review of claims 1-16 of
`
`U.S. Patent No. 7,010,536 B1 (Ex. 1001, “the ’536 patent”). Paper 1
`
`(“Pet.”). Evolutionary Intelligence, LLC (“Patent Owner”) timely filed a
`Preliminary Response. Paper9 (Prelim. Resp.”). Wehavejurisdiction
`under 35 U.S.C. § 314.
`|
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides as follows:
`THRESHOLD—tTheDirector maynot authorize an inter partes
`review to be instituted unless the Director determines that the
`information presented in the petition filed under section 311
`and any response filed under section 313 showsthat there is a
`reasonable likelihood that the petitioner would prevail with
`respectto at least 1 of the claims challengedin the petition.
`
`Upon consideration of the Petition, we determine that the information
`presented by Petitioner has not established that there is a reasonable
`
`likelihood that Petitioner would prevail in showing the unpatentability of
`claims 1-16 ofthe ’536 patent. Accordingly, we do not institute an inter
`partes review ofthese claims.
`
`A. Related Proceedings
`
`Petitioner indicates that the ’536 patent is the subjectoflitigation in
`
`the following cases: Evolutionary Intelligence LLC v. Yelp Inc., Case No.
`
`4:13-cv-03587 (DMR)(N.D.Cal.); Evolutionary Intelligence LLC v. Apple
`Inc., Case No. 3:13-cv-04201-WHA (N.D. Cal.); Evolutionary Intelligence
`
`2
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`LLC v. Facebook, Inc., Case No. 3:13-cv-04202-JSC (N.D.Cal.);
`Evolutionary Intelligence LLC v. FourSquare Labs, Inc., Case No. 3:13-cv-
`04203-EDL (N.D. Cal.); Evolutionary Intelligence LLC v. Groupon, Inc.,
`Case No. 3:13-cv-04204-LB (N.D. Cal.); Evolutionary Intelligence LLC v.
`LivingSocial, Ine., Case No.3:13-cv-04205-EDL (N.D. Cal.); Evolutionary
`Intelligence LLC v. Millennial Media, Inc., Case No. 5:13-cv-04206-HRL
`(N.D.Cal.); and Evolutionary Intelligence LLC v. Twitter, Inc., Case No.
`5:13-cv-04207-JSW(N.D.Cal.). Pet. 1-2.
`
`Additionally, the ’536 patent is the subject of the following inter
`
`partes reviews: IPR2014-00082; IPR2014-00083; IPR2014-00085;
`
`IPR2014-00086; and IPR2014-00093.
`
`B. The ’536 Patent
`
`The ’536 patent is directed to developing intelligence in a computer or
`
`digital network by creating and manipulating information containers with
`
`dynamicinteractive registers in a computer network. Ex. 1001, 1:11-20,
`3:1-5. The system includes an input device, an output device, a processor, a
`memory unit, a data storage device, and a means of communicating with
`
`other computers. Jd. at 3:6-11. The memory unit includes an information
`
`container madeinteractive with, among other elements, dynamicregisters, a
`
`search engine, gateways, data collection and reporting means, an analysis
`
`engine, and an executing engine. /d. at 3:15-23.
`
`A containeris an interactive nestable logical domain, including
`
`dynamic interactive evolving registers and maintaining a unique network-
`
`wide lifelong identity. /d. at 3:29-35. A container, at minimum,includes a
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`logically encapsulated portion of cyberspace, a register, and a gateway. Id.
`
`at 9:2-4. Registers determine the interaction of that container with other
`
`containers, system components, system gateways, events and processes on
`
`the computer network. Jd. at 3:43-46. Container registers may be values
`
`alone or contain codeto establish certain parameters in interaction with other
`
`containers or gateways. /d. at 9:19-22. Gatewaysare structurally integrated
`
`into each containeror strategically placed at containertransit points. Jd. at
`
`4:54-57. Gateways govern the interaction of containers encapsulated within
`their domain by reading andstoring register information of containers
`
`entering and exiting that container. /d. at 4:57-66, 15:46-49.
