• Unified Patents Inc. v. American Patents LLCAll claims unpatentable
  PTAB · Aug 3, 2022 · IPR2019-00482 · APJ Juliet Mitchell Dirba · IPR · Final written decision

  Claims 5–7 are unpatentable as obvious over the asserted combinations of Coile, Templin, Hu, and Shapiro.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Petitioner’s proposal (unopposed by Patent Owner) is consistent with the ’655 patent specification and the asserted prior art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978). 7 The record does not include allegations or evidence of objective indicia of nonobviousness. Accordingly, we adopt the level of ordinary skill as articulated by Petitioner. Accord Inst. Dec. 22 (adopting same position).” slip op. at 8

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner

    “phrases, but rather assumes that a person of skill in the art would understand their meaning. See Phillips, 415 F.3d at 1313 (“[I]nventors are typically persons skilled in the field of the invention[,] and [] patents are addressed to and intended to be read by others of skill in the pertinent art.”). The Specification states a machine “shares its identity” with a user and “[a]s a 8 Although Patent Owner addressed claim construction at the oral hearing (see generally Tr. 42:20–56:15), Patent Owner did not do so in its briefs (see PO Resp. 12–13 n.5). The oral hearing arguments were untimely and will not be considered. See Consolidated Trial Practice Guide (Nov. 2019) (“Consolidated TPG”), 85–86, available at https://www.uspto.gov/sites/ default/files/documents/tpgnov.pdf (“During an oral hearing, a party . . . may only present arguments relied upon in the papers previously submitted.”); Paper 28 at 7 (Scheduling Order) (“Patent Owner is cautioned that any arguments for patentability not raised in the response may be deemed waived.”); see also Tr. 88:5–15 (Petitioner objecting to new arguments). consequence, the authorized user assumes the identity of the machine and appears to the network as if it were that machine.” Ex. 1001, 2:31–34. “[T]he end user assumes the identity of the [machine] such that the connected end user has all of the access privileges assigned to the [machine].” Id. at 3:19–21. The Specification implies that multiple users can assume the identity of the same machine (id. at 2:34–36), and the Specification explains “the network resources do not worry about the true identity of the end user” after the user assumes the identity of the machine (id. at 4:33–34). Dr. Reddy testifies that, “[b]ased on this disclosure, a [person of ordinary skill in the art] would have understood the phrases ‘assume the identity’ of a machine and ‘assuming the identity’ of a machine to include at least ‘appear[ing] to the network as if it were’ that machine.” Ex. 1003 ¶¶ 46–47 (last alteration in original). On this record, we credit the testimony of Dr. Reddy because it is consistent with and supported by the Specification. Accordingly, we conclude the claimed phrase “assume the identity of a network element” means “appear to the network as if it were the network element,” and similarly, we conclude “assuming the identity of a network element” means “appearing to the network as if it were the network element.”” slip op. at 10

  • Claim Construction › Intrinsic evidence (Phillips canons) › Preamble limiting or notPreamble not limitingDecided for petitioner

    “a. Independent Claim 5 Claim 5 recites “[a] method comprising . . . .” Ex. 1001, 5:30. We conclude that this preamble is not limiting. See Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1346 (Fed. Cir. 2002) (“Generally, the preamble does not limit the claims.”). But, even if the preamble were limiting, Petitioner has shown that Coile discloses a method, as recited. Pet. 15 (citing Ex. 1004, 1:16–17).” slip op. at 19

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable

    “on the server via a proxy after successfully authenticating with the proxy. E.g., Ex. 1004, 1:36–47, 2:16–38, 2:44–49. According to Dr. Reddy, a person skilled in the art would have understood Coile’s client to use the proxy’s authorization to access these network resources. Ex. 1003 ¶ 77. In addition, Templin teaches that host A communicates with host C using gateway B and its address. Ex. 1005, 8:37–54. Templin’s host C “believ[es] it is communicating with a ‘host’” and “never learns of the existence of host A.” Id. at 8:44–46. Dr. Reddy explains that Templin teaches that host A “assume[s] the identity” of gateway B, as required by claim 5, because host A appears to the network (including, for example, host C) as if it were gateway B. Ex. 1003 ¶¶ 78–82; see supra § II.B.3 (construing “assume the identity of a network element” to mean “appear to the network as if it were the network element”). Patent Owner has not identified any evidence that contradicts this testimony, and we find Dr. Reddy’s testimony to be credible. Further, Patent Owner has not identified any deficiencies in Petitioner’s rationale. Accordingly, we are persuaded that the combination of Coile and Templin discloses these limitations. Finally, Petitioner asserts that a person of ordinary skill in the art would have been motivated to combine these references as proposed (Pet. 25–26), and Patent Owner has not argued otherwise. Dr. Reddy testifies that a person of ordinary skill in the art would have been motivated to combine the identified portions of Coile and Templin to yield the claimed invention, and Dr. Reddy explains the facts and rationale on which this testimony is based. Ex. 1003 ¶¶ 83–86. We find Dr. Reddy’s testimony to be credible, and we perceive no evidence that contradicts this testimony. Further, Petitioner’s rationale for combining the teachings of Coile and Templin is logical, consistent with, and supported by the cited evidence. Accordingly, we are persuaded that a person of ordinary skill in the art would have been motivated to combine Coile and Templin as proposed by Petitioner. For the foregoing reasons, Petitioner has proved by a preponderance of the evidence that claim 5 would have been obvious over Coile and Templin.” slip op. at 25

  Patent outcomesUS 7,373,655 unpatentable
  Claim construction§ 103 obviousnesscites Markman · KSR · Graham
  Patents in suitUS 7,373,655
• U.D. Electronic Corp. v. Pulse Electronics, Inc.All claims unpatentable
  PTAB · Jul 22, 2020 · IPR2019-00511 · APJ Kevin F Turner · IPR · Final written decision

