• Activision Blizzard, Inc. v. Milestone Entertainment, LLCNo claims unpatentable
  PTAB · Oct 14, 2026 · IPR2025-00712 · APJ Kevin W Cherry · IPR · Final written decision

  Claims 1, 3–9, 13, 17, 18, 23, 25, 26, 28, and 29 were not shown unpatentable because Walker was not prior art and Kelly did not teach limitations 1[d.i] and 1[d.ii].

  RulingsFinal written decision

  • Novelty / Anticipation (§102) › Priority / effective filing date / continuation supportReference not prior artPriority date awardedDecided for patent owner

    “b) Walker Priority Date Under Dynamic Drinkware, the Petitioner is required to show that “the provisional application provides support for the claims of the patent or published application.” In re Riggs, 131 F.4th 1377, 1384 (Fed. Cir. 2025). Thus, Petitioner must show that (1) at least one claim of Walker is supported by its provisional (U.S. Provisional Application No. 60/378,289 (the “’289PROV”) and (2) the specific subject matter relied upon as prior art is supported by the ’289PROV. Id. Petitioner does provide a detailed explanation about how the ’289PROV supports claim 1 of Walker. See Reply 5–10. However, as Patent Owner argues, Petitioner fails to show that the ’298PROV provides support for the specific subject matter relied on in Walker. See Sur-Reply 3–9. Petitioner only explains how the ’298PROV discloses “predetermined criteria” but does not provide any other explanation for how the other subject matter relied on in Walker is supported by the ’298PROV. Thus, we find that Petitioner has failed to show that Walker is entitled a priority date before May 1, 2003. See Riggs, 131 F.3d at 1384 (noting while “a prior art patent or published application cannot be accorded the benefit of its provisional application’s filing date absent a showing that the provisional application provides support for the claims of the patent or published application,” the challenger must also show that “the specific portions of the patent specification identified and relied on” to demonstrate purported invalidity have written description support).” slip op. at 25

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “evidence that Kelly teaches limitations 1[d.i] and 1[d.ii]. As Patent Owner persuasively argues, “the recorded information regarding particular game play events” of limitations 1[d.i] and 1[d.ii] refers to “memory to . . . record game play information regarding particular game play events” in limitation 1[b.ii], but Petitioner does not map “the game play events” identified in limitation 1[b.ii] to limitations 1[d.i] and 1[d.ii]. In its Reply, Petitioner does not dispute Patent Owner’s assertion, but largely reiterates its arguments from the Petition. However, none of these arguments or evidence demonstrates that the “game play events” in limitations 1[d.i] and 1[d.ii] are same the “game play events” that are allegedly stored in limitation 1[b.ii]. Even if we accept Petitioner’s contention that it was not identifying button presses or the “game identifier,” but rather includes “game states and game events in the game process,” Petitioner provides no evidence or even arguments that what it has identified here relates to what it has identified for limitations 1[d.i] and 1[d.ii]. See Pet. 29–33 (citing Ex. 1005, 25:23–24, 26:59–27:1, 32:27–33, 37:1–10, 38:66–39:7 40:33–45, 56:49–51, 57:27–33). For these reasons, Petitioner has failed to show by a preponderance of the evidence that Kelly teaches or suggests limitations 1[d.i] and 1[d.ii]. Accordingly, we find that Petitioner has failed to show that claim 1 would have been obvious over Kelly. 2. Claims 3–9, 13, 17, 18, 23, 25, 26, 28, and 29 Claims 3–9, 13, 17, 18, 23, 25, 26, 28, and 29 all depend (either directly or indirectly) from claim 1. See PO Resp. 16 (explaining that the arguments for independent claim 1 also apply to the dependent claims inherent the deficiencies asserted with respect to the independent claims). We find Patent Owner’s arguments availing, as explained above. Accordingly, we find that Petitioner has failed to show by a preponderance of the evidence that claims 3–9, 13, 17, 18, 23, 25, 26, 28, and 29 would have been obvious over Kelly.” slip op. at 44

  • Expert testimonyPetitioner expert creditedDecided for patent owner

    “programmable variable parameter sets to achieve the mandated parameters,” we find that Patent Owner sufficiently explained “the notes from the 12/4/02 meeting reflect that the inventors proposed that their invention could raise the global payout percentage ‘to 75%’ – a mandated parameter – by ‘increas[ing] % of wins by the level 2,’ i.e., a secondary game level – a variable parameter.” See PO Resp. 28–32, 37, 38; Ex. 2016; Ex. 2017 ¶¶ 23–24, 41–42; Ex. 2012 ¶ 90, 63–64. Indeed, Mr. Crevelt confirmed that that a POSITA would unequivocally regard disclosure of “win rate[s]” and “global payout percentage[s]” as disclosing the claimed “mandated parameters” that are achieved by utilizing variable parameters. See Ex. 2020, 15:7–18:4, 19:14–21:16, 24:25–25:15 (global payout percentages), 21:18– 24:24 (win rates).” slip op. at 33

  Patent outcomesUS 11,393,279 not shown unpatentable
  § 102 anticipation§ 103 obviousnesscites Phillips · Graham
  Patents in suitUS 11,393,279
• Activision Blizzard, Inc. v. Milestone Entertainment, LLCNo claims unpatentable
  PTAB · Oct 14, 2026 · IPR2025-00708 · APJ Kevin W Cherry · IPR · Final written decision

  Claims 1, 3–5, 12, 13, 18–20, 22, 24–26, 29, 42, 44–47, and 50 were not shown unpatentable over Kelly or Walker and Schneier.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “understanding of a person of ordinary skill in the art (“POSITA”). In assessing the level of ordinary skill in the art, various factors may be considered, including the “type of problems encountered in the art; prior art solutions to those problems; rapidity with which innovations are made; sophistication of the technology; and educational level of active workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (quoting Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962 (Fed. Cir. 1986)). “[O]ne or more factors may predominate.” Id. Based on the testimony of Mr. Crevelt, we determine that a person of ordinary skill in the art would have had at least a bachelor’s degree in computer science or computer engineering, with at least three years of experience in game development. Pet. 14 (citing Ex. 1003 ¶¶ 62–65). Additional experience could substitute for less education, and additional education could likewise substitute for less experience. Id. We determine that the level of ordinary skill in the art adopted above is consistent with the level of technical understanding and competence reflected in the ’336 patent Specification and the asserted prior art references, based on our review of the record. Patent Owner states that “[f]or the purposes of this response, Patent Owner does not dispute Petitioners’ proposed level of skill, and under any level of skill a POSITA would not understand the asserted Grounds to raise any unpatentability issue,” and “this POR and supporting declarations apply Petitioner’s proposed level of skill.” PO Resp. 8. Thus, we adopt Petitioner’s articulation of the level of ordinary skill in the art, which is consistent with the ’336 patent and the asserted prior art, and we apply it in our obviousness analysis below.” slip op. at 11

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

    “The Board is required to construe ‘only those terms . . . that are in controversy, and only to the extent necessary to resolve the controversy.’” Realtime Data, LLC v. Iancu, 912 F.3d 1368, 1375 (Fed. Cir. 2019) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)). We determine that no terms require express construction to resolve the parties’ disputes in this case. See id. slip op. at 13

