BSP Software LLC, Brightstar Partners LLP, and Avnet, Inc.v.Motio, Inc.

Patent Trial and Appeal Board

Nov 29, 2013

12982620 (P.T.A.B. Nov. 29, 2013)

Trials@uspto.gov Paper 10
571-272-7822 Entered: November 29, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

BSP SOFTWARE LLC, BRIGHTSTAR PARTNERS LLP, and
AVNET, INC.
Petitioners

v.
MOTIO, INC.
Patent Owner
____________

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Patent 8,285,678 B2
____________

Before KEVIN F. TURNER, JONI Y. CHANG, and JAMES B. ARPIN,
Administrative Patent Judges.

TURNER, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

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I. INTRODUCTION
Petitioners, BSP Software LLC, Brightstar Partners LLP, and Avnet,
Inc., (“BSP”) filed a Petition (“Pet.,” Paper 1) requesting inter partes review
of claims 1-10 of U.S. Patent No. 8,285,678 B2 (“the ’678 Patent”). Patent
Owner, Motio, Inc. (“Motio”), filed a Preliminary Response thereto
(“Prelim. Resp.,” Paper 9). We have jurisdiction under 35 U.S.C. § 314.
The standard for instituting an inter partes review is set forth in
35 U.S.C. § 314(a), which provides:
THRESHOLD—The Director may not authorize an inter partes
review to be instituted unless the Director determines that the
information presented in the petition filed under section 311
and any response filed under section 313 shows that there is a
reasonable likelihood that the petitioner would prevail with
respect to at least 1 of the claims challenged in the petition.
BSP challenges claims 1-10 as unpatentable under 35 U.S.C. §§ 102
and 103. For the reasons that follow, the Petition is denied.

A. Related Matters
BSP indicates, Pet. 1, that the ’678 Patent was asserted in Motio, Inc.
v. BSP Software LLC and Brightstar Partners LLP, Civil Action No. 4:12-
cv-00647, in the U.S. District Court for the Eastern District of Texas.
We note that the ’678 Patent issued from U.S. Patent Application No.
12/982,620, filed December 30, 2010, and claims priority as a continuation
of U.S. Patent Application No. 11/324,603, filed January 3, 2006, now
U.S. Patent No. 7,885,929 B2. BSP does not argue explicitly what the
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earliest effective filing date of the ’678 Patent is, but does allege that several
proffered references are “prior art to the ’678 Patent.” Pet. 13, 16, 24, 27,
34, 42, 47. Motio does not dispute the prior art nature of the proffered
references, except for the NOAD BUSINESS INTELLIGENCE BV, TECHNICAL
INSIGHT, EQM—INTELLIGENT THINKING, INTELLIGENT RESULTS reference,
Prelim. Resp. 46-47, as discussed below, but also does not provide explicit
analysis for the earliest effective filing date of the ’678 Patent. For purposes
of this proceeding, we accept the earliest effective filing date of the ’678
Patent to be January 3, 2006.

B. The Invention of the ’678 Patent (Ex. 1001)
The invention of the ’678 Patent relates to methods of providing
automatic version control to a business intelligence system. Ex. 1001, Abs.
Business intelligence systems are used to gather, store, analyze and report on
business metric data, such as factory production, personnel productivity in a
manufacturing facility, or trends in sales in a retail store environment. Id. at
1:28-35. The system of the invention employs an automated agent to
monitor continuously changes to the business intelligence software, verify
the changes, and report thereon. Id. at 4:32-33.
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and historical versions of the business intelligence artifacts during the
development or revision of the business intelligence artifact. Id. at 3:41-48.

