Trials@uspto.gov
`571-272-7822
`
`
`Paper 27
`Date: July 27, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`GUARDIAN ALLIANCE TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`TYLER MILLER,
`Patent Owner.
`____________________
`
`IPR2020-00031
`Patent 10,043,188 B2
`____________
`
`Before SALLY C. MEDLEY, DAVID C. MCKONE,
`and JOHN R. KENNY, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`DECISION
`Denying Petitioner’s Request on Rehearing of Decision on Institution
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`I.
`
`INTRODUCTION
`
`Guardian Alliance Technologies, Inc. (“Petitioner”) filed a Petition
`
`(Paper 1, “Pet.”) requesting inter partes review of claims 1, 5, 9, and 15 of
`
`U.S. Patent No. 10,043,188 B2 (Ex. 1001, “the ’188 patent”). Pet. 1. Tyler
`
`Miller (“Patent Owner”) filed a Preliminary Response (Paper 7, “Prelim.
`
`Resp.”). The Petition raised two grounds, the first based in part on the
`
`Background Solutions1 video and the second based in part on the POBITS2
`
`reference (Ex. 1004). Pet. 4. Upon consideration of the Petition and the
`
`Preliminary Response, as to the first ground, we determined that Petitioner
`
`had not shown sufficiently that Background Solutions was publicly
`
`accessible, and, thus, prior art to the ’188 patent. Paper 23 (“Dec.”), 9–17.
`
`As to the second ground, we determined that Petitioner had not shown
`
`sufficiently that POBITS was publicly accessible, and, thus, prior art to the
`
`’188 patent. Dec. 17–20.
`
`Petitioner asks us to reconsider our determinations that Background
`
`Solutions and POBITS were not publicly accessible and, thus, were not prior
`
`art to the ’188 patent. Paper 24 (“Req.”). For the reasons given below, we
`
`decline to modify our Decision.
`
`
`1 Petitioner submitted Exhibit 1002 as the Background Solutions video and
`subsequently moved to correct it through submission of a substitute video
`(Exhibit 1027), a motion that Patent Owner opposed. Papers 11 (Motion to
`Correct), 16 (Opposition). Concurrently, Patent Owner moved to terminate
`based on the incorrectly submitted Exhibit 1002. Papers 10 (Motion to
`Terminate), 12 (Opposition). We granted Petitioner’s Motion to Correct for
`the limited purpose of determining that Petitioner had not shown sufficiently
`that Exhibit 1027 was a printed publication and dismissed the Motion to
`Terminate as moot. Paper 23, 20.
`2 Peace Officer Background Investigation Tracking System (“POBITS”).
`
`2
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`Petitioner requested review by the Precedential Opinion Panel
`
`(“POP”). Req. 1; Ex. 3001. POP review was denied on June 16, 2020.
`
`Paper 26.
`
`
`
`A. Legal Background
`
`II. ANALYSIS
`
`When rehearing a decision on institution, we review the decision for
`
`an abuse of discretion. See 37 C.F.R. § 42.71(c) (2019). An abuse of
`
`discretion may be indicated if a decision is based on an erroneous
`
`interpretation of law, if a factual finding is not supported by substantial
`
`evidence, or if the decision represents an unreasonable judgment in weighing
`
`relevant factors. See Star Fruits S.N.C. v. U.S., 393 F.3d 1277, 1281
`
`(Fed. Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir.
`
`2004); In re Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). The
`
`burden of showing that the Institution Decision should be modified is on
`
`Petitioner, the party challenging the Decision. See 37 C.F.R. § 42.71(d)
`
`(2019). In addition, “[t]he request must specifically identify all matters the
`
`party believes [we] misapprehended or overlooked, and the place where each
`
`matter was previously addressed in a motion, an opposition, or a reply.” Id.
`
`Whether a reference qualifies as a “printed publication” is a legal
`
`conclusion based on underlying factual findings. See Nobel Biocare Servs.
`
`AG v. Instradent USA, Inc., 903 F.3d 1365, 1375 (Fed. Cir. 2018) (citing
`
`Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895 F.3d 1347, 1356 (Fed. Cir.
`
`2018)). The underlying factual findings include whether the reference was
`
`publicly accessible. See id. (citing In re NTP, Inc., 654 F.3d 1279, 1296
`
`(Fed. Cir. 2011)).