  Claims 1, 3–9, and 11–16 are unpatentable; the motion to amend is denied for substitute claims 17, 20, and 21 as indefinite and granted for claims 18, 19, 22, and 23.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “B. Level of Ordinary Skill in the Art Petitioner states that a person of ordinary skill in the relevant art in of the ’302 Patent would have had a bachelor’s degree in electrical engineering, or mechanical engineering, with two or more years of experience designing connectors with EMI shielding. Pet. 24 (citing Ex. 1006 ¶¶ 55–58). Patent Owner’s definition of a person of ordinary skill in the relevant art is largely the same, urging a similar amount of education and experience, detailing “at least one year of experience with electrical connectors having internal electronic components, or at least two years’ experience with designing electrical connectors having internal electronic components.” Prelim. Resp. 18 (citing Ex. 2002 ¶ 27). We determined previously that the proffered definitions were largely the same and we determined them to be appropriate for the technology addressed by this proceeding. Inst. Dec. 7. Patent Owner subsequently agreed that “there are not meaningful differences between the parties’ definitions of a POSITA for purposes of this proceeding.” PO Resp. 9–10. We continue to adopt Petitioner’s definition for purposes of this decision.” slip op. at 10

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed petitioner constructionDecided for petitioner

    “After review of the proffered arguments, we remain persuaded that Petitioner’s construction is consistent with the plain and ordinary meaning in the context of the ’302 Patent. Patent Owner cites to multiple cases regarding the use of embodiments of the invention set forth in the specification to interpret limitations, despite claim language that could be interpreted more broadly. PO Resp. 16–18; PO Sur-reply 8–10 (citing Toro Co. v. White Consol. Indus., Inc., 199 F.3d 1295, 1301–02 (Fed. Cir. 1999); Gen. Am. Transp. Corp. v. Cryo–Trans, Inc., 93 F.3d 766, 770 (Fed. Cir. 1996); Modine Mfg. Co. v. U.S. Int’l Trade Comm’n, 75 F.3d 1545, 1550–51 (Fed. Cir. 1996)). We determine that the portions of the specification cited by Patent Owner are not express or implied definitions of the term “effectively curved portion.” See Phillips at 1321 (the specification “acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication”). Patent Owner continues that “the only embodiments disclosed in the ’302 Patent have the substrates positioned substantially orthogonal and substantially vertical to the face of the housing,” and “the run of the conductors must make an approximately 90° change in direction to provide an electrical interconnection.” Id. at 18. Such arguments and case law would be pertinent if we interpreted claim 1, for example, as requiring substrates to not be orthogonal or if we required the “effectively curved portion” to not result in a 90° change in direction. We do not interpret claim 1 that way, so Patent Owner’s arguments are not persuasive. disclosure into a claim that does not recite such requirements. It is improper to add a limitation appearing in the specification and the drawings, but not appearing in the unambiguous language of a claim. See Gart v. Logitech, Inc., 254 F.3d 1334, 1343 (Fed. Cir. 2001). This is particularly true where the specification does not define the term at issue to include that additional limitation or otherwise include language requiring it. Claims 1–3, 7, 9, and 13–16 recite, in part, that the first conductors include an “effectively curved portion,” and each claim recites that limitation unambiguously. Although we acknowledge the varying embodiments disclosed in the ’302 Patent, we are persuaded that confining the “effectively curved portion” to be “approximately 90º” is overly narrow. We continue to determine that adopting Patent Owner’s construction would unduly limit the cited claims, i.e., claims 1–3, 7, 9, and 13–16, by importing limitations that are not part of the claims. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). As such, we continue to determine that “effectively curved portion” should be construed as any form of bend of the first conductors.” slip op. at 15

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundDecided for petitioner

    “unpersuasive because the unfiltered connector of Hughes does not disclose an internal board, and that any combination of Kan with Hughes would result, at most, in the “second conductors,” but not the “first conductors,” being bent so that the internal conductors mate with the internal substrate. PO Resp. 43 (citing Ex. 2006 ¶¶ 124, 128). Patent Owner additionally asserts that the reorientation envisioned by the combination would add to material costs, reduce performance due to longer conductor runs, necessitate additional alterations, and provide no space savings or advantage. Id. at 43– 44 (citing Ex. 2006 ¶¶ 122, 129). Petitioner responds that the rationale for combining Kan and Hughes merely involves a design choice, and would apply a known technique to a known device to yield predictable results in an improved system. Pet. Reply 19–20 (citing KSR, 550 U.S. at 415–421). We agree with Petitioner. “The test for obviousness is not whether the features primary reference. . . . Rather, the test is what the combined teachings of those references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). Any modification of a prior art device will result in changes thereto, as a matter of course; the question, rather, is whether there existed sufficient motivation for a person of ordinary skill to make the proposed modifications in light of the evidence of record. We find that Petitioner’s evidence of the benefits resulting from the combination, i.e., saving space for the connector assembly and reorienting the plug-receiving opening for insertion of a connector plug in accordance with the desired implementation based on where the housing is mounted, provide sufficient motivation to make these changes, and that Patent Owner’s arguments about the materials costs and possible reduced performance are insufficient to defeat the evidence of motivation to combine.” slip op. at 35

  • Obviousness (§103) › Motivation to combine / reasonable expectation of success › Teaching awayTeaching away not foundDecided for petitioner

    “Kan is the product of impermissible hindsight, and the combination would change the basic principles of operation of the connectors for which they were designed. PO Resp. 45–47. Patent Owner argues that “Hughes was designed to operate by mounting to an external circuit board, and Kan was designed to operate by engaging a circuit board inside of the housing,” and their combination would render Kan unfit for its intended purpose of supporting a compact size. Id. at 46–47. We do not agree. Mr. Baxter has acknowledged that Hughes and Kan are analogous technologies directed to the common problem in the art of incorporating a circuit board with a connector so that it may offer additional functions. See Ex. 2006, ¶¶ 145– 148. We disagree that the combination of Kan and Hughes would change combination of Kan and Hughes would not be the same as the individual connectors, and we are not persuaded that the size of Kan would need to be increased such that it would be unfit for its intended purposes. As such, we do not determine Patent Owner’s argument to be persuasive.” slip op. at 36

  Patent outcomesUS 6,773,302 unpatentable
  Claim construction§ 102 anticipation§ 103 obviousness§ 112 disclosurecites Phillips · Graham · Nautilus
  Patents in suitUS 6,773,302
• F5 Networks, Inc. v. Radware, Ltd.Some claims unpatentable
  PTAB · Apr 23, 2018 · IPR2017-00124 · APJ David C Mckone · IPR · Final written decision

  Claims 1, 2, 4, 6–15, 17, and 19–24 are unpatentable; claims 5 and 18 are not. Substitute claim 29 is allowed, while claims 25–28 are denied for lack of written-description support.

