Searchmetrics, Inc.v.Brightedge Technologies

Patent Trial and Appeal Board

Feb 2, 2015

12854644 (P.T.A.B. Feb. 2, 2015)

Trials@uspto.gov Paper No. 12
571.272.7822 Entered: February 2, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
SEARCHMETRICS, INC. and SEARCHMETRICS GMBH,
Petitioner,
v.
BRIGHTEDGE TECHNOLOGIES, INC.,
Patent Owner.
_______________

Case IPR2014-01227
Patent 8,478,700 B2
_______________

Before MEREDITH C. PETRAVICK, GRACE KARAFFA OBERMANN,
and BART A. GERSTENBLITH, Administrative Patent Judges.

GERSTENBLITH, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
I. INTRODUCTION
A. Background
Searchmetrics, Inc. and Searchmetrics GmbH (collectively,
“Petitioner”) filed a Petition (Paper 2, “Pet.”) requesting institution of inter
partes review of claims 1–9 and 11–14 of U.S. Patent No. 8,478,700 B2
(Ex. 1001, “the ’700 patent”). BrightEdge Technologies, Inc. (“Patent
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Owner”) timely filed a Preliminary Response (Paper 10, “Prelim. Resp.”).
We have jurisdiction under 35 U.S.C. § 314.
Under 35 U.S.C. § 314(a), an inter partes review may be instituted
only if “the information presented in [the Petition] shows that there is a
reasonable likelihood that the petitioner would prevail with respect to at least
1 of the claims challenged in the petition.” Inter partes review is instituted
only if the petition supporting the asserted ground demonstrates “that there is
a reasonable likelihood that at least one of the claims challenged in the
petition is unpatentable.” 37 C.F.R. § 42.108(c).
For the reasons given below, on this record we find that Petitioner has
not established a reasonable likelihood of prevailing with respect to at least
one challenged claim of the ’700 patent. Accordingly, we deny the Petition
and decline to institute an inter partes review of the ’700 patent.
B. Related Proceedings
The parties represent that the ’700 patent is asserted in BrightEdge
Technologies, Inc. v. Searchmetrics GmbH and Searchmetrics, Inc.,
No. 3:14-cv-01009-WHO (N.D. Cal.). Pet. 1; Paper 6, 1.
C. The Prior Art
Petitioner relies on the following prior art references:
Mike Moran and Bill Hunt, Search Engine Marketing, Inc. Driving
Search Traffic to Your Company’s Web Site, IBM PRESS (2006) (Ex. 1004,
“Moran”);
U.S. Patent No. 8,396,742 B1, issued Mar. 12, 2013 (Ex. 1005,
“Blume”);
U.S. Patent Application No. 2008/0071767, published Mar. 20, 2008
(Ex. 1006, “Grieselhuber”); and
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SEO Tools Guide – Technical User Manual, 701-296, AOL (2006)
(Ex. 1007, “SEO Tools Guide”).1
D. The Asserted Grounds of Unpatentability
Petitioner challenges the patentability of claims 1–9 and 11–14 of the
’700 patent on the following grounds:2
Reference(s) Basis Claim(s) challenged
Moran § 102(b) 1–3, 5–7, and 11–14
Blume § 102(e) 1–3, 5, 7–9, 11, 12, 14, and 15
Moran and Grieselhuber § 103(a) 6 and 13
Blume and Grieselhuber § 103(a) 6 and 13
Moran and SEO Tools Guide § 103(a) 4
Blume and SEO Tools Guide § 103(a) 4
E. The ’700 Patent
The ’700 patent is directed to methods of optimizing placement of
references to an entity. Ex. 1001, Abstract. The methods include “searching
at least one channel on a network for references to the entity using a
plurality of search terms to generate search results” and scoring “[t]he
references associated with each of the plurality of search terms . . . to
generate scores for the references within the search results with respect to
the entity.” Id. at 2:9–15. The methods also include correlating
“[c]onversions by one or more visits [to] the entity with the search terms that