`
`3
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`“The determination of whether a reference is a ‘printed publication’
`
`under 35 U.S.C. § 102(b) involves a case-by-case inquiry into the facts and
`
`circumstances surrounding the reference’s disclosure to members of the
`
`public.” In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004).
`
`“Because there are many ways in which a reference may be disseminated to
`
`the interested public, ‘public accessibility’ has been called the touchstone in
`
`determining whether a reference constitutes a ‘printed publication’ bar under
`
`35 U.S.C. § 102(b).” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331,
`
`1348 (Fed. Cir. 2016) (quoting In re Hall, 781 F.2d 897, 898–99 (Fed. Cir.
`
`1986)). “A given reference is ‘publicly accessible’ upon a satisfactory
`
`showing that such document has been disseminated or otherwise made
`
`available to the extent that persons interested and ordinarily skilled in the
`
`subject matter or art exercising reasonable diligence, can locate it.” SRI
`
`Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008)
`
`(quoting Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378
`
`(Fed. Cir. 2006)).
`
`What constitutes a “printed publication” must be determined in light
`
`of the technology employed. See Samsung Elecs. Co. v. Infobridge Pte.
`
`Ltd., 929 F.3d 1363, 1369 (Fed. Cir. 2019) (citing In re Wyer, 655 F.2d 221,
`
`226 (CCPA 1981)). Public accessibility requires more than technical
`
`accessibility. See id. (citing Acceleration Bay, LLC v. Activision Blizzard
`
`Inc., 908 F.3d 765, 773 (Fed. Cir. 2018)). “[A] work is not publicly
`
`accessible if the only people who know how to find it are the ones who
`
`created it.” Id. at 1372. On the other hand, “a petitioner need not establish
`
`that specific persons actually accessed or received a work to show that the
`
`work was publicly accessible.” Id. at 1374. “In fact, a limited distribution
`
`can make a work publicly accessible under certain circumstances.”
`
`4
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`Id. (quoting GoPro, Inc. v. Contour IP Holding LLC, 908 F.3d 690, 694
`
`(Fed. Cir. 2018)).
`
`“To prevail in a final written decision in an inter partes review, the
`
`petitioner bears the burden of establishing by a preponderance of the
`
`evidence that a particular document is a printed publication.” Hulu, LLC v.
`
`Sound View Innovations, LLC, IPR2018-01039, Paper 29 at 11 (PTAB
`
`Dec. 20, 2019) (precedential). “[A]t the institution stage, the petition must
`
`identify, with particularity, evidence sufficient to establish a reasonable
`
`likelihood that the reference was publicly accessible before the critical date
`
`of the challenged patent and therefore that there is a reasonable likelihood
`
`that it qualifies as a printed publication.” Id. at 13.
`
`
`
`B. Printed Publication Status of Background Solutions and POBITS
`
`For Background Solutions, Petitioner relied primarily on the third-
`
`party testimony of Tom Ward, the founder and co-owner of Background
`
`Solutions, LLC, to argue that Mr. Ward presented the Background Solutions
`
`video at national background investigation seminars and made the video
`
`available on a website, all prior to the critical date of the ’188 patent.
`
`Pet. 18–24; Ex. 1009 (Ward Declaration). We found that Mr. Ward
`
`provided “vague and conclusory” testimony that lacked basic details such as
`
`“how many such seminars he presented at, when or where those seminars
`
`were, who attended the seminars, or who watched the 2009 Video at the
`
`seminars.” Dec. 11–13. As to availability of Background Solutions on a
`
`website, we found that Petitioner’s evidence, including Mr. Ward’s
`
`testimony, did not show when Background Solutions was posted to the
`
`website, did not explain whether and how the website was indexed, and did
`
`5
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`not provide any other information on how a skilled artisan would have
`
`located the reference. Id. at 13–17.
`
`As to POBITS, Petitioner relied primarily on the third party testimony
`
`of Kingsley Klosson (Ex. 1014) and an Internet Archive capture (Ex. 1004)
`
`to argue that POBITS was available on an Internet website prior to the
`
`critical date of the ’188 patent. Pet. 24. We found that, even if we credited
`
`Mr. Klosson’s testimony, it did not allege enough facts to conclude that
`
`POBITS was publicly accessible. Dec. 17–19.