  • Novelty / Anticipation (§102) › Priority / effective filing date / continuation supportPriority date awardedDecided for patent owner

    “b) Walker Priority Date Under Dynamic Drinkware, the Petitioner is required to show that “the provisional application provides support for the claims of the patent or published application.” In re Riggs, 131 F.4th 1377, 1384 (Fed. Cir. 2025). Thus, Petitioner must show that (1) at least one claim of Walker is supported by its provisional (U.S. Provisional Application No. 60/378,289 (the “’289PROV”) and (2) the specific subject matter relied upon as prior art is supported by the ’289PROV. Id. Petitioner does provide a detailed explanation about how the ’289PROV supports claim 1 of Walker. See Reply 6–12. However, as Patent Owner argues, Petitioner fails to show that the ’298PROV provides support for the specific subject matter relied on in Walker. See Sur-Reply 3–8. Petitioner only explains how the ’298PROV discloses “predetermined criteria” but does not provide any other explanation for how the other subject matter relied on in Walker is supported by the ’298PROV. Thus, we find that Petitioner has failed to show that Walker is entitled a priority date before May 1, 2003. See Riggs, 131 F.3d at 1384 (noting while “a prior art patent or published application cannot be accorded the benefit of its provisional application’s filing date absent a showing that the provisional application provides support for the claims of the patent or published application,” the challenger must also show that “the specific portions of the patent specification identified and relied on” to demonstrate purported invalidity have written description support).” slip op. at 24

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “We find that Petitioner has failed to show by a preponderance of the evidence that Kelly teaches limitation 1[f]. As Patent Owner persuasively argues, “the game play events” of limitation 1[f] refers to “game play events” in limitation 1[d], but Petitioner does not map “the game play events” identified in limitation 1[d] to limitation 1[f]. In its Reply, Petitioner does not dispute Patent Owner’s assertion, but merely reiterates its arguments from the Petition. See Reply 23–24, 26. However, none of these arguments or evidence demonstrates that the “game play events” in limitation 1[f] are same the “game play events” that are allegedly stored in limitation 1[d]. Even if we accept Petitioner’s contention that it was not identifying button presses, but rather includes “game states and game events in the game process,” Petitioner provides no evidence or even arguments that what it has identified here relates to what it has identified for limitation 1[f]. See Pet. 25–26 (citing Ex. 1005, 25:23–24, 32:27–33, 40:33–45, 56:49–51). For these reasons, Petitioner has failed to show by a preponderance of the evidence that Kelly teaches or suggests limitation 1[f]. Accordingly, we find that Petitioner has failed to show that claim 1 would have been obvious over Kelly. 2. Claims 3–5, 12, 13, 18–20, 22, 24–26, 29, 42, 44–47, and 50 Claims 3–5, 12, 13, 18–20, 22, 24–26, 29, 42, 44–47, and 50 all depend from claim 1. See PO Resp. 16 (explaining that the arguments for independent claim 1 also apply to the dependent claims inherent the deficiencies asserted with respect to the independent claims). We find Patent Owner’s arguments availing, as explained above. Accordingly, we find that Petitioner has failed to show by a preponderance of the evidence that claims 3–5, 12, 13, 18–20, 22, 24–26, 29, 42, 44–47, and 50 would have been obvious over Kelly.” slip op. at 40

  Patent outcomesUS 8,529,336 not shown unpatentable
  Claim construction§ 102 anticipation§ 103 obviousnesscites Phillips · Graham
  Patents in suitUS 8,529,336
• Crowdstrike, Inc. v. Gosecure, Inc.Some claims unpatentable
  PTAB · Aug 12, 2026 · IPR2025-00070 · APJ Neil T Powell · IPR · Final written decision

  Claims 1, 3–7, and 9–21 are unpatentable as obvious; claims 2 and 8 were not shown unpatentable because the asserted art did not meet their construed limitations.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “III. ANALYSIS LEVEL OF ORDINARY SKILL A. Petitioner explains the applicable level of skill in the art as follows: As of June 24, 2010, a person of ordinary skill in the art (POSITA) would be a person having a bachelor’s degree in computer science, computer engineering, or an equivalent, as well as two years of industry experience and who would have had a working knowledge of software security analysis, and dynamic malware analysis. Additional graduate education could substitute for professional experience, or significant experience in the field could substitute for formal education. Pet. 8 (Ex. 1003 ¶¶ 30–31). Patent Owner does not dispute Petitioner’s explanation of the level of skill in the art. See Ex. 2031 ¶¶ 15–16. We adopt Petitioner’s uncontested proposed level of ordinary skill in the art, which we find consistent with the level of ordinary skill in the art reflected by the ’872 patent and the prior art of record. See Okajima v.” slip op. at 12

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

    “We begin with the claim language in view of the Specification, which weighs heavily against Patent Owner’s position that we should rewrite “computer system” as narrowly referring to a “computing device.” PO Resp. 24. As Petitioner notes, the ’872 patent’s Specification uses “computer system” to refer to a wide range of equipment, from a component of a computing device, to a whole computing device, to a collection of computing devices. Reply 9–10 (citing Ex. 1001, 4:5–8, 11:15–18, 16:50–55). In one example, the Specification refers to “one or more other computer systems (e.g., protected network devices 136).” Ex. 1001, 18:52–53. Thus, the Specification lists “protected network devices 136” as only an example of “other computer systems,” demonstrating that “computer systems” refers to things other than protected network devices. Although Patent Owner may be correct that this passage more than a single computing device,” we find that other disclosures in the ’872 patent do. Specifically, the Specification uses the language “distributed computer system” when referring to numerous components, including “protected network devices” and an “IDS/IPS system.” Ex. 1001, 3:26–28; Reply 10. In addition to showing that a “computer system” is not limited to a single computing device, this conveys that a “computer system” according to the ’872 patent can include an IDS/IPS.” slip op. at 14

