Trials@uspto.gov
`571–272–7822
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`Paper 14
`Entered: August 14, 2015
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`AT HOME BONDHOLDERS’ LIQUIDATING TRUST,
`Patent Owner.
`____________
`
`Case IPR2015–00657
`Patent 6,286,045 B1
`
`____________
`
`
`
`Before, KARL D. EASTHOM, JUSTIN T. ARBES, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`DECISION
`Decision on Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`571–272–7822
`
`
`Paper 14
`Entered: August 14, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`AT HOME BONDHOLDERS’ LIQUIDATING TRUST,
`Patent Owner.
`____________
`
`Case IPR2015–00657
`Patent 6,286,045 B1
`
`____________
`
`
`
`Before, KARL D. EASTHOM, JUSTIN T. ARBES, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`DECISION
`Decision on Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
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`IPR2015–00657
`Patent 6,286,045 B1
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`Google Inc. (“Petitioner”) filed a Petition to institute inter partes
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`review of claims 20–31, 33, 43, 44, 47, 48, 59, 61–63, 72, 73, 75, 77, and 78
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`of U.S. Patent No. 6,286,045 B1 (“the ’045 patent”) pursuant to 35 U.S.C.
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`§ 311319. Paper 2 (“Pet.”). At Home Bondholders’ Liquidating Trust
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`(“Patent Owner”) timely filed a Preliminary Response. Paper 10 (“Prelim.
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`Resp.”). We have jurisdiction under 35 U.S.C. § 314.
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`For the reasons that follow, we institute an inter partes review as to
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`claims 59, 6163, 72, and 73 on certain grounds of unpatentability.
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`I.
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`BACKGROUND
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`A. RELATED MATTERS
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`Petitioner identifies that the patent-at-issue is the subject matter of a
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`district court case filed in the U.S. District Court for the District of Delaware
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`(Case No. 1:14-cv-00216). Pet. 5960.
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`B. ASSERTED GROUNDS
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`Petitioner contends that claims 2031, 33, 4344, 4748, 59, 6163,
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`7273, 75, 77 and 78 (“the challenged claims”) are unpatentable under 35
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`U.S.C. § 103 based on the following specific grounds:
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`References
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`Angles1 and Merriman2
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`
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`Basis
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`§ 103
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`Claim[s] challenged
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`20, 2426, 28, 3031,
`75, 78
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` 1
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` U.S. Patent No. 5,933,811 (Exhibit 1012) (“Angles”).
`2 U.S. Patent No. 5,948,061 (Exhibit 1013) (“Merriman”).
`2
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`Basis
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`Claim[s] challenged
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`References
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`Angles, Merriman, and Garland3
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`§ 103
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`22, 23, 29, 33, 4344,
`4748, 77
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`Angles, Merriman, and Davis4
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`§ 103
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`21
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`Angles, Merriman, and HTTP 1.05 § 103
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`Wexler,6 HTTP 1.0
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`§ 103
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`27, 59, 6163, 72–73
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`20, 21, 24–28, 31, 33,
`72, 75, 77, 78
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`Wexler, HTTP 1.0, and Meeker7
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`§ 103
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`30, 59, 61–63, 73
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`Wexler, HTTP 1.0, and Garland
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`§ 103
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`22–23, 29, 43–44, 47
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`Wexler, HTTP1.0, Garland, and
`Meeker
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`§ 103
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`48
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`C. THE ’045 PATENT (EX. 1001)
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`The ’045 patent is directed to a system for storing information on a
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`computer network and allowing the information to be accessed by terminals
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`connected to the computer network, either directly, or through an
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`intermediary device such as a local or proxy server. Ex. 1001, Abstract.
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`The system includes computers or web sites that store pages, which may
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`
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` 3
`
` Michael Garland et al., Implementing Distributed Server Groups for the
`World Wide Web, Carnegie Mellon University (Jan. 25, 1995) (Exhibit
`1009) (“Garland”).
`4 U.S. Patent No. 5,796,952 (Exhibit 1014) (“Davis”).
`5 T. Berners-Lee et al., HTTP Working Group Internet Draft Hypertext
`Transfer ProtocolHTTP/1.0, (Feb. 19, 1996) (Exhibit 1008) (“HTTP 1.0”).
