Scorpcast LLC

Patent Trials and Appeals Board

Aug 16, 2021

IPR2021-00515 (P.T.A.B. Aug. 16, 2021)

Trials@uspto.gov Paper 15
571-272-7822 Entered: August 16, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

MG FREESITES LTD.,
Petitioner,
v.
SCORPCAST, LLC,
Patent Owner.

IPR2021-00515
Patent 10,205,987 B2

Before MEREDITH C. PETRAVICK, HYUN J. JUNG, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PETRAVICK, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314, 37 C.F.R. § 42.4

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I. INTRODUCTION
Petitioner MG FreeSites Ltd. filed a Petition (Paper 1, “Pet.”)
requesting inter partes review of claims 1–5, 7, 11, 12, 15–20, 23–27, and
30 of U.S. Patent No. 10,205,987 B2 (Ex. 1001, “the ’987 patent”). Patent
Owner Scorpcast, LLC filed a Preliminary Response (Paper 7, “Prelim.
Resp.”).
With our authorization (Paper 10), Petitioner filed a Reply to the
Preliminary Response (Paper 13) to address the factors set forth in Apple
Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11, 5–6 (PTAB Mar. 20, 2020)
(precedential) that inform our exercise of discretion under 35 U.S.C.
§ 314(a). Patent Owner filed a Sur-Reply, stating that in light of recent
developments in related litigation, Patent Owner no longer asserts that the
factors of Apple Inc. v. Fintiv, Inc. favor discretionary denial. Paper 14, 1.
We, thus, consider moot Patent Owner’s request for discretionary denial
(Prelim. Resp. 45–49).
Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
unless the information presented in the Petition and any response thereto
shows “there is a reasonable likelihood that the petitioner would prevail with
respect to at least 1 of the claims challenged in the petition.” Taking into
account the Petition, the arguments presented in the Preliminary Response,
as well as all supporting evidence, we determine that Petitioner has failed
show a reasonable likelihood that at least one of the challenged claims is
unpatentable. Accordingly, we do not institute inter partes review.

A. Related Matters
The parties state that the ’987 patent was asserted in Scorpcast, LLC
dba HaulStars v. MG Freesites Ltd, Case No. 6-20-cv-00877 (W.D. Tex.).
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Pet. xxviii; Paper 4, 2. On June 21, 2021, the District Judge transferred this
case to the District of Delaware, Scorpcast, LLC dba HaulStars v. MG
Freesites Ltd, Case No. 1:21-cv-00887. Paper 12, 1–2; Paper 14, 1.
Patent Owner also states that a decision in this proceeding would
affect or be affected by numerous other inter partes reviews and District
Court proceedings. Paper 4, 2–4. The ’987 patent is the subject of
IPR2021-00514.

B. The ’987 Patent
The ’987 patent is titled “Interactive Video Distribution System and
Video Player Utilizing a Client Server Architecture” and issued on February
12, 2019. Ex. 1001, codes (45), (54). The ’987 patent claims priority
through a chain of related U.S. Patent Applications to April 19, 2012. Id. at
code (63).
The ’987 patent describes a website receiving and storing user-
uploaded videos, for example, product reviews. Id. at 20:41–44, 23:29–33.
The website also receives and stores a product tag, associated with a
reviewed product, and the tag includes pictures. Id. at 21:32–55. The tags
are displayed during video playback. Id. at 12:19–26. The tags are
displayed at various locations within the video player, such as part of the
video playback scrubber or embedded into the video (id. at 8:42–43, 21:48–
50), and are selectable by the user (id. at 24:31–36).

C. Challenged Claims
Petitioner challenges claims 1–5, 7, 11, 12, 15–20, 23–27, and 30.
Claims 1, 20, and 26 are independent claims. Claims 2–5, 11, 12, and 15–19
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depend from claim 1. Claims 23–25 depend from claim 20. Claims 27 and
30 depend from claim 26.
Claim 1 is illustrative and reproduced, as corrected by the May 2019
Certificate of Correction, below:1
[1.P] 1. A video system, comprising:
[1.1] a network interface;
[1.2] at least one processing device;
[1.3] non-transitory memory storing programmatic code that
when executed by the at least one processing device, cause the
video system to:
[1.4] provide to a first user terminal of a first user interface that
enables the first user to upload a first video or provide a link to
the first video;
[1.5] receive over a network using the network interface, from
the first user terminal of the first user, an upload of a first video
or a link thereto;
[1.6] provide over the network, using the network interface, to
the first user terminal a second user interface that enables the first
user to:
provide at least one of an upload or a link to an image,
add text to be associated with the image,
add a link to be associated with the image;
[1.7] receive via the second user interface:
an upload of or a link to a first image;