1 “SEO” refers to Search Engine Optimization. Ex. 1007, 9.
2 Petitioner supports its challenge with a declaration executed by Ivan
Zatkovich on September 3, 2014 (Ex. 1008, “Zatkovich Declaration”).
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desired information,” such as “information about network activity related to
the search terms.” Id. at 5:55–58. At step 230, a search is performed in
which the search terms are used to search any number of channels within the
network for references to the entity. Id. at 5:66–6:4. The search may
include “scoring the results of the search of the network with respect to the
entity,” and the score may include “a position at which references to the
entity are displayed within the search results.” Id. at 6:4–8. At step 240, the
results of one or more of steps 200–210 may be analyzed to “identify
opportunities and to forecast results of initiatives at step 250.” Id. at 6:16–
18.
F. Illustrative Claims
Claims 1 and 11 are the only independent claims challenged in this
proceeding. Claims 2–9 depend from claim 1, and claims 12–14 depend
from claim 11. Independent claims 1 and 11 are illustrative of the claimed
subject matter and are reproduced below:
1. A method for optimizing online references to an entity
that are non-paid advertisements, the method comprising:
searching at least one channel unassociated with paid
advertisements on a network for references to the entity
unassociated with paid advertisements using a plurality of
search terms to generate search results that include a plurality of
references;
scoring the references to the entity associated with each
of the plurality of search terms from the plurality of references
to generate scores for the references to the entity;
correlating conversions by one or more visits to a website
of the entity through the reference with the search terms that
directed the visits to the entity to determine a conversion rate;
determining a total value of the conversions to the entity;
correlating at least the total value of the conversions to
the entity associated With the references to the entity and the
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scores for the references to the entity to identify one or more of
the plurality of search terms; and
for the identified one or more of the plurality of search
terms, forecasting an increase in conversions for the references
to the entity associated with an increase in the scores for the
references to the entity.
Ex. 1001, 9:2–23.
11. A non-transitory computer readable storage medium
configured to cause a system to perform operations of
optimizing online references to an entity that are non-paid
advertisements, the operations comprising:
searching at least one channel unassociated with paid
advertisements on a network for references to the entity
unassociated with paid advertisements using a plurality of
search terms to generate search results that include a plurality of
references;
scoring the references to the entity associated with each
of the plurality of search terms from the plurality of references
to generate scores for the references to the entity;
correlating conversions by one or more visits to a website
of the entity through the reference with the search terms that
directed the visits to the entity to determine a conversion rate;
determining a total value of the conversions to the entity;
correlating at least the total value of the conversions to
the entity associated with the references to the entity and the
scores for the references to the entity to identify one or more of
the plurality of search terms; and
for the identified one or more of the plurality of search
terms, forecasting an increase in conversions for the references
to the entity associated with an increase in the scores for the
references to the entity.
Id. at 10:12–36.
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II. CLAIM CONSTRUCTION
We interpret claims of 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); see Office Patent Trial Practice
Guide, 77 Fed. Reg. 48,756, 48,764, 48,766 (Aug. 14, 2012) (Claim
Construction). Claim terms are given their ordinary and customary meaning
as would be understood by a person of ordinary skill in the art at the time of
the invention and in the context of the entire patent disclosure. In re
Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). We apply this
standard to the claims of the ’700 patent. See Pet. 7–8 (proposing to
construe the claims of the ’700 patent in accordance with the broadest
reasonable interpretation standard); Prelim. Resp. 6 (same).
In determining whether or not to institute inter partes review, we
construe claim terms as necessary to apply the references. Claim
constructions may change as a result of the developing record.
A. “references”
The term “references” is recited in each of the challenged claims.
E.g., Ex. 1001, 9:2, 8; id. at 10:14, 17. Petitioner proposes that we construe
the term “reference” to mean “a link or a reference to a web page or other
media.” Pet. 8. Petitioner asserts that the Specification of the ’700 patent
contains language paralleling this construction. Id. (citing Ex. 1001 at 3:16–
18).
Patent Owner proposes that we construe the phrases “references to an
entity” and “references to the entity” in accordance with their plain and
ordinary meaning or, alternatively, as “links and/or references to one or
more web pages or other media associated with [an/the] entity.” Prelim.
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Resp. 9 (alteration in original). Patent Owner asserts that Petitioner’s
proposed construction of “reference” “cannot be incorporated into
‘references to an entity’ or ‘references to the entity’ without rendering the
claim language grammatically nonsensical.” Id. at 8. Patent Owner
contends that the Specification of the ’700 patent supports its proposed
construction. Id. at 9 (citing Ex. 1001 at 3:18–21).
As reflected above, the principal difference between the parties’
proposed constructions results from the difference in the terms proposed for
construction. Patent Owner proposes to include the phrases “to an entity”
and “to the entity,” whereas Petitioner does not. This difference results in
Patent Owner’s proposed construction including the phrase “associated with
[an/the] entity.”
Claims 1 and 11 recite the term “references” and the phrases
“references to an entity” and “references to the entity.” The preamble of
claim 1 and first step of the claimed method illustrate the use of the term and
the phrases: “A method for optimizing online references to an entity . . . the
method comprising: searching at least one channel . . . for references to the
entity . . . using a plurality of search terms to generate search results that
include a plurality of references.” Ex. 1001, 9:2–8 (emphases added). The
use of the phrase “references to the entity” is clearly drafted to refer back to
the previously recited “references to an entity,” relying on that language for
antecedent basis. Thus, the phrases “references to an entity” and “references
to the entity” are essentially synonymous. The claim, however, also
includes the term “references” without the additional “to an entity” or “to the
entity” language. The use of the term “references” as a standalone term, i.e.,
not limited to “an” or “the entity,” reflects that the term is broader than the
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phrases “references to an entity” and “references to the entity.” For
example, the recitation in claim 1 of “generat[ing] search results that include
a plurality of references” (emphasis added) can include references to entities
other than “the entity” recited previously. This interpretation is supported
by the use of the standalone term as opposed to either phrase. In other
words, the patentee did not draft the clause to read “generat[ing] search
results that include a plurality of references to the entity.” Thus, the use of
“references” without the modifier “to the entity,” supports our interpretation
that the standalone term has a broader meaning than the full phrase
“references to the entity.”3
Further, in describing the term “references,” the Specification of the
’700 patent states the following: “FIG. 1 illustrates a block diagram of a
system 100 for optimizing placement of references to an entity within one or
more channels.” Id. at 3:13–15 (bold omitted; italics added). Both parties
rely upon the same portion of the Specification, which follows the above
quotation: “The references may include links and/or references to one or
more Web Pages or other media, such as display advertisements, associated
with the entity. Accordingly, the references can include organic references,
online advertisements including display advertisements, new items or any
other reference to the entity.” Ex. 1001, 3:18–24 (emphases added). Thus,
although the Specification includes the phrase “associated with the entity”
when describing the term “references,” the Specification is referring to
“[t]he references” just mentioned, which are the “references to an entity.”