`6 U.S. Patent No. 5,960,409 (Exhibit 1007) (“Wexler”).
`7 Mary Meeker, Technology: Internet/New Media The Internet Advertising
`Report, Morgan Stanley, U.S. Investment Research (Dec. 1996) (Exhibit
`1010) (“Meeker”).
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`include references to banners to be displayed in conjunction with the web
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`pages on the terminal. Id. The ’045 patent also discloses a method that
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`“solves the initial problem of how to create accurate counts of banner
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`information displays on user terminals while avoiding the problems created
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`by requiring the banner information to be retransmitted across the computer
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`network each time the banner information is requested by a user or a user’s
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`terminal.” Id. at 14:3340. In one embodiment, the ’045 patent describes
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`the use of an initial banner request signal that is a general content Uniform
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`Resource Locator (“URL”) address generated by the terminal, where the
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`URL does not specify which banner is to be displayed. Id. at 17:2226. The
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`recipient of the initial banner request signal selects which banner is to be
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`displayed on the terminal, and returns a specific content URL address to the
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`terminal, using a “Status HTTP 302 Redirect signal,” indicating the address
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`of the selected banner. Id. at 17:2636. Therefore, even though the banner
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`may be cached or stored on the user’s terminal or on a proxy server, the
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`specific content URL address signal is not cached, preventing the initial
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`banner request signal from being blocked by either the terminal or the proxy
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`server. Id. at 17:4250.
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`D. ILLUSTRATIVE CLAIMS
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`Challenged claims 20, 43, 59, 72, and 75 are independent. Claims 20
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`and 59 are illustrative and are reproduced below.
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`20. A method for distributing a banner over a computer network to a
`device when the banner is referenced or linked to in a document served to
`the device, wherein the banner is stored in one or more servers, comprising:
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`receiving a first banner request signal from a device at a first server
`requesting that a banner be served to the device, wherein said first banner
`request signal includes information intended to prevent said first banner
`request signal from being blocked from reaching said first server by the
`device despite previous caching of said specified banner in the device;
`sending a banner location signal from said first server to the device,
`wherein said banner location signal includes location information for a
`specified banner stored on a second server; and
`receiving a second banner request signal from the device at said second
`server requesting that the second server serve said specified banner to the
`device.
`
`59. A method for serving a banner to a client device, comprising:
`receiving at a primary server a first request for a banner, said first request
`containing at least a portion of an initial URL, wherein said first request
`includes information intended to prevent said first request from being
`blocked from the primary server despite previous storage of the banner on
`the client device;
`sending a signal from the primary server to the client device that includes
`at least a portion of a second URL associated with the banner’s location;
`receiving at the primary server a second TCP/IP compliant request
`requesting that the banner be served to the client device if the banner is not
`stored on the client device;
`serving the banner to the client device; and
`counting at least one display of the banner on the client device.
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`II. ANALYSIS
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`A. CLAIM INTERPRETATION
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`The Board interprets claims using the “broadest reasonable
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`construction in light of the specification of the patent in which [they]
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`appear[].” 37 C.F.R. § 42.100(b). We presume that claim terms have their
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`ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d
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`1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary meaning ‘is the
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`meaning that the term would have to a person of ordinary skill in the art in
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`question.’” (citation omitted)).
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`Petitioner and Patent Owner have proposed constructions for various
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`terms. See Pet. 1015; Prelim. Resp. 1419. We do not need to construe
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`every term proposed by the parties if the construction is not helpful in our
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`determination of whether to institute trial. The scope of the claim term
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`“banner” is determinative of whether we institute certain asserted grounds.
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`Our discussion of this term follows.
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`“banner”
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`Both parties agree that “banner” means “information displayed in
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`conjunction with a web page.” Pet. 11–12; Prelim. Resp. 15. The parties
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`disagree, however, on whether additional explanations should be included in
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`the definition. For example, Petitioner asserts that the information “is not
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`part of the same file as the web page” (Pet. 11) while Patent Owner asserts
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`that the information “can exist separately from the web page or which can be
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`used in conjunction with many web pages” (Prelim. Resp. 15–16). Both
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`parties rely on different portions of the specification to support their
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`respective proposed constructions. Two issues are thus presented: (1) does
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`the specification provide an express definition of the term as alleged by
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`Petitioner; and (2) does the specification support a construction broader than
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`Petitioner argues. These issues arise because the specification states that
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`[f]or purposes of the present invention, the term ‘banner’
`is meant to be construed very broadly and includes any
`information displayed in conjunction with a web page
`wherein the information is not part of the same file as the
`web page. That is, a banner includes anything that is
`displayed or used in conjunction with a web page, but
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`which can exist separately from the web page or which
`can be used in conjunction with many web pages.