C. Challenged Claims
BSP challenges independent claims 1 and 4, as well as dependent
claims 2, 3, and 5-10, in its Petition. Claim 1 is reproduced below:
1. In a general purpose computer, a method for providing
automatic version control to a business intelligence system,
comprising:
creating an initial version of a business intelligence
artifact in the business intelligence system, wherein the
business intelligence artifact is a user-authored object that
produces output when the business intelligence artifact is
executed in the business intelligence system, and wherein the
business intelligence artifact is selected from the group
consisting of: a report specification and an analysis cube;
providing an automated agent that interfaces with the
business intelligence system to provide automated version
control to the business intelligence artifact; the automated agent
independently performing the steps of:
automatically storing the initial version of the
business intelligence artifact with a version control
system;
detecting a request to the business intelligence
system to modify the initial version of the business
intelligence artifact to create a subsequent version of the
business intelligence artifact that includes the requested
modification; and
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automatically storing the subsequent version of the
business intelligence artifact in the version control
system.

D. References Relied Upon
BSP relies upon the following references in its asserted grounds of
unpatentability:
Dixon U.S. 2007/0038683 A1 Aug. 3, 2006 Ex. 1002
Dixon-Prov U.S. 60/705,576 Aug. 4, 2005 Ex. 1003
Gentner U.S. 2002/0107886 A1 Feb. 7, 2001 Ex. 1004
McCauley U.S. 2006/0041558 A1 Nov. 1, 2004 Ex. 1005
Cohen U.S. 2003/0050886 A1 Sep. 11, 2001 Ex. 1006
NOAD BUSINESS INTELLIGENCE BV, TECHNICAL INSIGHT, EQM—
INTELLIGENT THINKING, INTELLIGENT RESULTS 1 (2004) (“EQM,” Ex.
1007)1.
BSP also relies upon the following reference in support of its asserted
grounds of unpatentability:
EBI Experts: Version Manager for Business Objects, (February 2004) (Ex.
1009).

E. Asserted Grounds of Unpatentability
BSP seeks to have canceled claims 1-10 of the ’678 Patent based on
the following alleged grounds of unpatentability:

1 As discussed above, Motio disputes that EQM is prior art to the ’678
Patent, Prelim. Resp. 46-47, but we need not decide that issue based on the
discussion of BSP’s asserted grounds in the analysis section below.
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Reference(s) Basis Claims challenged
Dixon § 102(e) 1-3
Gentner § 102(b) 1-10
McCauley § 102(e) 1-3
Dixon and Gentner § 103 1-10
McCauley and Gentner § 103 1-10
Dixon and Cohen § 103 1-3
Gentner and EQM § 103 1-10