  RulingsFinal written decision

  • BurdenFwd mixedMixed

    “V.CONCLUSION Petitioner has proved by a preponderance of the evidence that claims 1, 2, 4, 6–15, 17, and 19–24 are unpatentable, but not claims 5 and 18. We grant Patent Owner’s Motion to Amend to replace claim 13 with substitute claim 29, and deny the motion to replace claims 7, 8, 19, and 20 with substitute claims 25–28. Patent Owner’s Motion to Exclude is denied. VI. ORDER For the reasons given, it is: ORDERED, based on a preponderance of the evidence, that claims 1, 2, 4, 6–15, 17, and 19–24 are unpatentable; FURTHER ORDERED, based on a preponderance of the evidence,” slip op. at 69

  • Expert testimonyPetitioner expert creditedPatent owner expert discountedOther

    “were associated with ranges of IP addresses and, thus, “[o]ne of ordinary skill would have understood that modifying the source IP address of an outgoing packet to match an external IP address corresponding to the selected ISP WAN link necessarily entailed selecting an IP address from a range of IP addresses associated with that ISP.” Pet. 33 (citing Ex. 1012 ¶¶ 167–173). Dr. A. Rubin, however, only testified that “[o]ne of ordinary skill in the art at the time of the invention would have understood that ISPs were typically associated with a range of IP addresses.” Ex. 1012 ¶ 172 (emphasis added). Although this might be sufficient to establish that an ISP in Veerina probably would have been associated with a range of IP addresses, it is not sufficient to show that such an ISP necessarily would have been associated with a range of IP addresses. Additional testimony of Dr. A. Rubin makes clear that he is speculating as to how Veerina’s system could have operated rather than how it necessarily must have operated: one of ordinary skill in the art at the time of the invention would have understood that modifying the source IP address of an outgoing packet to reflect an external IP address corresponding to the selected WAN Link for an ISP could involve selecting from a range of IP addresses associated with that ISP.” slip op. at 29

  • Skill levelSkill level patent owner adoptedDecided for patent owner

    “Patent Owner’s Declarant, Dr. Guerin, defines a person of ordinary skill in the art to have “at least a Bachelor of Science degree in computer science or computer engineer[ing] (or equivalent experience) with several years of experience in design and deployment of Internet networking technology,” and “several years of experience with the operation and management of Internet networking technology and systems as well.” Ex. 2010 ¶ 16. In the Institution Decision, we adopted Patent Owner’s definition of a skilled artisan. Dec. 12–13. Neither party challenges that determination, and we maintain it on the complete record.” slip op. at 37

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed patent owner constructionDecided for patent owner

    “Patent Owner contends that “weighted function of at least one of,” recited in claims 6, 9, and 21, means a “function in which one or more attributes is given a weight.” PO Resp. 9–10. Patent Owner argues that this is the construction given by a district court to “weighed function of at least one of,” a similar term appearing in a claim of a related patent. Id. at 9 (quoting Ex. 1011, 14–15). Petitioner contends that this term need not be construed, but does not oppose the district court construction or offer an alternative. Reply 2. For purposes of this decision, we adopt the district court construction. B. Anticipation by Veerina Petitioner argues that claims 1, 2, 4–9, 13–15, and 17–21 are” slip op. at 10

  Patent outcomesUS 9,231,853 mixed
  Claim construction§ 102 anticipation§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 9,231,853
• Sdi Technologies, Inc. v. Bose CorporationAll claims unpatentable
  PTAB · Jun 11, 2015 · IPR2014-00346 · APJ David C Mckone · IPR · Final written decision

  Claims 25, 26, 51–53, 55–62, 75, and 76 are unpatentable as obvious over WinAmp, Irman Web Pages, and Altec Lansing Manual.

  RulingsFinal written decision

  • PTAB / AIA Trials › §315(e) estoppelEstoppel does not applyDecided for patent owner

    “As Patent Owner points out (PO Estoppel Br. 2–3), under 35 U.S.C. § 318(b), a claim is not cancelled until all appeal rights have terminated. We are not persuaded by Petitioner’s argument that Rule 42.2 implicitly defines “adverse judgment” to be a final written decision. “Adverse judgment” is not defined expressly. However, its use in Rule 42.73(d)(3) (“the adverse judgment”) is best read as a reference to the earlier use of the term in 37 C.F.R. § 42.73(b), which states (b) A party may request judgment against itself at any time during a proceeding. Actions construed to be a request for adverse judgment include: (1) Disclaimer of the involved application or patent; (2) Cancellation or disclaimer of a claim such that the party has no remaining claim in the trial; (3) Concession of unpatentability or derivation of the contested subject matter; and (4) Abandonment of the contest. This is consistent with the Office’s comments to Rule 42.73(d)(3), which explains that a “patent owner whose claim is canceled is precluded from taking action inconsistent with the adverse judgment.” 77 Fed. Reg. at 48,614. Petitioner has not persuaded us that “adverse judgment” carries a broader meaning in subsection (d)(3) of Rule 42.73 than subsection (b) of the same Rule.” slip op. at 9

  • ExcludeMotion to exclude, grantedMotion to exclude, deniedGranted in part

    “requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” We recognize that “Testimony of a Witness with Knowledge,” such as an Internet Archive standard (or non-standard) affidavit, is one example of evidence that satisfies the authentication requirement. See FED. R. EVID. 901(b)(1). Nevertheless, there are other examples that suffice. Specifically, a document can be authenticated with evidence of “Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Rule 901(b)(4). Petitioner argues that Irman Web Pages includes such distinctive characteristics, including the Internet Archive logo and header at the top of the exhibit and an Internet Archive date-stamped URL affixed to the bottom of the exhibit. Opp. to Mot. to Exclude 5–6. Patent Owner does not dispute that Irman Web Pages is a true and correct copy of an Internet Archive record. Petitioner further argues (and we confirmed) that following the date-stamped Internet Archive URL verifies that the web page exists on Internet Archive’s servers. Id. at 7. Moreover, an answer to another Internet Archive frequently asked question explains how its time stamps correspond to its record keeping:” slip op. at 13

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner

    “We start with the ordinary meaning of “respond.” In the Decision on Institution, at 9, we considered a dictionary definition advanced by Patent Owner (cited to again in the PO Resp., at 12). According to WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1935 (unabridged 1993) (Ex. 2103), “respond” means, inter alia, “2 : to say something in return : make an answer” and “3 : to show some reaction to a force or stimulus . . . : react in response.” Patent Owner only cited to definition 2, “to say something in return : make an answer.” As the dictionary shows, however, the ordinary meaning also is broad enough to encompass definition 3, “to show some reaction to a force or stimulus . . . : react in response,” which corresponds to our preliminary construction.” slip op. at 18