`
`The system for creating and manipulating information containersis
`
`set forth in Figure 2B, which is reproduced below:
`
`Figure 2B illustrates a computer network showing nested containers,
`
`computerservers, and gatewaysat Site 1 through Site 7. Jd, at 10:59-62.
`
`Anyof Sites | through 7 may interact dynamically within the system; for
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`example, Site 1 shows a single workstation with a container and gateway
`
`connectedto an Intranet. Jd. at 10:64-67. Site 2 showsa server with a
`gatewayin relationship to various containers. /d. at 11:2-3. Site 3 shows an
`
`Internet web page with a containerresiding on it. Jd. at 11:3-4. Site 4 shows
`a personal computer with containers and a gateway connected to the
`
`Internet. /d. at 11:4-6. Site 5 shows a configuration of multiple servers and
`
`containers on a Wide Area Network. /d. at 11:6-7. Site 6 shows a work
`
`station with a gateway and containers within a container connected to a
`
`Wide Area Network. Id. at 11:7-9. Site 7 shows an independent gateway,
`capable ofacting as a data collection and data reportingsite as it gathers data
`
`from the registers of transiting containers, and as an agent of the execution
`
`engineas it alters the registers of transient containers. Jd. at 11:8-13.
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`. An example of a configuration the containers may haveis provided in
`
`Figure 4, included below:
`
`‘Container Registers 101000 to 129000
`
`FIG. 4
`
`Figure 4 shows an example of container 100 that includes
`containerized elements 01, registers 120, and gateway 200. Jd. at 12:65-67.
`Registers 120 included in container 100 include, inter alia, active time
`register 102000, passive time register 103000, neutral timeregister 104000,
`active space register 111000, passive space register 112000, neutral space
`
`register 113000, and acquire register 123000. Jd. at 14:31-39.
`
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`Case IPR2014-00092
`Patent 7,010,536 B1
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`C. Illustrative Claims
`
`Petitioner challenges claims 1-16 of the ’536 patent. Pet. 16-58.
`Independentclaims 1 and 15 areillustrative of the claimsat issue:
`
`An apparatusfor transmitting, receiving and
`1.
`manipulating information on a computer system, the apparatus
`including a plurality of containers, each container being a
`logically defined data enclosure and comprising:
`an information element having information;
`a plurality of registers, the plurality of registers forming
`part of the container and including
`a first register for storing a unique container
`identification value,
`a second register having a representation designating
`time and governinginteractions of the container with other
`containers, systems or processes accordingto utility of
`information in the information elementrelative to an external-
`to-the-apparatus event time,
`an active time register for identifying times at
`whichthe container will act upon other containers,
`processes, systems or gateways,
`a passive timeregister for identifying times at
`whichthe container can be acted upon byother
`containers, processes, systems or gateways, and
`a neutral time register for identifying times at
`whichthe container may interact with other containers,
`processes, systems or gateways; and
`a gateway attached to and formingpart of the container,
`the gateway controlling the interaction of the container with
`other containers, systems or processes.
`
`15. An apparatusfor transmitting, receiving and
`manipulating information on a computer system, the apparatus
`including a plurality of containers, each container being a
`logically defined data enclosure and comprising:
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`an information element having information;
`a plurality of registers, the plurality of registers forming
`part of the container and including
`a first register for storing a unique container
`identification value,
`a second register having a representation
`designating time and governinginteractions of the
`container with other containers, systems or processes
`accordingto utility of information in the information
`elementrelative to an external-to-the-apparatus event
`time, and
`.
`at least one acquire register for controlling whether
`the container adds a register from other containers or
`adds a container from other containers wheninteracting
`with them; and
`a gateway attached to and forming part of the container,
`the gatewaycontrolling the interaction of the container with
`other containers, systems or processes.
