Skimlinks, Inc.v.Linkgine, Inc.

Patent Trial and Appeal Board

Mar 16, 2016

12907638 (P.T.A.B. Mar. 16, 2016)

Trials@uspto.gov Paper No. 41
571-272-7822 Filed: March 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

VIGLINK, INC.,
and
SKIMLINKS, INC. and SKIMBIT, LTD.,
Petitioner,

v.

LINKGINE, INC.,
Patent Owner.
____________

Case CBM2014-00185
Patent 8,027,883 B21
____________

Before KEVIN F. TURNER, PHILLIP J. KAUFFMAN, and
KRISTINA M. KALAN, Administrative Patent Judges.

KALAN, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 328(a) and 37 C.F.R. § 42.73

1 Case CBM2015-00087 has been joined with this proceeding.
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I. INTRODUCTION
A. Background
VigLink, Inc. (“VigLink”) filed a Petition (Paper 8, “Pet.”) to institute
a covered business method patent review of claims 1–8 of U.S. Patent No.
8,027,883 B2 (Ex. 1002; “the ʼ883 patent”) pursuant to 35 U.S.C. §§ 321–
329. Linkgine, Inc. (“Patent Owner”) filed a Preliminary Response. Paper
10. Based on these submissions, we instituted trial as to claims 1–8 of the
’883 patent. Paper 12 (“Dec.”).
Skimlinks, Inc. and Skimbit, Ltd. (collectively, “Skimlinks”) filed a
Petition for inter partes review of claims 1–8 of the ’883 patent, which
Petition was accorded a filing date of March 10, 2015. Case CBM2015-
00087, Paper 1, Paper 7. On April 17, 2015, Skimlinks also filed a Motion
for Joinder to join the case with the previously instituted proceeding in
VigLink, Inc. v. Linkgine, Inc., Case CBM2014-00185. Case CBM2015-
00087, Paper 11. On June 15, 2015, we instituted trial in CBM2015-00087
and joined the case with Case CBM2014-00185. Case CBM2015-00087,
Paper 14.
After institution, Patent Owner filed a Response (Paper 19, “PO
Resp.”). VigLink and Skimlinks (collectively, “Petitioner”) filed a Reply
(Paper 27, “Reply”). A consolidated oral hearing for CBM2014-00184 and
CBM2014-00185 was held on December 4, 2015. A transcript of the
argument is entered in the record. Paper 40 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is entered pursuant to 35 U.S.C. § 328(a). We conclude for the
reasons that follow that Petitioner has shown by a preponderance of the
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evidence that claims 1–8 of the ’883 patent are unpatentable. Petitioner’s
Motion to Exclude (Paper 28) is dismissed.
B. Related Matters
The parties indicate that the ’883 patent is the subject of the
following district court proceeding: Linkgine, Inc. v. VigLink, Inc., No.
1:14-cv-00570 (E.D. Va.). Ex. 1003, Pet. 1; Paper 5, 1. In addition, U.S.
Patent 7,818,214 B2 is the subject of a covered business method patent
review in Case CBM2014-00184.
C. The ʼ883 Patent (Ex. 1002)
The ʼ883 patent relates to an affiliate manipulation system that
permits consumers, Internet Service Providers (ISPs), search engines, and
intermediaries to maximize affiliate program participation in transactions by
or through them. Ex. 1002, Abstract. The operation of the affiliate
manipulation system is illustrated in Figure 4 from the patent reproduced
below:
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Figure 4 is a process flowchart for an embodiment of the affiliate
manipulation system. Id. at 2:31–32. In the flowchart reproduced above,
the user requests data through the Internet at step 400. Id. at 8:11–13. At
step 402, the system checks the data for a possible affiliate link. Id. at 8:16–
17. Affiliate links that contain URLs that participate in affiliate programs
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are affiliate targets. Id. at 8:20–21. If there are no possible affiliate targets
404, the system serves the data to the user in step 406 and ends the process
in step 408. Id. at 8:21–23. If there are possible affiliate targets, the system
checks the URLs for existing affiliate codes in step 410; if no affiliate codes
exist, the system adds the affiliate program code to the affiliate target
information in step 414. Id. at 8:25–29. If affiliate codes exist, the system
determines if the affiliate codes need to be replaced at step 424. Id. at 8:44–
46. If the affiliate codes are not for a preferred commercial agent, then the
existing affiliate code is removed in step 426, and the system continues to
step 414. Id. at 8:46–49. At step 416, the system queries the database or
array for affiliate information based on the affiliate target information;
retrieves the affiliate information in step 418, and merges the data and
affiliate code in step 420. Id. at 8:32–37. The system may then serve the
data to the user and end the process if this is the last possible affiliate, or go
back to step 402 to analyze the data for additional possible affiliate links. Id.
at 8:37–43.
D. Illustrative Claim
Claims 1 and 8 are independent method claims. Claims 2–7 depend
directly from claim 1. Claim 1 is reproduced below:
1. A method for operating an automated affiliate manipulation
system comprising:
identifying a transmission of preexisting data directed
toward a first computer over a communication network,
identifying the preexisting data at an intermediary
computer, the intermediary computer being separate from the
first computer,
analyzing the preexisting data at the intermediary
computer to automatically identify at least one data element
corresponding to an affiliate-capable merchant,
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determining that the at least one data element comprises
an existing affiliate code,
determining that the data element is not associated with a
preferred affiliate code,
removing the existing affiliate code associated with the
data element,
creating modified data at the intermediary computer by
associating the preferred affiliate code with the data element,
the modified data comprising at least one affiliate link
associated with the affiliate-capable merchant,
delivering the modified data to the first computer, and
communicating the preferred affiliate code to the
affiliate-capable merchant upon selection of the affiliate link.