  • Skill levelSkill level board ownOther

    “1. The Level of Ordinary Skill in the Art The declarants for Petitioner and Patent Owner essentially agree that a person of ordinary skill in the art would have had a bachelor’s degree in electrical engineering and several years (e.g., three years) of experience with audio systems. Compare Lippman Decl., Ex. 1017 ¶ 19, with Stevenson Decl., Ex. 2120 ¶ 21.” slip op. at 23

  Patent outcomesUS 8,364,295 unpatentable
  Claim construction§ 103 obviousnesscites Phillips
  Patents in suitUS 8,364,295
• Sdi Technologies, Inc. v. Bose CorporationAll claims unpatentable
  PTAB · Jun 11, 2015 · IPR2014-00343 · APJ David C Mckone · IPR · Final written decision

  Claims 25, 26, 52, 53, 55–61, and 75 are unpatentable as obvious over WinAmp, Irman Web Pages, and Altec Lansing Manual.

  RulingsFinal written decision

  • PTAB / AIA Trials › §315(e) estoppelEstoppel does not applyDecided for patent owner

    “Nevertheless, we agree with Patent Owner that Rule 42.73(d)(3) does not apply in this case, at least because Patent Owner’s appeal rights in IPR- 350 have not been exhausted. PO Estoppel Br. 1. As Patent Owner argues (PO Estoppel Br. 2), the Patent Office has explained in its discussion accompanying the Final Rule that Rule 42.73(d)(3) applies estoppel against a party whose claim has been cancelled and not merely held unpatentable: Section 42.73(d)(3) applies estoppel against a party whose claim was cancelled . . . . The rule is consistent with 35 U.S.C. 316(a)(4), as amended, and 326(a)(4), which require that the Office prescribe regulations establishing and governing the reviews and the relationship of such reviews to other proceedings under title 35. Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review of Patent Trial and Appeal Board Decisions, Discussion of Specific Rules, 77 Fed. Reg. 48,612, 48,625 (Aug. 14, 2012) (emphasis added); see also 77 Fed. Reg. at 48,614 (Differences Between the Final Rule and the Proposed Rule) (emphasis added): Further, the final rule tailors the provisions to provide that a patent applicant or patent owner whose claim is canceled is precluded from taking action inconsistent with the adverse judgment, including obtaining in any patent: (1) A claim that is not patentably distinct from the finally refused or cancelled claim[.] As Patent Owner points out (PO Estoppel Br. 2–3), under 35 U.S.C. § 318(b), a claim is not cancelled until all appeal rights have terminated. We are not persuaded by Petitioner’s argument that Rule 42.2 implicitly defines “adverse judgment” to be a final written decision. “Adverse judgment” is not defined expressly. However, its use in Rule 42.73(d)(3) (“the adverse judgment”) is best read as a reference to the earlier use of the term in 37 C.F.R. § 42.73(b), which states (b) A party may request judgment against itself at any time during a proceeding. Actions construed to be a request for adverse judgment include: (1) Disclaimer of the involved application or patent; (2) Cancellation or disclaimer of a claim such that the party has no remaining claim in the trial; (3) Concession of unpatentability or derivation of the contested subject matter; and (4) Abandonment of the contest. This is consistent with the Office’s comments to Rule 42.73(d)(3), which explains that a “patent owner whose claim is canceled is precluded from taking action inconsistent with the adverse judgment.” 77 Fed. Reg. at 48,614. Petitioner has not persuaded us that “adverse judgment” carries a broader meaning in subsection (d)(3) of Rule 42.73 than subsection (b) of the same Rule. Accordingly, Patent Owner is not estopped from raising, in this” slip op. at 8

