`Trials@uspto.gov
`571-272-7822 Entered: January 3, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BRIGHT HOUSE NETWORKS, LLC,
`WIDEOPENWEST FINANCE, LLC,
`KNOLOGY OF FLORIDA, INC., and
`BIRCH COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`FOCAL IP, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01262
`Patent 7,764,777 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
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`IPR2016-01262
`Patent 7,764,777 B2
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`I. INTRODUCTION
`Bright House Networks, LLC, WideOpenWest Finance, LLC,
`Knology of Florida, Inc., and Birch Communications, Inc. (collectively
`“Petitioner”)1 filed a Petition for inter partes review of claims 18, 21, 23, 25,
`26, 28–31, 37, 38, 41, 45, and 46 of U.S. Patent No. 7,764,777 B2
`(Ex. 1001, “the ’777 patent”). Paper 1 (“Pet.”). Focal IP, LLC (“Patent
`Owner”) filed a Preliminary Response. Paper 11 (“Prelim. Resp.”).
`Petitioner filed a Reply. Paper 17 (“Reply”). Institution of an inter partes
`review is authorized by statute when “the information presented in the
`petition . . . and any response . . . shows that there is a reasonable likelihood
`that the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.” 35 U.S.C. § 314(a); see 37 C.F.R. § 42.108.
`Upon consideration of the Petition and Preliminary Response, we conclude
`the information presented shows there is a reasonable likelihood that
`Petitioner would prevail in establishing the unpatentability of claims 18, 21,
`23, 25, 26, 28–31, 37, 38, 41, 45, and 46 of the ’777 patent.
`
`A. Related Matters
`The parties state that the ’777 patent is the subject of pending lawsuits
`in the Middle District of Florida, and these lawsuits include assertions
`against Bright House Networks, LLC, WideOpenWest Finance, LLC, YMax
`Corporation, Birch Communications, Inc., and T3 Communications, Inc.
`Pet. 4; Paper 7 (Patent Owner’s Mandatory Notices), 2–3. Another
`
`
`1 Petitioner identifies several real parties-in-interest, as well as other
`“potential real parties-in-interest” to Petitioner. Pet. 2–4.
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`petitioner filed a petition also challenging claims of the ’777 patent (i.e.,
`IPR2016-01258). Paper 7, 3.
`
`B. The ’777 Patent
`The ʼ777 patent is directed to a system for allowing a subscriber to
`select telephone service features. Ex. 1001, 1:18–21. Figure 1 of the ’777
`patent is reproduced below.
`
`
`
`Annotated Figure 1 illustrates tandem access controller 10 connected
`to conventional Public Service Telephone Network (PSTN) tandem switch
`16. Id. at 4:40, 41. According to the ’777 patent, “[d]etails of the operation
`of the existing phone network,” including directing of phone calls by
`“existing” PSTN tandem switch 16 to central offices 17, 18 are further
`described in a publication incorporated by reference, as well as “numerous
`books describing the PSTN.” Id. at 4:40–51.
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`The call flow in the network illustrated in Figure 1 with tandem access
`controller 10 remains the same as that in a conventional network, “except
`that additional 3rd-party features are applied to the call.” Id. at 4:40–44.
`More specifically, in the network illustrated in Figure 1, a call from calling
`party 20 to subscriber’s phone 14 is directed to tandem access controller 10,
`which places a second call, subject to 3rd party control information to
`subscriber 12. Id. at 4:52–55. The second call is placed “to the subscriber’s
`‘private’ phone number,” without terminating the first call. Id. at 4:55–57.
`When subscriber 12 answers the call, tandem access controller 10 connects
`the first call to the second call so as to connect calling party 20 to subscriber
`12. Id. at 4:59–62.
`Figure 1 also shows web server 23 within World Wide Web 22, which
`is connected to tandem access controller 10. Id. at Fig. 1. Subscriber 12
`specifies 3rd-party call control features via web server 23 and these features
`are then relayed via World Wide Web 22 to tandem access controller 10. Id.
`at 5:13–21.
`
`C. Illustrative Claim
`Petitioner challenges claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41, 45,
`and 46 of the ’777 patent. Claims 18, 37, 45, and 46 are independent claims.