II. ANALYSIS
A. Claim Construction
Consistent with the statute and legislative history of the Leahy-Smith
America Invents Act, Pub. L. 112-29, 125 Stat. 284, 329 (2011), the Board
construes claims by applying the broadest reasonable interpretation in light
of the specification. 37 C.F.R. § 42.100(b); see also Office Patent Trial
Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012).
BSP seeks specific claim constructions for the terms “automated
agent,” “report specification,” “analysis cube,” and “detecting a request
. . . to modify.” Pet. 8-12. Motio argues that BSP’s proposed claim
constructions fail to consider the full disclosure of the specification and the
drawings. Prelim. Resp. 10-20. We consider some of the disputed terms
below, as well as additional terms that are necessary for the analysis.
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i) business intelligence artifact
Neither party offers a specific construction of the term “business
intelligence artifact,” but BSP’s asserted grounds of unpatentability and
Motio’s response to those grounds make clear that the parties do not agree
on a specific construction for the term.
Claim 1 recites, in part, that “the business intelligence artifact is a
user-authored object that produces output when the business intelligence
artifact is executed in the business intelligence system.” Claim 4 provides
that “the business intelligence artifact, when executed in the business
intelligence system, generates output based upon business metric data
obtained from the business intelligence system.” The construction of
business intelligence artifact is clear from the claims, but it must be pointed
out that the term requires the production of output when executed in the
business intelligence system. We also note that the Specification and claims
make clear that business intelligence artifacts include “report specifications,
metadata models, and analysis cubes,” Ex. 1001 2:18-19, each of which may
be an electronic document.
We also conclude that certain prior art references would not meet the
requirements of that construction. For example, Gentner discloses that
“[a]nother method of retrieving a previous document state is to retrieve the
display output at one or more times.” Ex. 1004 ¶ 0027. If a document is
edited and the results of those edits are illustrated to a user, such as on a
computer monitor, those illustrated edits would not be output of the
document itself, as required by this construction. Rather, those edits would
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be illustrated changes, but not output of the document.
Additionally, for example, McCauley discloses the use of Extensible
Markup Language (XML) objects. Ex. 1005 ¶ 0047. If an object is in a
format that would make it executable, such a format alone would not
demonstrate necessarily that the object produces output in a specific system.
In other words, the disclosure of an object having computer code or having
an XML structure does not demonstrate that such an object would produce
the necessary output when executed in the appropriate system. The mere
presence of a format, without more, does not require the output required of a
business intelligence artifact, as discussed above.
ii) automated agent
BSP argues that the ’678 Patent does not include an explicit definition
of “automated agent,” and that the Specification does not provide
elaboration. Pet. 8. BSP argues that the term “automated agent” should be
construed to refer to “any software that actively performs version control of
business artifacts.” Id. at 10. Motio disputes this construction and argues
that the claims and Specification of the ’678 Patent require that the
“automated agent” is external to, and interfaces with, the business
intelligence system to provide automated version control to a business
intelligence artifact, that it independently detects either a request for
modification or a modification to a business intelligence artifact, and that it
automatically stores the subsequent version. Prelim. Resp. 16. We are
persuaded by Motio’s arguments on construction of the term.
Although the automated agent is disclosed in the Specification of the
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’678 Patent as separate from the business intelligence system as discussed
above, this separateness is not necessary to the construction of “automated
agent,” as recited in claims 1 and 4. In other words, the independence of the
automated agent from the business intelligence software is not integral to the
claim construction, although all of the claims provide that the agent
interfaces with the business intelligence system. More important to the
construction is the “automatic” nature of the “automated agent.” Claim 1,
for example, refers to the automated agent “independently performing the
steps,” and “automatically storing” versions “to provide automated version
control.” Claim 4 recites similar language and, in part, recites that the
automated agent monitors the system for modifications and records the
modified version “if modifications to the business intelligence artifact are
detected.”
BSP’s construction provides for an agent that “actively performs
version control,” but we are not persuaded that “active” is synonymous with
“automatic.” In the context of the Specification of the ’678 Patent, the
invention provides a system “to continuously monitor, verify and report on
the business intelligence software.” Ex. 1001 4:31-32. This automatic
nature of the agent is deemphasized by BSP’s proposed construction. As
such, a proper construction of “automated agent” is software that interfaces
with a business intelligence system to provide automated version control to a
business intelligence artifact. This construction does not comport with the
construction allegedly asserted by Motio previously, Pet. 10, i.e., that the
term automated agent identifies the general feature of providing version
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control. See also Ex. 1011. However, the construction provided herein most
closely conforms to the disclosure of the Specification and is most consistent
with the recitations of the claims of the ’678 Patent.
The remaining, disputed claim terms or phrases recited in claims 1-10
of the ’678 Patent are given their ordinary and customary meaning, as would
be understood by one with ordinary skill in the art, and need not be
construed explicitly at this time.