`Banners can include graphics, textual information, video,
`audio, animation, and links to other computer sites, web
`sites, web pages, or banners.
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`Ex. 1001, 2:2837. Patent Owner also points to additional statements in the
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`specification where the banner information may be served with the web
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`page. See Prelim. Resp. 1516 (citing Ex. 1001, 10:2326 (“banner
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`information may be served with the webpage or, more commonly, the
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`banner information may reside in separate files.”)).
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`We agree with the parties that the specification provides a description
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`of a “banner” as information displayed in conjunction with a web page. But
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`it is unnecessary for us to decide whether a banner may comprise
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`information that may be part of the “same file as the web page” or served
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`with the web page. The specification states the intent of construing “banner”
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`with a stated, broad definition, and, therefore, we may not limit the
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`construction of “banner” to how it may be served or stored vis-à-vis a web
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`page. The claims provide sufficient detail regarding the location and
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`operation of the banner such that we do not need to define the term further
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`than how the information is displayed. Accordingly, under the broadest
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`reasonable interpretation in light of the specification, for purposes of this
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`Decision, we construe “banner” to mean “information displayed in
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`conjunction with a web page.”
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`B. OBVIOUSNESS GROUNDS BASED ON, AT A MINIMUM, ANGLES,
`AND MERRIMAN
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`Petitioner asserts four grounds predicated on, at a minimum, the
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`combination of Angles and Merriman.
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`1. Overview of Angles (Ex. 1012)
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`Angles describes a system and method for delivering customized
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`electronic advertisements in an interactive communication system. Ex.
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`1012, Abstract. Angles’s system interconnects multiple consumer
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`computers, multiple content provider computers, and multiple Internet
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`provider computers with an advertisement provider computer. Id. Figure 4,
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`reproduced below, illustrates the Angles’s system and shows the flow of
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`information among these computers. See id. at 4:6165.
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`Figure 4 depicts content provider computer 14 that includes electronic
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`pages 32 for presenting information to the consumer. See id. at 12:5160.
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`Each electronic page 32 contains advertising insert 56 which is a place–
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`holder configured to contain customized advertisement 30 generated by
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`advertisement provider computer 18. Id. Advertising insert 56 contains
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`advertisement request 26, which references a content provider Common
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`Gateway Interface (CGI) script 64 that exists on advertisement provider
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`computer 18. Id. at 13:14. “When the advertisement provider computer 18
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`executes the content provider script 64, the advertisement provider computer
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`18 identifies which content provider computer 14 is being accessed by a
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`consumer computer 12.” Id. at 13:1619. Advertisement provider computer
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`18 sends customized advertisement 30 to consumer computer 12. Id. at
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`8:5661. Electronic page 32 and customized advertisement 30 are combined
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`into a displayable page. Id. at 8:6265.
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`Angles further describes an embodiment in which consumer computer
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`12 includes advertising storage medium 44, which can be a compact disk
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`drive and a compact disk, to store a variety of advertisements that can be
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`retrieved and displayed by consumer computer 12. Id. at 11:5055. In this
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`embodiment, the advertisement command identifies a particular location on
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`advertising storage medium 44, such as the particular track and sector where
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`an advertisement is located. Id. at 11:6612:2.
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`2. Overview of Merriman (Ex. 1013)
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`Merriman describes targeting the delivery of advertisements over a
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`network, such as the Internet. Ex. 1013, Abstract. Figure 1, reproduced
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`below, illustrates an affiliate’s web site 12, an advertisement (“ad”) server
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`web site 19, and an advertiser’s web site 18. See id. at 2:5962.