`
`Petitioner’s Request for Rehearing is based on four alleged mistakes:
`
`(1) we overlooked or misapprehended the standard for instituting an inter
`
`partes review when a petitioner relies on “non-traditional, electronic
`
`publications”; (2) we overlooked or misapprehended the difficulties
`
`involved in obtaining evidence from third parties at the institution stage;
`
`(3) because we did not resolve the parties’ dispute as to the level of skill in
`
`the art, we misapprehended the significance of the third party witness
`
`testimony; and (4) we misapplied or misapprehended the level of proof
`
`necessary, at the institution stage, to show the public accessibility of a
`
`document on a public website. Req. 1–2.
`
`
`
`1. Non-Traditional Electronic Publications and the Difficulties of
`Obtaining Third-Party Evidence
`
`Petitioner’s first two allegations, that we misapprehended the
`
`institution standard for non-traditional, electronic publications and the
`
`difficulties of obtaining third-party evidence pre-institution, are related. In
`
`short, Petitioner argues that we held its primary evidence of the public
`
`accessibility of Background Solutions and POBITS, third-party declarations,
`
`to an incorrectly high standard.
`
`6
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`Petitioner contends that we did not recognize the “inherent
`
`difficulties” petitioners face in establishing the printed publication status of
`
`“non-traditional, electronic publications.” Req. 3–4. Petitioner argues that
`
`Hulu addressed the “relative simplicity” of establishing a book housed in a
`
`library as publicly accessible but did not address the “added difficulties
`
`involved with non-traditional, electronic publications.” Id. at 4–5 (citing
`
`Hulu, at 2–4). According to Petitioner, parties in its position face
`
`disadvantages such as the absence of hard copies on library shelves, lack of
`
`librarians ready to testify, and difficulties of obtaining the voluntary
`
`cooperation of third-party witnesses. Id. at 5–6. Petitioner argues that we
`
`abused our discretion by effectively holding Petitioner to a preponderance of
`
`the evidence standard at the institution stage. Id. at 6–7. Petitioner contends
`
`that its third-party witness testimony is “strong indicia” of public
`
`accessibility that meets the “totality of the evidence” standard set forth in
`
`Hulu. Id. at 7.
`
`We are not persuaded. Although we are sympathetic to the difficulties
`
`a party might encounter in obtaining the cooperation of third parties while
`
`drafting a petition, the Statute and our Rules require a petitioner to set forth
`
`its case with particularity in the petition and to support that case with
`
`evidence. See 35 U.S.C. § 312(a)(3) (“A petition filed under section 311
`
`may be considered only if— . . . (3) the petition identifies, in writing and
`
`with particularity, each claim challenged, the grounds on which the
`
`challenge to each claim is based, and the evidence that supports the grounds
`
`for the challenge to each claim, including— . . . (B) affidavits or
`
`declarations of supporting evidence . . . .” (emphasis added)); 37 C.F.R.
`
`§ 42.104 (b). Hulu does not distinguish between “traditional” publications,
`
`such as books in a library, and “non-traditional” publications. In the case of
`
`7
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`videos and websites, as well as books in a library, “at the institution stage,
`
`the petition must identify, with particularity, evidence sufficient to establish
`
`a reasonable likelihood that the reference was publicly accessible before the
`
`critical date of the challenged patent.” Hulu, at 13. According to the Hulu
`
`panel, this “is a higher standard than mere notice pleading, but . . . it is lower
`
`than the ‘preponderance’ standard to prevail in a final written decision.” Id.
`
`This is the standard to which we held Petitioner’s evidence. Dec. 12–20.
`
`It is the “particularity” required by Hulu that the Petition lacks. As we
`
`explained in the Decision, neither Petitioner nor Mr. Ward provided enough
`
`specificity to determine when Background Solutions was presented at
`
`seminars, when those seminars occurred, or who attended the seminars.
`
`Dec. 17. Thus, there is no persuasive evidence presented now from which
`
`we might later conclude that Background Solutions was publicly accessible
`
`by virtue of its display at seminars. Similarly, neither third-party witness
`
`provides any particularity as to how a skilled artisan would have located
`
`Background Solutions or POBITS on public websites. Id. at 17–19.
`
`Petitioner contends that we “fail[ed] to recognize the serious
`
`differences” between developing a record at trial and making a showing in a
`
`Petition prior to institution. Req. 8. Petitioner argues that we should
`
`consider not only the evidence presented in the Petition but also evidence
`
`that may come out at trial. Id. at 8–9. Petitioner notes that the Board
`
`regularly grants motions to submit supplemental information under 37
`
`C.F.R. § 42.123. Id. at 9. Indeed, Hulu recognizes that a petitioner may
`
`submit rebuttal evidence in a reply and move to submit supplemental
`
`information under Rule 42.123. Hulu, at 7–8. Petitioner argues that we
`
`erred by failing to consider what evidence Petitioner likely would have
`
`developed at trial. Req. 10.