`Claims 21, 23, 25, 26, and 28–31 depend directly from claim 18. Claims 38
`and 41 depend directly from claim 37. Independent claim 18, reproduced
`below, is illustrative of the claimed subject matter:
`18. A method for processing an incoming call from a
`switching facility on a communication network that comprises
`edge switches for routing calls to subscribers within a local
`geographic area and switching facilities for routing calls to edge
`switches, or other switching facilities local or in other geographic
`areas the method comprising the steps of:
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`receiving a first call, which is intended for a specified
`recipient, at a controlling device in communication with the
`switching facility;
`identifying one or more control criteria previously
`associated with the specified recipient, wherein the one or more
`control criteria was entered via a web-based interface;
`initiating a second call at the controlling device in
`accordance with the control criteria associated with the specified
`recipient; and
` connecting the first and second calls at the controlling
`device after the second call is received by a communication
`device associated with the specified recipient.
`
`Id. at 15:12–30.
`
`Independent claim 37 is similar to claim 18, except that when the call
`is forwarded, the claim requires using a “packet-based connection.”
`Independent claim 45 is similar to claim 18, except that instead of initiating
`a second call to a specified recipient, the original first call is routed to a
`"voicemail server." Independent claim 46 is similar to claim 18, except that
`instead of initiating a second call to a specified recipient, the original first
`call is blocked.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41, 45,
`and 46 are unpatentable based on the following grounds (Pet. 4):
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`Reference(s)
`Archer2 and the
`Admitted Prior Art3
`Archer, Chang4 and the
`Admitted Prior Art
`Chang
`
`Basis
`
`§ 103(a)
`
`§ 103(a)
`§ 103(a)
`
`Challenged Claim(s)
`18, 21, 23, 25, 26, 28–31, 37,
`38, 41, 45, and 46
`18, 21, 23, 25, 26, 28–31, 37,
`38, 41, 45, and 46
`45 and 46
`
`II. DISCUSSION
`
`A. Claim Construction
`In an inter partes review, we construe claim terms in an unexpired
`patent 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).
`Consistent with the broadest reasonable construction, claim terms are
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`
`1. “switching facility”
`
`Each of the independent claims 18, 37, 45, and 46 recites “switching
`facility.” Patent Owner contends that “switching facility” (1) is a switch for
`
`
`2 U.S. Patent No. 6,683,870 B1, issued Jan. 27, 2004 (Ex. 1003) (“Archer”).
`3 Admitted Prior Art (see, e.g., Ex. 1001, 1:40–46). Although discussed in
`the Petitioner’s analysis (see, e.g., Pet. 19), the Admitted Prior Art is omitted
`inadvertently from the statements of the asserted grounds. Therefore, we
`treat the statements as harmless error and presume that Petitioner intended to
`assert that claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41, 45, and 46 are
`unpatentable based, in part, on the Admitted Prior Art.
`4 U.S. Patent No. 5,958,016, issued Sept. 28, 1999 (Ex. 1004) (“Chang”).
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`routing calls to edge switches or other “switching facilities” local or in other
`geographic areas; and (2) is not an edge switch or edge device. Prelim.
`Resp. 34, 40 (citing Ex. 20015 ¶¶ 68, 69, 80). Petitioner disagrees with
`Patent Owner’s narrow interpretation and contends that Patent Owner did
`not clearly and unmistakably disavow the claim scope of Patent Owner’s
`claims. Pet. 9–10; Reply 1–8.
`We begin with the plain language of the claims. Claim 18 is
`representative. The preamble of that claim recites “processing an incoming
`call from a switching facility on a communication network that comprises
`edge switches for routing calls to subscribers within a local geographic area
`and switching facilities for routing calls to edge switches, or other switching
`facilities local or in other geographic areas.” On this record, we determine
`that the preamble is limiting.
`The preamble recites not only a “switching facility” but two other
`“switching facilities.” There is nothing in claim 18 itself that indicates that
`the switching facility, the switching facilities for routing calls to edge
`switches, or the “other” switching facilities local are the same switching
`facility or make up the same structural components. Thus, we disagree with
`Patent Owner that the language of the claim itself dictates that the plain
`meaning of every “switching facility” recited in the claim be treated the
`same to mean a switch for routing calls to edge switches or other “switching
`facilities” local or in other geographic areas; and (2) is not an edge switch or
`edge device. Prelim. Resp. 35.
`
`
`5 Ex. 2001 is a Declaration of Regis J. “Bud” Bates.