Ex. 1002, 8:61–9:16.
E. The Prior Art
Petitioner relies on the following prior art:
1. US Patent No. 6,804,660 B2, issued October 12, 2004
(“Landau”) (Ex. 1010);
2. Int’l Pub. No. WO 00/58861, published October 5, 2000
(“Priest”) (Ex. 1012).
Petitioner also relies on the Declaration of Dr. Michael Shamos (Ex.
1007, the “Shamos Declaration”) in support of its arguments.
F. Instituted Grounds
References Basis Claims Instituted
§ 101 1–8
Landau § 102(a) 1–8
Priest § 102(a) 1–8
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G. Standing
We determined, in the Decision on Institution, that the ’883 patent is a
covered business method patent, as defined in § 18(a)(1)(E) of the America
Invents Act and 37 C.F.R. § 42.301, because at least one claim of the ’883
patent is directed to a covered business method. Dec. 8–12. Patent Owner
does not dispute our previous analysis in its Patent Owner Response. Thus,
after considering the record again, we reaffirm our determination in the
Decision on Institution and conclude that the ’883 patent is eligible for a
covered business method patent review.
II. ANALYSIS
A. Claim Construction
The Board interprets claims in an unexpired patent using the broadest
reasonable construction in light of the specification of the patent in which
they appear. 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC, 793
F.3d 1268, 1277–79 (Fed. Cir. 2015) (“We conclude that Congress
implicitly approved the broadest reasonable interpretation standard in
enacting the AIA.”), cert. granted sub nom. Cuozzo Speed Techs., LLC v.
Lee, 136 S. Ct. 890 (mem.) (2016). Under the broadest reasonable
interpretation standard, claim terms are given their ordinary and customary
meaning in view of the specification, as would be understood by one of
ordinary skill in the art at the time of the invention. In re Translogic Tech.,
Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Claim terms generally are given
their ordinary and customary meaning, unless it appears from the
specification or the file history that they were used differently by the
inventor, in a clear, deliberate, and precise manner. In re Paulsen, 30 F.3d
1475, 1480 (Fed. Cir. 1994).
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In instituting trial, we expressly construed the terms
“automatic/automatically” to mean “without human intervention.” Dec. 7–8.
Neither party specifically addresses or contests this claim construction.
Accordingly, we maintain our construction of the terms
“automatic/automatically” to mean “without human intervention.”
B. Patentability of Claims 1–8 Under 35 U.S.C. § 101
1. Overview
Section 101 of the Patent Statute defines the subject matter eligible for
patenting: “Whoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the conditions
and requirements of this title.” 35 U.S.C. § 101.
The Supreme Court, however, has “long held that this provision
contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014) (quoting Assoc. for Molecular
Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013) (internal
quotation marks and brackets omitted)). “The ‘abstract ideas’ category
embodies the longstanding rule that ‘[a]n idea of itself is not patentable.’”
Id. at 2355 (quoting Gottschalk v. Benson, 409 U.S. 63, 67 (1972)
(quotations omitted)).
In Alice Corp., the Supreme Court emphasized the importance of the
“Mayo framework,” which provides “a framework for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts.” Id. (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97
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(2012)). Under the Mayo framework, first, we “determine whether the
claims at issue are directed to a patent-ineligible concept.” Id. Next, “we
consider the elements of each claim both individually and ‘as an ordered
combination’ to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Id. (citing Mayo, 132
S. Ct. at 1298, 1297).
Under Mayo, to be patentable, a claim must do more than simply state
the law of nature or abstract idea and add the words “apply it.” Mayo, 132
S. Ct. at 1294; Benson, 409 U.S. at 67. Furthermore, “the mere recitation of
a generic computer cannot transform a patent-ineligible abstract idea into a
patent-eligible invention.” Alice Corp., 134 S. Ct. at 2358. “Thus, if a
patent’s recitation of a computer amounts to a mere instruction to
‘implemen[t]’ an abstract idea ‘on . . . a computer,’ that addition cannot
impart patent eligibility.” Id. (internal citation omitted). Thus, we first
analyze the claims of the ʼ883 patent to determine whether the claims
embody an abstract idea. If they do, then we proceed to determine whether
the claims are meaningfully limited to a patent-eligible application of an
abstract idea, or cover nothing more than the abstract idea itself.
2. Whether Claims 1–8 Are Directed to an Abstract Idea
As the first step of our analysis, we must determine whether the
claims at issue are directed to a patent-ineligible concept, such as an abstract
idea. See Alice Corp., 134 S. Ct. at 2355.
Petitioner contends that “[t]he ’883 Patent claims are directed to the
basic mental process of identifying a string of characters and replacing the
identified string of characters with a preferred string of characters.” Pet. 26.
Petitioner focuses its § 101 arguments on claims 1 and 8, arguing that the
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claims are not meaningfully limited because they are directed to mental
processes. Id. at 28–33. Petitioner asserts that the steps of “reading a web
address, determining whether an affiliate code is appended to the end of the
web address, and replacing the affiliate code with a preferred affiliate code”
are steps that can be performed by a person. Id. at 26; see also Reply 4–5
(discussing example of sales associate ID being replaced in a brick-and-
mortar context). Petitioner supports this assertion by referring to the file
history, in which “the then-Applicant analogized the claimed invention to
the interaction between a bookstore and its salesperson.” Pet. 26; Ex. 1004,
356–57 (Patent Owner’s Reply, discussing bookstore example and stating “if
this process [payment of commission] were repeated using (x) number of
commissioned salespeople each automatically/dynamically receiving the
commission for their applicable sale, it would demonstrate Applicant’s
dynamic utility as an offline process.”); Tr. 16:14–21. Petitioner emphasizes
that “the disclosed system is simply a way to capture commissions for sales
leads by replacing the affiliate ID of the entity that generated the sales lead
with an affiliate ID chosen by an intermediary.” Reply 1.
Patent Owner argues that the claims “are not directed to an abstract
idea, and thus are patentable” and are not directed to a generic internet
business practice, but rather are “drawn to such a specific computer-
implemented method that transforms data in this specific way (thereby
changing the normal operation of the Internet so that a preferred affiliate
rather than another is given credit for a referral).” PO Resp. 18. However,
“[a]n abstract idea does not become nonabstract by limiting the invention to
a particular field of use or technological environment such as the Internet.”
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
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1366 (Fed. Cir. 2015) (citations omitted). We are, therefore, not convinced
by Patent Owner’s argument that the claims are not abstract because they are
limited to a specific application.
We note that the fundamental issue at hand, allocating commissions,
can be performed by humans, or with the aid of pencil and paper. See, e.g.,
Mortgage Grader, Inc. v. First Choice Loan Servs., 811 F.3d 1314, 1324
(Fed. Cir. 2016) (noting that the steps of the claims could be performed by a
human without the use of a computer in concluding that the claims at issue
were drawn to an abstract idea); Tr. 17:16–21. Although we have
considered Patent Owner’s arguments to the contrary, we see little difference
between replacing one character set with another character set to denote the
recipient of a commission and the type of fundamental economic practices
considered to be abstract ideas in Alice Corp. and Bilski.2 As established by
the record, the concept of commissions, as well as the practice of allocating
commissions, existed long before the internet. See, e.g., Pet. 8–9 (citing Ex.
1004, 128, 132, 356–57).
Patent Owner argues that the ʼ883 patent claims “cover a method of
operating an automated affiliated manipulation system” and thus are like the