B. Asserted Grounds of Unpatentability
i) § 102(e) over Dixon, Claims 1-3
BSP asserts that claims 1-3 of the ’678 Patent are unpatentable over
Dixon under 35 U.S.C. § 102(e). Pet. 12-16. Dixon is directed to a business
intelligence (BI) platform, which includes a BI server, a BI workbench, and
desktop inboxes. Ex. 1002 ¶ 0034. The workbench provides design tools
that allow an analyst to create reports, dashboards, processes, etc., through
the use of Solution Definition files that are used by the server to execute
solutions. Id. at ¶¶ 0035 and 0067. The system utilizes a Version Control
System, id. at Fig. 3, element 323, that “can be used to maintain the Solution
Definition documents and provide synchronization and versioning
capabilities.” Id. at ¶ 0067.
As Motio argues, Prelim. Resp. 24, there is nothing in Dixon that
indicates that Version Control System 323 employs automated version
control. BSP indicates that Version Control System 323 is analogous to “a
version control system,” recited in claim 1, but does not describe a feature in
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Dixon that would disclose the “automated agent.” See Pet. 14. That Dixon
discloses version control does not mean that Dixon discloses an automatic
system, or any type of agent. If BSP intended to argue that the provision of
a version control system requires the presence of an agent, no such argument
is provided in the Petition. Dixon’s disclosure that it provides
“synchronization and versioning capabilities,” Ex. 1002 ¶ 0067, does not
teach automation or the use of an agent. Additionally, nothing in Dr. Perry’s
Declaration, Ex. 1008 ¶¶ 34-47, persuades us that Dixon teaches an
“automated agent,” or that the version control in Dixon is automatic, as
recited in claim 1. Dr. Perry’s testimony does not provide any factual
support to substantiate BSP’s position, and, therefore, is entitled to little, if
any, weight. Petitioner’s arguments regarding claims 2 and 3, which depend
from claim 1, are similarly unpersuasive.
As such, we are not persuaded that BSP has shown a reasonable
likelihood that it will prevail in challenging claims 1-3 as anticipated under
35 U.S.C. § 102(e) by Dixon.

ii) § 102(b) over Gentner, Claims 1-10
BSP asserts that claims 1-10 of the ’678 Patent are unpatentable over
Gentner under 35 U.S.C. § 102(b). Pet. 16-24. Gentner discloses processes
for creating and modifying electronic documents, and saving information
about each change made to the document, as the document is edited.
Ex. 1004 ¶ 0053. Different document states, formed during modification,
may be obtained by a user through a series of undo and redo actions. Id.
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Those document states also may be retrieved through a series of “memorable
events,” arranged along a timeline, where those events are tied to some
activity or inactivity of the user. Id. at ¶¶ 0066-0069.
BSP argues that Gentner discloses all of the elements of claims 1-10.
Pet. 16-24. Motio argues that Gentner fails to disclose any type of user-
authored object that produces output when executed, which would be
equivalent to the claim term “business intelligence artifact.” Prelim. Resp.
28. We are persuaded by Motio’s argument.
BSP alleges that Gentner discloses “electronic documents,” which
could be used to store a report specification and an analysis cube, where the
electronic documents can contain computer code. Pet. 17, 20; Ex. 1004
¶ 0007. As discussed above, a format alone is not sufficient to demonstrate
that the object produces output in a specific system, per the construction of
“business intelligence artifact.” Although the disclosure of an analysis cube
could anticipate an electronic document, the former being a form of the
latter, an electronic document alone does not anticipate a report specification
or an analysis cube or business intelligence artifact. And, although
“computer code” generally produces output, BSP has not pointed out where
such code would be “executed” in Gentner. The “computer code” could be
edited in Gentner, and different versions retrieved, but any output produced
would have nothing to do with the electronic document system disclosed in
Gentner. As such, the electronic documents of Gentner do not teach objects
that produce output when executed in an electronic document system
configured for such objects.
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Additionally, BSP argues that Gentner provides for output from those
electronic documents through another method, specifically reciting that
“[a]nother method of retrieving a previous document state is to retrieve the
display output at one or more times when the electronic document was in the
desired state and the electronic document was displayed.” Pet. 17, 20 (citing
Ex. 1004 ¶ 0027) (emphasis omitted). As discussed above, however,
illustrated edits of the electronic documents in Gentner would not be output
of the documents themselves, as that term is used in the claims.
In addition, with respect to claim 4, that claim provides for a
conditional relationship, such that the modified version is recorded “if
modifications to the business intelligence artifact are detected.” As
discussed above, Gentner provides for automatic back-ups (i.e., “saved from
time to time”), but that is not the same as saving upon detection of a
modification. Ex. 1004 ¶ 0010. Gentner also provides that “as the
document is edited, a permanent record is created of all previous document
states.” Id. at ¶ 0053. That may be accomplished by saving the document a
specified number of times per time interval, but it is not the same as
recording if modifications are detected. Although the overall effect could be
the same, the methodology, as recited in claim 4, would not be followed.
Additionally, Gentner provides for capturing document states based on
memorable events, tied to user activity or inactivity, rather than based on
detected document modifications. Id. at ¶ 0068. For this additional reason,
we are not persuaded that the disclosure of Gentner anticipates the subject
matter of claims 4-10.
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As such, we are not persuaded that BSP has shown a reasonable
likelihood that it will prevail in challenging claims 1-10 as anticipated under
35 U.S.C. § 102(b) by Gentner.