`
`8
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`As to the third-party declarations in particular, Petitioner’s argument
`
`essentially is that it obtained the evidence that it could from Mr. Ward and
`
`Mr. Klosson and believes that they would provide more specific testimony if
`
`compelled during trial. Req. 10–12. As to Mr. Ward’s testimony, Petitioner
`
`argues that, although “informed” by Petitioner’s counsel, this testimony was
`
`produced voluntarily and uncompelled. Id. at 10. According to Petitioner,
`
`“Mr. Ward did not feel compelled to find, provide, or otherwise refresh his
`
`recollection about specific information requested by Guardian’s counsel.”
`
`Id. Petitioner argues that the same is true for Mr. Klosson’s testimony.
`
`Id. at 11 (“The same argument applies to the Board’s criticisms of
`
`Mr. Klosson’s Declaration. He is a third party with no duty or obligation to
`
`incur the time or expense of voluntarily cooperating with Guardian.”).
`
`Petitioner misapprehends the role of rebuttal evidence and
`
`supplemental information. As Hulu notes, rebuttal evidence must respond to
`
`arguments raised by Patent Owner, rather than be evidence necessary to
`
`make Petitioner’s prima facie case. Hulu, at 7 (citing 37 C.F.R. § 42.23).
`
`The evidence Petitioner presents in the Petition does not make a prima facie
`
`case of public accessibility. For example, Mr. Ward does not testify that he
`
`presented Background Solutions to anyone in any context prior to the critical
`
`date of the ’188 patent. Even if we fully credit all of Mr. Ward’s testimony,
`
`it is not sufficient to make Petitioner’s prima facie case. Petitioner does not
`
`cite any authority for the proposition that it can simply allege public
`
`accessibility and later support those allegations with supplemental
`
`information adduced in a trial. That is akin to the “mere notice pleading”
`
`that Hulu confirms is insufficient for institution of a trial. Hulu, at 13.
`
`Petitioner did not, in the Petition, present persuasive evidence that
`
`would lead us to believe that additional favorable evidence likely would be
`
`9
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`uncovered through the discovery process. In fact, the Request confirms that
`
`the Petition presents no more than bare allegations of the public accessibility
`
`of Background Solutions and POBITS along with the hope that discovery in
`
`a trial would reveal evidence sufficient to prove those allegations. Pet. 19–
`
`24. For example, Petitioner “believes that once Mr. Ward and his company,
`
`Background Solutions, are compelled to gather and produce evidence,
`
`Mr. Ward will be able to specifically testify as to ‘when or where the
`
`seminars occurred or who attended them’ and the specific date by which the
`
`2009 Video was posted on Background Solutions’ website.” Req. 11;
`
`see also id. (“The same argument applies to the Board’s criticisms of
`
`Mr. Klosson’s Declaration. He is a third party with no duty or obligation to
`
`incur the time or expense of voluntarily cooperating with [Petitioner].”).
`
`Yet, the Petition presents no persuasive evidence indicating what it expects
`
`to uncover and why. Petitioner’s mere belief that Mr. Ward and
`
`Mr. Klosson will testify favorably in the future is more akin to notice
`
`pleading, rather than the “particularity” required by Hulu.
`
`Thus, we did not apply an incorrect evidentiary standard at institution
`
`or misapprehend Hulu’s application to so-called “non-traditional”
`
`references.
`
`
`
`2. Level of Skill in the Art
`
`Petitioner argues that if we had resolved the level of skill correctly in
`
`our Decision, we would have concluded that the seminars at which
`
`Mr. Ward presented were attended by skilled artisans and, thus, that there is
`
`a reasonable likelihood that Background Solutions was publicly accessible.
`
`Req. 12–14.
`
`10
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`In the Petition, citing to the Declarations of Mr. Ward and
`
`Mr. Klosson, Petitioner argued that a skilled artisan “would have had at least
`
`a high school degree, or equivalent thereof, and at least one to three years of
`
`experience in the relevant field, which includes background investigation
`
`methods, systems, and technologies.” Pet. 5–6 (citing Exs. 1009, 1014).