2 In Alice Corp., the Supreme Court determined that the claims at issue were
“drawn to the concept of intermediated settlement,” i.e., the use of a third
party to mitigate settlement risk. Id. at 2356. Furthermore, the Supreme
Court determined that “[l]ike the risk hedging in Bilski, the concept of
intermediated settlement is ‘a fundamental economic practice long prevalent
in our system of commerce.’” Id. (citations omitted). With respect to the
first step of the “Mayo framework,” the Supreme Court concluded in Alice
Corp. that “there is no meaningful distinction between the concept of risk
hedging in Bilski and the concept of intermediated settlement” in Alice
Corp., and that “[b]oth are squarely within the realm of ‘abstract ideas’ as
we have used that term.” Id. at 2357.
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claims in Diamond v. Diehr, 450 U.S. 175 (1981), which also were not
directed to a mathematical formula or any other abstract concept in isolation.
PO Resp. 12. Patent Owner contends that, as in Diehr, “even if a limitation
of the claims, in isolation, are directed to an abstract idea, the claims here are
not abstract because they are directed to a claimed process performed on a
system as a whole.” Id. at 13. Petitioner responds that the two “non-
conventional steps” that rendered Diehr patentable are unlike the computer
systems recited in the ’883 patent claims. Reply 7–8. We are unpersuaded
by Patent Owner’s reliance on the outcome in Diehr. Diehr involved use of
a well-known mathematical equation to solve a technological problem
(curing rubber) in conventional industry practice. See Versata Dev. Grp. v.
SAP Am. Inc., 793 F.3d 1306, 1332–33 (Fed. Cir. 2015). Here, in contrast,
the problem purportedly addressed by the ʼ883 patent, the allocation of
commissions, is a business need, not a technological problem. The steps
recited in the ’883 patent claims disclose few technological details, but
rather focus on conventional computers performing the steps of receiving,
delivering, and communicating data, none of which represent technological
advances.
Patent Owner also analogizes the invention of the ’883 patent to the
invention at issue in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014), stating that the ’883 patent claims “recite ‘modified data’
that includes at least one affiliate link, wherein the affiliate link comprises a
URL associated with the affiliate-capable merchant.” PO Resp. 14.
Petitioner disagrees with this analogy, in that DDR Holdings “has no
applicability” to patent claims that do not address problems unique to the
internet. Reply 9. DDR Holdings “drew a distinction between the patent-
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eligible claims at issue and patent-ineligible claims in the past that had
merely recited commonplace business methods aimed at processing business
information, applying known business processes to particular technological
environments.” Versata, 793 F.3d at 1333. Patent Owner’s argument
overlooks the distinction made in DDR Holdings between technical solutions
and claims reciting “commonplace business methods,” such as commission
allocation. Unlike the claims in DDR Holdings, there is nothing in Patent
Owner’s claims that makes them “Internet-centric.” The mere reference in
the claims to an automated system or method having a first computer, a
second computer, and an intermediary computer does not suffice. The
claims “are not rooted in computer technology to solve a problem
specifically arising in some aspect of computer technology.” Versata, 793
F.3d at 1334.
Patent Owner also argues that the ’883 patent claims are like the
claims at issue in PNC Bank, Nat’l Assoc. v. Secure Axcess, LLC.,
CBM2014-00100, slip op. at 19–21 (PTAB Sept. 9, 2014) (Paper 10), which
were found not to recite an abstract idea in that they related to a computer-
implemented method to transform data in a particular manner. PO Resp. 17.
Petitioner responds that the abstract idea embodied in the ’883 patent
“permeates the claims,” and thus the PNC Bank decision, in which the
petitioner failed to adequately tie the abstract idea to the claim language, is
inapplicable. Reply 10. Petitioner states that steps 1–4 of claim 1 can be
reduced to “the mental process of identifying a web address that includes an
affiliate code,” “step 5 involves the mental process of determining that the
detected data element is not associated with a preferred affiliate code,” and
“step 6 merely consists of replacing or otherwise associating the detected
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affiliate code with the preferred affiliate code.” Pet. 29. We are not
persuaded that the case at hand resembles the situation in PNC Bank, in that
Petitioner here has identified sufficiently how each step of the challenged
claims ties in to the abstract idea. Id. at 28–33; Reply 10–11.
We conclude, therefore, that Petitioner has demonstrated that the ʼ883
patent claims, like the claims in Bilski and Alice, are directed to an abstract
idea, namely, replacing one character set with another character set to denote
the recipient of a commission.
3. Whether Claims 1–8 Are Meaningfully Limited
The second step of the Supreme Court’s “Mayo framework” requires
that we consider the elements of the claim and determine whether there is an
“element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Alice Corp., 134 S. Ct. at 2355 (quoting Mayo,
132 S. Ct. at 1294).
A challenged patent claim, properly construed, must incorporate
enough meaningful limitations to ensure that it claims more than just an
abstract idea and not just a mere “‘drafting effort designed to monopolize the
[abstract idea].’” Id. at 2357 (quoting Mayo, 132 S. Ct. at 1297). “Simply
appending conventional steps, specified at a high level of generality,” is not
“enough” for patent eligibility. Id. (quoting Mayo, 132 S. Ct. at 1297,
1300).
Petitioner argues that, other than the claimed mental process, claim 1
includes nothing but the conventional computer operations of “identifying a
transmission of preexisting data directed toward a first computer over a
communication network, identifying the preexisting data at an intermediary
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computer, ..., and delivering modified data to the first computer, and
communicating the preferred affiliate code to the affiliate capable merchant
upon selection of the affiliate link.” Pet. 28. Petitioner further argues that
“no novel or otherwise unique machine is needed to perform the claimed
methods.” Id. at 33.
Patent Owner argues that the ’883 patent claims are “drawn to such a
specific computer-implemented method that transforms data in this specific
way (thereby changing the normal operation of the Internet so that a
preferred affiliate rather than another is given credit for a referral).” PO
Resp. 18. Patent Owner argues that the claimed subject matter “solves
technical problems and improved technical systems.” PO Resp. 19. Patent
Owner faults Petitioner for overlooking the express requirement of the
“intermediate computer” performing express requirements of the claims. Id.
at 20. Patent Owner also argues that the claims represent a specific
application of particular devices to perform the alleged abstract idea. Id. at
21. For example, Patent Owner argues that the “altering of the usual
operation of the Internet (where affiliate credits are given to the merchant
whose code is originally present, Ex. 1002 at 1:26–32) is significantly more
than mere character string replacement.” Id. at 21–22.
Petitioner responds that recitation of a generic computer component,
such as an “intermediate computer,” does not pass step two of Alice. Reply
12. Petitioner also argues that the ’883 patent does not change the usual
operation of the internet through its disclosure of the intermediary computer,
as its claims “do not recite any technological improvements to the operation
of computers, routers, or any of the other hardware used to implement the
Internet.” Id. at 14; see also Tr. 20:4–9.
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Patent Owner’s argument that the claims are meaningfully limited
because they recite steps performed by an intermediate computer is
unavailing. PO Resp. 20–21. We are not convinced that reciting a standard
computer performing a standard computer operation imposes meaningful