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

    “Based on our review of the complete record, we find Petitioner’s arguments and evidence to be more persuasive. Patent Owner does not dispute Petitioner’s argument and evidence that capturing detailed information like Goel’s activity sources, activity targets, and association was recognized as enhancing threat analysis. Pet. 44 (citing Ex. 1003 ¶ 79); see PO Resp. 55–59; Sur-Reply 15–17. Additionally, contrary to Patent Owner’s suggestion, we find that the Petition does not propose incorporating Goel’s kernel hooks into Capalik’s system. See Pet. 41–46. Patent Owner contends that the Petition’s reference to modifying Capalik by “adding lines of code” suggests implementing the code disclosed in Goel include kernel hooks. Id. Notwithstanding Patent Owner’s assertion otherwise, this is an unpersuasive bodily incorporation argument, as the Petition never says an ordinarily skilled artisan would have used the exact lines of code from Goel in Capalik. Rather, the Petition says that an ordinarily skilled artisan would have had sufficient skill to implement straightforward code modifications to identify activity sources, targets, and associations: a [person of ordinary skill in the art] would have understood that modifying Capalik’s system (e.g., Linux-based) to additionally monitor, identify, and store each individual activity of an attack including “activity sources, activity targets, and associations” would have required straightforward modifications to programs/code instructions, which would have been well-within the skillset of a [person of ordinary skill in the art]. Pet. 46. Patent Owner argues that Petitioner does not explain how an ordinarily skilled artisan would have modified Capalik without using kernel hooks. Sur-Reply 17. But Patent Owner does not cite any evidence to counter Dr. Jakobsson’s testimony that an ordinarily skilled artisan would have had the skill to apply Goel’s general teaching of identifying sources, targets, and associations to Capalik’s system. Ex. 1003 ¶ 182. On the whole, the evidence does not support Patent Owner’s position that the combination would have required substantially increased detection risk. Moreover, even if the combination would have somewhat increased detection risk, Petitioner persuades us that an ordinarily skilled artisan still would have had reason to combine the references teachings. Patent Owner’s allegations of increased detection risk do not negate the undisputed evidence that the combination would have provided the advantage of improved threat analysis. Pet. 44 (citing Ex. 1003 ¶¶ 175–182). Ultimately, Patent Owner’s that activity logging be undetectable.” PO Resp. 56 (emphasis added) (citing Ex. 1004 ¶ 6). This exaggerates Capalik’s disclosure. Although the cited paragraph suggests that certain systems unfortunately may be detectable by some users, it does not convey that it is a requirement for the system to be categorically undetectable. See Ex. 1004 ¶ 6.8 In sum, Petitioner persuades us by a preponderance of the evidence that it would have been obvious to modify Capalik “to identify and store unauthorized activities including the activity source, activity target, and association of each activity.” Pet. 41–46; PO Resp. 55–59; Reply 20–22; Sur-Reply 15–17.” slip op. at 47

  • Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for patent owner

    “arguments and evidence, we determine that Patent Owner fails to sufficiently show a nexus between any of its objective indicia evidence and the claimed invention. See Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366, 1373 (Fed. Cir. 2019) (“The patentee bears the burden of showing that a nexus exists”). A showing of sufficient nexus is required to establish that the evidence relied upon traces its basis to a novel element in the claim, not to something in the prior art. Institut Pasteur & Universite Pierre Et Marie Curie v. Focarino, 738 F.3d 1337, 1347 (Fed. Cir. 2013). Objective evidence that results from something that is not “both claimed and novel in the claim” lacks a nexus to the merits of the invention. In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (emphasis omitted). Thus, establishing nexus involves a showing that novel elements in the claim, not prior-art elements, account for the objective evidence of nonobviousness. Id. As discussed above, Petitioner shows that Capalik teaches all limitations of claim 1. Petitioner persuades us that none of claim 1’s elements individually nor any combination thereof is novel over Capalik’s disclosure. Accordingly, claim 1 is not novel over Capalik, which disproves Patent Owner’s assertion of nexus. PO Resp. 73–76. Moreover, even if claim 1 were novel, Patent Owner otherwise fails to show nexus for its commercial success, praise, or copying assertions. Patent Owner’s evidence does not show that Petitioner’s commercial product embodies claim 1. For example, we agree with Petitioner that Patent Owner “failed to analyze any meaningful detail regarding” how the Falcon Platform allegedly meets limitation 1(d). Reply 28–29. In particular, Patent Owner has not sufficiently addressed limitation 1(d) with the following argument: “1[D] The Falcon Platform transmitted to other computer systems” slip op. at 37

  Patent outcomesUS 9,954,872 mixed
  Claim construction§ 103 obviousnesscites Phillips
  Patents in suitUS 9,954,872
• Jumio Corporation v. Facetec, Inc.No claims unpatentable
  PTAB · Jun 17, 2026 · IPR2025-00109 · APJ Bach V Hoang · IPR · Final written decision

  Claims 1–24 were not shown unpatentable because the petitioner failed to establish motivation to combine the references and failed to show the claimed different-distance image capture.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Having considered the full record at trial, we maintain the preliminary finding regarding the level of ordinary skill in the art. See Inst. Dec. 11–12. In particular, based on the teachings of the ’910 Patent and the asserted prior art, we are persuaded that an ordinarily skilled artisan would have had a work experience related to biometrics, facial authentication, computer vision, and/or optics as at least one of those fields is respectively implicated by the ’910 Patent and the asserted prior at. Moreover, our decision would be the same under either proposed level of skill.” slip op. at 10

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

    “C. Claim Construction We interpret claim terms using “the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b).” 37 C.F.R. § 42.100(b). Under the principles set forth by the Federal Circuit, the “words of a claim ‘are generally given their ordinary and customary meaning,’” as would be understood by a person of ordinary skill in the art at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). The parties do not dispute any claim terms or phrases and our decision does not require construing any particular claim terms or phrases, therefore, we do not expressly construe any particular claim term or phrase. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in controversy, and only to the extent necessary to resolve the controversy’”” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation not foundNot shown unpatentableNot shown unpatentable

    “We find that these reasons would not have adequately motivated a person having ordinary skill in the art to combine and modify the references in Petitioner’s asserted manner to reach the claimed features. Petitioner’s motivations — “substitution,” “obvious alternative . . . approaches,” “use of a known technique,” and “complimentary” techniques — are all similarly based on swapping or adding techniques for verifying three dimensionality. See Pet. 13–17; Pet. Reply 16–17. Those motivations might have been suitable had Tanii described techniques to verify three dimensionality, but Petitioner has not shown that Tanii describes any technique to verify three dimensionality. See Pet. 13–17, 25–28. Instead, as discussed above, Tanii describes the existence of the perspective distortion phenomenon and a technique for correcting it. As such, substituting the knowledge that perspective distortion exists and techniques to correct it does not correspond adequately motivate Petitioner’s combination. Put another way, because Tanii does not teach an approach for verifying three-dimensionality, Tanii’s techniques cannot be used as a substitute for approaches that do verify three dimensionality simply because Tanii discloses the concept of perspective distortion.” slip op. at 16