3 To be clear, we are not interpreting the term “references” differently as a
standalone term as compared to its use in the phrase “references to the
entity.” Rather, the difference in construction results solely from the use of
the limiting phrase “to the entity.”
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Accordingly, in light of the distinguishing recitations of the phrases
“references to an entity” and “references to the entity” as compared to the
standalone term “references” in the claims, we do not agree with Patent
Owner that the standalone term “references” is limited to “links and/or
references to one or more web pages or other media associated with [an/the]
entity.” (emphasis added). Rather, one of ordinary skill in the art at the time
of invention would understand that the term “references” means “links
and/or references to one or more web pages or other media.”4 As such, one
of ordinary skill in the art would understand that the phrase “references to an
entity” means “links and/or references to one or more web pages or other
media associated with an entity” and that the phrase “references to the
entity” means “links and/or references to one or more web pages or other
media associated with the entity.”
B. Other Terms
While Petitioner and Patent Owner present constructions for several
other claim terms, no other terms require express construction at this initial
stage.
III. ANALYSIS
A. Anticipation by Moran
Claims 1 and 11 and, because of their dependency upon those claims,
respectively, claims 2–9 and 12–14 recite, inter alia, “searching at least one
channel unassociated with paid advertisements on a network for references
to the entity unassociated with paid advertisements using a plurality of