limitations on the abstract idea. We agree with Petitioner that the
disclosures regarding the technical details of the “intermediary computer”
are sparse, and do not make the intermediary computer specialized. Claims
do not become patent-eligible under § 101 simply for reciting a known,
general purpose computer. Benson, 409 U.S. at 67 (invalidating as patent-
ineligible claimed processes that “can be carried out in existing computers
long in use, no new machinery being necessary,” or “can also be performed
without a computer”). The Supreme Court rejected a similar argument,
determining that “the claims at issue amount to ‘nothing significantly more’
than an instruction to apply the abstract idea of intermediated settlement
using some unspecified, generic computer.” Alice Corp., 134 S. Ct. at 2360
(quoting Mayo, 132 S. Ct. at 1298).
Finally, we address Patent Owner’s argument that the patents should
stand under § 101 because there is no preemption. PO Resp. 23. We are not
convinced that this argument has merit. As the Federal Circuit recently
explained in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015), “questions on preemption are inherent in and resolved
by the § 101 analysis.” Thus, “[w]hile preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.” Id. Accordingly, the issue of preemption is
“resolved” by our analysis and resolution of the § 101 issues, and Patent
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Owner’s separate argument based on the asserted absence of preemption is
unavailing.
In the context of patent-eligible subject matter, we discern no
meaningful distinction between independent claim 1, a method claim, and
independent claim 8, also drawn to a method, as claim 8 recites the same
functions as the method steps of claim 1, with differences in certain
limitations. Claims 2–5 involve permutations of retrieving the preexisting
data from either a plurality of sources or a single source, and delivering
modified data to either a single user or to a plurality of users. Ex. 1002,
9:17–28. Claim 6 requires that the preexisting data is created immediately
prior to the transmission thereof. Id. at 10:1–2. Claim 7 further comprises
“defining the intermediary computer as a server.” Id. at 10:3–4. We have
also reviewed these dependent claims, and, for similar reasons as discussed
above, we determine that claims 2–7 do not add any limitations that would
transform the claims into patent-eligible subject matter. Well-understood,
routine, conventional activity does not add significantly more to the abstract
idea. Mayo, 132 S. Ct. at 1298. Moreover, Patent Owner does not point to
any specific limitation in any of the dependent claims that would change the
patent-eligibility analysis.
In summary, Petitioner has demonstrated by a preponderance of the
evidence that the claims of the ʼ883 patent are not patentable because they
are directed to ineligible subject matter under 35 U.S.C. § 101.
C. Asserted Grounds of Unpatentability Under 35 U.S.C. § 102
1. Landau
Landau discloses a method, system, and computer program for
affording “Virtual Affiliates” access to an existing affiliate system. Ex.
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1010, Abstract. Virtual affiliates are affiliates that are not registered with a
particular Merchant’s affiliate system. Id. at 7:49–50. In Landau, a
Webmaster operates a web site, through which a request for a target
Merchant web site triggers a correlation function, such that “the source
Webmaster unique identifier [source Webmaster ID] is correlated to a target
Webmaster unique identifier [target Webmaster ID] functional within the
unique identification system of the requested Merchant system.” Id. at
Abstract. The request may contain the “source Webmaster ID” and the
“target system identifier,” and may also contain information identifying the
source affiliate system of the Webmaster (a “source system identifier”),
either within the URL or based on other information in the URL (such as the
source Webmaster ID). Id. at 10:20–29. Then, a properly formatted entry
mechanism URL is returned, enabling a hand off to the target Merchant
affiliate system and including the correlated target Webmaster unique
identifier. Id. at Abstract.
Petitioner argues that claims 1–8 are anticipated by Landau, cites to
support in the Shamos Declaration, and presents a claim chart that it argues
shows how Landau discloses “each and every element of the limitations of
claims 1–8, which are therefore anticipated by Landau.” Pet. 34–52.
Petitioner argues that the “difference[s] in claim language between claim 8
and claim 1 are non-substantive and are not sufficient to alter the above
analysis of Claim 1 with respect to Landau.” Id. at 41. Petitioner’s Landau
claim chart refers back to its claim 1 analysis to disclose the claim 8
elements. Id. at 51–52.
Patent Owner responds that Landau, which is directed to a “pre-
arranged hub or pool of affiliate networks in which a webmaster in one
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affiliate network is able to access merchants in other affiliate networks” does
not “automatically search for affiliate-capable data elements in data
requested from users nor does it make any attempt to dynamically obtain a
preferred affiliate code for any particular request.” PO Resp. 24–25.
Claim 1 requires “determining that the data element is not associated
with a preferred affiliate code.” Ex. 1002, 9:6–7. Petitioner identifies the
“target Webmaster ID” of Landau as disclosing the “preferred affiliate code”
of claim 1, alleging that the “determining that the data element is not
associated with a preferred affiliate code” claim element is disclosed by
Landau’s “lookup operation to determine a target Webmaster ID (i.e., the
preferred affiliate code).” Pet. 37, 47–48. Specifically, Petitioner argues
that Landau discloses a URL containing a unique identifying code for the
Webmaster within his origin affiliate system or pool (i.e., an existing
affiliate code), which is then subjected to a database lookup to correlate the
source Webmaster ID (existing affiliate code) to a target Webmaster ID (the
preferred affiliate code). Id. at 36–37 (citing Ex. 1010, 14:46–66).
Regarding this limitation, Patent Owner discusses, first, how the
specification of the ’883 patent determines that the data element is not
associated with a preferred affiliate code. PO Resp. 25. Patent Owner then
argues that Landau does not disclose the “preferred affiliate code,” and that
“Petitioner does not point to anything in Landau that discloses a preferred
affiliate code whatsoever.” Id. at 26. Petitioner, in turn, faults Patent Owner
for basing its argument on the specification’s process for determining if an
existing affiliate code is the preferred affiliate code, arguing that “Patent
Owner’s distinctions are not based on claim language and therefore bear no
impact on the anticipation analysis.” Reply 17.
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Based on Petitioner’s argument and the record before us, we are
persuaded that Landau discloses a preferred affiliate code. Landau’s lookup
operation determines that the existing affiliate code (Landau’s source
Webmaster ID) is present, but recognizes that it is not the preferred affiliate
code to complete the transaction. The existing affiliate code (Landau’s
source Webmaster ID) is swapped out for a preferred affiliate code
(Landau’s target Webmaster ID). The target Webmaster ID is the preferred
affiliate code used by Landau to complete the transaction. Use of the word
“preferred” to modify the term “affiliate code” indicates that the preferred
affiliate code is a different element than existing affiliate code, and is
preferred to the existing affiliate code within the affiliate manipulation
system. We have not been directed by Patent Owner to any portion of the
specification that persuasively indicates otherwise.3 Thus, Landau’s
identification of the target Webmaster ID as the preferred alternative affiliate
code to the existing affiliate code meets this limitation of the claims.
Second, regarding the same claim 1 limitation of “determining that the
data element is not associated with a preferred affiliate code,” Patent Owner
argues that the lookup operation and replacement of source Webmaster ID in
Landau is performed automatically, such that Landau does not disclose