iii) § 102(e) over McCauley, Claims 1-3
BSP asserts that claims 1-3 of the ’678 Patent are unpatentable over
McCauley under 35 U.S.C. § 102(e). Pet. 24-27. McCauley is directed to
content management using content repositories, which manage and provide
access to large data stores. Ex. 1005 ¶ 0033. The data stores are searchable,
and content management systems may provide for content lifecycle
management, versioning, and content review and approval. Id. at ¶ 0047.
McCauley provides for a virtual content repository (VCR) that serves as a
logical representation of the repositories and behaves as a single depository,
with a listing provided as a hierarchical namespace of nodes. Id. at ¶¶ 0048,
0050. McCauley provides a version control capability for the history of
states of the nodes, with users able to “check-out” node versions for editing.
Id. at ¶¶ 0114, 0116-0119.
BSP argues that McCauley discloses all of the elements of claims 1-3.
Motio argues that McCauley fails to disclose “any type of user-authored
object that produces output when executed in the VCR,” which would be
equivalent to the claim term “business intelligence artifact.” Prelim. Resp.
33. We are persuaded by Motio’s argument.
McCauley discloses the use of nodes to represent hierarchy
information, but does not disclose a user-authored object that produces
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output, when executed. BSP alleges that McCauley discloses a lifecycle
definition, which is an XML object. Pet. 24; Ex. 1005 ¶ 0110. As discussed
above, a format alone is not sufficient to demonstrate that the object
produces output in a specific system, per the construction of “business
intelligence artifact.” BSP argues that McCauley’s information in the VCR
can be exported in an external format, such as XML, which preserves the
hierarchical structure of the information, Pet. 25, but that is not necessarily
indicative of output. BSP also argues that the hierarchy can hold
expressions to be evaluated, id., but, again, that connotes a format that is not
sufficient to teach any type of user-authored object that produces output
when executed.
As such, we are not persuaded that BSP has shown a reasonable
likelihood that it will prevail in challenging claims 1-3 as anticipated under
35 U.S.C. § 102(e) by McCauley.

iv) § 103(a) over Dixon and Gentner, Claims 1-10
BSP asserts that claims 1-10 of the ’678 Patent are unpatentable over
Dixon and Gentner under 35 U.S.C. § 103(a). Pet. 27-34. BSP argues that
Dixon discloses the use of version control for business intelligence objects
and that Gentner describes specific ways of providing version control in an
automated manner. Id. at 27. We are not persuaded by BSP’s arguments.
First, with respect to claims 1-3, BSP has cited only to Dixon in its
claim charts arguing the unpatentability of claims 1-3, id. at 27-30, using the
same language as provided in the anticipation grounds over Dixon alone.
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Motio notes this as well. Prelim. Resp. 38. Given the same language and
arguments, even under the standards required by 35 U.S.C. § 103(a), we are
not persuaded by the obviousness grounds over Dixon and Gentner, and we
are not persuaded that BSP has demonstrated a likelihood that it would
prevail with respect to claims 1-3 on this asserted ground.
Second, with respect to claims 4-10, where Gentner is cited, BSP’s
rationale for combining the teachings of Dixon and Gentner is conclusory.
BSP merely states that “it would have been obvious to one of ordinary skill
in the art to augment the version control provided by Dixon with that
described by Gentner.” Pet. 27. As Motio argues, the methods employed by
each reference are quite different, and BSP has failed “to provide sufficient
reasoning or facts upon which to base a conclusion.” Prelim. Resp. 37.
BSP’s reason to combine the teachings of Dixon and Gentner appears to be
that both references are concerned with version control, Pet. 27, which,
without more, is an insufficient rationale to combine. “[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.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006).
Lastly, as discussed above, Gentner also fails to disclose all of the
elements of claim 4, where BSP relies on Gentner in asserting this ground of
unpatentability against claims 4-10. Pet. 30-32. For this additional reason,
Dixon and Gentner fail to teach or suggest all of the elements of claims 4-10.
As such, we are not persuaded that BSP has demonstrated a likelihood that it
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would prevail with respect to at least one of the claims challenged on this
ground.