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “distance from the user. Derakhshani teaches two different approaches (1) focus-distance approach and (2) parallax approach. Petitioner acknowledges that the focus-distance approach does not expressly disclose capturing a second image at a second distance. Pet. 13 (distinguishing “focus distances” from “actual distances.”). This is because focus-distance, by definition, is not actual distance. Ex. 1005, 16:47–48 (“Focus distance is the distance from a sensor to a point in its field of view that is perfectly in focus.”) In Derakhshani’s focus-distance approach the camera stays the same distance from its subject—only the focus distance changes. Id. at 16:66–17:2 (“By comparing degree of focus for a landmark in images with different focus distances, the distance from the sensor to the landmark may be estimated.”) Derakhshani’s parallax approach also does not expressly disclose capturing a second image at a second distance. In the parallax approach the camera is rotated or slid about the user to create images with different perspectives. Ex. 1005, 17:59–64 (“In some implementations, the sensor is moved about the subject during image capture to collect image data from different orientations relative to the subject. For example, a single camera may be rotated or slid slightly or multiple cameras at different positions may be used for image capture.”). Rotating a camera around a user does not change the distance of the camera from the user. At the hearing Petitioner, indicating that Derakhshani takes a second image at a second distance. Tr. 16:9–12 (“[Petitioner’s Counsel: . . . Dr. Daft is talking about some of the terms that Derakhshani is using. For example, the term slid and shown in the images, he talks about how slid refers to the different distances between the sensor and the user.”). We determine that it is more likely that the word “slid,” as used in the relevant portion of Derakhshani, further describes the rotation of the camera about the user. Derakhshani indicates as much by describing that both rotating and sliding the camera are examples of how the camera sensor is “moved about the subject during image capture.” Ex. 1005, 17:60–61. Thus, sliding the camera does not necessarily disclose moving the camera to a second distance from the subject. Zhang also does not expressly disclose capturing a second image at a second distance. Petitioner acknowledges as much stating “[a]lthough Zhang does not expressly say that the second image is captured at a second distance different from the distance of the first image, this would have been obvious to a POSITA.” Pet. 61 (citing Ex. 1003 ¶ 1046). Because Zhang does not expressly disclose capturing a second image at a second distance, Petitioner once again relies on expert testimony to argue that the multiple images disclosed in Zhang would have been taken at different perspectives resulting from rotating or translating the position of the camera and that taking images at different distances would have enhanced Zhang’s homography-transformation procedure. Pet. 61–62 (citing Ex. 1003 ¶ 1046). From here Petitioner repeats many of the same arguments it made regarding the parallax approach from Derakhshani, except that these arguments are on even weaker footing because Zhang does not mention taking images by translating the position of the camera, nor even that the multiple images taken should be from different perspectives. Each of these assertions are made solely on the basis of Petitioner’s expert testimony, and as such are not persuasive. Pet. 61–62 (citing Ex. 1003 ¶¶ 1046). Petitioner’s argument that Zhang teaches capturing a second image at a second distance simply lacks sufficient support from Zhang’s disclosure.” slip op. at 25

  Patent outcomesUS 11,874,910 not shown unpatentable
  Claim construction§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 11,874,910
• Jumio Corp. v. Facetec, Inc.No claims unpatentable
  PTAB · Jun 17, 2026 · IPR2025-00108 · APJ Nabeel U Khan · IPR · Final written decision

  Claims 1–24 were not shown unpatentable because the asserted combinations lacked adequate motivation to combine and did not teach capturing images at different distances.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Patent Owner argues Petitioner’s proffered level of skill is too broad with respect to work experience. PO Resp. 27–28. Patent Owner counters that a person having ordinary skill in the art would have had a Bachelor’s degree in electrical engineering, computer engineering, computer science, physics, or a related field, and two years’ work experience related to biometric security, facial authentication, and three-dimensional computer vision such that they would have had significant academic and/or work experience in both facial biometrics and computer vision. Id. at 28–29. Having considered the full record at trial, we maintain the preliminary finding regarding the level of ordinary skill in the art. See Inst. Dec. 13–14. In particular, based on the teachings of the ’938 patent and the asserted prior art, we are persuaded that an ordinarily skilled artisan would have had a work experience related to biometrics, facial authentication, computer vision, and/or optics as at least one of those fields is respectively implicated by the ’938 patent and the asserted prior at. Moreover, our decision would be the same under either proposed level of skill.” slip op. at 9

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

    “C. Claim Construction We interpret claim terms using “the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b).” 37 C.F.R. § 42.100(b). Under the principles set forth by the Federal Circuit, the “words of a claim ‘are generally given their ordinary and customary meaning,’” as would be understood by a person of ordinary skill in the art at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). The parties do not dispute any claim terms or phrases and our decision does not require construing any particular claim terms or phrases, therefore, we do not expressly construe any particular claim term or phrase. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in controversy, and only to the extent necessary to resolve the controversy’” (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation not foundNot shown unpatentableNot shown unpatentable

    “images are three dimensional—let alone a technique that captures two images at different distances, compares the images for certain differences, and verifies three dimensionality based on those differences, as recited by the claim. Instead, Tanii describes a system that “corrects warp in which the perspective is exaggerated when an image is captured with the user’s face at close range.” Ex. 1007, code (57). In particular, Tanii recognizes the physical phenomenon of perspective distortion (fish-eye distortion) where “[i]f the image of the face of a person or the like is captured from a point that is relatively nearby, an image is obtained in which the perspective appears exaggerated,” i.e., the user image is warped or distorted. Id. ¶ 6; see id. ¶ 48, Fig. 4B. Tanii corrects such warped images by enlarging peripheral areas of the user image. Id. ¶¶ 55–56.” slip op. at 17

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “distance from the user. Derakhshani teaches two different approaches: (1) focus-distance approach and (2) parallax approach. Petitioner acknowledges that the focus-distance approach does not expressly disclose capturing a second image at a second distance. Pet. 12 (distinguishing “focus distances” from “actual distances.”). This is because focus-distance, by definition, is not actual distance. Ex. 1005, 16:47–48 (“Focus distance is the distance from a sensor to a point in its field of view that is perfectly in focus.”) In Derakhshani’s focus-distance approach the camera stays the same distance from its subject—only the focus distance changes. Id. at 16:66–17:2 (“By comparing degree of focus for a landmark in images with different focus distances, the distance from the sensor to the landmark may be estimated.”) Derakhshani’s parallax approach also does not expressly disclose capturing a second image at a second distance. In the parallax approach the camera is rotated or slid about the user to create images with different perspectives. Derakhshani, 17:59–64 (“In some implementations, the sensor is moved about the subject during image capture to collect image data from different orientations relative to the subject. For example, a single camera may be rotated or slid slightly or multiple cameras at different positions may be used for image capture.”). Rotating a camera around a user does not change the distance of the camera from the user. At the hearing Petitioner, instead, focused specifically on the use of the word “slid” in Derakhshani as indicating that Derakhshani takes a second image at a second distance. Tr. 16:9–12 (“[Petitioner’s Counsel: . . . Dr. Daft is talking about some of the terms that Derakhshani is using. For example, the term slid and shown in the images, he talks about how slid refers to the different distances between the sensor and the user.”). We determine that it is more likely that the word “slid,” as used in the relevant portion of Derakhshani, further describes the rotation of the camera about the user. Derakhshani indicates as much by describing that both rotating and sliding the camera are examples of how the camera sensor is “moved about the subject during image capture.” Derakhshani, 17:60–61. Thus, sliding the camera does not necessarily disclose moving the camera to a second distance from the subject.” slip op. at 27

  Patent outcomesUS 11,693,938 not shown unpatentable
  Claim construction§ 103 obviousnesscites KSR
  Patents in suitUS 11,693,938
• Jumio Corporation v. Facetec, Inc.No claims unpatentable
  PTAB · Jun 17, 2026 · IPR2025-00107 · APJ Bach V Hoang · IPR · Final written decision

  Claims 1–20 were not determined unpatentable because the petition did not establish motivation to combine the references or that they taught capturing images at different distances.