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`In Figure 1, above, a user operates a web browser to generate
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`request 20 directed to affiliate web site 12. Id. at 3:2428. The affiliate web
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`site sends messages 22 containing the information available at the particular
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`web site 12 for the requested page to be displayed by the user browser 16,
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`except for one or more advertising objects such as banner advertisements.
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`Id. at 3:3034. Instead of sending the advertising objects, affiliate web
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`server sends a link to the node running advertiser server process 19, where
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`the link refers to an inline image, such as a banner. Id. at 3:3441. User
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`browser 16 sends message 23 to advertising server process 19 to access the
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`object. Id. at 3:4152. Upon receiving message 23, advertising server
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`process 19 determines which advertisement or other object to provide to user
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`browser 16 and transmits message 24 containing the object. Id. at 3:5257.
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`The advertisement object then is displayed “as a composite of the received
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`affiliate’s web page plus the object transmitted back by the advertising web
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`server.” Id. at 3:5963. “As part of the ‘click through’ process, when the
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`user clicks on the banner or other advertising object displayed by the user’s
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`browser 16, the user’s browser again transmits a message [23] to the ad
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`server.” Id. at 3:6467. Advertising server 19 notes the address of the
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`computer that generated message 23 and transmits back the URL of the
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`advertiser’s web page so that user browser 16 can generate a message 26 to
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`contact advertiser web site 18. Id. at 3:674:5.
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`3. Overview of Garland (Ex. 1009)
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`Garland describes an architecture and protocol for a distributed web
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`server group, as illustrated in Figure 5, reproduced below. Ex. 1009, 3.
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`Figure 5, above, illustrates a web client sending an HTTP request and
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`a dispatcher server that calculates a least–loaded member server and sends
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`the forwarding address of that server. Id. at 3. The dispatcher distributes the
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`requests to balance the load placed on the member servers. Id. at 5.
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`4. Overview of Davis (Ex. 1014)
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`Davis is directed to monitoring client use of and interaction with a
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`resource downloaded from a server on a computer network. Ex. 1014,
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`1:810. In particular, Davis describes the access and display of an ad banner
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`that is embedded inside a Web page located in a server through the use of an
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`“HTML <IMG> tag” by stating that
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`[w]hen a client machine passes a TCP/IP request for the Web page
`to the first server, the Web page is downloaded to the client,
`including the ad banner embedded using the <IMG> tag. The
`<IMG> tag is used to reference a resource (i.e., the “ad banner”)
`stored on the same or a different server which captures the user’s
`ID (via the HTTP request header) and dynamically returns an ad
`related image to the client for display within the Web page.
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`Ex. 1014, 3:3542.
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`5. Discussion
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`Petitioner contends that Angles discloses most of the limitations of
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`independent claims 20, 43, 59, 72, and 75. Pet. 17–33. In particular,
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`Petitioner contends that Angles’s advertisement request, which references a
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`CGI script, is an “unblockable” signal because the “signal is dynamic and
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`the resulting content would not be cached.” Pet. 19. Petitioner further
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`argues that a redirect signal containing a URL address for another address is
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`a well–known feature of HTTP and Merriman teaches such a feature. Id.
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`at 20. There are differences in the claim language of these independent
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`claims that bear directly on our determination of whether to institute trial.
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`a. Claims 59 and 72
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`Petitioner asserts that the combination of Angles, Merriman, and
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`HTTP1.0 renders obvious independent claims 59 and 72, with HTTP1.0
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`supplying the teaching of a cache. In particular, Petitioner asserts that
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`HTTP1.0 teaches that any client or server may include a cache, and that a
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`person of ordinary skill in the art would have understood that a cache may
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`be located on the consumer computer in Angles. Id. at 37–38.
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`The evidence provided by Petitioner is insufficient, according to
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`Patent Owner, because Angles does not disclose or reference a cache.
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`Prelim. Resp. 22, 38–39 (incorporating the arguments made with regard to
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`claim 20). This argument is unpersuasive because claim 59 does not recite a
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`cache. And although claim 72 does recite “previous caching,” Petitioner is
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`relying on HTTP1.0, not Angles, as teaching the use of a cache. See Pet. 37.