v) § 103(a) over McCauley and Gentner, Claims 1-10
BSP asserts that claims 1-10 of the ’678 Patent are unpatentable over
McCauley and Gentner under 35 U.S.C. § 103(a). Pet. 34-42. BSP argues
that it would have been obvious to augment the automatic version control
described by Gentner with the version control methodologies disclosed in
McCauley. Id. at 35. As discussed above, however, neither Gentner nor
McCauley discloses business intelligence artifacts. BSP has not provided a
rationale why one of ordinary skill in the art would have considered the
combined processes in McCauley and Gentner applicable to business
intelligence artifacts, let alone the specific method steps employed in
independent claims 1 and 4.
In addition, as discussed above, Gentner also fails to disclose all of the
elements of claim 4, where BSP relies on Gentner in asserting this ground of
unpatentability against claims 4-10. Id. at 39-40. As such, we are not
persuaded that BSP has demonstrated a likelihood that it would prevail with
respect to at least one of the claims challenged on this ground.

vi) § 103(a) over Dixon and Cohen, Claims 1-3
BSP asserts that claims 1-3 of the ’678 Patent are unpatentable over
Dixon and Cohen under 35 U.S.C. § 103(a). Pet. 42-47. BSP argues that it
would have been obvious to augment the automatic version control
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described by Dixon with the version control methodologies disclosed in
Cohen. Id. at 43. As discussed above, we are persuaded that Dixon fails to
teach an “automated agent,” and that the version control in Dixon is not
automatic, as recited in claim 1. In this asserted ground of unpatentability,
BSP contends that Cohen discloses the provision of an automated agent. Id.
at 45. Motio argues that the combination of Dixon and Cohen fails to teach
or suggest all of the elements of claim 1. Prelim. Resp. 42-43. We are
persuaded by Motio’s arguments.
Cohen is directed to managing a controlled and structured transition
between original and new versions of business objects, such as contracts and
request for quotes (RFQs). Ex. 1006, Abs. The business object remains in
an active state during the modification process, with the new version of the
business object remaining in an inactive state, where upon completion, the
new version of the business object is transferred to an active state and the
original business object is transferred to an inactive state. Id. at ¶ 0007.
Before the changes in state, post modification, a human approver either
approves or rejects the new version, with the process controlled by a state
machine. Id. at ¶¶ 0016, 0020-0022.
While the state machine of Cohen arguably could be equivalent to the
automated agent of claim 1, see Pet. 45, we are not persuaded that such an
entity would act automatically, as provided in the above-discussed
construction of that claim term. The versioning in Cohen is contingent on
the approval of a person with the appropriate authority on the approver list.
Ex. 1006 ¶¶ 0018, 0020. BSP notes that “even though an approver is
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required to transition the object from pending to an approved or rejected
state, the pending object version is created automatically.” Pet. 46. The
creation of a version in Cohen, however, is the storing of a version only in
the most transient of ways. This does not comport with the claim limitation
of “automatically storing the subsequent version,” because if the approver
does not approve, the object is moved to the rejected state. Ex. 1006 ¶ 0021.
It is not clear from Cohen that such a rejected state version in any sense
would be “stored,” in that it could later be retrieved. Thus, we are not
persuaded that Dixon and Cohen teach or suggest all of the elements of
claim 1, and claims 2 and 3, dependent thereon.
As such, we are not persuaded that BSP has demonstrated a likelihood
that it would prevail with respect to at least one of the claims challenged on
this ground.