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`We next turn to the Specification of the ’777 patent itself to discern
`the meaning of “switching facility.” The term “switching facility” is not
`found in the Specification of the ’777 patent. The term was added during
`prosecution. Pet. 9–10; Prelim. Resp. 35; Reply 2. Accordingly, there is not
`much, if anything intrinsically in the Specification of the ’777 patent that
`explicitly defines or informs a person of ordinary skill in the art at the time
`of the invention the meaning of “switching facility.”
`Patent Owner argues that the prosecution history makes clear that
`switching facility cannot include an edge switch. Prelim. Resp. 35–36. The
`remarks made during prosecution, however, are equivocal, and do not
`persuade us of a disavowal or disclaimer of the scope of the term “switching
`facility” to exclude an edge switch. For example, the portion of the
`prosecution history that Patent Owner cites includes a footnote for defining a
`“switching facility” as:
`Any point in the switching fabric of converging networks, also
`referred to in industry as a signal transfer point (STP), signal
`control point (SCP), session border controller (SBC), gateway,
`access tandem, class 4 switch, wire center, toll office, toll
`center, PSTN switching center, intercarrier connection point,
`trunk gateway, hybrid switch, etc.
`
`Ex. 2005, 82 n.1.
`The above description does not explain that a switching facility does
`not include an edge switch. Indeed, “[a]ny point in the switching fabric of
`converging networks” appears broad. We have considered all of the
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`arguments and evidence regarding the term “switching facility.” 6 At this
`juncture of the proceeding, we determine that the broadest reasonable
`interpretation of the term is any switch in the communication network.
`
`2. “in communication with”/“coupled to”
`
`Each of the independent claims 18, 37, and 45 recites “controlling
`device in communication with the switching facility.” Claim 46 recites
`“controlling device in communication with one of the switching facilities.”
`Claim 30, which depends from claim 29, which in turn depends from claim
`18, recites “the tandem access controller . . . coupled to . . . at least one of
`the switching facilities.” Patent Owner analyzes the “in communication
`with” and “coupled to” terms together. Prelim. Resp. 41–43. Although
`Patent Owner does not dispute that the plain and ordinary meaning of the
`term “in communication with” or “coupled to” does not require a direct
`connection between the controlling device (tandem access controller) and
`the switching facility, Patent Owner argues that the terms should be
`interpreted to mean direct communication and direct connection,
`respectively. In Patent Owner’s view, the configuration of an indirect
`connection or communication of these elements was allegedly disclaimed by
`Applicants. Id.
`
`
`6 We also considered evidence submitted in IPR2016-01258, including the
`definitions set forth in Federal Standard 1037C (Ex. 3001) and Newton’s
`Telecom Dictionary (Ex. 3002). Ex. 3001, S35 (defining “switching center”
`and “switching facility” as synonyms that mean “a facility in which switches
`are used to interconnect communications circuits on a circuit-, message-, or
`packet-switching basis”); Ex. 3002 (defining “switching centers” to refer to
`all five classes of switches in the PSTN).
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`However, the portion of the prosecution history cited by Patent Owner
`for support (Ex. 2005, 66) is, at most, ambiguous. The Amendment that
`added the limitation “coupled to a switching facility for routing calls to edge
`switches or other switching facilities in local or other geographic areas” is
`silent as to whether “coupled to” requires a direct connection between the
`elements. Id.
`Patent Owner also contends that the controlling device cannot be
`coupled to a switching facility through an edge switch because this
`construction reflects Applicants’ disclaimer of controllers that applied call
`control features through an edge switch. As discussed above, we are not
`persuaded by Patent Owner’s disclaimer arguments that the term “switching
`facility” excludes an edge switch.
`Based on the record before us at this juncture of the proceeding, we
`determine that the broadest reasonable interpretation of “coupled to” and “in
`communication with” includes direct or indirect coupling and
`communication.
`
`3. “controlling device”
`Each of the independent claims 18, 37, 45, and 46 recites a
`“controlling device.” Patent Owner does not dispute that the plain and
`ordinary meaning of this term does not exclude an edge device or a system
`that communicates with an edge device. Nonetheless, relying on its
`prosecution disclaimer arguments presented in connection with the term
`“switching facility,” Patent Owner alleges that a “controlling device” cannot
`be an edge device or apply call control features through an edge switch.