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`Patent Owner further argues that the use of a CGI script alone does
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`not prevent caching. Prelim. Resp. 23–24. According to Patent Owner,
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`Angles does not disclose, other than a reference to a CGI script, what strings
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`are included in the URL. Id. at 25–26. Patent Owner argues that there is a
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`reason the ’045 patent discloses specific characters included in the URL for
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`prevention of blocking as a result of previous caching. Id. at 26.
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`At this stage of the proceeding, however, we conclude that
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`Petitioner’s evidence is sufficient to demonstrate a reasonable likelihood that
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`Angles teaches a request signal with information intended to prevent the
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`signal from being blocked. Petitioner argues that in Angles, consumer
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`computer 12 sends advertisement request 26, which references content
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`provider CGI script 64, to advertisement provider computer 18. See Pet.
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`1819, 22 (citing Ex. 1012, 13:2–4, 7:65–8:1). Thus, according to
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`Petitioner, Angles does not block advertisement request 26 from reaching
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`advertisement provider computer 18. Id. Petitioner submits evidence to
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`show why it believes the use of a CGI request in Angles prevents such
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`blocking. See Pet. 5–6, 18–19; Ex. 1001, 19:4957; Ex. 1003 ¶¶ 16, 64–65;
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`Ex. 1017, 7–8. Based on the current record, Petitioner’s evidence is
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`sufficient to demonstrate a reasonable likelihood of prevailing, but the
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`ultimate assessment of that evidence will be based on the complete record at
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`the end of trial.
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`We recognize that Patent Owner has casted doubt regarding
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`Petitioner’s assertion that a CGI script, without more, prevents blocking as
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`required by the claims. The Preliminary Response cites evidence supporting
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`the assertion that a browser will cache (and thus block the request for) a
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`document resulting from a CGI script. Prelim. Resp. 22–24 (citing Ex.
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`2007). Furthermore, we note that Patent Owner has presented evidence
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`supporting the allegation that a mere reference to a CGI script, such as that
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`described in Angles, is insufficient to render the signal containing the
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`reference “unblockable.” Prelim. Resp. 24–25 (citing Ex. 2009).
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`Considering this evidence together with Petitioner’s evidence, however, we
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`lack an explanation of how Angles’s advertisement request is not an
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`“unblockable” signal. That is, notwithstanding the evidence from Patent
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`Owner that not all references to a CGI script block caching, we have not
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`been shown yet that Angles’s reference to a CGI script would be blocked.
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`On this point, we note that Petitioner expressly argues that one embodiment
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`of the ’045 patent supports the assertion that a CGI script would be
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`“unblockable.” Pet. 19. And although we need not rely on this argument to
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`render our decision, there is some indication that dynamically generated
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`content through a CGI script was known to prevent caching. Ex. 1017.
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`As we see it, considering the evidence presented by both parties, one
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`inference that may be drawn from Angles’s disclosure is that the reference to
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`the CGI script in the advertisement request is not blocked because Angles
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`utilizes one of the “cache–busting” techniques known at the time, i.e., URL
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`requesting dynamically generated content. However, another potential
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`inference is that Angles’s system, although requesting dynamic content, does
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`not involve URL requests that prevent caching of the resulting request
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`because either caching is not utilized or, if caching, Angles’s system
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`includes the same accounting inaccuracies known in the art. Resolving the
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`reasonableness and likelihood of these (or other later arising) inferences is a
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`fact-finding issue that we will resolve at the conclusion of the trial, but at
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`this stage of the proceeding, we are persuaded that Petitioner has
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`demonstrated a reasonable likelihood that Angles teaches a request signal
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`with information intended to prevent the signal from being blocked.
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`Patent Owner has presented further arguments challenging the
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`Petition. We have considered those arguments and determine that the
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`Petition has presented sufficient information to institute trial. For example,
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`Patent Owner argues that none of the asserted references teaches or suggests
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`the use of two or more requests to retrieve a banner. Prelim. Resp. 2729.
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`These arguments are not persuasive because they are not responsive to
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`Petitioner’s assertions regarding claims 59 and 72 that the disclosures in the
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`Angles, Merriman, and HTTP1.0 are combined to teach or suggest the
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`recited requests. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
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`Cir. 1986) (“Non–obviousness cannot be established by attacking references
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`individually where the rejection is based upon the teachings of a
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`combination of references.”). Furthermore, although Angles appears to
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`disclose that local storage of banners is a solution to transmission delays in
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`the communication network, Patent Owner has not shown sufficiently that
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`the disclosure teaches away from the combination of Angles and Merriman.