1 Claim 1 is reproduced with Petitioner’s labels. Pet. xv–xvii.
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a first item of text; and
a first link, comprising a first destination Uniform
Resource Locator (URL);
[1.8] store the upload of or a link to the first image, the first item
of text, and the first link;
[1.9] use a content player displayed on the first user terminal to
display the first video in association with a scrubber bar;
[1.10] enable the first user to define, using the scrubber bar and
a first control, when the first image is to be displayed as an
overlay when the first video is played back;
[1.11] receive from the first user a definition as to when the first
image is to be displayed as an overlay when the first video is
played back;
[1.12] store the definition as to when the first image is to be
displayed when the first video is played back;
[1.13] receive via the second user interface:
an upload of or a link to a second image;
a second item of text; and
a second link, comprising a second destination Uniform
Resource Locator (URL);
[1.14] store the upload of or a link to the second image, the
second item of text, and the second link;
[1.15] enable the first user to define, using the scrubber bar and
the first control, when the second image is to be displayed as an
overlay when the first video is played back;
[1.16] receive from the first user a definition as to when the
second image is to be displayed as an overlay when the first video
is played back;
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[1.17] store the definition as to when the second image is to be
displayed when the first video is played back;
[1.18] provide a video player for display on a second user
terminal of a second user;
[1.19] enable the video player to play the first video, and display:
the first image as an overlay in accordance with the
definition as to when the first image is to be displayed
when the first video is played back;
the second image as an overlay in accordance with the
definition as to when the second image is to be
displayed when the first video is played back;
[1.20] wherein in response to detecting that the second user has
selected the first or the second image, a respective link,
comprising a respective destination URL is activated, and a
respective network destination corresponding to the respective
destination URL is accessed by the second user terminal.
Ex. 1001, 57:6–58:6, Certificate of Correction.

D. Alleged Grounds of Unpatentability
Petitioner asserts the following grounds of unpatentability:
Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1–4, 11, 12, 15–18,
20, 23, 25, 26, 30 102(a),(b),(e) Fink
2
5 103(a) Fink, Lerman3
7 103(a) Fink, Miller4

2 Fink et al., U.S. Patent Application Publication No. 2009/0300475 A1,
published Dec. 3, 2009 (Ex. 1007) (“Fink”).
3 Lerman et al., U.S. Patent No. 7,809,802 B2, issued Oct. 5, 2010 (Ex.
1013) (“Lerman”).
4 Michael Miller, YouTube for Business: Online Video Marketing for Any
Business, second edition, Jan. 2011 (Ex. 1010) (“Miller”).
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Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
19 103(a) Fink, Sterner5
24 102(a) Fink, Kilar6
27 103(a) Fink, Lerman, Sterner
1–4, 11, 12, 15–18,
20, 23, 25, 26, 30 103(a) Fink, Geer
7
5 103(a) Fink, Geer Lerman
7 103(a) Fink, Geer, Miller
19 103(a) Fink, Geer, Sterner
24 103(a) Fink, Geer, Kilar
27 103(a) Fink, Geer, Lerman, Sterner
Pet. 1–2. In addition to the references listed above, Petitioner relies on the
Declaration of Dr. Adam Porter (Ex. 1102).