`
`D. The Alleged Grounds of Unpatentability
`The information presented in the Petition sets forth Petitioner’s
`contentions of unpatentability of claims 1-16 of the °536 patent under
`35 U.S.C. § 102, as follows (see Pet. 4-8, 16-58):
`
`| * Challenged — F102
`
`‘Reference ee
`
`"U.S. Patent No. 5,493,692 (Ex. 1002) (“Theimer”).
`
`
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`Il. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Office Patent Trial Practice Guide,77 Fed. Reg. 48,756, 48,766 (Aug.14,
`2012). Claim terms are given their ordinary and customary meaning,as
`would be understood by one of ordinary skill in the art in the context of the
`
`entire disclosure. Jn re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
`
`Cir. 2007). A claim term will not be given its ordinary and customary
`
`meaning, however, when an inventoracts as his or her own lexicographer,
`
`defining the term in the specification with reasonable clarity, deliberateness,
`and precision. Renishaw PLCv. Marposs Societa’per Azioni, 158 F.3d
`1243; 1249 (Fed. Cir. 1998).
`.
`+
`
`1. “container”
`
`Independentclaims 1, 2, 15, and 16 recite “a plurality of containers,
`
`each container being a logically defined data enclosure.” As discussed
`above, the ’536 patentspecification describes a container as an interactive
`
`nestable logical domain, including dynamicinteractive evolving registers
`and maintaining a unique network-wide lifelong identity. Ex. 1001, 3:29-35.
`Petitioner argues that the broadest reasonable interpretation of a “container”
`
`is “a logically defined data enclosure which encapsulates any elementor
`digital segment(text, graphic, photograph, audio, video, or other), or set of
`
`digital elements.” Pet. 12 (citing Ex. 1007
`
`26). Patent Owneralso
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`9
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`proposesthat the broadest reasonable construction of “container”is “a
`logically defined data enclosure which encapsulates any elementordigital
`
`segment(text, graphic, photographic, audio, video, or dther), or set of digital
`
`elements.” Prelim. Resp. 14-15.
`
`Patent Owner acknowledgesthat both proposed constructionsare
`facially identical, but asserts that Patent Owner’s proposed constructionis
`narrower because of Patent Owner’s narrow interpretation of the terms
`“logically defined” and “encapsulated.” Jd. at 14-16. Patent Owner argues
`that “encapsulated” refers to “treat[ing].a collection of structured:
`information as a whole without affecting or taking notice ofits internal
`structure” andfurtherrefers“to the process of wrapping data in protocols
`that allow its transmission from one network to another, as occurs when a
`webpageis sent using HTML.” Prelim. Resp. 15 (citing Ex. 2001).
`|
`Weare not persuaded by Patent Owner’s arguments. The 7536 patent |
`states that a container “at minimum includesin its construction a logically
`
`encapsulated portion of cyberspace, a register and a gateway”and a
`
`container “at minimum encapsulatesa single digital bit, a single natural
`numberorthe logical description of another container, and at maximumall
`defined cyberspace, existing, growing andto be discovered,including but
`
`not limited to all containers, defined and to be defined in cyberspace.” Ex.
`
`1001, 9:2-9. The *536 patent does not describe the terms “logically defined”
`or “encapsulated”as limited to“structured information as a whole”
`
`regardless ofits internal structure or “wrapping data” in preparation for
`
`transmission. The claimsalso do not require such limitations. Therefore,
`
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`we do not agree with Patent Ownerthat “logically defined”or
`“encapsulated” require anything more than “contained within.”
`Accordingly, based on the proposed construction of “container” by
`
`both Petitioner and Patent Owner, and for the purposesofthis decision, we
`
`construe “container” to mean “a logically defined data enclosure which
`
`encapsulates any element or digital segment (text, graphic, photograph,
`
`audio, video, or other), or set of digital elements.”
