Apple Inc.v.ContentGuard Holdings, Inc.Download PDFPatent Trial and Appeal BoardJun 25, 201510956121 (P.T.A.B. Jun. 25, 2015) Copy Citation Trials@uspto.gov Paper No. 9 571.272.7822 Filed: June 25, 2015 UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _______________ APPLE INC. Petitioner, v. CONTENTGUARD HOLDINGS, INC., Patent Owner. _______________ Case IPR2015-00353 Patent 7,774,280 B2 _______________ Before MICHAEL R. ZECHER, BENJAMIN D. M. WOOD, and GEORGIANNA W. BRADEN, Administrative Patent Judges. BRADEN, Administrative Patent Judge. DECISION Denying Institution of Inter Partes Review 35 U.S.C. § 312(a)(4) and 37 C.F.R. § 42.108 IPR2015-00353 Patent 7,774,280 B2 2 I. INTRODUCTION A. Background Apple Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes review of claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 of U.S. Patent No. 7,774,280 B2 (Ex. 1001, “the ’280 patent”). ContentGuard Holdings, Inc. (“Patent Owner”) timely filed a Preliminary Response (Paper 8, “Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes review may not be instituted “unless . . . there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” Upon consideration of the Petition and Patent Owner’s Preliminary Response, we conclude Petitioner has not established a reasonable likelihood it would prevail with respect to at least one of the challenged claims. Accordingly, we deny the Petition. B. Related Matters The ’280 patent has been asserted in the following three district court cases: (1) ContentGuard Holdings, Inc. v. Amazon.com Inc., et al., No. 2:13-cv-01112-JRG (E.D. Tex.); (2) Google Inc. v. ContentGuard Holdings, Inc., No. 3:14-cv-00498-WHA (N.D. Cal.); and (3) ContentGuard Holdings, Inc. v. Google Inc., No. 2:14-cv-00061-JRG-RSP (E.D. Tex). Pet. 1; Paper 7, 2. In addition to this Petition, Petitioner filed seven other Petitions challenging the patentability of a certain subset of claims in the following patents owned by Patent Owner: (1) the ’280 patent (Cases IPR2015-00351, IPR2015-00352, and IPR2015-00354); and (2) U.S. Patent No. 8,001,053 B2 (Cases IPR2015-00355, IPR2015-00356, IPR2015-00357, and IPR2015- 00358). Pet. 2; Paper 7, 1. IPR2015-00353 Patent 7,774,280 B2 3 C. The ’280 Patent The ’280 patent, titled “System and Method for Managing Transfer of Rights using Shared State Variables,” issued August 10, 2010, from U.S. Patent Application No. 10/956,121, filed on October 4, 2004. Ex. 1001, at [54], [45], [21], [22]. The ’280 patent is a continuation-in-part of U.S. Patent Application No. 10/162,701, filed on June 6, 2002. Id. at [63]. The ’280 patent also claims priority to the following provisional applications: (1) U.S. Provisional Application No. 60/331,624, filed on November 20, 2001; (2) U.S. Provisional Application No. 60/331,623, filed on November 20, 2001; (3) U.S. Provisional Application No. 60/331,621, filed on November 20, 2001; (4) U.S. Provisional Application No. 60/296,113, filed June 7, 2001; (5) U.S. Provisional Application No. 60/296,117, filed on June 7, 2001 (6)U.S. Provisional Application No. 60/296,118, filed on June 7, 2001. Id. at [60]. The ’280 patent generally relates to a method and system for managing the transfer of rights associated with digital works using shared state variables. Ex. 1001, 1:18–20. According to the ’280 patent, one of the most important issues impeding the widespread distribution of digital works is the current lack of ability to enforce the rights of content owners during the distribution and use of their digital works. Id. at 1:24–29. In particular, content owners do not have control over downstream parties unless they are privy to transactions with the downstream parties. Id. at 2:33–34. Moreover, the concept of content owners simply granting rights to others that are a subset of the possessed rights is not adequate for multi-tier distribution models. Id. at 2:45–48. IPR2015-00353 Patent 7,774,280 B2 4 The ’280 patent purportedly addresses these problems by providing a method and system for transferring rights associated with an item— presumably a digital work—from a supplier to a consumer. Ex. 1001, 2:52– 55. The consumer obtains a set of rights associated with the digital work, which includes meta-rights specifying rights that may be derived therefrom. Id. at 2:55–57. The rights that may be derived from the meta-rights include at least one state variable based on the set of rights, which, in turn, may