  RulingsFinal written decision

  • Skill levelSkill level board ownDecided for patent owner

    “Patent Owner argues Petitioner’s proffered level of skill is too broad with respect to work experience. PO Resp. 27–28. Patent Owner counters that a person having ordinary skill in the art would have had a Bachelor’s degree in electrical engineering, computer engineering, computer science, physics, or a related field, and two years’ work experience related to biometric security, facial authentication, and three-dimensional computer vision such that they would have had significant academic and/or work experience in both facial biometrics and computer vision. Id. at 28–29. Having considered the full record at trial, we maintain the preliminary finding regarding the level of ordinary skill in the art. See Inst. Dec. 8. In particular, based on the teachings of the ’606 Patent and the asserted prior art, we are persuaded that an ordinarily skilled artisan would have had a work experience related to biometrics, facial authentication, computer vision, and/or optics as at least one of those fields is respectively implicated by the ’606 Patent and the asserted prior at. Moreover, our decision would be the same under either proposed level of skill.” slip op. at 9

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

    “The parties do not dispute any claim terms or phrases and our decision does not require construing any particular claim terms or phrases, therefore, we do not expressly construe any particular claim term or phrase. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in controversy, and only to the extent necessary to resolve the controversy’” (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation not foundNot shown unpatentableNot shown unpatentable

    “We find that these reasons would not have adequately motivated a person having ordinary skill in the art to combine and modify the references in Petitioner’s asserted manner to reach the claimed features. Petitioner’s motivations—“substitution,” “obvious alternative . . . approaches,” “use of a known technique,” and “complimentary” techniques—are all similarly based on swapping or adding techniques for verifying three dimensionality. See Pet. 12–16; Pet. Reply 6–7. These motivations might have been suitable had Tanii described techniques for verifying three dimensionality, but Petitioner has not shown that Tanii describes any technique to verify three dimensionality. See Pet. 12–16, 19–23. Instead, as discussed above, Tanii describes the existence of the perspective distortion phenomenon and a technique for correcting it. As such, substituting the knowledge that perspective distortion exists and techniques to correct it does not correspond with approaches for verifying three-dimensionality, and so does not adequately motivate Petitioner’s combination. Put another way, because Tanii does not teach an approach for verifying three-dimensionality, Tanii’s techniques cannot be used as a substitute for approaches that do verify three dimensionality simply because Tanii discloses the concept of perspective distortion.” slip op. at 16

  • Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia with nexusObjective indicia outweighedDecided for patent owner

    “Patent Owner has demonstrated a nexus by showing that certain objective indicia, discussed below, are the direct result of the unique characteristics of the claimed invention. As discussed above in our summary of the ’606 Patent and reflected in our discussion of Petitioner’s obviousness challenges (see §§ I.F, II.E.1, II.E.2, II.E.3), the unique characteristics of the claim relate to verification of three dimensionality by comparing two images taken at different distances for perspective distortion. Indeed, those features are what distinguish over the prior art. See id. Furthermore, Patent Owner, supported by testimony from its Chief Technology Officer, Mr. Rose, asserts the unique characteristics claimed are reflected in the “3D liveness checks” its ZoOm software product provides because ZoOm “confirms that a user is 3D by comparing images taken at different distances for expected differences in biometric data, such as the presence of appropriate perspective distortion and differences.” PO Resp. 25 (citing Ex. 2059 ¶ 49). Patent Owner’s assertion is further supported by a “FaceTec Software Explanation” stating that its software uses “near & far image data . . . to determine if the expected differences in perspective distortion are present in the image data” and, from that, “decides if there is sufficient evidence in the image data to conclude with a high degree [of] confidence that the image data contains first-generation biometric data captured in real-time from a live, physically present user.” Ex. 2067; see PO Resp. 25–26. As such, the 3D liveness checks provided by Patent Owner’s software are indicative of the unique characteristics of the claimed invention and, as we discuss below, certain objective indicia of nonobviousness have a direct nexus to the 3D liveness checks of its software.” slip op. at 30

  Patent outcomesUS 11,157,606 not shown unpatentable
  Claim construction§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 11,157,606
• Jumio Corp. v. Facetec, Inc.No claims unpatentable
  PTAB · Jun 17, 2026 · IPR2025-00106 · APJ Nabeel U Khan · IPR · Final written decision

  The Board determined claims 1–20 were not unpatentable because Jumio did not show sufficient motivation to combine the references or that they taught capturing images at different distances.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Patent Owner argues Petitioner’s proffered level of skill is too broad with respect to work experience. PO Resp. 28. Patent Owner counters that a person having ordinary skill in the art would have had a Bachelor’s degree in electrical engineering, computer engineering, computer science, physics, or a related field, and two years’ work experience related to biometric security, facial authentication, and three-dimensional computer vision such that they would have had significant academic and/or work experience in both facial biometrics and computer vision. Id. at 28–29. Having considered the full record at trial, we maintain the preliminary finding regarding the level of ordinary skill in the art. See Inst. Dec. 11–12. In particular, based on the teachings of the ’471 patent and the asserted prior art, we are persuaded that an ordinarily skilled artisan would have had a work experience related to biometrics, facial authentication, computer vision, and/or optics as at least one of those fields is respectively implicated by the ’471 patent and the asserted prior at. Moreover, our decision would be the same under either proposed level of skill.” slip op. at 10

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

    “that would be used to construe the claim in a civil action under 35 U.S.C. 282(b).” 37 C.F.R. § 42.100(b). Under the principles set forth by the Federal Circuit, the “words of a claim ‘are generally given their ordinary and customary meaning,’” as would be understood by a person of ordinary skill in the art at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). The parties do not dispute any claim terms or phrases and our decision does not require construing any particular claim terms or phrases, therefore, we do not expressly construe any particular claim term or phrase. See Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (noting that “we need only construe terms ‘that are in controversy, and only to the extent necessary to resolve the controversy’” (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).” slip op. at 10

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successNot shown unpatentableMotivation not foundNot shown unpatentable

    “We find that these reasons would not have adequately motivated a person having ordinary skill in the art to combine and modify the references in Petitioner’s asserted manner to reach the claimed features. Petitioner’s motivations—“substitution,” “obvious alternative . . . approaches,” “use of a known technique,” and “complimentary” techniques—are all similarly based on swapping or adding techniques for verifying three dimensionality. See Pet. 12–16; Pet. Reply 6–7. These motivations might have been suitable had Tanii described techniques for verifying three dimensionality, but Petitioner has not shown that Tanii describes any technique to verify three dimensionality. See Pet. 13–17, 25–28. Instead, as discussed above, Tanii describes the existence of the perspective distortion phenomenon and a technique for correcting it. As such, substituting the knowledge that perspective distortion exists and techniques to correct it does not correspond with approaches for verifying three-dimensionality, and so does not adequately motivate Petitioner’s combination. Put another way, because Tanii does not teach an approach for verifying three-dimensionality, Tanii’s techniques cannot be used as a substitute for approaches that do verify three dimensionality simply because Tanii discloses the concept of perspective distortion.” slip op. at 18