`
`Petitioner argued that “Mr. Ward’s presentation and demonstration of the
`
`Background Solutions video to a national conference of background
`
`investigators, i.e. those interested and skilled in the subject matter, qualifies
`
`it as a printed publication.” Id. at 20–21. Patent Owner argued that “a
`
`police officer isn’t the typical [person of ordinary skill in the art] that
`
`produces ‘web based software applications,’” and that we should “adopt[] a
`
`level of skill appropriate for the software industry.” Prelim. Resp. 7.3 In the
`
`context of Background Solutions, we declined to resolve this dispute
`
`because Mr. Ward does not testify as to who attended the unidentified “law
`
`enforcement and background investigation seminars” at which he presented
`
`Background Solutions to “seminar attendees.” Dec. 13 n.4; Ex. 1009 ¶¶ 7–
`
`9.
`
`Petitioner argues that if we had resolved the level of skill in its favor,
`
`we would have understood the Declarations of Mr. Ward and Mr. Klosson
`
`differently (and more favorably to Petitioner). Req. 12–14. Specifically,
`
`
`3 Petitioner now states that “skilled artisans for the ’188 patent include law
`enforcement officers (like Messrs. Ward, Klosson, and Miller).” Req. 14. It
`is unclear whether Petitioner is now advocating for a lower level of skill
`(law enforcement officers), or arguing that some law enforcement officers
`might have higher levels of skill (e.g., a law enforcement officer who also is
`a background investigator with at least one to three years of experience in
`background investigation methods, systems, and technologies). Pet. 5–6,
`20–21; Req. 14.
`
`11
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`Petitioner argues that “Mr. Ward’s Declaration refers to ‘law enforcement
`
`and background investigation seminars,’ not general law enforcement
`
`seminars,” and that Petitioner “understood Mr. Ward to be testifying that
`
`those attending the seminars where he presented the 2009 Video had
`
`backgrounds in law enforcement and/or background investigation.” Id. at
`
`12–13. According to Petitioner, we were misled by Patent Owner’s
`
`arguments and, as a result, misunderstood that these seminars were no more
`
`than trade shows attended by police officers. Id. at 13 (citing Prelim. Resp.
`
`7). Nevertheless, Petitioner argues, “[e]ven if the conferences were ‘nothing
`
`more than trade shows,’ [Petitioner] still believes that the evidence shows
`
`that police officers are skilled artisans in the context of the ’188 patent.” Id.
`
`Petitioner argues that if we “had at least considered [Petitioner’s] position
`
`that skilled artisans for the ’188 patent include law enforcement officers
`
`(like Messrs. Ward, Klosson, and Miller), then suddenly Mr. Ward’s
`
`testimony about presenting the 2009 Video at seminars for law enforcement
`
`(as well as background investigators) becomes all the more complete.” Id. at
`
`14.
`
`Petitioner misunderstands our determination. We did not implicitly
`
`adopt a level of skill requiring software industry experience and determine
`
`that only police officers attended the law enforcement and background
`
`investigation seminars at which Mr. Ward presented. We determined that
`
`the evidence did not support a finding that skilled artisans attended the
`
`seminars under any statement of the level of skill because Mr. Ward
`
`provided no information about who attended. Dec. 13 & n.4. Petitioner did
`
`not argue, in the Petition, that we should infer a level of skill of the attendees
`
`based on Mr. Ward’s statement that he had presented at “law enforcement
`
`and background investigation seminars.” Ex. 1009 ¶ 9. Thus, we could not
`
`12
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`have overlooked such an argument. In any case, it would not have been
`
`persuasive, because Mr. Ward’s vague statement does not imply any specific
`
`backgrounds for seminar attendees.
`
`Moreover, even if Mr. Ward had been specific about the backgrounds
`
`of the attendees, he still did not testify that he presented at any seminar prior
`
`to the critical date of the ’188 patent. Dec. 13. Thus, even if we were to
`
`accept Petitioner’s new argument, Petitioner still has not presented sufficient
`
`evidence of public accessibility of Background Solutions.