  • ExcludeMotion to exclude, grantedMotion to exclude, deniedGranted in part

    “According to Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” We recognize that “Testimony of a Witness with Knowledge,” such as an Internet Archive standard (or non-standard) affidavit, is one example of evidence that satisfies the authentication requirement. See FED. R. EVID. 901(b)(1). Nevertheless, there are other examples that suffice. Specifically, a document can be authenticated with evidence of “Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Rule 901(b)(4). Petitioner argues that Irman Web Pages includes such distinctive characteristics, including the Internet Archive logo and header at the top of the exhibit and an Internet Archive date-stamped URL affixed to the bottom of the exhibit. Opp. to Mot. to Exclude 5–6. Patent Owner does not dispute that Irman Web Pages is a true and correct copy of an Internet Archive record. Petitioner further argues (and we confirmed) that following the date-stamped Internet Archive URL verifies that the web page exists on Internet Archive’s servers. Id. at 7. Moreover, an answer to another Internet Archive frequently asked question explains how its time stamps correspond to its record keeping: The Internet Archive assigns a URL to each archived page on its site in the format http://web.archive.org/web/[Year in yyyy][Month in mm][Day in dd][Time code in hh:mm:ss]/[Archived URL]. Thus, the Internet Archive URL http://web.archive.org/web/19970126045828/http://www.archiv e.org/ would be the URL for the record of the Internet Archive home page (http://www.archive.org/) archived on January 26, 1997, at 4:58 a.m. and 28 seconds (1997/01/26 at 04:58:28). Ex. 2121, 4 (brackets in original). Unless Internet Archive deviated from its normal practice in archiving Irman Web Pages, Irman Web Pages presumably was archived on May 8, 1999, the date indicated by the time stamp. Ex. 1010, 1. The archived document itself bears a 1998 copyright logo purportedly affixed by Evation.com, which is consistent with the time stamp added by Internet Archive. Id. at 3. Patent Owner does not dispute that Irman Web Pages is an authentic copy of an Evation.com web site archived, at some point, by Internet Archive. The issue is whether it was archived on May 8, 1999 (and prior to the filing date of the ’682 patent). Consistent with our finding in the IPR- 350 Final Written Decision, at 17–18, we find that the distinctive characteristics on Irman Web Pages, including the logo and time stamp from Internet Archive, in light of Internet Archive’s explanation of its record keeping, constitute evidence sufficient, under Rule 901(b)(4), to support a finding that Irman Web Pages is a copy of an Evation.com web page archived by Internet Archive on May 8, 1999. The fact that the Evation.com copyright date closely predates the Internet Archive time stamp is further evidence showing Irman Web Pages’ authenticity. Moreover, we find the evidence to be sufficient under Rule 901(b)(4) even in the absence of an affidavit under Rule 901(b)(1). Regarding hearsay, we conclude that the date-stamp in the Internet Archive URL is reliable. The reasoning in In re Epstein, 32 F.3d 1559 (Fed. Cir. 1994), is instructive. In that case, the Federal Circuit analyzed whether certain abstracts of software containing statements of “release” and “first installation” dates, statements that constituted hearsay, evidenced dates of public use. Id. at 1565. The Federal Circuit acknowledged that the Board, in an ex parte appeal, is not bound by the Federal Rules of Evidence. Id. at 1565–66. Nevertheless, the Federal Circuit took a common-sense approach to evaluating whether the statements in the abstracts were reliable and trustworthy, the issue at the root of Patent Owner’s concerns regarding authenticity and hearsay. Id. Specifically, the Federal Circuit explained that “nothing on the face of the documents . . . suggests the information has been altered in any way,” and that to find the documents unreliable would be to assume that the authors had engaged in false or misleading advertising, an assumption that the Epstein court would not make. Id. at 1566. Rather, “because the abstracts appear on their face to be accurate and reliable, and because appellant has failed to proffer any evidence to support his arguments to the contrary, [the Federal Circuit] assume[d] the truthfulness of the various assertions in the abstracts.” Id. The facts introduced in this proceeding, considered as a whole, similarly indicate reliability. For example, as explained above, an answer to an Internet Archive frequently asked question shows that, according to Internet Archive’s regular business practices, the date stamp on an archived web page indicates the date and time on which such document was archived. Ex. 2121, 4. Patent Owner argued at length at the hearing that because Internet Archive relies on third-party web crawlers to collect documents to be archived, we cannot trust the date stamp applied by Internet Archive. See, e.g., Tr. 27:12–30:19. Patent Owner, however, has pointed to no evidence to suggest that third party web crawlers manipulate or misrepresent the dates on which they collect documents for archiving. Moreover, the archived Irman Web Pages document itself includes a copyright date of 1998. Ex. 1010, 3. This evidence is consistent with the subsequent date stamp applied by Internet Archive, giving us additional confidence that Internet Archive’s time stamp is reliable. As explained in the IPR-350 Final Written Decision, at 18, Patent Owner admits that nothing about Irman Web Pages itself suggests that the Internet Archive date stamp is unreliable. Patent Owner has echoed that admission in this proceeding. Tr. 37:15–23. In other words, there is no evidence that either Evation.com, the author of Irman Web pages, or a web crawler acting for Internet Archive misrepresented dates. After weighing all of the evidence, we find, by a preponderance of the evidence, that Irman Web Pages is sufficiently reliable to satisfy the residual exception to hearsay articulated in Federal Rule of Evidence 807. To qualify for the residual exception under Rule 807, four requirements must be met: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. FED. R. EVID. 807(a). As explained above, the Internet Archive’s date stamp, in light of the Evation.com copyright notice, has circumstantial guarantees of trustworthiness. The date stamp is offered as evidence of a material fact, i.e., a date on which Irman Web Pages was publicly available. The Internet Archive’s answers to frequently asked questions evidence Internet Archive’s practice of affixing a date stamp on each archived page indicating the date on which the page was archived. As explained in the IPR-350 Final Written Decision, a standard affidavit from Internet Archive likely would not have added materially to this information, confirming only that Irman Web Pages is one of its records, an issue not in dispute. Thus, the date stamp and other corroborating evidence likely are more probative on the point for which they are offered than any other evidence that the proponent could obtain through reasonable efforts. Finally, in consideration of the evidence showing reliability, and the lack of any evidence suggesting otherwise, we are persuaded that admitting Irman Web pages, and the Internet Archive date stamp, will best serve the purposes of the Federal Rules of Evidence and the interests of justice. Patent Owner’s request to exclude Irman Web Pages is denied.” slip op. at 13

  • Novelty / Anticipation (§102) › Prior-art status of a reference › Printed publication / public accessibilityPrinted publication establishedDecided for petitioner

    “Nevertheless, there are other examples that suffice. Specifically, a document can be authenticated with evidence of “Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Rule 901(b)(4). Petitioner argues that Irman Web Pages includes such distinctive characteristics, including the Internet Archive logo and header at the top of the exhibit and an Internet Archive date-stamped URL affixed to the bottom of the exhibit. Opp. to Mot. to Exclude 5–6. Patent Owner does not dispute that Irman Web Pages is a true and correct copy of an Internet Archive record. Petitioner further argues (and we confirmed) that following the date-stamped Internet Archive URL verifies that the web page exists on Internet Archive’s servers. Id. at 7. Moreover, an answer to another Internet Archive frequently asked question explains how its time stamps correspond to its record keeping: The Internet Archive assigns a URL to each archived page on its site in the format http://web.archive.org/web/[Year in yyyy][Month in mm][Day in dd][Time code in hh:mm:ss]/[Archived URL]. Thus, the Internet Archive URL http://web.archive.org/web/19970126045828/http://www.archiv e.org/ would be the URL for the record of the Internet Archive home page (http://www.archive.org/) archived on January 26, 1997, at 4:58 a.m. and 28 seconds (1997/01/26 at 04:58:28). Ex. 2121, 4 (brackets in original). Unless Internet Archive deviated from its normal practice in archiving Irman Web Pages, Irman Web Pages presumably was archived on May 8, 1999, the date indicated by the time stamp. Ex. 1010, 1. The archived document itself bears a 1998 copyright logo purportedly affixed by Evation.com, which is consistent with the time stamp added by Internet Archive. Id. at 3. Patent Owner does not dispute that Irman Web Pages is an authentic copy of an Evation.com web site archived, at some point, by Internet Archive. The issue is whether it was archived on May 8, 1999 (and prior to the filing date of the ’682 patent). Consistent with our finding in the IPR- 350 Final Written Decision, at 17–18, we find that the distinctive characteristics on Irman Web Pages, including the logo and time stamp from Internet Archive, in light of Internet Archive’s explanation of its record keeping, constitute evidence sufficient, under Rule 901(b)(4), to support a finding that Irman Web Pages is a copy of an Evation.com web page archived by Internet Archive on May 8, 1999. The fact that the Evation.com copyright date closely predates the Internet Archive time stamp is further evidence showing Irman Web Pages’ authenticity. Moreover, we find the evidence to be sufficient under Rule 901(b)(4) even in the absence of an affidavit under Rule 901(b)(1).” slip op. at 13