be used to determine a state of the derived right. Id. at 2:62–64. If the consumer is entitled to the rights derived from the meta-rights, the disclosed invention then derives at least one right from the meta-rights. Id. at 2:58–60. D. Illustrative Claim Claims 1, 12, and 24 are independent claims and are challenged in this proceeding. Claim 1 is directed to a method for transferring rights associated with an item from a rights supplier to a rights consumer; claim 12 is directed to a system for performing the same, and claim 24 is directed to a device for performing the same. Claims 2–5, 8, and 11 directly depend from independent claim 1; claims 13–16, 19, and 22 directly depend from independent claim 12, and claims 25–28, 31, and 34 directly depend from independent claim 12. Independent claim 1 is illustrative of the ’280 patent and is reproduced below: 1. A computer-implemented method for transferring rights adapted to be associated with items from a rights supplier to a rights consumer, the method comprising: obtaining a set of rights associated with an item, the set of rights including a meta-right specifying a right that can be created when the meta-right is exercised, wherein the meta- right is provided in digital form and is enforceable by a repository; IPR2015-00353 Patent 7,774,280 B2 5 determining, by a repository, whether the rights consumer is entitled to the right specified by the meta-right; and exercising the meta-right to create the right specified by the meta-right if the rights consumer is entitled to the right specified by the meta-right, wherein the created right includes at least one state variable based on the set of rights and used for determining a state of the created right. Ex. 1001, 15:7–22. E. The Evidence of Record Petitioner relies upon the following references, as well as the Declaration of Atul Prakash, Ph.D. (Ex. 1003): Reference Patent/Printed Publication Date Exhibit England US Patent No. 6,327,652 B1 Dec. 4, 2001 Ex. 1009 Gruse US Patent No. 6,389,538 B1 May 14, 2002 Ex. 1008 Wiggins US Patent No. 5,717,604 Feb. 10, 1998 Ex. 1011 F. The Asserted Grounds of Unpatentability Petitioner challenges the patentability of claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 of the ’280 patent based on the following grounds: References Basis Claims Challenged England § 103(a)1 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 England and Gruse § 103(a) 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 England and Wiggins § 103(a) 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 1 The America Invents Act (“AIA”), Pub. L. No. 112-29, took effect on March 18, 2013. Because the application from which the ’280 patent issued was filed before that date, our citations to Title 35 are to its pre-AIA version. IPR2015-00353 Patent 7,774,280 B2 6 References Basis Claims Challenged England, Gruse, and Wiggins § 103(a) 1–5, 8, 9, 15–19, 22, 23, 26–30, 33, and 342 II. DISCUSSION A. Claim Construction In an inter partes review, we construe claims by applying the broadest reasonable interpretation in light of the specification. 37 C.F.R. § 42.100(b); see In re Cuozzo Speed Tech., LLC, 778 F.3d 1271, 1281–82 (Fed. Cir. 2015) (“Congress implicitly adopted the broadest reasonable interpretation standard in enacting the AIA,” and “the standard was properly adopted by PTO regulation”). Under the broadest reasonable interpretation standard, and absent any special definitions, claim terms are given their ordinary and customary meaning, as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definitions for claim terms or phrases must be set forth with reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Petitioner proposes constructions for numerous terms or phrases, some of which are not recited explicitly in the challenged claims. Pet. 5–25. In response, Patent Owner proposes alternative constructions for most of the terms or phrases construed by Petitioner. Prelim. Resp. 18–34. For 2 Petitioner challenges claims 1–5, 8, 9, 15–19, 22, 23, 26–30, 33, and 34 as obvious under 35 U.S.C. § 103(a) based on England in view of Gruse and Wiggins (Pet. 3), but then presents arguments regarding claims 1–5, 8, 11– 16, 19, 22, 24–28, 31, and 34 (id. at 43). IPR2015-00353 Patent 7,774,280 B2 7 purposes of this decision, we need only assess the constructions offered by the parties for the claim term “repository” and means-plus-function limitations in certain claims because our determination to deny the Petition is based, at least in part, on the construction of these claim terms. 