3 At oral hearing, Patent Owner was asked whether existing affiliate code
and preferred affiliate code contained non-functional descriptive material;
the issue was not resolved at hearing. Tr. 45:4–49:3. Petitioner, when asked
whether these terms were “not just nonfunctional descriptive material,” and
whether “there is some function to the word ‘preferred’” responded “Yes.”
Tr. 63:21–64:1. We do not find for the purposes of this decision that our
determination relies on whether the terms “existing affiliate code and
preferred affiliate code” are non-functional descriptive material.

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“determining whether to replace the webmaster ID.” Id. at 26. In Landau,
Patent Owner argues, the source Webmaster ID is always replaced. Id. at
27. Preliminarily, we agree with Petitioner that the claim does not require
“determining whether to replace the webmaster ID,” and we instead look to
the actual language of the claims. Reply 17. To disclose “determining that
the at least one data element comprises an existing affiliate code” and
“determining that the data element is not associated with a preferred affiliate
code,” Petitioner relies on the steps disclosed in Figure 6 of Landau. Pet.
36–37 (citing Ex. 1010, 14:46–66). These steps include receiving operation
604, in which the received URL contains a source Webmaster ID (existing
affiliate code), followed by lookup operation 606, in which the lookup
function determines a correlating target Webmaster ID (preferred affiliate
code) for the source Webmaster ID (existing affiliate code). Petitioner
characterizes these operations as follows: “the requested URL does not
include the target Webmaster ID (i.e., the preferred affiliate code), thus a
correlation process is performed that includes a database lookup to correlate
the received source Webmaster ID (i.e., an existing affiliate code) to a target
Webmaster ID (i.e., the preferred affiliate code).” Id. at 37. Figure 6 “is a
flowchart showing a method 508 for processing and correlating user request
data.” Ex. 1010, 14:38–39. Method 508 is described elsewhere in Landau
as a “correlation operation” in which “the affiliate pooling system parses the
request to determine the unique ID of the referring Webmaster (source
Webmaster ID).” Ex. 1010, 10:44–50; see also Tr. 27:19–22 (stating that
Landau “actually uses the language ‘determine’ in the patent itself”).
Petitioner argues that, in other words, “the method of FIG. 6 continues if a
determination is made that the data element comprises an existing affiliate
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code.” Reply 18. We are persuaded that Landau determines that the data
element is not associated with a preferred affiliate code, in operation 508 and
in steps 604 and 606. Ex. 1010, 14:44–66.
Claim 1 also requires “analyzing the preexisting data at the
intermediary computer to automatically identify at least one data element
corresponding to an affiliate-capable merchant.” Ex. 1002, 9:1–3.
Petitioner relies on Landau’s receiving operation 604, which discloses that
the URL received includes information including a source Webmaster ID
and a target system identifier (identifier for the Merchant whose product or
service is offered). Pet. 36 (citing Ex. 1010, 14:45–51). Petitioner reiterates
in its Reply that it relies on Landau’s disclosure of an affiliate pooling
method including receiving a URL (i.e., at least one data element) that
includes “1) the unique identifying code for the Webmaster within his origin
affiliate system or pool (source Webmaster ID), and 2) some identifier for
the Merchant whose product or service is offered [i.e., corresponding to an
affiliate-capable merchant].” Reply 18 (citing Ex. 1010, 14:46–51). Patent
Owner challenges this reliance, stating that because “the data received is
required to be a URL to an affiliate-capable merchant (i.e., such URLs are
the only permitted forms of URLs in Landau), Landau does not disclose
anything that identifies ‘at least one data element corresponding to an
affiliate-capable merchant.’” PO Resp. 28–29. Patent Owner also argues
that Landau does not disclose this limitation because, in part, Landau
presumes the data it is receiving correspond to an affiliate-capable merchant.
Id. at 28. Petitioner disagrees, stating that the “target system identifier”
included in the preexisting data is analyzed in lookup operation 606, which
involves finding “the database assigned to the target Merchant affiliate
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system (target system identifier).” Reply 19 (citing Ex. 1010, 14:58–61).
The claim language requires “analyzing the preexisting data . . . to
automatically identify.” Receiving operation 604 of Landau receives the
incoming data and proceeds to lookup operation 606, which identifies at
least one data element corresponding to an affiliate capable-merchant.
Patent Owner does not identify any reason that the “analyzing” portion of
“analyzing . . . to automatically identify” means “analyzing” for any other
purpose. Patent Owner does not point to any further analysis required in this
step of the claim, in addition to identifying a data element corresponding to
an affiliate-capable merchant. Landau, through steps 604 and 606, discloses
this limitation.
Claim 1 also requires “removing the existing affiliate code associated
with the data element, [and] creating modified data at the intermediary
computer by associating the preferred affiliate code with the data element.”
Ex. 1002, 9:8–11. To disclose this limitation, Petitioner relies on Landau’s
creation of a new, transformed URL in “new URL (i.e., creating modified
data) determination operation 612,” in which the “new URL is determined
based on the target Merchant and the target Webmaster ID (i.e., the
preferred affiliate code).” Pet. 37, 48 (citing Ex. 1010, 15:29–34; 15:42–
45); Tr. 31:15–19 (“Landau discloses two different ways of substituting the
target for the source. The first is returning a new URL. . . . the second is it
refers to a transformation or a change of the URL to reflect the target
webmaster ID.”). Regarding this limitation, Patent Owner argues that
Landau does not disclose the modified data. PO Resp. 29. Landau,
according to Patent Owner, generates an entirely new URL directed to the
target merchant, rather than preserving the original URL, and thus “does not
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modify data, but rather replaces it completely.” Id. at 30. Petitioner’s
citations and argument support its assertion that Landau removes the
existing affiliate code (i.e., the source Webmaster ID) and associates the
preferred affiliate code (i.e., the target Webmaster ID) with the data element
to create modified data (i.e., the new or changed URL). Petitioner argues
that Landau expressly states: “In one instance of real time use, the user
begins by requesting one URL, but by the time the lookup function is done,