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “none of the relied upon references teach capturing two images at two different distances, as required by limitations 1[d3] and 1[d4]. These limitations recite “moving the camera from a first location to a second location, the second location being a second distance from the user” and “capturing at least one second image of the user taken with the camera of the computing device at the second distance from the user, the second distance being different than the first distance.” Derakhshani does not teach capturing a second image at a second distance from the user. Derakhshani teaches two different approaches: (1) focus-distance approach and (2) parallax approach. Petitioner acknowledges that the focus-distance approach does not expressly disclose capturing a second image at a second distance. Pet. 13 (distinguishing “focus distances” from “actual distances.”). This is because focus-distance, by definition, is not actual distance. Ex. 1005, 16:47–48 (“Focus distance is the distance from a sensor to a point in its field of view that is perfectly in focus.”) In Derakhshani’s focus-distance approach the camera stays the same distance from its subject—only the focus distance changes. Id. at 16:66–17:2 (“By comparing degree of focus for a landmark in images with different focus distances, the distance from the sensor to the landmark may be estimated.”) Derakhshani’s parallax approach also does not expressly disclose capturing a second image at a second distance. In the parallax approach the camera is rotated or slid about the user to create images with different perspectives. Ex. 1005, 17:59–64 (“In some implementations, the sensor is moved about the subject during image capture to collect image data from different orientations relative to the subject. For example, a single camera may be rotated or slid slightly or multiple cameras at different positions may be used for image capture.”). Rotating a camera around a user does not change the distance of the camera from the user. At the hearing Petitioner, instead, focused specifically on the use of the word “slid” in Derakhshani as indicating that Derakhshani takes a second image at a second distance. Tr. 16:9–12 (“[Petitioner’s Counsel: . . . Dr. Daft is talking about some of the terms that Derakhshani is using. For example, the term slid and shown in the images, he talks about how slid refers to the different distances between the sensor and the user.”). We determine that it is more likely that the word “slid,” as used in the relevant portion of Derakhshani, further describes the rotation of the camera about the user. Derakhshani indicates as much by describing that both rotating and sliding the camera are examples of how the camera sensor is “moved about the subject during image capture.” Derakhshani, 17:60–61. Thus, sliding the camera does not necessarily disclose moving the camera to a second distance from the subject.” slip op. at 27

  Patent outcomesUS 10,776,471 not shown unpatentable
  Claim construction§ 103 obviousnesscites KSR · Graham
  Patents in suitUS 10,776,471
• Rocket Media, LLC D/B/A Launch Labs v. Fullthrottle Technologies, LLCAll claims unpatentable
  PTAB · Jun 9, 2026 · IPR2025-00148 · APJ Kevin W Cherry · IPR · Final written decision

  Claims 1–20 are unpatentable as obvious over Doughty and Van Boucq, and over Doughty, Van Boucq, and Maginnis.

  RulingsFinal written decision

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “Petitioner contends that a person of ordinary skill in the art in June 2021 would have had “(1) at least a bachelor’s degree in computer science, computer engineering, electrical engineering, or an equivalent field plus at least one year of experience working on computer networking, or (2) at least 3 years of experience working on computer networking, even without a formal degree.” Pet. 14 (citing Ex. 1007 ¶¶ 44–47). Patent Owner does not contest Petitioner’s proffered definition. PO Resp. 23. Petitioner’s proposed definition appears to be consistent with the disclosure of the ’947 patent, and we adopt it for purposes of this Decision. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (explaining that the prior art itself may “reflect[] an appropriate level” of ordinary skill in the art) (quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)).” slip op. at 10

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

    “The Board is required to construe ‘only those terms . . . that are in controversy, and only to the extent necessary to resolve the controversy.’” Realtime Data, LLC v. Iancu, 912 F.3d 1368, 1375 (Fed. Cir. 2019) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)). We determine that no terms require express construction to resolve the parties’ disputes in this case, but address certain claim construction arguments made by the parties in the analysis below. See id.; Inst. Dec. 11 (determining that “no express claim construction is necessary for any claim terms”); PO Resp. 23 (agreeing that “no express constructions are necessary to resolve this IPR”). slip op. at 11

  • Claim Construction › Intrinsic evidence (Phillips canons) › Specification disavowal / 'present invention' languageDisclaimer not foundDecided for petitioner

    “We find that Petitioner has shown that the combination of Doughty and Van Boucq accounts for these limitations. We are not persuaded by Patent Owner’s arguments that claim 1 somehow excludes, what Patent Owner calls, the “Unique Identifier/Tracker Embodiment.” See PO Resp. 27, 31. Beginning with the language of the claims, the claims are silent as to where the “location data” recited in limitation 1[c] is stored. See Tr. 21:7– 16 (Patent Owner agreeing that “the stored location data does not actually have a required location at all” in the claim, and need not be stored in a database). Nor does Patent Owner direct us to any claim language that would specifically exclude “location data” stored on the user’s device. See Sur-reply 2–3. “The patentee is free to choose a broad term and expect to obtain the full scope of its plain and ordinary meaning unless the patentee clearly redefines the term (lexicography) or disavows claim scope (claim disavowal).” Aortic Innovations LLC v. Edwards Lifesciences Corp., 159 F.4th 1, 8 (Fed. Cir. 2025) (citing Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1367 (Fed. Cir. 2012)). Patent Owner directs us to statements in the Specification, stating “[f]or example, the computing device may access a database or other storage location that maintains a mapping of unique identifier to a browser session, a user computing device, and/or location data.” Ex. 1001, 9:52–55; see also id. at 39:26–30 (same), 43:55– 59 (same). But none of those passages amounts to lexicography or disavowal of claim scope. Indeed, when read in their full context, these passages support a broad reading, not a narrow reading, of the claims. The full passage of the Specification states: The computing device may determine, at 406, whether there is a unique identifier that is associated with the user (e.g., the user computing device, the browser, and/or the browser session) stored on the computing device. For example, the script may inform the computing device that there is no unique identifier for the user computing device. The computing device may determine that there is no unique identifier associated with the user computing device when there is no location data stored for the user computing device. For example, the computing device may access a database or other storage location that maintains a mapping of unique identifier to a browser session, a user computing device, and/or location data. Additionally or alternatively, the computing device may determine whether there is a unique identifier for associated with the user based on presence of a location tracker (e.g., cookie) installed in the browser application on the user computing device. Ex. 1001, 9:43–59. The passage above is full of language that indicates that the patentee did not intend to limit the claims to a single embodiment. Indeed, the specific portion of the passage cited by Patent Owner begins with “[f]or example” and further states “[a]dditionally or alternatively, the computing device may determine whether there is a unique identifier for associated with the user based on presence of a location tracker (e.g., cookie) installed in the browser application on the user computing device.” Id. at 9:52–59 (emphasis added). Moreover, the Specification states “[a]dditionally or alternatively, the computing device may determine the location data using the tracker installed in the browser application on the user computing device.” Id. at 10:2–5. The Specification also explains that the tracker may “maintain data related to the user and/or user computing device.” Id. at 12:62–63. Based on these disclosures, we find that the Specification supports a reading where the location data are stored in the user computing” slip op. at 25