`Prelim. Resp. 40–41. We have considered and addressed Patent Owner’s
`prosecution disclaimer arguments and the evidence before us. As discussed
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`above, we are not persuaded by those disclaimer arguments. Based on the
`present record, we determine that the broadest reasonable interpretation of
`“controlling device” does not exclude an edge device or call control features
`through an edge switch.
`At this juncture of the proceeding, we determine that it is not
`necessary to provide an express interpretation of any other term of the
`claims.
`
`B. Obviousness of claims 18, 21, 23, 25, 26, 29–31, 37, 38, 41, 45, and 46
`over Archer, Chang, and the Admitted Prior Art
`
`Petitioner contends claims 18, 21, 23, 25, 26, 29–31, 37, 38, 41, 45,
`and 46 are unpatentable under 35 U.S.C. § 103(a) as obvious over Archer,
`Chang, and the Admitted Prior Art. Pet. 18–54. Relying on the testimony of
`Dr. Thomas La Porta, Petitioner explains how the combination of Archer,
`Chang, and the Admitted Prior Art describes all of the claim limitations and
`provides a reason to combine. Id. (citing Ex. 1002).
`
`1. Overview of Archer
`Archer is directed to transmitting simultaneously call notifications to
`communication devices, such as a telephone, pager, and computer. Ex. 1003
`Abstract. Figure 2 of Archer is reproduced below.
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`Figure 2 is a communication system.
` As shown in Figure 2 above, telephone 114 is connected to circuit-
`switched network 118. Id. at 4:66–67. Circuit-switched network 118 is a
`plain old telephone service (POTS) network such as the PSTN. Id. at 5:5–8.
`Circuit-switched network 118 is coupled to converter 126, which converts
`telephone signals into packets. Id. at 5:32–34. The packets are formatted in
`accordance with IP and routed through packet-switched network 130. Id. at
`5:41–46. Packet-switched network 130 is the Internet. Id. at 6:3–11.
`Converters 132a and 132b are coupled to packet-switched network 130 to
`convert digital packets into signals which can be transmitted across
`circuit-switched network 136. Id. at 8:18–21. In the preferred embodiment,
`converters 126 and 132 are interchangeable depending on which device 114,
`120, or 134 initiates the call and where the call is routed. Id. at 8:23–26.
`Server processor 128 queries database 138 using the number
`generated at telephone 114 to look up the forwarding phone numbers
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`assigned to the user. Id. at 6:33–37. Server processor 128 will then transmit
`the packets simultaneously to each of destinations 132, 134. Id. at 7:3–4.
`Figure 4 is reproduced below.
`
`Figure 4 is a flowchart of software that executes on
`server processor 128
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`As illustrated in Figure 4, server processor 128 extracts subscriber
`information received in a packet (step 52) and queries database 138 (step
`54). Id. at 6:56–59. Server processor 128 creates IP packets for each
`destination (id. at 6:63–67), multicasts the packets (id. at 7:3–4, Fig. 4 (step
`62)), and upon receipt of confirmation, terminates or connects the call with
`each of the destinations thereby establishing communications between the
`caller and the called party (id. at 7:15–21, Fig. 4, steps 64–68).
`
`2. Overview of Chang
`Chang discloses a system that has a web browser interface for
`allowing subscribers to control call features. Ex. 1004, Abstract, 4:45–58,
`7:9–16. Figure 1 of Chang is reproduced below.
`
`Figure 1 of Chang illustrates a telephone network that includes one or
`more tandem switching offices (11T) that provide connections between end
`offices and/or between other tandem offices. Id. at 8:2–5. Secure access
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`platform 25 allows the subscribers to control their call features using a Web
`browser through the Internet, and provides user control selections to the
`tandem switches (11T) through Service Control Point (SCP) 19 and
`Signaling Transfer Point (STP) 15 using Signaling System 7 (SS7). Id. at
`Abstract, 8:48–9:7, 11:9–12:17, 12:64–13:27.
`
`3. Discussion
`Petitioner asserts that the combination of Archer, Chang, and the
`Admitted Prior Art describes all of the elements of claims 18, 21, 23, 25, 26,
`29–31, 37, 38, 41, 45, and 46 and provides a rationale for combining Archer,
`Chang, and the Admitted Prior Art. Pet. 17–54. We begin our analysis with
`independent claim 18.