`
`2. “register”
`
`Independentclaims 1, 2, 15, and 16 recite “a plurality of registers, the
`
`plurality of registers forming part of the container.” Petitioner arguesthat a
`
`- “register” is defined in a dictionary as “[a] device capable of retaining
`information, often that contained in a small subset (for example, one word),
`ofthe aggregate informationin a digital computer” or“[a] storage device or
`storage location having a specified storage capacity.” Pet. 12 (citing
`
`~
`
`Ex. 1010; Ex. 1007 § 28). Petitioner further argues that “register” includes
`
`“{a] part of internal storage having a specified storage capacity and usually
`
`intended for a specific purpose.” Pet. 12-13 (citing Ex. 1011; Ex. 1007
`{ 28). Based on these dictionary definitions, Petitioner proposesthat the
`
`’ Related U.S. Patent No. 7,702,682 B2,the patent at issue in IPR2014-
`00079 and IPR2014-00080, recites the terms “logically defined” and/or
`“encapsulated” in independent claims 1 and 19-23. Ourinterpretation of
`these terms is consistent with our analysis in IPR2014-00079 and IPR2014-
`00080.
`
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`plain meaning of “register” is “value or code associated with a container.”
`Pet. 13 (citing Ex. 1007 4 30).
`
`Patent Ownerarguesthat the term “register,” based on dictionary
`
`definitions, encompasses“a group of(usually) bistable devices that are used
`to store information within a computer system for high speed access” and “a
`memory location within a microprocessor, used to store values and external
`memoryaddresses while the microprocessor performslogical and arithmetic
`operations on them.” Prelim. Resp. 16-17 (citing Ex. 2002; Ex. 2003).
`
`Based on these dictionary definitions, Patent Ownerproposesthat “register”
`
`means “‘a memory location within a computerthat stores data.” /d. at 16.
`
`Patent Owner acknowledgesthat its proposed constructionis similar to
`
`Petitioner’s construction, but argues that Petitioner’s construction is
`
`unreasonably broad and may encompass unpatentable subject matter. /d. at
`17.
`|
`
`Wedisagree with Patent Owner. Specifically, we do not agree with
`
`Patent Ownerthat “register” must require “a memory location within a
`
`computer.” The ’536 patent specification, including the claims, does not
`
`impose sucha limit to the meaningof“register.” The 536 patent broadly
`
`describes “container registers” as follows:
`
`interactive dynamic values
`are
`120
`registers
`Container
`enclosure of
`an_
`information
`logical
`to
`the
`appended
`container 100, and serve to govern the interaction of that
`container
`100 with
`other
`containers
`100,
`container
`gateways 200 and the system 10, and to record the historical
`interaction of that container 100 on the system 10. Container
`registers 120 may be values alone or contain code to establish
`
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`certain parameters in interaction with other containers 100 or
`gateways 200.
`
`Ex. 1001, 9:14-23. Wesee no reasonto limit the scope of “register” to
`include limitations neither described by the specification nor required by the
`
`claims. Therefore, we are persuaded by Petitioner’s argumentthat the
`
`broadest reasonable construction of“register,” as it is used in the ’536
`
`patent, is “value or code associated with a container.”
`
`|
`3. “gateway”
`Independentclaims 1, 2, 15, and 16 recite “a gateway attached to and
`forming part of the container, the gateway controlling the interaction of the
`
`container with other containers, systems or processes.” Petitioner argues
`that although the ’536 patent does not explicitly define “gateway,” the *536
`patent describes a gateway to “govern the interactions of containers 100 .
`
`within their domain, andalter the registers 120 of transiting containers 100
`
`upon ingress and egress” and to “gather and store container register
`
`information according to system-defined, system-generated, or user
`
`. governing how containers[sic] system processesor
`.
`determined rules .