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

    “We find persuasive Petitioner’s reasoning that a POSITA would have been motivated to modify Doughty, based on Doughty’s own teachings regarding cookies and similar files, and would have recognized that the techniques of Van Boucq would have offered an efficient and commonly used way to determine whether the user already has been assigned a unique identifier. See Ex. 1007 ¶ 153. Patent Owner’s arguments about the precise contents of Van Boucq’s connection cookie attack Van Boucq individually and ignore the combination and modifications that Petitioner proposes. In the combination, Petitioner proposes incorporating the unique identifier from Doughty into Van Boucq’s connection cookie. See Pet. 26 (citing Ex. 1008, 16:59–17:33; Ex. 1007 ¶ 153). As for Patent Owner’s contention that “[n]othing in the record suggests that Van Boucq’s connection cookie could contain any information about either Doughty’s table 105 Profile ID or Doughty’s hashed email address,” PO Resp. 33, as Dr. Gottesman testifies, “[a] cookie is a small piece of data (text file).” Ex. 2012 ¶ 55. We fail to see why a skilled artisan at the time of the invention would have any difficulty incorporating Doughty’s alphanumeric unique identifier into a text file. See Ex. 1007 ¶¶ 153, 166. Thus, we find that Petitioner has shown a motivation to combine Doughty and Van Boucq for these limitations.” slip op. at 30

  Patent outcomesUS 11,556,947 unpatentable
  Claim construction§ 103 obviousnesscites Phillips · KSR · Graham
  Patents in suitUS 11,556,947
• Samsung Display Co., Ltd. v. Pictiva Displays International Ltd.No claims unpatentable
  PTAB · Mar 4, 2026 · IPR2024-01223 · APJ Garth D Baer · IPR · Final written decision

  Claims 34–37 and 40–46 were not shown unpatentable because Suzuki’s organic barrier layer was not shown to meet the agreed construction of “planarization layer.”

  RulingsFinal written decision

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

    “layer of material that planarizes such that the propagation of defects from one layer to another layer can be interrupted and the topography of the underlying layer and/or structure is not reproduced.” PO Resp. 10. According to Patent Owner, we should adopt this construction because the parties agreed to it in a related district court proceeding and it is supported by the intrinsic evidence. Id. at 10–14. Petitioner does not dispute this 1 Japanese Published Application No. H09-245964, Pub. Sep. 19, 1997 (Ex. 1010, “Kijima”) (English translation). 2 US 6,198,217, Pub. Mar. 6, 2001 (Ex. 1012, “Suzuki”). 3 US 6,087,196, Pub. July 11, 2000 (Ex. 1013, “Sturm”). 4 WO 2001/08242, Pub. Feb. 1, 2001 (Ex. 1016, “Duthaler”). 5 Japanese Published Application No. H10-41069, Pub. Feb. 13, 1998 (Ex. 1014, “Fujimori”) (English translation). construction. Paper 33, 6:17–8:1; see Pet. Reply 5. We adopt the parties’ agreed-to construction.” slip op. at 4

  • Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable

    “Petitioner argues Suzuki’s organic barrier layer does not reproduce the underlying layer’s/structure’s topography because “Suzuki’s organic barrier layer 20 ‘makes a smooth surface on the relatively irregular surface of the cathode 18.’” Pet. Reply 7 (quoting Ex. 1012, 5:59–67). We disagree. Instead, we agree with Patent Owner that Suzuki’s irregular-surface smoothing describes covering defects, not suppressing the underlying cathode’s topography. PO Sur-reply 5. The smooth-surface passage that Petitioner highlights comes immediately after two sentences describing inevitable “defects,” “pinholes,” and “foreign matter” on the cathode surface and before a sentence describing “ensuring the formation of the layer 22, which is substantially defect-free.” Ex. 1012, 5:52–67. Suzuki’s organic barrier 20 “makes a smooth surface” by covering defects because the defects are the only source of the “irregularity” that Suzuki refers to here. Id. We note Mr. Humphrey’s testimony, which we credit in this regard, that the “defects are created incidentally on the surface of the underlying layer and are generally not considered to be part of the underlying layer’s topography, which is a macroscopic property by design” and that the organic layer is not a planarization layer because it would reproduce the topography of the underlying layer. Ex. 2018 ¶¶ 47–48. Because the parties’ agreed-to construction of “planarization layer” “requires ‘a layer of material that planarizes’ for two distinct functions,” Petitioner’s showing of just one of those functions is insufficient. PO Sur-reply 2.” slip op. at 8

  • Skill levelSkill level petitioner adoptedDecided for petitioner

    “G. Level of Skill in the Art Petitioner argues a person of ordinary skill in the art “would have had a bachelor’s degree in Electrical Engineering, Materials Science, or a related field, and at least one year of experience in display technologies” and that “[a]dditional education might compensate for a deficiency in experience, and vice-versa.” Pet. 14–15. Patent Owner does not dispute the level of ordinary skill in the art. We agree with and adopt Petitioner’s proposal as reasonable and consistent with the level of skill reflected in both the prior art and the ’389 patent. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art may reflect an appropriate level of skill in the art).” slip op. at 6

  • Expert testimonyPatent owner expert creditedDecided for patent owner

    “which is substantially defect-free.” Ex. 1012, 5:52–67. Suzuki’s organic barrier 20 “makes a smooth surface” by covering defects because the defects are the only source of the “irregularity” that Suzuki refers to here. Id. We note Mr. Humphrey’s testimony, which we credit in this regard, that the “defects are created incidentally on the surface of the underlying layer and are generally not considered to be part of the underlying layer’s topography, which is a macroscopic property by design” and that the organic layer is not a planarization layer because it would reproduce the topography of the underlying layer. Ex. 2018 ¶¶ 47–48. Because the parties’ agreed-to construction of “planarization layer” “requires ‘a layer of material that planarizes’ for two distinct functions,” Petitioner’s showing of just one of those functions is insufficient. PO Sur-reply 2.” slip op. at 9

  Patent outcomesUS 6,949,389 not shown unpatentable
  Claim construction§ 103 obviousness
  Patents in suitUS 6,949,389
• Samsung Display Co., Ltd. v. Pictiva Displays International Ltd.All claims unpatentable
  PTAB · Mar 4, 2026 · IPR2024-01222 · APJ Garth D Baer · IPR · Final written decision

  Claims 34–37 and 40–46 are unpatentable as obvious over the Yamazaki-based and Weaver-based grounds.