the URL is transformed [i.e., modified], thus re-directing the user to another
URL immediately.” Reply 19 (citing Ex. 1010, 15:42–45). We are in
agreement with Petitioner’s argument that the data of Landau are modified
and result in modified data containing the preferred affiliate code.
Claim 8 requires, in part, “determining that the data element does not
comprise an affiliate code associated with a preferred commercial agent.”
Ex. 1002, 10:14–16. Petitioner’s arguments for claim 8 are substantially
similar to its arguments for claim 1, particularly with respect to this
limitation, about which Petitioner states: “Although limitation 8.d refers to
‘an affiliate code associated with a preferred commercial agent’ as opposed
to ‘a preferred affiliate code’, the difference in claim language is non-
substantive and does not alter the above analysis of claim limitation 1.e with
respect to Landau.” Pet. 42–43. Petitioner identifies a URL disclosed in
Landau, “http://www.cdmerchant.com/affiliate/1001/product.html,” as
disclosing an affiliate link associated with both the preferred commercial
agent (i.e., the affiliate suffix/code) and the affiliate-capable merchant (i.e.,
the domain). Id. at 44.
Patent Owner’s arguments for claim 8 are similar to those for claim 1,
with the exception of the “preferred commercial agent” limitation. PO Resp.
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30. Patent Owner faults Petitioner’s identification as “[a]t best” including an
affiliate-capable merchant and an affiliate code or ID. PO Resp. 31.
Petitioner replies that “a URL associated with the affiliate-capable merchant
that is associated with a preferred affiliate code necessarily discloses “an
affiliate link associated with the preferred commercial agent.” Reply 20.
The specification provides that “preferred commercial agent” is “the
party or parties designated to receive credit for the commercial transactions.”
Ex. 1002, 6:27–29. The example URL in Landau cited by Petitioner
includes an affiliate suffix/code 1001. This affiliate suffix/code 1001 (i.e.,
source Webmaster ID) identifies “Webmaster Fred.” Ex. 1010, 17:10–17.
In this same example, however, the new URL returned by Landau is
“http://www.musicmemorabilia.com/affiliatepartners/cd1001/poster.html.”
This URL includes an affiliate suffix/code cd1001. Id. at 18:37–38. This
affiliate suffix/code cd1001 (i.e., target Webmaster ID), also identifies
Webmaster Fred. Id. at 18:28–30 (“In this example, Fred's
CDMerchant.com code is 1001. Essociate’s server looks up this source
Webmaster ID and correlates it with the target Webmaster ID ‘cd1001.’”)
Ultimately, Webmaster Fred is the party designated to receive credit for the
commercial transaction. Id. at 19:25–26 (“In this example, the Essociate
system calculates Fred’s commission as $5.00.”) Thus, Fred is the preferred
commercial agent.
Claim 8, however, requires “determining that the data element does
not comprise an affiliate code associated with a preferred commercial
agent.” In the Landau example cited by Petitioner, the preexisting data
contain a data element that comprises an affiliate code associated with a
preferred commercial agent (i.e., 1001, associated with Webmaster Fred).
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Thus, Petitioner has not shown that Landau discloses “determining that the
data element does not comprise an affiliate code associated with a preferred
commercial agent,” because Landau determines that the data element does
comprise an affiliate code associated with a preferred commercial agent.
As noted above, claims 2–5 involve permutations of retrieving the
preexisting data from either a plurality of sources or a single source, and
delivering modified data to either a single user or to a plurality of users.
Ex. 1002, 9:17–28. Claim 6 requires that the preexisting data is created
immediately prior to the transmission thereof. Id. at 10:1–2. Claim 7 further
comprises “defining the intermediary computer as a server.” Id. at 10:3–4.
Petitioner presents separate arguments directed to whether Landau
anticipates claims 2–7. Pet. 38–41, 49–51. Specifically, Petitioner argues
that Landau “discloses these claim limitations to the extent the system of
Landau is usable to retrieve data from multiple sources and provide modified
data to multiple users” and also “inherently discloses the limitations of
claims 2–5 in that the system of Landau is usable to retrieve data from any
number of a plurality of sources including a single source and to provide
modified data to any number of a plurality of users including a single user.”
Id. at 38–39. Petitioner also cites to specific examples in Landau in which
the various permutations of claims 2–5 are disclosed. Id. at 39–40, 49–51.
Regarding claim 6, Petitioner argues that it was well-known that a search
engine creates the page containing preexisting data immediately prior to
transmission because it is created in response to a user query. Id. at 41–42,
51 (citing Ex. 1010, 2:20–23). Regarding claim 7, Petitioner cites to
Landau’s example in which an intermediate computer, namely, the Essociate
server, is defined as a server. Id. at 41, 51 (citing Ex. 1010, 18:15–17).
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Patent Owner does not argue the patentability of any claim separately from
claims 1 and 8. We have reviewed these dependent claims in view of
Petitioner’s arguments of anticipation based on Landau, and adopt
Petitioner’s reasoning regarding these claims.
Based on the record before us, we are persuaded that Petitioner has
demonstrated by a preponderance of the evidence that claims 1–7 are
anticipated by Landau. Petitioner has not established by a preponderance of
the evidence that claim 8 is anticipated by Landau.
2. Priest
Petitioner argues that claims 1–8 are anticipated by Priest. Pet. 52–70.
Priest provides “a method and apparatus for use in e-commerce for returning
to a consumer all or a portion of commissions earned by a third party when
the consumer purchases goods or services from a vendor that is affiliated
with the third party.” Ex. 1012, 2:16–19. Priest summarizes its invention:
The vendor and the third party first enter into an affiliate
relationship in which they agree to a commission payable by the
vendor to the third party for sales made to customers who have
reached the vendor by or through the third party. Thereafter, the
consumer forms a relationship with the third party whereby the
consumer makes purchases from the vendor through the third
party’s affiliation with the vendor so that commissions are
generated for the third party. Moreover, the consumer allows the
third party to monitor the consumer's behavior so that the third
party may ascertain the commissions generated by the consumer
without relying on information supplied by the vendor or the
consumer. Finally, the third party returns to each individual
consumer all or a portion of the commission generated by his
purchases.