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`See Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n. 8 (Fed. Cir.
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`2000) (“The fact that the motivating benefit comes at the expense of another
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`benefit, however, should not nullify its use as a basis to modify the
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`disclosure of one reference with the teachings of another. Instead, the
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`benefits, both lost and gained, should be weighed against one another.”).
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`Finally, we are not persuaded at this time by the argument that Angles’s
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`embodiment of local storage of banners serves a “primary purpose.” Prelim.
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`Resp. 31–32. Although Angles may disclose a benefit associated with local
`
`storage of banners, it does not discredit or repudiate the delivery of those
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`banners via the communication network because Angles discloses
`
`embodiments that deliver a customized advertisement (“banner”) to the
`
`consumer via the communication medium. See Ex. 1012, 8:56–61, 20:64–
`
`21:6.
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`Consequently, on the record before us, we determine that Petitioner
`
`has demonstrated a reasonable likelihood of prevailing in its contention that
`
`claims 59 and 72 would have been obvious over the combination of Angles,
`
`Merriman, and HTTP1.0. Petitioner also has shown sufficiently that the
`
`asserted references teach the further limitations recited in dependent claims
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`61–63, which depend from claim 59, and claim 73, which depends from
`
`claim 72. Consequently, on the record before us, we determine that
`
`Petitioner also has demonstrated a reasonable likelihood of prevailing in its
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`17
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`IPR2015–00657
`Patent 6,286,045 B1
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`contention that claims 61–63 and 73 would have been obvious over the
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`combination of Angles, Merriman, and HTTP1.0.
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`b. Claims 20 and 75
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`Unlike the grounds discussed above, Petitioner has not cited any
`
`factual evidence of the use of a cache in its assertion that claims 20 and 75
`
`are unpatentable over the combination of Angles and Merriman.
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`Specifically, claim 20 recites a first banner request signal that “includes
`
`information intended to prevent said []signal from being blocked . . . despite
`
`previous caching of said []banner.” Ex. 1001, 28:44–48 (emphasis added).
`
`Claim 75 recites similar language. Ex. 1001, 32:50–53. Petitioner relies
`
`solely on Angles as disclosing the first banner request signal. Pet. 22
`
`(showing only disclosures in Angles in claim chart for limitation 20.2). The
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`Petition, however, neither states nor points to evidence that Angles’s system
`
`includes a cache. See Prelim. Resp. 21 (arguing that Angles contains no
`
`reference whatsoever to a cache). The significance of the omission is such
`
`that we are not able to determine whether Angles’s advertisement request is
`
`employed to avoid a cache where information previously was cached. If
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`Angles is not shown or argued to disclose, teach, or suggest caching, we
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`cannot determine that the reference to the CGI script in the advertisement
`
`request is intended to prevent blocking as a result of previous caching.
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`Accordingly, we are not persuaded that Petitioner has shown a
`
`reasonable likelihood that claims 20 and 75 would have been obvious over
`
`Angles and Merriman. Petitioner does not allege that either Davis or
`
`Garland disclose, teach, or suggest the information intended to prevent
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`18
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`blocking as a result of previous caching. Therefore, Petitioner has failed to
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`show a reasonable likelihood that claims 21–31 and 33, which depend from
`
`claim 20, and claims 77–78, which depend from claim 75, are unpatentable
`
`as obvious over combinations involving Angles, Merriman, Garland, and
`
`Davis. Consequently, no trial is instituted on any of those grounds.
`
`c. Claim 43
`
`Petitioner relies on Garland as disclosing the “best suited” server
`
`because Garland performs load balancing by calculating a least–loaded
`
`server. Pet. 32–33. Patent Owner argues that Petitioner has not shown that
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`Garland teaches or suggests selecting a “best suited server” as required by
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`the claim. Prelim. Resp. 35–36. Patent Owner also contends that the
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`declaration testimony of Mr. Kent should be afforded little to no weight
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`because it is conclusory. Id. We have reviewed the Petition, Patent Owner’s
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`argument, and the disclosures in Garland regarding the determination of a
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`least–loaded server. Based on this review, we agree with Patent Owner and
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`determine that Petitioner has failed to show sufficiently that Garland teaches
`
`the claim 43 determination that “if said first server is best suited to serve
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`said banner . . . serving said banner to the device,” and “if said first server is
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`not best suited to serve[] said banner to the device, sending a banner location
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`signal from said first server to the device.”