1. “Repository” Petitioner contends that the broadest reasonable interpretation of the claim term “repository” is “a trusted system, which maintains physical, communications and behavioral integrity, and supports usage rights using information that enables it to enforce both ‘meta-rights’ and ‘usage rights’ associated with a particular digital work.” Pet. 19 (citing Ex. 1003 ¶¶ 284– 89). Petitioner argues that the construction it offers for the claim term “repository” in this proceeding is consistent with the construction of the same claim term in previous inter partes review proceedings handled by another panel of the Board, one of which involves U.S. Patent No. 5,634,012 (“Stefik”) that is incorporated by reference into the ’280 patent. See id. In those proceedings, Petitioner asserts that the Board determined that the claim term “repository” was construed explicitly as “a trusted system, which maintains physical, communications and behavioral integrity, and supports usage rights.” Id. (citing Ex. 1035, 9) (emphasis omitted). Petitioner also asserts that, in those proceedings, the Board observed that to possess “physical integrity,” the repository must, among other things, “prevent[] access to information by a non-trusted system.” Id. at 19–20 (citing Ex. 1035, 11). Although Petitioner does not address separately “communications integrity” and “behavioral integrity” in its Petition, Petitioner’s declarant, Dr. Atul Prakash, nonetheless addresses these aspects of the claim term IPR2015-00353 Patent 7,774,280 B2 8 “repository” in his supporting testimony. Dr. Prakash testifies that, in previous inter partes review proceedings before the Board, one of which involved Stefik, the Board defined “communications integrity” as “only communicates with other devices that are able to present proof that they are trusted systems, e.g., by using security measures such as encryption, exchange of digital certificates, and nonces.” Ex. 1003 ¶ 284 (citing Ex. 1041, 12). Dr. Prakash further testifies that the Board defined “behavioral integrity” as requiring “software to include a digital certificate in order to be installed in the repository.” Id. (citing Ex. 1041, 13). With a few exceptions, Patent Owner generally agrees with Petitioner’s proposed construction for the claim term “repository,” including its and Dr. Prakash’s definitions of “physical integrity,” “communications integrity,” and “behavioral integrity.” Prelim. Resp. 25–27. Patent Owner argues that the claim term “repository” should be construed as “a trusted system in that it maintains physical, communications, and behavioral integrity in the support of usage rights.” Id. at 25 (emphasis added). Patent Owner argues that its proposed construction is consistent with the Board’s construction of the claim term “repository” in the previous inter partes review proceedings, which considered the same disclosure of Stefik incorporated by reference into the ’280 patent, and the construction adopted by a district court for the ’280 patent. Id. (citing Pet. 19; Ex. 2001, 15, 99). Patent Owner urges us to adopt its proposed construction for reasons specified by the district court. Id. Patent Owner further argues that we should not adopt the language in Petitioner’s proposed construction that characterizes a repository as enforcing both meta-rights and usage rights IPR2015-00353 Patent 7,774,280 B2 9 because it would render the claim language describing a “meta-right . . . enforceable by a repository” redundant. Id. As an initial matter, we agree with the parties that the specification of the ’280 patent does not provide an explicit definition for the claim term “repository.” We also agree with the parties that the ’280 patent incorporates by reference Stefik, which provides an explicit definition for the claim term “repository.” Ex. 1001, 2:9–12; Ex. 1012, 53:23–27. Stefik provides a glossary that explicitly defines the claim term “repository” as “[c]onceptually a set of functional specifications defining core functionality in the support of usage rights. A repository is a trusted system in that it maintains physical, communications and behavioral integrity.” Ex. 1012, 53:23–27. With this glossary definition in mind, we decline to adopt the language in Petitioner’s proposed construction pertaining to “using information that enables it to enforce both ‘meta-rights’ and ‘usage rights’ associated with a particular digital work.” If we were to adopt this language proposed by Petitioner, it would render the claim phrase a “meta-right . . . enforceable by a repository,” explicitly recited in independent claims 1, 12, and 24, superfluous. See Stumbo v. Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (disfavors any claim interpretation that renders a claim term or phrase superfluous). After reviewing the remaining language in the constructions offered by both parties, we discern little, if any, difference between a “repository” that is “a trusted system which maintains physical, communications, and behavioral integrity, and supports usage rights,” and one that is “a trusted system in that it maintains physical, communications, and behavioral IPR2015-00353 Patent 7,774,280 B2 10 integrity in the support of usage rights” (emphases added). We view the Board’s construction of the claim term “repository” in the previous inter partes reviews, which were brought against Patent Owner’s patents that share a similar disclosure with Stefik incorporated by reference in the ’280 patent, as informative. We give more weight to the panel’s construction of the claim term “repository” in those proceedings than the district court’s construction of the same claim term primarily because this proceeding and the previous proceeding before the Board both apply the broadest reasonable interpretation standard to the challenged claims of an unexpired patent. 37 C.F.R. § 42.100(b). For purposes of this proceeding, we construe the claim term “repository” as “a trusted system which maintains physical, communications, and behavioral integrity, and supports usage rights.” We further define “physical integrity” as “preventing access to information by a non-trusted system”; “communications integrity” as “only communicates with other devices that are able to present proof that they are trusted systems, e.g., by using security measures such an encryption, exchange of digital certificates, and nonces”; and “behavioral integrity” as “requiring software to include a digital certificate in order to be installed in the repository.” 2. “Means for obtaining,” “means for determining,” and “means for exercising” A petitioner must “identify the specific portions of the specification that describe the structure, material, or acts corresponding to each claimed function” of any means- or step-plus-function limitation. 37 C.F.R. § 42.104(b)(3); see also 35 U.S.C. § 112 ¶ 6 (“An element in a claim for a combination may be expressed as a means or step for performing a specified IPR2015-00353 Patent 7,774,280 B2 11 function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.”).3 Independent claims 12 and 244 recite several limitations that are presumably means-plus-function limitations: “means for obtaining . . .”; “means for determining . . .”; and “means for exercising . . . .” See Williamson v. Citrix Online, LLC, Case No. 2013-1130, slip op. 16 (Fed. Cir. June 16, 2015) (en banc in relevant part) (““use of the word ‘means’ creates a presumption that § 112, ¶ 6 applies.”). Petitioner does not rebut the presumption that these limitations are governed by § 112 ¶ 6, and does not “identify the specific portions of the specification that describe the structure, material, or acts corresponding to each claimed function.” 37 C.F.R. § 42.104(b)(3). To the contrary, Petitioner states that “[t]he ’280 patent does not identify any specific structure” and “there are no algorithms or other description of software that function as” each mean-plus-function limitation. Pet. 22–24. Petitioner states that, if the Board elects to proceed with review of the challenged claims with means-plus-function limitations, it should construe these terms as follows: (i) “means for obtaining a set of rights” as “encompassing any computer-based technique or scheme that functions to obtain one or more 3 Section 4(c) of the Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284 (2011) (“AIA”) re-designated 35 U.S.C. § 112 ¶ 6 as 35 U.S.C. § 112(f). Because the ’280 patent has a filing date prior to September 16, 2012, the effective date of § 4(c) of the AIA, we refer to the pre-AIA version of 35 U.S.C. § 112. 