4 Our construction is nearly the same as that proposed by Petitioner, except
that Petitioner proposed construing the term in the singular form “reference,”
as opposed to the plural form “references” as it appears in the claims.
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search terms to generate search results that include a plurality of references.”
Ex. 1001, 9:4–8, 10:16–20. Petitioner asserts that Moran discloses each and
every element of claims 1–3, 5–7, and 11–14 of the ’700 patent. Pet. 11–23.
In particular, Petitioner contends that Moran’s “referrals” disclose the
“references” recited in the claims. Id. at 13 (“A total number of search
referrals (references) for multiple search terms are identified.”). Petitioner
explains that “[a] search referral is a visitor who comes from a search engine
to any page within the website using a link.” Id. (citing Ex. 1004, 495).5
Patent Owner raises several arguments in response to Petitioner’s
challenge, including that Moran’s “referrals” do not disclose the claimed
“references.” Prelim. Resp. 25–26. In particular, Patent Owner contends
that whether Petitioner relies upon the “referrals” or “search referrals”
disclosed by Moran, each is “wholly different from the claim language.” Id.
at 25. Patent Owner asserts that “‘a link or a reference to a web page or
other media’ is not satisfied by disclosure of an ‘event of a page being
viewed after viewing a previous webpage.’” Id. at 25–26.
Moran is directed to the basics of search engines and search engine
marketing and discusses search engine optimization. Ex. 1004, 324–66. For
purposes of illustration, Moran discloses a fictitious company, Snap
Electronics, and uses this company and its search marketing campaigns to
discuss the need to set up search marketing and then to track and measure
that search marketing success in various ways. See, e.g., id. at 492, 478–
506, 174–200. Moran includes a “Glossary” in which it defines numerous
terms used therein. Id. at 526–54. In particular, Moran defines “referral” as