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner

    “Owner (cited to again in the PO Resp., at 12). According to WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1935 (unabridged 1993) (Ex. 2103), “respond” means, inter alia, “2 : to say something in return : make an answer” and “3 : to show some reaction to a force or stimulus . . . : react in response.” Patent Owner only cited to definition 2, “to say something in return : make an answer.” As the dictionary shows, however, the ordinary meaning also is broad enough to encompass definition 3, “to show some reaction to a force or stimulus . . . : react in response,” which corresponds to our preliminary construction. We next look to the Specification of the ’682 patent to discern whether the patentee intended a more narrow meaning of “respond,” keeping in mind the Federal Circuit’s “caution[] against reading limitations into a claim from the preferred embodiment described in the specification, even if it is the only embodiment described, absent clear disclaimer in the specification.” In re Am. Acad. Of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Patent Owner points us to two passages in the Specification. In the first, Ex. 1001, 1:58–2:3, the Specification states that if a computer system “responds” to a control signal from a sound reproduction system, the sound reproduction system determines that the computer system is in a responsive state. Patent Owner infers from this description that the computer system must be sending an answer or reply; otherwise the sound reproduction system would not be able to determine that the computer system is in a responsive state. PO Resp. 10–11. Patent Owner argues that this is the only use of the word “respond” in the Specification; thus, it is a “valuable guidepost” for understanding how a skilled artisan would have understood the claim language “configured to respond.” Id. at 11–12. In the second passage cited by Patent Owner, the Specification describes a computer program that directs AM/FM tuner 12 (shown in Figure 1, above, as part of the sound reproduction system) to identify the strongest radio signals, which the computer program assigns as presets. Ex. 1001, 9:21–48. Patent Owner argues that this passage describes an answer or reply from the sound reproduction system to the computer. PO Resp. 12–13. Neither of these passages suggests that “respond” should be construed narrowly. The first passage does not describe the behavior at issue in the claim, a sound reproduction system responding to a computer. Rather, it describes a computer responding to a sound reproduction system. To the extent that it implicitly describes an answer or reply (a matter of debate), it nevertheless gives no indication that the term “respond” should be limited to such usage. Rather, it describes an example. As to the second passage, it does not use the word “respond”; thus, it is of limited value in ascertaining how the patentee intended the word “respond” to be understood. Moreover, the second passage, like the first, carries with it no indication that the example it describes was intended to be limiting. At most, Patent Owner’s evidence shows that “respond” can be read broadly enough to encompass its interpretation. Patent Owner has introduced no persuasive evidence, however, suggesting that “respond” is limited to its interpretation.” slip op. at 19

  Patent outcomesUS 8,401,682 unpatentable
  Claim construction§ 102 anticipation§ 103 obviousnesscites Phillips
  Patents in suitUS 8,401,682
• Medtronic, Inc. v. Nuvasive, Inc.All claims unpatentable
  PTAB · Apr 3, 2015 · IPR2014-00034 · APJ David C Mckone · IPR · Final written decision

  Claims 1, 5, 7–9, 13–18, and 20 are unpatentable as obvious under §103(a) over the specified combinations of prior art.

  RulingsFinal written decision

  • Claim Construction › Intrinsic evidence (Phillips canons) › Preamble limiting or notPreamble not limitingDecided for petitioner

    “psoas approach” and “when advanced in the trans-psoas path,” as recited in independent claims 1 and 9, are statements of intended use and are entitled to no patentable weight, beyond requiring an ability to follow a “trans-psoas path” or “trans-psoas approach.” Dec. 8–9; see also Marrin v. Griffin, 599 F.3d 1290, 1294 (Fed. Cir. 2010) (“For apparatus claims . . . generally patentability ‘depends on the claimed structure, not on the use or purpose of that structure.’”) (quoting Catalina Marketing Int’l v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002)); In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997) (“It is well settled that the recitation of a new intended use for an old product does not make a claim to that old product patentable.”). Petitioner and Patent Owner do not dispute these constructions. In view of this, and upon consideration of the complete record developed during this trial, we maintain these constructions.” slip op. at 7

  • Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededDecided for petitioner

    “Petitioner and Patent Owner do not dispute these constructions. We maintain these constructions based on the complete record developed during this trial. Neither Petitioner nor Patent Owner identifies any additional terms requiring construction. No other terms require express construction for purposes of this Decision.” slip op. at 8

  • ExcludeMotion to exclude, deniedGranted in part

    “Petitioner moves to exclude Exhibits 2033–36, 2042, and 2051 as hearsay. Mot. to Exclude 2–3. Patent Owner argues that Exhibits 2033, 2035, and 2036 are offered to show the declarants’ states of mind. Opp. to Mot. to Exclude 3–4 (citing FED. R. EVID. 803(3)). We agree that they are offered for non-hearsay purposes. Therefore, we deny the motion to exclude Exhibits 2033, 2035, and 2036. We do not rely on Exhibits 2034, 2042, and 2051. Therefore, Petitioner’s motion to exclude them is dismissed as moot. Petitioner moves to exclude Exhibits 2039, 2041, 2056, 2058, 2059, and 2066 as hearsay. Mot. to Exclude 4–5. Patent Owner introduces these exhibits as financial industry objective indicia of commercial success and praise. Patent Owner argues that these documents are introduced for non-hearsay purposes, such as showing industry praise and the states of mind of the declarants. Opp. to Mot. to Exclude 7–8. Petitioner contends that these exhibits are not reliable because the authors of those exhibits are not skilled artisans. Mot. to Exclude 4–5. We agree with Patent Owner (Opp. to Mot. to Exclude 8), however, that the credentials of the authors go to the weight of the evidence, not its admissibility. Accordingly, we deny Petitioner’s motion to exclude Exhibits 2039, 2041, 2056, 2058, 2059, and 2066. Petitioner moves to exclude Exhibit 2062 as being out of compliance with 37 C.F.R. § 42.53. Mot. to Exclude 5. We do not rely on Exhibit 2062. Therefore, Petitioner’s motion to exclude it is dismissed as moot. In sum, we deny-in-part and dismiss-in-part Petitioner’s Motion to Exclude.” slip op. at 9

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “We agree with Petitioner that the claims of the ’782 patent include aspects of both spine surgery and neurophysiology. We recognize that each declarant in this case has a particular expertise stronger in one aspect than the other. Nevertheless, we have considered the testimony of each of the declarants and have taken into account each’s respective expertise in weighing his testimony. Both parties argue that the other party’s declarant was unfamiliar with the legal standards for obviousness. PO Resp. 34–36; Reply 10. We have taken the parties’ arguments into account in weighing the testimony of the declarants. We recognize, however, that neither party’s declarants are attorneys.” slip op. at 13

  Patent outcomesUS 8,000,782 unpatentable
  Claim construction§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 8,000,782
• Sdi Technologies, Inc. v. Bose Corp.All claims unpatentable
  PTAB · Nov 7, 2014 · IPR2013-00465 · APJ David C Mckone · IPR · Final written decision

  Claims 1–21, 24, 27, 29–47, 50, 63, 64, 68–70, 73, 74, 77, and 78 are unpatentable under §103 over WinAmp, Irman Web Pages, Altec Lansing Manual, and, for some claims, Looney.