4 Claims 13–16, 19, and 22 depend from claim 12, whereas claims 25–28, 31, and 34 depend from claim 24. Ex. 1001, 16:1–17:2. IPR2015-00353 Patent 7,774,280 B2 12 rights from a content provider” (id. at 23); (ii) “means for determining whether the rights consumer is entitled to the derivable right” as “encompassing any computer-based technique or scheme that functions to determine if a rights consumer is entitled to a derivable right” (id. at 23); and (iii) “means for exercising a meta-right” as “encompassing any computer- based technique or scheme that functions to determine create a usage right using information in a meta-right” (id. at 24–25). Patent Owner argues that Petitioner does not identify any structure in the ’280 specification for independent claims 12 and 245 and compare it to structure disclosed in the prior art. Prelim. Resp. 33–34. According to Patent Owner, the failure to analyze the claims, based on the proper construction of the corresponding structure of the means-plus-function limitations recited in the challenged claims is fatal to each ground against those claims. Id. We agree. Petitioner only addresses the recited functions of the mean-plus- function limitations, but does not identify any structure in the ’280 specification that corresponds to the limitations. Accordingly, we are not persuaded that there is a reasonable likelihood that Petitioner would prevail with respect to independent claims 12 and 24, or dependent claims 13–16, 19, 22, 25–28, 31, and 34, on any of the challenged grounds. 5 Patent Owner also argues that Petitioner does not identify any structure in the ’280 specification for the means-plus-function limitations included in dependent claims 13–16, 19, 22, 25–28, 31, and 34. Prelim. Resp. 33–34. IPR2015-00353 Patent 7,774,280 B2 13 B. Obviousness Based on England Petitioner contends that claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 are unpatentable under 35 U.S.C. § 103(a) over England. Pet. 25–43. Petitioner relies upon the Declaration of Dr. Prakash (Ex. 1003 ¶¶ 236–308, 332–44, 561–660)6 to support its positions. Id. We have considered Petitioner’s explanations and supporting evidence, but as discussed below, we are not persuaded Petitioner has presented sufficient evidence to support a finding that England teaches the claimed “repository” that exhibits “communications integrity.” 1. Principles of Law A claim is unpatentable under § 103(a) if the differences between the claimed subject matter and the prior art are such that the subject matter, as a whole, would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations, including: (1) the scope and content of the prior art; (2) any differences 6 Our governing statute and rules require petitioners to set out their claim challenges “with particularity” and with a “detailed explanation of the significance of the evidence. 35 U.S.C. § 312(a)(3); 37 C.F.R. §§ 42.22(a)(2), 42.104(b)(4), (5). Likewise, the Office Patent Trial Practice Guide admonishes petitioners to “focus on concise, well organized, easy-to- follow arguments supported by readily identifiable evidence of record.” 77 Fed. Reg. 48,756–73, 48,763 (Aug. 14, 2012). In general, citations to voluminous sections (e.g., ninety-nine paragraphs) of an expert declaration do not conform to these requirements and guidance, and are unhelpful. As such, citations of this type, as well as statements they allegedly support, are not entitled to consideration. IPR2015-00353 Patent 7,774,280 B2 14 between the claimed subject matter and the prior art; (3) the level of skill in the art; and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). We analyze this asserted ground based on obviousness with the principles identified above in mind. 2. England England generally relates to loading and identifying a digital rights management operating system (DRMOS). Ex. 1009, Title. England discloses that to prevent their content from being stolen or misused, content providers will download content only to known software and, therefore, only subscriber computers that can prove that their operating systems will enforce the limitations the provider places on the content. Id. at 8:56–60. Such a system (i.e., DRMOS 205) must load and execute only OS components that are authenticated as respecting digital rights (“trusted”), and must allow access to the downloaded content by only similarly trusted applications. Id. at 8:60–65. One embodiment of England is shown in Figure 2, reproduced below. As shown in Figure 2 of England, the system includes content provider server