II. ANALYSIS
A. Principles of Law
A petition must show how the construed claims are unpatentable
under the statutory grounds it identifies. 37 C.F.R. § 42.104(b)(4).
Petitioner bears the burden of demonstrating a reasonable likelihood that it
would prevail with respect to at least one challenged claim for a petition to
be granted. 35 U.S.C. § 314(a).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d

5 Sterner et al., U.S. Patent Application Publication No. 2007/0263984 A1,
published Nov. 15, 2007 (Ex. 1008) (“Sterner”).
6 Kilar et al., U.S. Patent Application Publication No. 2013/0004138 A1,
published Jan. 3, 2013 (Ex. 1012) (“Kilar”).
7 Geer, III et al., U.S. Patent Application Publication No. 2011/0112915 A1,
published May 12, 2011 (Ex. 1005) (“Geer”)
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628, 631 (Fed. Cir. 1987). The elements must be arranged as required by the
claim, but this is not an ipsissimis verbis test, i.e., identity of terminology is
not required. In re Bond, 910 F.2d 831 (Fed. Cir. 1990).
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
between the claimed subject matter and the prior art; (3) the level of skill in
the art; and (4) when in evidence, objective indicia of non-obviousness
(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1,
17–18 (1966).
We analyze the asserted grounds with these principles in mind.

B. Level of Ordinary Skill in the Art
In determining the level of skill in the art, we consider the type of
problems encountered in the art, the prior art solutions to those problems, the
rapidity with which innovations are made, the sophistication of the
technology, and the educational level of active workers in the field. Custom
Accessories, Inc. v. Jeffrey-Allan Indus. Inc., 807 F.2d 955, 962 (Fed. Cir.
1986); Orthopedic Equip. Co. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir. 1983).
Petitioner contends that a person of ordinary skill in the art at the time
of the invention of the ’987 patent would have had the following education
and experience: “a Bachelor’s degree in Electrical Engineering, Computer
Engineering, or Computer Science (or the equivalent degree) plus
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approximately two years of work experience with technologies relating to
content annotation and/or content sharing among multiple users.” Pet. 17.
Petitioner adds that “[m]ore education can supplement work experience and
vice versa.” Id. (citing Ex. 1102 ¶¶ 1–21). Patent Owner does not dispute
this level of skill. Prelim. Resp. 5.
For purposes of this Decision, we adopt Petitioner’s proposal as
reasonable and consistent with the prior art. See Okajima v. Bourdeau, 261
F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art may reflect an appropriate
level of skill in the art).

C. Claim Construction
For petitions filed on or after November 13, 2018, the “broadest
reasonable interpretation” standard has been replaced with the federal court
claim construction standard that is used to construe a claim in a civil action
under 35 U.S.C. § 282(b). This is the same claim construction standard
articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en
banc), and its progeny.
Petitioner does not provide any explicit construction of any claim
terms. See generally, Pet. Citing to a number of descriptions in the ’987
patent, Patent Owner contends that the plain and ordinary meaning of the
claim term “‘scrubber bar’ requires that the bar allow a user to scrub or
navigate through the video using the bar itself.” Prelim. Resp. 13–14
(emphasis omitted) (citing Ex. 1001, 6:15–17, 8:49–53, 44:31–21 [sic,
44:31–32)]).
We agree with Patent Owner. The ’987 patent describes the scrubber
bar allowing a user to navigate (i.e., scrub) through a video using a bar.
Ex. 1001, 6:15-17 (“[o]ther controls may include pause, fast forward,
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rewind, play, skip segment, and/or scrubber controls”), 8:49–53 (“a scrubber
area (e.g., an area including a scrubber bar or other control that
a user can utilize (e.g., by dragging a scrubber control in a scrubber timeline)
to indicate where the user wants the video playback to begin or to browse
frames in the video”), 44:31–32 (“[t]he user may drag the scrubber control to
a desired position to quickly scan the video”). The plain and ordinary
meaning of the claim term “scrubber bar requires that the bar allow a user to
scrub or navigate through the video using the bar itself.”
We determine that for the purposes of this Decision, it is unnecessary
to construe expressly any other claim terms. See Vivid Techs., Inc. v. Am.
Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (Only terms in
controversy must be construed “and only to the extent necessary to resolve
the controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs in the
context of an inter partes review).