`The preamble of claim 18 recites “a communication network that
`comprises edge switches for routing calls to subscribers within a local
`geographic area and switching facilities for routing calls to edge switches, or
`other switching facilities local or in other geographic areas.” Ex. 1001,
`15:12–17.
`Petitioner contends that Archer describes a communication network
`that contains the claimed edge switches and switching facilities in the form
`of (1) tandem switches in circuit-switched networks (118, 136) which is
`preferably the PSTN and (2) converters/gateways (126, 132) which
`interconnect tandem switches in the PSTN and the packet-switched network
`130. Pet. 19 (citing Ex. 1003, Figs. 2, 6, 5:5–35; Ex. 1010, 87 n.1; Ex. 1002
`¶¶ 113–119). Petitioner contends that an ordinarily skilled artisan would
`have recognized that the PSTN consists of edge switches (switches that
`connect to end-user devices, like telephones, within a local geographic area)
`and switching facilities (e.g., tandem or class 4 switches) for connecting
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`multiple edge switches to each other and to other switching facilities in other
`geographical areas. Id. (citing Ex. 1001, 1:40–46, 4:44–51; Ex. 1002 ¶¶
`114–117). Petitioner further contends that Archer describes
`converters/gateways (126, 132) which are switching facilities that serve to
`interconnect tandem switches in the PSTN and the packet-switched network.
`Id. at 19–20 (citing Ex. 1003, Figs. 2, 3, 6, 5:32–67; Ex. 1002 ¶ 119).
`The preamble of claim 18 further recites “processing an incoming call
`from a switching facility on a communication network.” Petitioner contends
`that Archer describes processing an incoming call (by way of server
`processor 128 and database 138) from gateway 126 (switching facility) on
`the communication network, and indirectly from a tandem switch on the
`circuit-switch network portion (e.g., PSTN 118). Id. at 21 (citing Ex. 1003,
`Figs. 2, 4–6, and several passages therein; Ex. 1002 ¶¶ 128–129).
`Claim 18 recites “receiving a first call, which is intended for a
`specified recipient, at a controlling device in communication with the
`switching facility.” Petitioner contends, for example, that Archer describes
`receiving a first call (by way of server processor 128) intended for a
`recipient (i.e. a subscriber of a telephone service) and that the server
`processor is in communication with tandem switches in the PSTN or in
`direct communication with gateway 126. Id. at 25 (citing Ex. 1003, 2:9–14,
`4:31–38, 7:33–39, 7:44–50, 8:50–58, Fig. 5; Ex. 1002 ¶¶ 138–139).
`Claim 18 further recites “identifying one or more control criteria
`previously associated with the specified recipient, wherein the one or more
`control criteria was entered via a web-based interface.” Petitioner asserts,
`for example, that Archer describes that server processor (128) executes
`software to identify one or more control criteria that are previously
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`associated with the specified recipient (e.g. the called subscriber of a find
`me/follow me telephone service) by such software extracting subscriber
`identification information (e.g. subscriber’s called telephone number) from
`the digital packets communicated from gateway (126) and querying database
`(138) to retrieve the subscriber’s previously setup control criteria. Id. at 27
`(citing Ex. 1003, Figs. 4, 5, 4:37–47, 6:33–38, 6:48–62, 7:33–37, 8:57–67;
`Ex. 1002 ¶¶ 147–148). Petitioner further contends, for example, that Chang
`describes a subscriber’s personal computer running common web browser
`software to obtain a graphical user interface, preferably an Internet web page
`over the Internet from Secure Access Platform. Chang uses the interface,
`Petitioner asserts, to set criteria of various call features that are then stored in
`a database and used to control later implementation of telephone services in
`the PSTN. Id. at 31 (citing Ex. 1004, Fig.1, 4:45–58, 5:24–32, 6:22–27,
`11:30–54, 12:11–17, 12:64–13:28, 21:1–21; 1002 ¶¶ 166–171). Petitioner
`also provides a reason for combining Archer and Chang. Pet. 32.
`Claim 18 recites “initiating a second call at the controlling device in
`accordance with the control criteria associated with the specified recipient.”