Id. at 2:19–30.
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Petitioner argues that Priest discloses each and every element of the
limitations of claims 1–8, cites to support in the Shamos Declaration, and
presents a claim chart in support of its arguments. Pet. 52–70. Petitioner
argues that the “difference[s] in claim language between claim 8 and claim 1
are non-substantive and are not sufficient to alter the above analysis of
Claim 1 with respect to Priest.” Pet. 59. Petitioner’s Priest claim chart, in
large part, refers back to its claim 1 analysis to disclose the claim 8
elements. Id. at 68–70.
Patent Owner argues that Petitioner has not shown that the disclosures
Petitioner relies upon came from the same embodiment in Priest. PO Resp.
34. Patent Owner argues that Priest discloses one implementation in which
the user can install a software agent on his or her computer or execute the
software from another computer over a network connection, and another
distinct implementation in which the software agent accomplishes its
purpose of monitoring the browser activity of the user by running on the
user’s computer. Id. at 33–34. Patent Owner states that Petitioner “cannot
point to completely different implementations in a reference and attempt to
combine them to cobble together an anticipatory disclosure.” Id. at 34–35.
Petitioner reiterates that the “software agent may reside on an intermediary
computer or on the user’s computer,” and replies that Priest expressly
discloses “the remote agent as a characteristic of the agent without limiting it
to any one particular embodiment of the whypaymore.com system.” Reply
21 (citing Ex. 1012, 5:15–18). Petitioner has identified a characteristic of
the software agent in Priest, i.e., that it may be remote, that meets the
“intermediary computer” limitation of the disputed claims, and we have not
been made aware of any evidence in Priest that limits this characteristic to a
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particular embodiment. Priest discusses its invention in a manner that
identifies all features as part of a single invention. Ex. 1012, 2:16–30.
Generally, Priest indicates that the invention includes various features such
as an affiliate relationship between the vendor and the third party, a
relationship between the consumer and the third party, and third-party
monitoring. Id. The portion of Priest disclosing the remote agent is not
expressly limited to any particular embodiment of the invention.
Claim 1 contains the limitation “automatically identify at least one
data element corresponding to an affiliate-capable merchant.” Ex. 1002,
9:2–3. Petitioner argues that, in Priest, the “affiliate identification is
accomplished by providing an affiliate ID in the Uniform Response Locator
(URL).” Pet. 55 (citing Ex. 1012, 10:18–21). Petitioner submits that the
“vendor links/URL described in Priest disclose the claim element of ‘at least
one data element corresponding to an affiliate-capable merchant.’” Id.; see
also Reply 21 (“At the core of Priest’s disclosure is a software agent that
analyzes a vendor URL containing an affiliate ID and automatically replaces
the received URL and affiliate ID with a URL containing a preferred
affiliate ID.”) (citing Ex. 1012 at 10:18–21, 17:5–20). Petitioner also argues
that, in Priest “the disclosed process could be performed using software that
is ‘resident on a computer at the third party’s site, executed as needed by the
consumer over the network connection.’” Pet. 54–55 (citing Ex. 1012, 5:15–
18). Patent Owner argues that Priest fails to automatically identify an
element as corresponding to an affiliate-capable merchant, but rather
“discloses preexisting links to vendors or merchants that are by definition,
links to affiliate-capable merchants.” PO Resp. 36. Thus, according to
Patent Owner, Priest does not identify anything in incoming data, but rather
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is “providing an affiliate ID in the Uniform Response Locator (URL).” Id.
(citing Ex. 1012, 10:18–21). Without any narrower definition of “identify”
before us, we are persuaded that the system of Priest would automatically
identify the URL, which contains the affiliate ID as well as other
information, as containing at least one data element corresponding to an
affiliate-capable merchant, in order to proceed to take the subsequent steps
in the Priest system. Based on the disclosures of Priest discussed above, we
are persuaded that Priest’s system would automatically identify at least one
data element corresponding to an affiliate-capable merchant.
Claim 1 requires that the preexisting data be identified and analyzed at
an intermediary computer. Ex. 1002, 8:65–9:3. Petitioner relies on Priest’s
disclosure that the software could stay resident on a computer at the third
party’s site, executed as needed by the customer over a network connection.
Pet. 55, Reply 23 (citing Ex. 1012, 5:15–18). Petitioner also points to other
disclosures of the intermediary computer in Priest, namely, “servers with a
series of mass storage devices connected to the network through a network
communication device” as was “well known in the art.” Reply 23 (citing
Ex. 1012, 6:23–26). Patent Owner criticizes this as a “threadbare statement”
and contends that “it would not be possible for the software agent to monitor
the user’s browser activity if it were not running on the user’s computer.”
PO Resp. 37. Whether or not the statement is threadbare does not
undermine its value as an anticipatory disclosure, if it is otherwise sufficient
to anticipate the limitation at issue. The statements in Priest, presented as an
alternative setup for the system, adequately disclose the required limitation.
Claim 1 contains the limitation “creating modified data at the
intermediary computer by associating the preferred affiliate code with the
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data element.” Ex. 1002, 10:10–12. Petitioner supports its allegation that
Priest discloses “automatically associating the preferred affiliate code with
the data element” by stating: “For example, Priest discloses: ‘[I]f the
affiliate ID is not a Whypaythem.com affiliate ID, […] the URL is replaced
with the Whypaythem.com affiliate URL in step 416.’” Pet. 56 (citing Ex.
1012, 17:5–20).4 The complete portion of Priest, of which Petitioner relies
on an excerpt, explains that the user is prompted to determine whether or not
to replace the affiliate code. Ex. 1012, 17:5–20. Priest discloses: “If the
user agrees to accept the Whypaythem.com affiliate link in step 408, then
the URL is replaced with the Whypaythem.com affiliate URL in step 416.”
Id. at 17:18–20. Petitioner further argues that “affiliate identification is
accomplished by providing an affiliate ID in the Uniform Response Locator
(URL).” Reply 22 (citing Ex. 1012, 18:18–22). Patent Owner’s arguments
are directed to the “automatically” limitation, and are therefore
unpersuasive, as this limitation does not appear in claim 1. PO Resp. 38–39.
Nevertheless, Priest discloses that “if the user does wish to receive a portion
or all of the affiliate commission associated with the purchase, then the user
replaces the current URL with a Whypaythem.com affiliate URL,” resulting
in modified data containing the preferred Whypaythem.com affiliate ID. Ex.
1012, 17:13–15. We are persuaded that the totality of Priest ultimately
discloses “creating modified data at the intermediary computer by
associating the preferred affiliate code with the data element.”