`system components interact within the domain ofthat container.” Pet. 13
`(citing Ex. 1001, 4:58-66, 9:22-28). Based onthis description from the
`
`’536 patent, Petitioner proposesthat “gateway” means“a hardware or
`
`software unit that facilitates the transfer of information between containers,
`
`systems, networks, and/or processes.” /d. at 14 (citing Ex. 1007 § 33).
`
`Patent Ownerarguesthat a person with ordinary skill in the art would
`
`understand that a “gateway”is “a device that interconnects two networks.”
`
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`Prelim. Resp. 17 (citing Ex. 2002). Patent Ownerfurther arguesthat this
`definition is consistent with the ’536 patent claims, where claim 1 recites the
`
`“gateway controlling the interaction of the container with other containers,
`systems or processes.” Id. at 18. Patent Owneralso argues that this
`definition is consistent with the ’536 patent specification, where the
`
`specification describes that a “gateway”is a server,is structurally integrated
`
`into containers, and includes software to process network data. Jd. at 18-19
`
`(citing Ex. 1001, Fig. 2B, claim 1, claim 13, 4:54-55). Accordingly, Patent
`Owner proposesthat “gateway” should be construed as “a hardware device
`that facilitates the transfer of information between containers, systems
`
`and/or processes on two different networks or devices, or software that
`
`processes networkdata.” Jd. at 19.
`
`Weare not persuaded by Patent Ownerthat “gateway” requires these
`
`additional limitations. The ’536 patent describes “gateways,”stating that
`
`information
`register
`[glateways gather and store container
`according to
`system-defined,
`system-generated,
`or user
`determined rules as containers exit and enter one another,
`governing how containers
`system processes
`or
`system .
`components interact within the domain of that container, or
`after exiting and entering that container, and governing how
`containers, system components and system processes interact
`with that unique gateway,
`including how data collection and
`reporting is managedat that gateway.
`
`Ex. 1001, 4:58-66. The ’536 patent further describes that gateways are
`“nestable in a hierarchical or set and class network scheme.” Id. at 4:54-57.
`
`Thus, we do not agree with the Patent Ownerthat a “gateway,” as used in
`the ’536 patent, is limited to a hardware device. Wefurther do not agree
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`with Patent Ownerthat a “gateway”facilitates only the transfer of
`
`information on two different networks or devices, because the ’536 patent
`
`provides an example of agateway governing the interaction of two
`
`containers regardless of whether the containers are on two different
`networksof devices.
`
`|
`
`Accordingly, we agreewith Petitioner and construe “gateway”to
`mean “hardware or software unit that facilitates the transfer of information
`
`between containers, systems, and/or processes.”
`
`B. Claims 1-16 — Anticipated by Theimer
`Petitioner contends that claims 1-16 are unpatentable under 35 U.S.C.
`§ 102(b) as anticipated by Theimer. Pet. 16-58. Petitioner relies on a
`
`Declaration of Don Turnbull, Ph.D. (Ex. 1007) in its contentions.
`1. Theimer (Ex. 1002)
`
`Theimer discloses techniques for selectively delivering electronic
`
`messagesto an identified user via particular computer devices based on
`
`context and environmentin proximity to the user. Ex. 1002, 1:35-38. An
`
`electronic message, intended for an identified user, is obtained, and a level
`
`of privacy and a level of priority for the electronic message are determined.
`
`Id. at 4:33-36. The profile properties for the identified user also are
`
`obtained.
`
`/d. at 4:36-37. The system perceives contextual attributes for the
`
`identified user, including display devices in close proximity to the identified
`user, and determinesa display property for the electronic message based on
`
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`the contextual attributes, the userprofile properties, and the level ofprivacy
`andlevel of priority of the electronic message. Jd. at 4:37-42.