D. Alleged Anticipation by Fink
Petitioner contends that claims 1–4, 11, 12, 15–18, 20, 23, 25, 26, and
30 are anticipated by Fink. Pet. 30–70. Patent Owner disputes Petitioner’s
contentions. Prelim. Resp. 5–28.
1. Summary of Fink
Fink describes a system and method for adding and displaying
interactive annotations for online hosted videos, where a graphical
annotation interface allows the creation of annotations and association of the
annotations with a video. Ex. 1007 ¶ 4. Figure 1 of Fink is reproduced
below.
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Figure 1 above illustrates a block diagram of a system architecture. Id. As
illustrated in Figure 1, a video hosting server 108 includes a front end server
124, a video server 126, a network interface 122, a video database 128, and a
user database 140. Id. ¶ 13. A client 130 executes a browser 132, and
connects to the front end server 124 via a network 105. Id. ¶ 14. Video
server 126 receives uploaded media content from content providers and
allows content to be viewed by client 130. Id. ¶ 16. An annotation server
150 provides the ability to view and add annotations to videos in the video
database 128. Id. ¶ 22.
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Figure 3 of Fink is reproduced below.

Figure 3 depicts a user interface for manually creating annotations. Id. ¶ 30.
A main video area 202 displayed on the client 130 plays a video stored in the
video database 128 and served to the client 130 by the video server 126. Id.
¶ 26. “Playback can be controlled via, for example, a video controls area
204.” Id. Annotations 205 and 210 are text boxes and thought bubbles,
which displays static text. Id. Annotation 215 is a spotlight that displays
text (e.g., “What’s behind the window?”) in response to a user hovering the
mouse within its boundaries. Id. Annotation icons 302–305 correspond to
four annotation types (speech bubbles, text boxes, spotlights, and pauses,
respectively). Id. ¶ 30.
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Figure 5 of Fink is reproduced below.

Figure 5 depicts an annotation interface that allows for the addition of
annotations and provides information on existing annotations. Id. ¶ 41.
Fink states:
A video area 505 displays the video, and annotation editing
controls 507 allow the addition of annotations to the video in a
manner similar to that of controls 302-305 in FIG. 3. An
annotation list 510 displays a list of all the annotations currently
associated with a video, including the type, the associated textual
caption, the time of the video to which the annotation applies, the
user who submitted the annotation, and the like. A visual
timeline 515 graphically displays the time locations of the
various annotations associated with the video. For example, a
marker 516 indicates the location of a newly-added Pause
annotation, and dragging the marker 516 changes the duration
and/or time location of the pause.
Id.
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2. Independent Claim 1
Petitioner contends that Fink describes all the elements of independent
claim 1. Pet. 30–51. Patent Owner disagrees and, in particular, disputes that
Fink describes elements 1.4 and 1.10 of claim 1. Prelim. Resp. 5–20.
[1.4] provide to a first user terminal of [sic]8 a first user interface
that enables the first user to upload a first video or provide a link to the first
video
To meet the claimed first user interface, Petitioner points to Fink’s
description of a user using browser 132 to upload a video. Pet. 35–36; see
also Ex. 1102 ¶¶ 63–64 (corresponding testimony of Dr. Porter). Petitioner
states:
Fink describes the system providing a user interface to the
first user terminal (e.g., client device 130), as the client device
130 “executes a browser 132 and connects to the front end server
124 [of the video hosting server] via a network 105.” Id.,
¶¶[0014], [0013] (front end server 124 is component of video
hosting server 108); Fig. 1. This browser interface enables the
user to upload a first video to the video hosting server. Id.,
¶[0018] (“Users of the clients 130 and browser 132 can “upload
content to the video hosting server 108 via network 105. The
uploaded content can include, for example, video, audio or a
combination of video and audio.”).
Pet. 36.
Patent Owner argues that Fink’s browser 132 cannot meet the claimed
first user interface because Fink’s browser 132 was not provided by Fink’s