`
`
`
`3. Public Accessibility of a Document Posted to a Website
`
`Petitioner contends that the 2010 copyright date on the face of
`
`POBITS, along with Mr. Klosson’s testimony that he authored and uploaded
`
`POBITS onto his company’s website by the end of 2010, is enough to show
`
`a reasonable likelihood that POBITS was publicly accessible prior to the
`
`critical date of the ’188 patent. Req. 15. In the Decision, we determined
`
`that, even if we credit Mr. Klosson’s testimony fully, simply showing that a
`
`reference was posted to an Internet website is not enough to show public
`
`accessibility by skilled artisans. Dec. 18–20 (citing Blue Calypso, 815 F.3d
`
`at 1349–50); see also Samsung, 929 F.3d at 1369 (“[W]hile indexing is not
`
`required to show that a work is publicly accessible, some evidence that a
`
`person of ordinary skill could have reasonably found the website and then
`
`found the reference on that website is critical.”).
`
`Petitioner now argues that MPEP4 § 2128(II)(B) sets forth the
`
`standard for determining public accessibility of a document posted to a
`
`
`4 Manual of Patent Examining Procedure (“MPEP”).
`
`13
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`website. Req. 14–15. Petitioner did not make this argument in the Petition.
`
`Thus, we could not have overlooked it. Nevertheless, it is not persuasive.
`
`MPEP § 2128(II)(B) provides: “Prior art disclosures on the Internet
`
`or on an online database are considered to be publicly available as of the
`
`date the item was publicly posted.”5 We discussed in the Decision, both for
`
`Background Solutions and POBITS, why, under Federal Circuit law, simply
`
`showing that a document was posted on the Internet is not sufficient to show
`
`that the document was publicly accessible. Dec. 13–20. We do not read the
`
`MPEP as inconsistent with Federal Circuit law. Indeed, MPEP
`
`§ 2128(II)(B) expressly references § 2128(I), which makes clear that a
`
`reference is not shown to be publicly accessible in the absence of a showing
`
`that it was made available to the extent that skilled artisans, exercising
`
`reasonable diligence, could have located it. See MPEP § 2128(I) (citing In
`
`re Wyer, 655 F.2d 221 (CCPA 1981)); see also MPEP § 2128(II)(A) (“An
`
`electronic publication, including an online database or Internet publication
`
`(e.g., discussion group, forum, digital video, and social media post), is
`
`considered to be a ‘printed publication’ within the meaning of 35 U.S.C.
`
`102(a)(1) and pre-AIA 35 U.S.C. 102(a) and (b) provided the publication
`
`was accessible to persons concerned with the art to which the document
`
`relates.” (citing Wyer, 655 F.2d at 227)). Thus, MPEP § 2128(II)(B)
`
`provides guidance on the date a reference will be given during examination,
`
`provided that it is shown to be publicly accessible. It does not purport to
`
`provide the underlying standard for showing whether a reference was
`
`accessible to the relevant public.
`
`
`5 Petitioner appears to cite to the current version of the MPEP. However, the
`8th edition, Revision 8, of MPEP § 2128, in force on April 6, 2012, provides
`similar discussion of public accessibility.
`
`14
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`Petitioner also cites to several Board decisions that it contends
`
`contradict our institution decision. Req. 3–4, 14. Petitioner did not cite
`
`these cases in the Petition or argue their relevance. Pet. 18–24. Thus, we
`
`could not have misapprehended or overlooked them. In any case, these
`
`cases are non-precedential and were decided before Hulu. Our Decision
`
`considered Petitioner’s evidence in light of the standards set forth in Hulu
`
`and Federal Circuit precedent. Petitioner does not persuade us that we
`
`misunderstood or misapplied the law.
`
`
`
`III. CONCLUSION
`
`For the foregoing reasons, Petitioner has not demonstrated that we
`
`misapprehended or overlooked its arguments or abused our discretion in
`
`denying the Petition.
`
`
`
`IV. ORDER
`
`In consideration of the foregoing, it is hereby:
`
`ORDERED Petitioner’s Request for Rehearing is denied.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`15
`
`

`

`IPR2020-00031
`Patent 10,043,188 B2
`
`
`
`FOR PETITIONER:
`
`Jordan Sigale
`Douglas Sorocco
`DUNLAP CODDING, P.C.
`jsigale@dunlapcodding.com
`dsorocco@dunlapcodding.com
`
`
`FOR PATENT OWNER:
`
`Richard McLeod
`MCLEOD LAW LLC
`law@rickmcleod.com
`
`Kurt Rylander
`RYLANDER & ASSOCIATES PC
`Rylander@rylanderlaw.com
`
`16
`
`