`
`Physical objects, such as users, devices, or groups of devices, are
`
`represented in the system by a unique “agent.” Jd. at 7:61-64. Agents
`
`consist of several modules, which are responsible for implementing the
`agent’s responsibilities for specific applications or performing specific
`operations. Jd. at 8:32-35. The system, using physical objects,is illustrated
`
`in Figure 2 as follows:
`
`HG.2
`
`Figure 2 illustrates that User 60 is represented by UserAgent, 70 and
`
`User 62 is represented by UserAgentp 72. /d. at 8:27-29. A “UserAgent”
`
`manages information abouta particular user, and acts as the primary agent of
`
`customization of a user’s applications with respect to the user’s
`
`“environment,”i.e., the surroundingsthat affect or may be affected by the
`
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`user, including other users and devices and their states. Id. at 9:42-47.
`UserAgent gathers and managesperson specific information, such as office
`number and affiliations, and personal policies and preferences ofthe user
`from UserProfile. Jd. at 9:60-63. A “DeviceAgent” includesa device
`profile, which describes relevant information about aparticular device,
`policies that describe allowable operations for the device, and the current
`state of the device. Jd. at 13:60-64.
`
`UserAgent waits for an event to occur and then performs the
`appropriate action in response to the event. Jd. at 10:55-57. When receiving
`
`a request, UserAgent checksthe settings of the user’s policy to decide
`
`whether to honor the request. /d. at 10:66 — 11:3. User policies include
`
`meeting reminder messages or meeting reminder messages when other
`
`specified users are in proximity to the user.
`
`/d. at 24:8-31.
`
`2. Analysis
`
`The evidenceset forth by Petitioner indicates there is not a reasonable
`likelihood that Petitioner will prevail in showing that claims 1-16 are
`
`unpatentable under 35 U.S.C. § 102(b) as anticipated by Theimer. Pet. 16-
`
`59. Specifically, we are not persuaded by Petitioner that Theimer describes
`
`each and every limitation of independentclaims 1, 2, 15, and 16.
`
`a.. Claims 1-14
`
`Petitioner argues that Theimeranticipates independent claim 1. Jd. at
`16-33. Petitioner contends, inter alia, that Theimerdiscloses“a plurality of
`containers” and “a plurality of registers, the plurality of registers forming
`
`part of the container.” Jd. at 17-19, 21-22. Petitioner specifically points to
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`several features of Theimeras describing “a plurality of containers,”
`
`including (1) UserAgents, (2) DeviceAgents, (3) TerminalAgents, (4) Name
`
`Services, and (5) Location Services. /d. at 17-19 (citing Ex. 1002, 7:61-8:2,
`
`8:18-20, Figs. 3, 5-6, 8-9; Ex. 1007 4 40). Petitioner further points to
`
`Theimer’s (1) calendar information stored by user agents, (2) callback
`registers of name andlocation services,and (3) policy registers, generally
`included with a container, that include a setof rules that govern a container’s
`
`interaction with other containers, as describing a “plurality of registers.” Id.
`
`at 21-22 (citing Ex. 1002, 8:6-11, 9:60—10:2, 10:15-21, 10:66—11:8, 13:5-18,
`17:13-25, 19:14-23; Ex. 1007 § 43).
`|
`
`Claim 1 further recites three specific “registers” (active, passive, and
`neutral) that identify times at which the container will act, be acted upon,or
`intersect with other containers, processes, systems, or gateways. Petitioner
`
`limits its discussion to the UserAgent as the claimed “container” and argues
`
`that Theimer’s representation of a calendardiscloses a claimed “register.”
`
`Id. at 23-26 (citing Ex. 1002, 10:32-38, 24:8-48). Petitioner specifically
`
`argues that the calendar governs interactions with other containers by
`“controlling when messages are sent to and received from other agent
`containers.” /d. at 25.