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`Claim 43 also requires that the “best suited server” determination be
`
`performed concerning the same server that received the first banner request
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`signal. That is, the first server receives the first banner request signal, which
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`is not blocked, and a determination is made as to whether that same first
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`server is “best suited” to serve the banner. Garland does not teach or suggest
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`19
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`the required “best suited server” determination. Garland teaches a
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`dispatcher that calculates a least–loaded server by receiving load information
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`from each of its member servers because the dispatcher does not know the
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`load on a member server. Ex. 1009, 5. The reason for Garland’s dispatcher
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`needing this information is that after a client is dispatched to a particular
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`member, “all relative links will be resolved by going directly to that
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`member.” Id. In other words, Garland teaches that a dispatcher would
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`determine the least–loaded server when receiving the “first banner request,”
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`and the banner will be served from that first server every time. Garland’s
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`dispatcher does not determine that, after being directed to the first server for
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`the first banner request signal, another server is the least–loaded to serve the
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`banner. See id. Petitioner has not shown how Garland’s dispatcher can
`
`select a least–loaded server for an existing communication between a client
`
`and the member server. Without this showing, using Garland’s teachings of
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`a dispatcher in Angles’s system with multiple servers would not meet all the
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`claim limitations of claim 43.
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`Petitioner does not allege that other prior art teaches the “best suited
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`server.” Therefore, we do not institute trial concerning independent
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`claim 43. Claims 44, 47, and –48 depend from claim 43 and recite
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`additional limitations. But Petitioner’s evidence and arguments for these
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`dependent claims fail for the same reasons as described with respect to claim
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`43. Accordingly, we also do not institute trial concerning dependent claims
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`44, 47, and 48.
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`20
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`C. OBVIOUSNESS GROUNDS BASED, AT A MINIMUM, ON WEXLER
`AND HTTP1.0
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`Petitioner asserts four grounds predicated on, at a minimum, the
`
`combination of Wexler and HTTP1.0.
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`1. Overview of Wexler (Ex. 1007)
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`Wexler is directed to providing on–line third party accounting and
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`statistical information. Ex. 1007, Abstract. A third party accounting service
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`receives download request signals intended for an advertiser Web site. Id.
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`The download request signal results from a user clicking on a banner
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`displayed on a Web page, because the banner is configured to point to the
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`third party Web site, rather than pointing to the advertiser’s Web site. Id.
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`The third party Web site maintains a count of the received download request
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`signals generated by clicking on the banner, and sends a redirect signal to
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`the user’s Web browser causing the advertiser Web site to send the
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`information originally sought by the user. Id.
`
`2. Overview of HTTP1.0 (Ex. 1008)
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`HTTP1.0 is a working document of the Hypertext Transfer Protocol
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`(HTTP) Working Group. Ex. 1008, 1. The document describes
`
`specifications for the protocol referred to as “HTTP/1.0.” Id. In particular,
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`HTTP1.0 discloses the use of a “Pragma general–header field.” Id. at 35.
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`“All pragma directives specify optional behavior from the viewpoint of the
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`protocol; however, some systems may require that behavior be consistent
`
`with the directives.” Id. One pragma directive is a “no–cache” directive,
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`which is described as follows:
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`21
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`IPR2015–00657
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`When the “no–cache” directive is present in a request
`message, an application should forward the request
`toward the origin server even if it has a cached copy of
`what is being requested. This allows a client to insist
`upon receiving an authoritative response to its request.
`It also allows a client to refresh a cached copy which is
`known to be corrupted or stale.
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`Id. at 3536.
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`3. Discussion
`
`Wexler describes a third party accounting and statistical service that
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`redirects a user’s web browser to request a web page from an advertiser after
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`the user clicks on a banner. Ex. 1007, 2:38–56. Petitioner relies on
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`Wexler’s advertiser’s web page as disclosing the “banner.” Pet. 41–42.
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`That is, although We
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