8 Patent Owner explains: “The word ‘of’ after ‘terminal’ is a remnant of a
certificate of correction that removed a repeated term, ‘a first user’ but did
not properly remove the leftover term ‘of’ from the claim.” Prelim. Resp. 6,
n.2.
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video hosting server, front end server 124, and/or video server 126 (i.e., the
claimed processing device of element 1.2). Prelim. Resp. 5–8.
We agree with Patent Owner. Claim 1’s element 1.4 is a function of
the programmatic code recited by element 1.3. Element 1.3 recites “non-
transitory memory storing programmatic code that when executed by the at
least one processing device, cause the video system to: . . . .” Ex. 1001,
57:9–11. Thus, claim 1 requires that the first user interface is provided by
the processing device.
Petitioner equates the claimed processing device to Fink’s video
hosting server 108, which includes front end server 124 and video server
126, and equates Fink’s browser 132 to the claimed first user interface. Pet.
33–36. Fink, however, does not describe video hosting server 108 providing
browser 132 to a first user terminal. See e.g. Ex. 1007 ¶¶ 13–14, 18. To the
contrary, Fink’s description of using browser 132 to connect client device
130 to front end server 124 by network 105 suggests that browser is a known
web browsing software pre-loaded onto a standard personal computer
device. See id. ¶ 14 (describing client 130 as known devices and using
browser 132 to connect to front end server 124 via a network 105, such as
the Internet).
Petitioner, thus, fails to show that Fink describes element 1.4 of claim
1.
[1.10] enable the first user to define, using the scrubber bar and a
first control, when the first image is to be displayed as an overlay when the
first video is played back
To meet the claimed scrubber bar, Petitioner points to an alleged
scrubber bar depicted in Fink’s Figures 5 and 3. Pet. 5–6; see also Ex. 1102
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¶¶ 71–72 (corresponding testimony of Dr. Porter). Fink’s Figure 5, with
annotations added by Petitioner, is reproduced below.

Pet. 43. Annotated Figure 5 depicts the alleged scrubber bar highlighted in
solid red line. Pet. 42. Petitioner states:
Fink describes the system enabling the user to define when
the first image is to be displayed, as it provides the user with a
visual timeline 515, which “graphically displays the time
locations of the various annotations associated with the video.”
Ex. 1007, ¶¶[0041], [0030] (“Annotation icons 302-305
correspond to four annotation types”); Fig. 5. The visual timeline
includes a scrubber bar (annotated above in Figure 5) and a
control (e.g., marker 516, which “indicates the location” of an
annotation). Id., ¶[0041]; Fig. 5. Fink states that “dragging the
marker 516 changes the duration and/or time location” of an
annotation,” thus enabling the user to define when the
annotation, including its image, is displayed as an overlay during
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video play back. Id., ¶¶[0041], [0022] (annotations modify a
video by “providing interactive overlays), [0047] (“the user uses
the interface to specify the properties of the annotations”); Ex.
1102, ¶73.
Pet. 43–44.
Patent Owner responds, “even if the time bar identified by the Petition
with respect to FIG. 5 were a scrubber bar, which it is not, Fink does not
disclose enabling a first user to define when the first image is displayed
‘using the scrubber bar and a first control,’ as required by claim element
[1.10].” Prelim. Resp. 15.
We agree with Patent Owner. In the Petition, for element 1.9,
Petitioner highlights the video controls area 204 and equates it to the
claimed scrubber bar. See Pet. 42–43; Ex. 1007 ¶ 26 (“Playback can be
controlled via, for example, a video controls area 204”); Figs. 2, 3, 5.
Petitioner, however, does not assert and Fink does not describe using the bar
in the video controls area 204 (i.e., the alleged scrubber bar) to define when
the first image is to be displayed as an overlay when the first video is played
back, as required by element 1.10.
For element 1.10, Petitioner also points to the bar in the video control
area and to visual timeline 515 as including a scrubber bar. Pet. 43.
Petitioner, however, does not assert and Fink does not describe visual
timeline 515 allowing a user to scrub or navigate through the video using the
bar itself, as required by the plain and ordinary meaning of a scrubber bar.
See Ex. 1007 ¶ 41; Pet. 43–44. Further, although Petitioner points to Fink’s
description of using marker 516 in visual timeline 515 to change the
duration and time location of the display of an annotation, Petitioner
provides no explanation as to how the video control area 204 is used in
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conjunction with marker 516. Pet. 43–44 (citing Ex. 1007 ¶ 41, Ex. 1102 ¶
73).
Petitioner fails to show that Fink describes element 1.10 of claim 1.
Petitioner, thus, fails to show a reasonable likelihood that claim 1 is
anticipated by Fink.