5 Exhibit pin citations are to the page numbers of the exhibit, rather than the
page number of the particular reference included as the exhibit.
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“[t]he Web metrics term for the event of a page being viewed after viewing a
previous page.” Id. at 545 (emphasis added). Moran explains that “Web
metrics systems capture the referrer URL for each page for each page view
so that referrals from particular places, such as search engines, can be
counted and analyzed.” Id. Moran also defines “search referral” as “[t]he
Web metrics term for the event of a page being viewed after viewing a
search results page.” Id. at 548 (emphasis added).
As reflected above, Moran defines “referral” and “search referral” as
an “event of a page being viewed after viewing” either a previous page or a
search results page. The ’700 patent, however, does not use the term
“references” to refer to an “event of a page being viewed after viewing”
either a previous page or a search results page. Rather, as noted above, we
construed the term “references” to mean “links and/or references to one or
more Web Pages or other media.” See supra Section II.A. Thus, Petitioner
has not established a reasonable likelihood of showing that Moran’s
“referrals” or “search referrals” disclose “references” as recited in the
challenged claims.
Accordingly, on the record before us, Petitioner has not established a
reasonable likelihood of prevailing on the assertion that Moran anticipates
claims 1–3, 5–7, and 11–14 of the ’700 patent.
B. Anticipation by Blume
Claims 1 and 11 and, because of their dependency upon those claims,
respectively, claims 2–9 and 12–14 recite, inter alia, “scoring the references
to the entity associated with each of the plurality of search terms from the
plurality of references to generate scores for the references to the entity” and
“correlating at least the total value of the conversions to the entity associated
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with the references to the entity and the scores for the references to the entity
to identify one or more of the plurality of search terms.” Ex. 1001, 9:9–11,
17–20, 10:21–23, 29–32. Petitioner asserts that Blume discloses each and
every element of claims 1–3, 5, 7–9, 11, 12, 14, and 15 of the ’700 patent.
Pet. 23–33. With respect to the “scoring” step recited above, Petitioner
contends that Blume “discloses scoring references for the entity using a
synergy score.” Id. at 25. With respect to the correlating step recited above,
Petitioner contends that Blume “discloses correlating the value of the
conversion to the entity and identifying search terms with high ROI (return
on investment) value or ROI value above a predetermined threshold.” Id.
at 26.
Patent Owner raises several arguments in response to Petitioner’s
challenge, including that, although the claims recite “correlating . . . the total
value of the conversions to the entity associated with the references to the
entity and the scores for the references to the entity,” Petitioner’s challenge
“fail[s] to even mention the scores for the references to the entity.” Prelim.
Resp. 46.
Blume is directed to a “computer-implementable methodology for
quantitatively assessing the impact of paid search advertising on the total
visits (paid and organic search-based visits) from search engines and
utilizing this assessment to improve search engine marketing performance.”
Ex. 1005, Abstract. Blume discloses computing a “synergy score for select
search engine keywords of interest or coefficients in a synergy equation[,]”
which “can be used to repeatedly compute the total ROAS [return on
advertising spend] and other performance metrics on a go-forward basis
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without the time lag inherent in computing the synergy score itself.” Id.
at 3:66–4:7.
As noted above, Petitioner asserts that Blume’s disclosure of
“correlating the value of the conversion to the entity and identifying search
terms with high ROI (return on investment) value or ROI value above a
predetermined threshold” teaches the claim recitation of “correlating at least
the total value of the conversions to the entity associated with the references
to the entity and the scores for the references to the entity to identify one or
more of the plurality of search terms.” Pet. 26 (citing Ex. 1005, 8:46–57).
While column 8, lines 46–57, of Blume discloses sorting keywords based on
“[i]ncremental ROI,” Petitioner does not allege that, or explain how,
incremental ROI is the same as or equivalent to the synergy score. In other
words, Petitioner has not explained how Blume’s sorting keywords based on
incremental ROI discloses “correlating . . . the total value of the conversions
. . . and the scores for the references to the entity” (emphasis added) as
recited in the claims.
Accordingly, on the record before us, Petitioner has not established a
reasonable likelihood of prevailing on the assertion that Blume anticipates
claims 1–3, 5, 7–9, 11, 12, 14, and 15 of the ’700 patent.
C. Obviousness over Moran and Grieselhuber
Petitioner asserts that the combination of Moran and Grieselhuber
would have rendered the subject matter of claims 6 and 13 obvious to one of
ordinary skill in the art at the time of invention. Pet. 33–37. Claims 6
and 13 depend from claims 1 and 11, respectively. Ex. 1001, 9:38, 10:41–
42. Petitioner relies upon Moran as disclosing the elements that claims 6
and 13 have in common with claims 1 and 11 based on dependency. Pet. 33
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(“Each of the features of independent claims 1 and 11 are disclosed by
Moran, as detailed in the claim chart above.”). Petitioner does not rely upon
Grieselhuber as disclosing the recited “references”; rather, Petitioner relies
upon Grieselhuber as disclosing the additional elements recited by claims 6