  RulingsFinal written decision

  • Novelty / Anticipation (§102) › Priority / effective filing date / continuation supportDecided for petitioner

    “Patent Owner bears the burden of production to establish that its claimed invention is entitled to an earlier priority date for this fact-intensive issue. See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1375–76 (Fed. Cir. 2016). We agree with Petitioner that the email chain does not support Patent Owner’s conception claim because it “does not discuss depositing a planarization layer, as required by both independent claims.” Pet. Reply 3. Patent Owner asserts that the inventor’s discussion of “PML” (polymer multi-layer) encapsulation in the email chain shows their conception of the claimed planarization layer because the ’389 patent describes that PMLs “‘[t]ypically’ include[e] ‘a planarization layer’ that ‘is provided to give a planar surface’ for deposition of an upper layer,” and “‘address ‘any point defects (i.e. pin holes)’ that might appear in the barrier layer’s surface.” PO Resp. 6 (quoting Ex. 1001, 1:31–37, 1:41–44, 1:56–62). We disagree with Patent Owner for two reasons. First, the challenged patent’s specification does not corroborate that the inventors conceived the claimed planarization before the challenged patent’s priority because it did not exist at the time of the email. Whether the inventors, at the time of filing, considered PMLs to typically include a planarization layer as of the claimed priority date does not support the allegation that they conceived of that same planarization layer more than a year earlier. Moreover, the ’389 patent’s teaching that “[t]ypically, for PML structures, a planarization layer 106 is formed” (Ex. 1001, 1:30–31) shows that the inventors recognized PML structures and planarization layers were distinct because only a subset of PML structures formed planarization layers, even if they do so typically. Thus, the inventor’s discussion of a PML layer in the email chain does not evidence their conception of the claimed planarization layer, as Patent Owner contends. Additionally, even if we were to understand the inventors’ mention of PML encapsulation in the emails, together with the discussion of patterning techniques for an organic layer, as discussing a planarization layer, such discussions are evidence of brainstorming ideas, rather than documenting the path taken with the claimed invention. For instance, the inventors use phrases like “don’t know if this will work,” “these are all just ‘undeveloped’ ideas,” and “looking forward to keep this discussion rolling.” Ex. 2006, 1; see also Ex. 1034, 59:22−59:18. As Petitioner argues, and we agree, these are more theoretical and future-development discussions than an exchange of a definite idea. Pet. Reply 2−3 (citing Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376 (Fed. Cir. 1986). For these reasons, we agree with Petitioner that Patent Owner has not” slip op. at 6

  • Novelty / Anticipation (§102) › Prior-art status of a reference › Applicant-admitted prior artDecided for petitioner

    “B. Whether Petitioner Relies on Applicant Admitted Prior Art Patent Owner asserts we should “not consider” Yamazaki-based challenges because Petitioner included Applicant Admitted Prior Art (AAPA) in those grounds. See PO Resp. 16 (citing Qualcomm Incorporated v. Apple Inc., 134 F.4th 1355 (Fed. Cir. 2025)) (holding that AAPA may not be part of the basis for an inter partes review). We disagree. As Petitioner notes, it “utilizes the AAPA in the alternative with Ghosh, to show that it was known to manufacture OLED devices in bulk (which [Patent Owner] does not dispute).” Pet. Reply 9. Because “[t]he Petition identifies disclosures in Ghosh that independently demonstrate the same teachings for which the AAPA is cited,” we agree with Petitioner that it does not improperly rely on AAPA for any of its challenges. Id.” slip op. at 8

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

    “C. Whether Yamazaki, Weaver, and Palanisamy Are Printed Publications under 35 U.S.C. § 311(b) Patent Owner asserts that Yamazaki, Weaver, and Palanisamy do not qualify as printed publications under 35 U.S.C. § 311(b) because they only qualify as prior art under § 102(e). PO Resp. 17. According to Patent Owner, “[e]ven though the Federal Circuit has held that such references are ‘printed publications’ under 311(b), to preserve arguments on appeal, Patent Owner submits that such an interpretation is inconsistent with the plain statutory language, the precedent, and non-public accessibility of an unpublished patent application.” Id. We disagree with this argument because the Federal Circuit has rejected it, as Patent Owner acknowledges. See Lynk Labs, Inc. v. Samsung Electronics Co., 2023-2346, Slip. Op. (Fed. Cir. Jan. 14, 2025).” slip op. at 8

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

    “Yamazaki does not involve multiple devices on a substrate” and Ghosh teaches “non-selective deposition of at least the barrier layer.” PO Resp. 31. We disagree with this argument because it attacks Yamazaki and Ghosh individually, rather than the combination of Yamazaki’s selective deposition and Ghosh’s plurality of devices that Petitioner asserts. See In re Keller, 642 F.2d 413, 426 (CCPA 1981). We also disagree with Patent Owner’s criticism that Petitioner fails to explain why skilled artisans would have ignored Ghosh’s non-selective deposition method for barrier layers on multiple devices. PO Resp. 32. This argument attacks a straw man as Petitioner does not propose modifying Ghosh’s method with Yamazaki’s selective deposition. See Pet. 21–23. Rather, Petitioner proposes modifying Yamazaki’s selective deposition method by applying it to Ghosh’s teaching of encapsulating a plurality of OLED devices. Id. Next, Patent Owner asserts that skilled artisans would not have extended Yamazaki’s single-device fabrication/encapsulation method to a plurality of devices on a substrate because doing so would “multiply defects and errors, drop the yield exponentially, and increase the cost.” PO Resp. 34. Patent Owner asserts that precision/defect problems would be particularly acute when using Yamazaki’s inkjet method to print devices’ electro luminescence layers. Id. at 35–36. We disagree. Even if extending Yamazaki’s method to Ghosh’s multiple devices comes at a cost of potential defects, that tradeoff would not undermine Petitioner’s proffered combination given Petitioner’s articulated benefits outline above, including facilitating manufacturing display panels for OLEDs with improved throughput, improved productivity, and reduced manufacturing costs, as compared to fabricating/encapsulating just a single device. See Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes at the expense of another benefit, however, should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another.”). It also does not matter that “inkjet printing yielded devices of half the efficiency than spin coating,” as Patent Owner asserts (PO Resp. 35), because Petitioner does not need to show that Yamazaki’s inkjet printing would be the best option for batch fabrication/encapsulation, only that it would was a suitable one from which the prior art did not teach away. See Par Pharm., Inc. v. TWi Pharms., Inc., 773 F. 3d 1186, 1197–98 (Fed. Cir 2014). That is, Petitioner does not need to show that Yamazaki’s inkjet method was an improvement over other known fabrication/encapsulation methods, so long as it was a known fabrication/encapsulation method and skilled artisans would understand that implementing it for a plurality of devices had known advantages over fabricating/encapsulating a single device, which Petitioner identifies. See Pet. 22. We also agree with Dr. Subramanian that skilled artisans would have a reasonable expectation of success in making the proposed combination given similarities between the references (both are directed to encapsulation of an OLED display device with multiple thin-film layers and at least the first encapsulation is selectively deposited) and because “as the ’389 patent admits, in the prior art it was conventional to use batch fabrication to manufacture OLED display devices with thin-film encapsulation.” Ex. 1003 ¶ 86. As Dr. Subramanian explains, a particular advantage of inkjet printing is that it scales well to larger areas and it was known at the time of the ’389 patent that inkjet could be used to print multiple devices on a glass substrate. Ex. 1032 ¶¶ 2, 27–28. Patent Owner’s argument that “Yamazaki’s methods are far from ready for manufacturing” (PO Resp. 34) goes well beyond what is necessary to show that skilled artisans would have had a reasonable expectation of achieving what is claimed. See Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1367 (Fed. Cir. 2016). Given Petitioner’s analysis outlined above, we agree with Petitioner that it would have been obvious to skilled artisans to fabricate and encapsulate multiple OLED devices on a substrate using Yamazaki’s ink-jet methods. slip op. at 15

  Patent outcomesUS 6,949,389 unpatentable
  § 102 anticipation§ 103 obviousnesscites KSR
  Patents in suitUS 6,949,389

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