3. Independent Claims 20 and 26
Independent claims 20 and 26 recite similar elements to claim 1’s
elements 1.4 and 1.10. See Ex. 1001, 59:38–40, 59:56–61, 61:6–8, 61:21–
25. Both parties refer us to the same arguments provided for claim 1’s
elements 1.4 and 1.10. Pet. 60–62, 66–67; Prelim. Resp. 22–23, 25–26.
Petitioner does not provide any further explanation or citations to
evidence. See Pet. 60–62, 66–67. For the same reasons above, Petitioner
fails to show that Fink discloses all the limitations of independent claims 20
and 26. Petitioner, thus, fails to show a reasonable likelihood that claims 20
and 26 are anticipated by Fink.

4. Dependent Claims 2–4, 11, 12, 15–18, 23, 25, and 30
Petitioner argues that Fink anticipates dependent claims 2–4, 11, 12,
15–18, 23, 25, and 30. Pet. 50–60, 64–65, 69–70. Patent Owner responds
that Petitioner fails to show the limitations of these dependent claims.
Prelim. Resp. 20–21, 25, 28. Petitioner’s arguments for these claims do not
remedy the deficiencies discussed above for the challenged independent
claims. Petitioner fails to show that Fink describes all the limitations of
these challenged dependent claims. Petitioner, thus, fails to show a
reasonable likelihood that claims 2–4, 11, 12, 15–18, 23, 25, and 30 are
anticipated by Fink.
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E. Alleged Unpatentability over Fink and Geer
Petitioner contends that claims 1–4, 11, 12, 15–18, 20, 23, 25, 26, and
30 are unpatentable over Fink and Geer. Pet. 70–73. Petitioner refers to its
anticipation ground to show that Fink discloses most of the elements of these
challenged claims and only relies upon Geer “[t]o the extent that Fink does
not explicitly describe that the annotation includes an image.” Id. at 70. As
it did for the anticipation ground, Patent Owner responds that Geer does not
remedy the deficiencies of Fink with respect to claim elements 1.4 and 1.10,
and “the Petition does not so assert.” Prelim. Resp. 29, 33–34.
Petitioner’s arguments for these claims do not remedy the deficiencies
discussed above for the challenged independent claims. Petitioner fails to
show that Fink and Geer teaches all the limitations of these challenged
claims. Petitioner, thus, fails to show a reasonable likelihood that 1–4, 11,
12, 15–18, 20, 23, 25, 26, and 30 are unpatentable over Fink and Geer.

F. Remaining Grounds
Petitioner challenges claim 5 as unpatentable over the combination of
Fink (and Geer) and Lerman. Pet. 74–75. Petitioner challenges claim 7 as
unpatentable over Fink (and Geer) and Miller. Id. at 75–77. Petitioner
challenges claim 19 as unpatentable over Fink (and Geer) and Sterner. Id. at
77–79. Petitioner further challenges claim 24 as unpatentable over Fink
(and Geer) and Kilar. Id. at 79–81. Petitioner additionally challenges claim
27 as unpatentable over Fink (and Geer), Lerman, and Sterner. Id. at 82–85.
Patent Owner responds that the addition of Lerman, Miller, Sterner
and Kilar do not remedy the deficiencies of Fink with respect to the
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independent claims and the “Petition does not so assert.” Prelim. Resp. 43–
45.
For the reasons discussed above with respect to the challenged
independent claims, Petitioner fails to show a reasonable likelihood that
these challenged dependent claims are unpatentable. In re Fritch, 972 F.2d
1260, 1266 (Fed. Cir. 1992) (“[D]ependent claims are nonobvious if the
independent claims from which they depend are nonobvious.”). Petitioner,
thus, fails to show a reasonable likelihood that claims 5, 6, 19, 24, and 27 are
unpatentable over Fink (and Geer) and these additional references.

III. CONCLUSION
Petitioner does not show that there is a reasonable likelihood that it
would prevail with respect to at least one of the challenged claims.

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that the Petition is denied, and no inter partes review is
instituted.

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FOR PETITIONER:
Frank M. Gasparo
Jonathan M. Sharret
Stephen K. Yam
VENABLE LLP
fmgasparo@venable.com
jsharret@venable.com
syam@venable.com

FOR PATENT OWNER:
Todd E. Landis
John Wittenzellner
Adam B. Livingston
WILLIAMS SIMONS & LANDIS PLLC
tlandis@wsltrial.com
johnw@wsltrial.com
alivingston@wsltrial.com