`Petitioner further contends that Theimer’s calendar designates “free
`
`time” and a person with ordinary skill in the art would have understoodthat
`
`“free time” indicates times that other agent containers could schedule
`
`meetings and seminars for the calendar in a user’s agent container. /d. at 28
`(citing Ex. 1007
`47). Accordingly, Petitioner arguesthis “free time”
`
`18
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`Case IPR2014-00092
`Patent 7,010,536 B1
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`describes the claimed “passive time register,” because the “free time”
`
`identifies times that the UserAgent “container” can be acted upon byother.
`
`containers. /d. at 28-29. Patent Owner, however, argues that Theimer’s
`
`“free time” does not describe the claimed “passive time register,” because
`
`Theimeris silent as to “setting meetings for one UserAgent by another
`UserAgent.” Prelim. Resp. 25.
`|
`Weare not persuaded byPetitioner that Theimer’s calendar,
`
`indicating a “free time,” describes the claimed “passive time register for
`
`identifying times at which the container can be acted upon by other
`containers, processes, systemsor gateways.” Although Theimer discloses a
`status for a user’s calendar, indicating whena useris available, Theimer
`does notdisclose that another useror “container” can act upon a user’s
`calendar based onthis status. Theimeris silent as to the functionality of one
`
`user scheduling a meeting or seminar for another user. On the contrary,
`
`Theimerdiscloses that a user’s calendar is managedby the calendar
`associated to that UserAgent. Ex. 1002, 10:9-11, Fig. 3. Furthermore,
`nothing in Theimer describes the “free time”as a time that the UserAgent
`“container” can be acted upon. In other words, Theimer does not discuss
`whetherthe “free time”is a time thatmeetings can be scheduled on a user’s
`
`-
`
`calendar. As such, although a person with ordinary skill in the art would
`have understoodthat the calendar identifies a user’s “free time,” such a
`
`person would not have understood Theimerto disclose that the “free time”
`
`identifies a time that the container can be acted upon by other containers, as
`
`recited in claim 1.
`
`19
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`
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`Case IPR2014-00092
`Patent 7,010,536 Bl
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`Petitioner contendsalternatively that Theimer discloses policy rules
`for receiving messages and meeting requests that describe the claimed
`
`“passive timeregister.” /d. at 29 (citing Ex. 1002, 10:66—11:17, 13:5-21,
`15:30-33, 24:8-31; Ex. 1007 ¥ 47). Petitioner argues that Theimerdiscloses
`rules that specify that a message can be received only “a few minutes before
`
`the scheduled meeting”or only if others are not in proximity. Jd. Patent
`Owner, however, argues that the UserAgentis not “acted upon,” as recited in
`claim 1, becausethe policy rules, not the UserAgent, set forth whetherthe
`messagesare delivered to the user. Prelim. Resp. 26. Patent Owner further
`argues that receiving an email is not the same as the claimed “acted upon,”
`becausethe receipt ofsuch a messageor meeting request doesnot affect any
`_ ofthe valuesofthe calendaroruserpolicies. Jd. at 26-27.
`~ Wearenot persuadedbyPetitioner’s argument, becauseit fails to set
`forth clearly how this disclosure from Theimerdescribes the claimed
`“passive time register.” Petitioner’s argument focuses on the UserAgent as
`the “container” and the policy rules as the “passive timeregister.”
`
`Petitioner’s analysis, however, fails to demonstrate how the policy rules
`
`identify a time at which UserAgent can be acted upon by other containers,
`processes, systems, or gateways. Petitioner’s analysis fails to identify
`specifically how a policy specifying a time to send a reminder messageis
`
`acting upon the UserAgent“container.” Petitioner also fails to identify
`
`which container, process, system, or gateway is acting upon the UserAgent
`
`“container.” Consequently, we are not persuaded by Petitioner that Theimer
`
`anticipates claim 1.
`
`20
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`
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`Case IPR2014-00092
`Patent 7,010,536 B1
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`Claim 2 recites the“passive register” whichis similar to claim 1, but
`recites “identifying space”instead of “identifying times.” Weare also not
`
`persuaded that Theimerdescribes the claimed “passive register” of claim 2
`
`for the same reasons discussed abovein our analysis of the limitation
`
`“passive time register” of claim 1. Specifically, Petitioner argues that the
`
`policy rules of Theimer describe the “passive register.” Pet. 37-38.