  RulingsFinal written decision

  • ExcludeMotion to exclude, grantedMotion to exclude, deniedGranted in part

    “standard affidavit from the Internet Archive would have provided sufficient authentication. See Tr. 87:4–21. The Internet Archive’s standard affidavit, however, merely attests to the general procedures of the Internet Archive and the general characteristics of archived web pages on the Wayback Machine and states that the particular web page is part of its records. Ex. 3004. As Petitioner points out, however, we can follow the URL reproduced in Irman Web Pages and verify that Irman Web Pages is part of the Internet Archive’s records. Pet. Opp. to Mot. to Exclude 8. Thus, Patent Owner’s argument reduces to the contention that Petitioner has not provided an affidavit from Internet Archive attesting to its general procedures. As the Keystone case explains, “[t]he Internet Archive has existed since 1996, and federal courts have regularly accepted evidence from the Internet Archive.” 2011 WL 6436210, at *9 n.9. At the hearing, counsel for Patent Owner was asked to explain why we should consider Irman Web Pages unreliable, and, specifically, why we should consider unreliable the indication that Irman Web Pages was archived on May 8, 1999. Tr. 81:13–22; 82:21–83:9; 85:13–86:9; see also Fed. R. Evid. 807. Patent Owner did not articulate anything about the document itself that would indicate unreliability. Instead, as indicated above, Patent Owner essentially contends that Petitioner committed a technical violation of the Rules of Evidence by not obtaining a standard affidavit from Internet Archive to show that “the web contents [were] available on that particular date.” See Tr. 83:1–2; 85:13– 86:9. Such an affidavit would not have added materially to the record for the reasons outlined above. Petitioner shows that the date on the Irman Web Pages facially appears authentic and is authenticated further by accessing the website. Patent Owner has not carried the burden on its motion to show that Irman Web Pages is not authentic. Therefore, we deny Patent Owner’s Motion to Exclude, with respect to Irman Web Pages.” slip op. at 15

  • Expert testimonyPetitioner expert creditedDecided for petitioner

    “[t]o reach a non-hindsight driven conclusion as to whether a person having ordinary skill in the art at the time of the invention would have viewed the subject matter as a whole to have been obvious in view of multiple references, the Board must provide some rationale, articulation, or reasoned basis to explain why the conclusion of obviousness is correct. In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006). Thus, the issue is not whether Dr. Lippman described combinations of the references that would not have rendered the claims obvious; instead, the issue is whether Dr. Lippman provided a reason, with rational underpinning, for combining the references in the way he proposes. Cf. id at 988 (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”). 5 For the reasons stated below, we disagree with Patent Owner’s argument. Moreover, Patent Owner has not persuaded us that testimony suffering from hindsight bias should be excluded as inadmissible. Rather, that would go to the weight we give to the testimony. Thus, we deny Patent Owner’s Motion to Exclude with respect to ¶¶ 39–44 of Dr. Lippman’s testimony. Dr. Lippman testified that a skilled artisan would have made the proposed combination “in order to reduce duplication and clutter, such that one remote would control both the speaker and the computer and using the IR receiver positioned in the speaker.” Ex. 1017 ¶ 41. We conclude that this reason has rational underpinning. Moreover, as explained in the Decision to Institute (Dec. 24–25), adding Patent Owner’s proposed combinations to Petitioner’s proposed combination renders the latter no more than an obvious selection from a finite number (here, three) of predictable solutions. The Federal Circuit has distinguished between circumstances where the challenger of a patent “merely throws metaphorical darts at a board filled with combinatorial prior art possibilities,” which is vulnerable to hindsight bias, and circumstances “where a skilled artisan merely pursues ‘known options’ from a ‘finite number of identified, predictable solutions,’” which evidences obviousness. In re Kubin, 561 F.3d 1351, 1359 (Fed. Cir. 2009) (quoting KSR, 550 U.S. at 421). We conclude that this case falls into the latter category. Patent Owner’s two combinations and Petitioner’s combination together constitute three rearrangements of the same elements, where each of those combinations is a predictable use of the elements for their intended purposes. Precisely how to arrange these known elements would have been an obvious matter of design choice. See also Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1331 (Fed. Cir. 2009) (“As the Supreme Court explained, if trying such a limited number of solutions ‘leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.’” (quoting KSR, 550 U.S. at 421)).” slip op. at 22

  • Prior constructionPrior construction adoptedDecided for patent owner

    “term is necessary. Reply 3. Nevertheless, Petitioner argues that “[t]he claims . . . mean that the assemblages are based on types of metadata (for example, artist, album, genre, etc.), not the metadata (‘The Beatles,’ ‘Abby Road,’ ‘Here Comes the Sun,’ ‘Rock’) itself.” Id. at 11. In essence, Petitioner argues that the claims are directed to assemblages of files based on categories that might be included in metadata, although the files themselves might not include metadata. Petitioner’s position is contrary to the plain language of the claims, which recites that an assemblage is “based on . . . a first type of metadata included in the music files.” Moreover, consistent with the claim language, the ’295 patent describes creating assemblages from metadata contained within the files that store the audio data: A second type of assemblage includes recorded units with common identifying characteristics, sometimes referred to as common “metadata” values. “Metadata” values are typically in file header information of music files in many popular music file formats. Metadata values may include the artist, the composer, the type of music, and others. . . . For example, if an assemblage contains music files having a common composer metadata value of “Beethoven”, each time the assemblage is requested, a computer database program may search all the music files for the metadata value of “Beethoven” as the composer. In this manner, each time a new music file is recorded with “Beethoven” as the composer, it is automatically added to the assemblage. Ex. 1001, col. 7, ll. 21–44. In light of the claim language and the description in the specification, and consistent with the district court in the ’682/’295 patent litigation, we construe “an assemblage of music files based on a first type of metadata included in the music files” to mean “a first group of music files that is based on a first type of metadata that is located in the music file, which may be in the file header or elsewhere in the file.” We recognize the differences in the claim construction framework employed by district courts, but nevertheless are persuaded that the district court’s construction is the broadest reasonable interpretation.” slip op. at 11