computer 220 connected to subscriber computer 200 with IPR2015-00353 Patent 7,774,280 B2 15 DRMOS loaded into CPU 201 of subscriber computer 200. Id. at 8:40–44; 9:7–10. DRMOS 205 is assigned unique trusted identity 206, which is recorded in an internal register of CPU 201. Id. at 9:4–6. England discloses that content provider server computer 220 performs many processes, some of which incorporate either public/private key pairs, digital signatures, digital certificates, and/or encryption algorithms, or a combination of these standard cryptographic functions. Id. at 8:48–51. According to England, its system has two requirements. England discloses that the first requirement is met in the exemplary embodiment of the invention by having all trusted operating system-level components digitally signed by their developers or a trusted third-party, with the signature acting as a guarantee that the components respect digital rights. The signature is validated before the component is loaded. Id. at 8:66–9:4. England then discloses that the second requirement for its system has two aspects. Id. at 9:11. First, trusted applications must be identified in some fashion, and, second, the DRMOS must prevent non-trusted applications from gaining access to the content when it is stored, either permanently or temporarily, on the subscriber computer. Id. at 9:11–15. In the England system, a content provider downloads the content, an “access predicate” and a “license” to the DRMOS on a subscriber computer. Id. at 10:14–17. The access predicate specifies the properties an application must have to process the content, and also may specify applications allowed to process the content. Id. at 10:17–22. The license restricts what kind of processing may be performed on the content. Id. at 19:41–43. The DRMOS enforces the license when an application wants to access the content stored on the client. Id. at 10:41–51. IPR2015-00353 Patent 7,774,280 B2 16 3. “Repository” that Exhibits “Communications Integrity” Independent claim 1 recites, in relevant part, “wherein the meta-right is provided in digital form and is enforceable by a repository,” and “determining, by a repository, whether the rights consumer is entitled to the right specified by the meta-right.” Ex. 1001, 15:12–16 (emphases added). Independent claims 12 and 24 recite similar limitations. Id. at 15:58–61, 16:40–43. By virtue of their dependence to at least one of independent claims 1, 12, and 24, claims 2–5, 8, 11, 13–16, 19, 22, 25–28, 31, and 34 also require “a repository.” Petitioner contends that England’s subscriber computer 200 running DRMOS operating system 205 constitute the claimed “repository.” Pet. 33– 34. In particular, Petitioner argues that trusted applications on a user’s device in England enforce the content license and the sublicense. Id. at 35– 36 (citing Ex. 1003 ¶ 584; Ex. 1009 at 8:56–65; 10:52–59). England specifically states “[a] series of processes and data structures on a subscriber computer control the loading of a digital rights management operating system, identify the DRMOS and trusted applications to a content provider, and secure content downloaded by the provider to the subscriber computer.” Ex. 1009, 10:54–59. Petitioner, therefore, asserts that England’s subscriber computer 200 running DRMOS operating system 205 exhibit “communications integrity.” Pet. 36. Petitioner relies on testimony from Dr. Prakash to support its position, but Dr. Prakash merely reiterates Petitioner’s arguments with no additional discussion or explanation. See Ex. 1003 ¶ 584. In response, Patent Owner contends that Petitioner fails to demonstrate that England’s subscriber computer 200 running DRMOS IPR2015-00353 Patent 7,774,280 B2 17 operating system 205 constitutes the claimed “repository” that exhibits “communications integrity.” Prelim. Resp. 43. Patent Owner argues that “communications integrity” was defined by both a previous panel of the Board and the district court to mean that, in support of usage rights, the repository “only communicates with other devices that are able to present proof that they are trusted systems, for example, by using security measures such as encryption, exchange of digital certificates, and nonces.” Id. (citing Ex. 1041, 12; Ex. 2001, 18–19). Patent Owner further argues that Petitioner fails to demonstrate or even allege that the trusted application of the user’s device disclosed in England only