`Petitioner asserts that Archer describes initiating a second call at the
`controlling device in accordance with control criteria associated with the
`recipient through Archer’s find me/follow me forwarding feature to reach
`the subscriber at one or more different locations. Id. at 36 (citing Ex. 1003,
`2:9–18, 2:45–49, 6:3–13, 6:63–67, 9:10–30, 8:63–9:9, Figs. 2, 4–6; Ex. 1002
`¶¶ 191–192).
`Claim 18 further recites “connecting the first and second calls at the
`controlling device after the second call is received by a communication
`device associated with the specified recipient.” Petitioner contends that
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`Archer meets the limitation in the form of software executing on server
`processor (128) initiating voice digitization and commencing the connection
`when server processor (128) receives a pickup notification from a
`subscriber’s communication device. Id. at 41 (citing Ex. 1003, Figs. 4, 5,
`9:30–37, 9:50–59, 7:14–21; Ex. 1002 ¶ 207).
`Independent claims 37, 45, and 46 are similar to claim 18. Petitioner
`has made a showing with respect to claims 37, 45, and 46 similar to its
`showing with respect to claim 18. See, e.g., Pet. 18–54. To the extent that
`claims 37, 45, and 46 are different from claim 18, Petitioner has accounted
`for such differences. We also have reviewed Petitioner’s showing with
`respect to dependent claims 21, 23, 25, 26, 28–31, 38, and 41.
` Patent Owner’s arguments are premised on its proposed narrow
`interpretation of “switching facility” and “in communication with.” Prelim.
`Resp. 48–56. At this juncture of the proceeding, and for reasons provided
`above, we have not adopted Patent Owner’s proposed interpretations.
`Accordingly, we are not persuaded by Patent Owner’s arguments.
`Based on the current record before us, we determine that there is a
`reasonable likelihood that Petitioner would prevail in establishing that
`claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41, 45, and 46 are unpatentable
`over Archer in combination with Chang and the Admitted Prior Art.
`
`C. Remaining Grounds Challenging the Claims of the ’777 Patent
`Pursuant to 35 U.S.C. § 316(b), rules for inter partes proceedings
`were promulgated to take into account the “regulation on the economy, the
`integrity of the patent system, the efficient administration of the Office, and
`the ability of the Office to timely complete proceedings.” The promulgated
`rules provide that they are to “be construed to secure the just, speedy, and
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`inexpensive resolution of every proceeding.” 37 C.F.R. § 42.1(b). As a
`result, and in determining whether to institute an inter partes review of a
`patent, the Board, in its discretion, may “deny some or all grounds for
`unpatentability for some or all of the challenged claims.” 37 C.F.R.
`§ 42.108(b).
`Based on the record before us, we exercise our discretion and decline
`to institute review based on any of the other asserted grounds advanced by
`Petitioner that are not identified below as being part of the trial. See, e.g.,
`37 C.F.R. § 42.108(a).
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented establishes a reasonable likelihood that Petitioner would prevail in
`showing that claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41, 45, and 46 of the
`’777 patent are unpatentable. At this preliminary stage, we have not made a
`final determination with respect to the patentability of the challenged claims
`or any underlying factual and legal issues.
`
`IV. ORDER
`
`Accordingly, it is:
`
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is hereby instituted as to claims 18, 21, 23, 25, 26, 28–31, 37, 38, 41,
`45, and 46 of the ’777 patent on the following grounds of unpatentability:
`References
`Basis
`Challenged Claims
`18, 21, 23, 25, 26,
`28–31, 37, 38, 41,
`45, and 46
`
`Archer, Chang, and the Admitted
`Prior Art
`
`§ 103(a)
`
`
`
`19
`
`
`
`IPR2016-01262
`Patent 7,764,777 B2
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial, which
`commences on the entry date of this decision; and
`FURTHER ORDERED that the trial is limited to the grounds
`identified immediately above, and no other ground is authorized.
`
`FOR PETITIONER:
`
`Patrick McPherson
`Christopher Tyson
`DUANE MORRIS LLP
`pdmcpherson@duanemorris.com
`cjtyson@duanemorris.com
`
`Wayne Stacy
`BAKER BOTTS L.L.P.
`wayne.stacy@bakerbotts.com
`
`FOR PATENT OWNER:
`
`Brent Bumgardner
`John Murphy
`NELSON BUMGARDNER, P.C.
`bbumgardner@nbclaw.net
`murphy@nelbum.com
`
`20