  • Skill levelOther

    “B. The Level of Ordinary Skill in the Art The declarants for Petitioner and Patent Owner essentially agree that a person of ordinary skill in the art would have had a bachelor’s degree in electrical engineering and several years (e.g., three years) of experience with audio systems. Compare Declaration of Andrew B. Lippman (Ex. 1017, “Lippman Decl.”) ¶ 19, with Declaration of Dr. Robert L. Stevenson (Ex. 2026, “Stevenson Decl.”) ¶ 20.” slip op. at 12

  Patent outcomesUS 8,364,295 unpatentable
  Claim construction§ 103 obviousnesscites KSR
  Patents in suitUS 8,364,295
• Sdi Technologies, Inc. v. Bose CorporationAll claims unpatentable
  PTAB · Nov 7, 2014 · IPR2013-00350 · APJ David C Mckone · IPR · Final written decision

  Claims 1–21, 24, 27, 28, 30–48, 51, 54, 62, 63, 67–70, 73, 74, and 76 are unpatentable as obvious under §103.

  RulingsFinal written decision

  • ExcludeMotion to exclude, grantedGranted in part

    “from the Wayback Machine were found to be authenticated and not hearsay, the party proffering the printouts also offered proof of its accessibility. PO Mot. to Exclude 8–9. At the hearing, Patent Owner clarified that a standard affidavit from the Internet Archive would have provided sufficient authentication. See Tr. 87:4–21. The Internet Archive’s standard affidavit, however, merely attests to the general procedures of the Internet Archive and the general characteristics of archived web pages on the Wayback Machine and states that the particular web page is part of its records. Ex. 3004. As Petitioner points out, however, we can follow the URL reproduced in Irman Web Pages and verify that Irman Web Pages is part of the Internet Archive’s records. Pet. Opp. to Mot. to Exclude 8. Thus, Patent Owner’s argument reduces to the contention that Petitioner has not provided an affidavit from Internet Archive attesting to its general procedures. As the Keystone case explains, “[t]he Internet Archive has existed since 1996, and federal courts have regularly accepted evidence from the Internet Archive.” 2011 WL 6436210, at *9 n.9. At the hearing, counsel for Patent Owner was asked to explain why we should consider Irman Web Pages unreliable, and, specifically, why we should consider unreliable the indication that Irman Web Pages was archived on May 8, 1999. Tr. 81:13–22; 82:21–83:9; 85:13–86:9; see also Fed. R. Evid. 807. Patent Owner did not articulate anything about the document itself that would indicate unreliability. Instead, as indicated above, Patent Owner essentially contends that Petitioner committed a technical violation of the Rules of Evidence by not obtaining a standard affidavit from Internet Archive to show that “the web contents [were] available on that particular date.” See Tr. 83:1–2; 85:13– 86:9. Such an affidavit would not have added materially to the record for the reasons outlined above. Petitioner shows that the date on the Irman Web Pages facially appears authentic and is authenticated further by accessing the website. Patent Owner has not carried the burden on its motion to show that Irman Web Pages is not authentic. Therefore, we deny Patent Owner’s Motion to Exclude, with respect to Irman Web Pages.” slip op. at 17

  • Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner

    “construing “audio signal processing circuitry” to include amplifiers would render these two claims identical in scope. Petitioner points out, however, that, if audio signal processing circuitry includes amplifiers, it would be broader in scope than amplifiers, rather than commensurate in scope, rendering claim differentiation inapplicable. Reply 3. We agree with Petitioner; the doctrine of claim differentiation is not applicable here. Thus, we are persuaded that the claimed audio signal processing circuitry may include amplifiers. Further, Patent Owner’s additional arguments are unavailing. Patent Owner argues that the specification of the ’682 patent describes audio signal processing circuitry separately from powered speakers and that the specification uses the term audio signal processing circuitry to refer to techniques, such as bass and treble adjustments, used to modify an audio signal. PO Resp. 11–12 (citing the testimony of its declarant, Dr. Robert Stevenson, Ex. 2026 ¶¶ 78–81). The specification, however, does not distinguish between audio signal processing circuitry and powered speakers. Rather, the patent refers to a powered speaker as an abstract logical unit, while providing a more detailed description of a powered speaker that includes such features as audio signal processing circuitry 14, control electronics circuitry 16, and electroacoustical transducer 18. Ex. 1001, col. 3, ll. 28–35. In any event, Patent Owner has pointed to no disclosure that distinguishes amplifiers from audio signal processing circuitry.” slip op. at 11

  • Prior constructionPrior construction adoptedDecided for patent owner

    “In light of the claim language and the description in the specification, and consistent with the district court in the ’682/’295 patent litigation, we construe “an assemblage of music files based on a first type of metadata included in the music files” to mean “a first group of music files that is based on a first type of metadata that is located in the music file, which may be in the file header or elsewhere in the file.” We recognize the differences in the claim construction framework employed by district courts, but nevertheless are persuaded that the district court’s construction is the broadest reasonable interpretation.” slip op. at 14

  • Skill levelOther

    “B. The Level of Ordinary Skill in the Art The declarants for Petitioner and Patent Owner essentially agree that a person of ordinary skill in the art would have had a bachelor’s degree in electrical engineering and several years (e.g., three years) of experience with audio systems. Compare Declaration of Andrew B. Lippman (Ex. 1017, “Lippman Decl.”) ¶ 19, with Stevenson Decl., Ex. 2026 ¶ 20.” slip op. at 15

  Patent outcomesUS 8,401,682 unpatentable
  Claim construction§ 103 obviousnesscites KSR
  Patents in suitUS 8,401,682

Holdings, summaries, rulings, issues, outcomes, winners and claim constructions shown for a decision were generated by a large language model reading the opinion. They are a guide to the decision, not the decision. Confirm every one against the court's own text before relying on it. Outcomes read from the patent owner’s side. Party names are extracted from the decision and are missing on about 900 short Director denials and scans, which carry the trial number instead.