communicates with other trusted systems in support of usage rights. Id. at 44. According to Patent Owner, England only describes the content provider’s server verifying that a subscriber computer is trusted, but it does not disclose a mechanism for the subscriber computer to verify that the content provider server is a trusted system. Id. Patent Owner then asserts that subscriber devices in England’s system are vulnerable to participating in fraudulent transactions and/or malicious file downloads by entities posing as a legitimate usage rights providers, and therefore, do not constitute a “repository” as required by the claims. Id. As we explained in the claim construction section, we construe “repository” as “a trusted system which maintains physical, communications, and behavioral integrity, and supports usage rights.” See supra Section II.A.1. Of particular importance in this case is our definition of “communications integrity” as “only communicates with other devices that are able to present proof that they are trusted systems, e.g., by using security measures such an encryption, exchange of digital certificates, and nonces.” Id. IPR2015-00353 Patent 7,774,280 B2 18 We agree with Patent Owner that England’s subscriber computer 200 running DRMOS operating system 205 does not constitute a claimed “repository” that exhibits “communications integrity” because England does not teach a mechanism for the subscriber computer to verify that content provider server computer 220 is a trusted system. See Prelim. Resp. 44. Petitioner does not direct us to, nor can we find, a disclosure in England that contemplates a mechanism for the subscriber computer to verify that a server is a trusted system. Rather, England generically refers to “[a] series of processes and data structures on a subscriber computer [that] control the loading of a digital rights management operating system, identify the DRMOS and trusted applications to a content provider, and secure content downloaded by the provider to the subscriber computer.” Ex. 1009, 10:54– 59. Petitioner does not explain adequately how these processes and data structures on England’s subscriber computer 200 running DRMOS operating system 205 are used to verify that content provider server computer 220 is, in fact, a trusted system. Therefore, we are not persuaded that Petitioner has presented sufficient evidence to support a finding that England’s subscriber computer 200 running DRMOS operating system 205 constitutes the claimed “repository” that exhibits “communications integrity.” Accordingly, based on the record before us, Petitioner has not demonstrated a reasonable likelihood that it will prevail on its assertion that claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 would have been obvious over England. C. Obviousness Based on England, Gruse, and/or Wiggins Petitioner contends that claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 are unpatentable under 35 U.S.C. § 103(a) over England in view of Gruse IPR2015-00353 Patent 7,774,280 B2 19 and/or Wiggins. Pet. 43–60. In each of these asserted grounds based on obviousness, Apple does not apply the teachings of Gruse or Wiggins in such a way that remedies the deficiencies regarding a repository in England discussed above. See generally id. Therefore, for essentially the same reasons discussed above, Apple has not demonstrated a reasonable likelihood that it will prevail on its assertion that claims 1–5, 8, 11–16, 19, 22, 24–28, 31, and 34 would have been obvious over the following combinations: (1) the combination of England and Gruse; (2) the combination of England and Wiggins; or (3) England, Gruse, and Wiggins. III. CONCLUSION The Petition fails to show there is a reasonable likelihood that petitioner would prevail with respect to at least one of the claims challenged in the Petition. See 35 U.S.C. § 314(a); 37 C.F.R. § 42.8(b)(2). IV. ORDER Accordingly, it is ORDERED that the Petition is denied and no trial is instituted. IPR2015-00353 Patent 7,774,280 B2 20 FOR PETITIONER: Jeffrey P. Kushan Sidley Austin LLP iprnotices@sidley.com Michael R. Franzinger Sidley Austin LLP iprnotices@sidley.com FOR PATENT OWNER: Timothy P. Maloney Fitch, Even, Tabin, & Flannery LLP tpmalo@fitcheven.com Nicholas Peters Fitch, Even, Tabin, & Flannery LLP ntpete@fitcheven.com Robert A. Cote McKool Smith, P.C. rcots@mckoolsmith.com Copy with citationCopy as parenthetical citation