vii) § 103(a) over Gentner and EQM, Claims 1-10
BSP asserts that claims 1-10 of the ’678 Patent are unpatentable over
Gentner and Cohen under 35 U.S.C. § 103(a). Pet. 47-59. BSP argues that
it would have been obvious to augment the automatic version control
described by Gentner with the version control system for a business
intelligence system disclosed in EQM. Id. at 7. As discussed above, we are
persuaded that Gentner fails to disclose a “business intelligence artifact,” as
recited in claims 1 and 4. In this asserted ground of unpatentability, BSP
contends that EQM discloses that its documents may be executable reports,
such as a report specification. Id. at 50. Motio argues that BSP has failed to
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provide any motivation to combine Gentner and EQM. Prelim. Resp. 44-46.
We are persuaded by Motio’s arguments.
EQM is directed to quality assurance software for organizations that
have adopted BusinessObjects as a strategic enterprise platform. Ex. 1007
p. 2. Objects within the system may be developed and deployed to end
users, where user activity and indicators are saved to a repository. Id. at
p. 4. The software includes version control, where “each and every version”
is stored and may be retrieved at any point in time. Id. at p. 3. BSP argues
that “[a]n EQM document may be an executable report, such as a report
specification,” Pet. 50, and that one of ordinary skill in the art would have
considered a report specification or analysis cube as the types of business
objects that would be versioned in a business intelligence system. Ex. 1008
¶ 90.
BSP’s reason to combine the teachings of Gentner and EQM,
however, appears to be that both references are concerned with version
control, Pet. 47, which, without more, is an insufficient rationale to combine.
There is no “why” provided where BSP argues that “one of ordinary skill in
the art would have been motivated to apply the version control
methodologies taught in Gentner to the business intelligence systems
disclosed by EQM.” Id. at 48. Dr. Perry’s Declaration is equally unavailing
of any reason why the teachings would have been combined, other than
perhaps that one could. Ex. 1008 ¶ 93. We give Dr. Perry’s testimony little,
if any, weight, as it does not provide any factual support to substantiate
BSP’s position. As Motio argues, the methods employed by each reference
Case IPR2013-00307
Patent 8,285,678 B2
22
are quite different, and BSP has failed “to provide sufficient reasoning or
facts upon which to base a conclusion.” Prelim. Resp. 45. Without more,
we are not persuaded that one of ordinary skill in the art would have
combined the teachings of Gentner and EQM to provide the methods of
claims 1 and 4, nor of claims 2, 3, and 5-10 dependent thereon.
As such, we are not persuaded that BSP has demonstrated a likelihood
that it would prevail with respect to at least one of the claims challenged on
this ground.

III. CONCLUSION
For the foregoing reasons, we have not identified any of BSP’s
asserted grounds of unpatentability on which BSP likely will prevail. As
such, BSP has failed to demonstrate a reasonable likelihood of prevailing on
its assertions as to any of the challenged claims.

IV. ORDER
It is ORDERED that the Petition is denied as to all challenged claims.
It is FURTHER ORDERED that no inter partes review is
instituted.
Case IPR2013-00307
Patent 8,285,678 B2
23
For PETITIONER:
John D. Lanza
Ruben Rodrigues
Foley & Lardner LLP
Jlanza-PRPS@foley.com

For PATENT OWNER:
Shannon W. Bates
Kirby B. Drake
Klemchuk Kubasta LLP
Shannon.Bates@kk-llp.com
Kirby.Drake@kk-llp.com