`
`Petitioner’s analysis, however, fails to demonstrate howthe policy rules
`
`identify a space at which UserAgent can be acted uponby othercontainers,
`processes, systems, or gateways. Petitioner’s analysis fails to identify
`
`specifically how a policy specifying a space to send a reminder messageis
`
`acting upon the UserAgent“container.” Petitioneralso fails to identify
`which container, process, system, or gateway is acting upon the UserAgent
`“container.”
`.
`‘Claims 3-14 depend from either claim 1 or claim 2. Therefore, weare
`
`not persuaded that Theimeranticipates claims 2-14 for the same reasons
`discussed above with respect to claim 1. Accordingly, we determine that
`there is not a reasonable likelihoodthat Petitioner would prevail in showing
`
`the unpatentability of claims 1-14.
`
`b. Claims 15-16
`
`Petitioner contends that Theimeranticipates independent claims 15
`
`and 16. Pet. 57-58. Petitioner argues that claims 15 and 16 are substantially
`
`the sameas claims | and2, and furtherrecite an ‘“‘acquire register” that is the
`
`sameas that recited in claim 8. Jd. at 57-58. Specifically, claims 8, 15, and
`16 recite an “acquire register for controlling whether the container adds a
`
`21
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`Case IPR2014-00092
`~ Patent 7,010,536 Bl
`
`register from other containers or adds a container from other containers
`when interacting with them.”
`Asdiscussed abovein the analysis of claim 1, Petitioner contends,
`
`interalia, that Theimerdiscloses“a plurality of containers” and “a plurality
`of registers, the plurality of registers forming part of the container,” where
`
`Theimer describes a UserAgent object as the claimed “container” and policy
`
`rules that describe the claimed“registers.” Jd. at 17-19 (citing Ex. 1002,
`
`7:61-8:20, 10:66—11:8, 13:5-18, 17:13-25, 19:14-23, Fig. 3; Ex. 1007 ¥ 40,
`43). Specifically, with respect to claims 15 and 16, Petitioner argues that the
`policy rules describe the claimed “acquire register,” because the policy rules
`
`control when information sent from another container can be received and
`stored. Jd. at 47-48, 57-58 (citing Ex. 1002, 13:5-21; Ex. 1007 ¥ 64).
`Petitioner argues that a policy rule, for example, “restricts message
`transmissions when a device owneris in a meeting,”
`“prevents a private
`message from being received whena useris not alone,” or “protects access
`
`39 66.
`
`to personal information requested by other containers”and, therefore, the
`
`policy rules “control whether information from another container’s message
`register can be acquired by a container and added.” /d. at 47-48. Patent
`
`Ownerrespondsthat Petitioner “cites only the addition of containers or
`registers to containers other than the UserAgent.” Prelim. Resp. 27-28.
`Weare unpersuaded by Petitioner that Theimer discloses the claimed
`
`“acquire register.” Although we agree with Petitioner that Theimer discloses
`policy rules that control the receipt of messages, we are not persuaded that
`the policy rule controls “whether the container addsaregister from other
`
`22
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`Case IPR2014-00092
`Patent 7,010,536 Bl
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`containers or adds a container from other containers when interacting with
`them.” Specifically, Petitioner does not provide sufficient evidence or
`
`analysis to establish that the UserAgent“container”is receiving the message
`
`from another container, the message from anothercontaineris a “register” or
`“container,” the UserAgent“container”is adding the messageas a “register”
`or “container,” or the messageis coming from another container. Although
`Petitioner argues that messages from other containers are from a
`“container’s message register” (Pet. 48), Theimeris silent in describing
`
`messagesas “regi
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