4 Both parties argue that this step requires “automatically associating,” (Pet.
56; PO Resp. 38), but Claim 1 in fact requires “creating modified data at the
intermediary computer by associating the preferred affiliate code with the
data element.” Ex. 1002, 10:10–12. The term “automatically” does not
appear in this step.
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Petitioner’s arguments for claim 8 are substantially similar to its
arguments for claim 1. Pet. 59–62. Patent Owner’s arguments for claim 8
are similar to those for claim 1. PO Resp. 40. As discussed above, claim 8
requires, in part, “determining that the data element does not comprise an
affiliate code associated with a preferred commercial agent.” Ex. 1002,
10:14–16. In Priest, step 402 asks whether there is any affiliate ID in the
URL. Ex. 1012, Fig. 9, 16:31 (“whether an affiliate ID is present in the
URL is determined”). In step 404, Priest queries whether it is the
Whypaythem.com affiliate ID. Id. at 17:3–5 (“If an affiliate ID is present in
the URL, then whether the affiliate ID is a Whypaythem.com ID is
determined in step 404.”). If the affiliate ID is a Whypaythem.com affiliate
ID, the procedure ends with step 418. Id. at 17:4–5. “However, if the
affiliate ID is not a Whypaythem.com affiliate ID, a warning is displayed,”
and if the user agrees to the Whypaythem.com affiliate link (step 408), Priest
replaces the URL with the Whypaythem.com affiliate URL in step 416. Id.
at 17:6–8, Fig. 9. Accordingly, Priest determines that the data element does
not comprise an affiliate code associated with Whypaythem.com, a preferred
commercial agent. For these reasons, and additionally for substantially the
reasons given above for claim 1, we find that Priest discloses the elements of
claim 8.
Regarding claims 2–5, Petitioner argues that “Priest discloses
retrieving the preexisting data from a single source or from a plurality of
sources, and delivery the modified data to a single user or to a plurality of
users.” Pet. 57. Petitioner also cites to specific examples in Priest in which
the Whypaythem.com website is “accessed by multiple vendors” and
“accessible to a wide number of users.” Id. at 57–58 (citing Ex. 1012, 7:26–
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8:3; Fig. 2). Regarding claim 6, Petitioner argues that it was well-known
that a search engine creates the page containing the vendor/merchant links
immediately prior to transmission because it is created in response to a user
query. Id. at 58, 68 (citing Ex. 1012, 18:24–25, 19:28–29). Regarding claim
7, Petitioner cites to Priest’s example in which “the software agent can be
provided to the user in a fixed media or through a separate machine such as a
proxy server.” Id. at 59 (citing Ex. 1012, 10:14–16). Patent Owner does not
argue the patentability of any claim separately from claims 1 and 8. We
have reviewed the dependent claims in view of Petitioner’s arguments of
anticipation based on Priest, and adopt Petitioner’s reasoning regarding these
claims.
Based on the record before us, we are persuaded that Petitioner has
demonstrated by a preponderance of the evidence that claims 1–8 are
anticipated by Priest.
D. Conclusion
We determine that Petitioner has established by a preponderance of
evidence that claims 1–8 are unpatentable.
III. MOTION TO EXCLUDE
Petitioner filed a Motion to Exclude (Paper 28, “Mot. to Excl.”), to
which Patent Owner responded (Paper 34) and on which Petitioner filed a
Reply (Paper 35). Petitioner’s motion seeks to exclude Exhibits 2003 and
2004 as irrelevant. Mot. to Excl. 1–4. The moving party has the burden of
proof to establish that it is entitled to the requested relief. 37 C.F.R. §
42.20(c). Patent Owner does not cite to Exhibits 2003 and 2004 in its
Response, and we do not rely upon Exhibits 2003 and 2004 in our present
determination. The Motion to Exclude, therefore, need not be decided as to
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these Exhibits. Accordingly, the Motion to Exclude is dismissed as to
Exhibits 2003 and 2004.
IV. ORDER
In consideration of the foregoing, it is hereby
ORDERED that claims 1–8 of U.S. Patent No. 8,027,883 B2 are
unpatentable;
FURTHER ORDERED that Petitioner’s Motion to Exclude is
dismissed; and
FURTHER ORDERED that this is a Final Decision. Parties to the
proceeding seeking judicial review of the decision must comply with the
notice and service requirements of 37 C.F.R. § 90.2.

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FOR PETITIONER:

Robert C. Hilton
Aaron Pickell
Darren Collins
MCGUIRE WOODS LLP
rhilton@mcguirewoods.com
apickell@mcguirewoods.com
dwcollins@mcguirewoods.com

Don Daybell
Richard Martinelli
D2DPTABDocket@orrick.com
RFMPTABDocket@orrick.com

FOR PATENT OWNER:

Robert A. Whitman
Jason LaBerteaux
Timothy Rousseau
MISHCON DE REYA NEW YORK LLP
robert.whitman@mishcon.com
Jason.laberteaux@mishcon.com
tim.rousseau@mishcon.com