and 13. Id.; see id. at 36–37 (proposing to combine Grieselhuber’s
“competitive listing features” with Moran’s methods); see also Prelim.
Resp. 57–58 (noting that Petitioner’s obviousness challenges are directed
toward the limitations of the respective dependent claims).
Accordingly, for the same reasons we explained in the context of
discussing Petitioner’s anticipatory challenge based on Moran, see supra
Section III.A., Petitioner has not established a reasonable likelihood of
prevailing on the assertion that Moran and Grieselhuber would have
rendered claims 6 and 13 of the ’700 patent obvious to one of ordinary skill
in the art at the time of the invention.
D. Obviousness over Blume and Grieselhuber
Petitioner asserts that the combination of Blume and Grieselhuber
would have rendered the subject matter of claims 6 and 13 obvious to one of
ordinary skill in the art at the time of invention. Pet. 37–41. Claims 6 and
13 depend from claims 1 and 11, respectively. Ex. 1001, 9:38, 10:41–42.
Petitioner relies upon Blume as disclosing the elements that claims 6 and 13
have in common with claims 1 and 11 based on dependency. Pet. 37–38
(“Each of the features of independent claims 1 and 11 are disclosed by
Blume as detailed in the claim chart above.”). Petitioner relies upon
Grieselhuber as disclosing the additional elements recited by claims 6 and
13. Id.; see id. at 40–41 (proposing to combine Grieselhuber’s “competitive
listing features” with Blume’s methods); see also Prelim. Resp. 57–58
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(noting that Petitioner’s obviousness challenges are directed toward the
limitations of the respective dependent claims).
Accordingly, for the same reasons we explained in the context of
discussing Petitioner’s anticipatory challenge based on Blume, see supra
Section III.B., Petitioner has not established a reasonable likelihood of
prevailing on the assertion that Blume and Grieselhuber would have
rendered claims 6 and 13 of the ’700 patent obvious to one of ordinary skill
in the art at the time of the invention.
E. Obviousness over Moran and SEO Tools Guide
Petitioner asserts that the combination of Moran and SEO Tools
Guide would have rendered the subject matter of claim 4 obvious to one of
ordinary skill in the art at the time of invention. Pet. 41–45. Claim 4
depends from claim 1. Ex. 1001, 9:32. Petitioner relies upon Moran as
disclosing the elements that claim 4 has in common with claim 1 based on
dependency. Pet. 41 (“Each of the features of independent claim 1 is
disclosed by Moran as detailed in the claim chart above.”). Petitioner does
not rely upon SEO Tools Guide as disclosing the recited “references”;
rather, Petitioner relies upon SEO Tools Guide as disclosing the additional
elements recited by claim 4. Id.; see id. at 45 (proposing to combine SEO
Tools Guide’s “keyword finding feature” with Moran’s search engine
optimization); see also Prelim. Resp. 57–58 (noting that Petitioner’s
obviousness challenges are directed toward the limitations of the respective
dependent claims).
Accordingly, for the same reasons we explained in the context of
discussing Petitioner’s anticipatory challenge based on Moran, see supra
Section III.A., Petitioner has not established a reasonable likelihood of
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prevailing on the assertion that Moran and SEO Tools Guide would have
rendered claim 4 of the ’700 patent obvious to one of ordinary skill in the art
at the time of the invention.
F. Obviousness over Blume and SEO Tools Guide
Petitioner asserts that the combination of Blume and SEO Tools
Guide would have rendered the subject matter of claim 4 obvious to one of
ordinary skill in the art at the time of invention. Pet. 45–49. Claim 4
depends from claim 1. Ex. 1001, 9:32. Petitioner relies upon Blume as
disclosing the elements that claim 4 has in common with claim 1 based on
dependency. Pet. 45 (“Each of the features of independent claim 1 is
disclosed by Blume as detailed in the claim chart above.”). Petitioner relies
upon SEO Tools Guide as disclosing the additional elements recited by
claim 4. Id.; see id. at 48–49 (proposing to combine SEO Tools Guide’s
“keyword finding feature” with Blume’s methods);6 see also Prelim. Resp.
57–58 (noting that Petitioner’s obviousness challenges are directed toward
the limitations of the respective dependent claims).
Accordingly, for the same reasons we explained in the context of
discussing Petitioner’s anticipatory challenge based on Blume, see supra
Section III.B., Petitioner has not established a reasonable likelihood of
prevailing on the assertion that Blume and SEO Tools Guide would have
rendered claim 4 of the ’700 patent obvious to one of ordinary skill in the art
at the time of the invention.

6 Petitioner and Mr. Zatkovich refer to Moran in their discussion of this
challenge based on Blume and SEO Tools Guide. Pet. 48; Ex. 1008 ¶¶ 132–
33. We assume, for purposes of our discussion above, that Petitioner and
Mr. Zatkovich intended to refer to Blume.
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IV. CONCLUSION
For the foregoing reasons, we conclude that the information presented
in the Petition does not demonstrate that there is a reasonable likelihood that
Petitioner will prevail in challenging claims 1–9 and 11–14 of the
’700 patent as unpatentable under 35 U.S.C. §§ 102(b) and 103(a).
V. ORDER
In consideration of the foregoing, it is ORDERED that the Petition is
DENIED and no trial is instituted.

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For PETITIONER:

Timothy W. Lohse
Harpreet Singh
DLA PIPER LLP (US)
timothy.lohse@dlapiper.com
harpreet.singh@dlapiper.com

For PATENT OWNER:

Eliot Williams
Hopkins Guy
Jon Swenson
John Gaustad
eliot.williams@bakerbotts.com
hop.guy@bakerbotts.com
jon.swenson@bakerbotts.com
john.gaustad@bakerbotts.com