Skimlinks, Inc.v.LINKGINE, INC.

Patent Trial and Appeal Board

Mar 16, 2016

11053608 (P.T.A.B. Mar. 16, 2016)

Trials@uspto.gov Paper No. 44
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 CBM2014-00184
Patent 7,818,214 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 CBM2015-00086 has been joined with this proceeding.
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I. INTRODUCTION
A. Background
VigLink, Inc. (“VigLink”) filed a Petition (Paper 9, “Pet.”) to institute
a covered business method patent review of claims 1–7 of U.S. Patent No.
7,818,214 B2 (Ex. 1001; “the ʼ214 patent”) pursuant to 35 U.S.C. §§ 321–
329. Linkgine, Inc. (“Patent Owner”) filed a Preliminary Response. Paper
11. Based on these submissions, we instituted trial as to claims 1–7 of the
’214 patent. Paper 13 (“Dec.”).
Skimlinks, Inc. and Skimbit, Ltd. (collectively, “Skimlinks”), filed a
Petition for inter partes review of claims 1–7 of the ’214 patent, which
Petition was accorded a filing date of March 10, 2015. Case CBM2015-
00086, Paper 1, Paper 10. 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 CBM2014-00184. Case CBM2015-
00086, Paper 13. On June 12, 2015, we instituted trial in CBM2015-00086
and joined the case with Case CBM2014-00184. Case CBM2015-00086,
Paper 17.
After institution, Patent Owner filed a Response (Paper 21, “PO
Resp.”). VigLink and Skimlinks (collectively, “Petitioner”) filed a Reply
(Paper 29, “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 43 (“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 1–7 of the ’214 patent are unpatentable. Petitioner’s
Motion to Exclude (Paper 30) is dismissed.
B. Related Matters
The parties indicate that the ’214 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 8,027,883 B2 is the subject of a covered business method patent
review in Case CBM2014-00185.
C. The ʼ214 Patent (Ex. 1001)
The ʼ214 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. 1001, 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 2:26–27. In the flowchart reproduced above,
the user requests data through the Internet at step 400. Id. at 8:8–10. At step
402, the system checks the data for a possible affiliate link. Id. at 8:13–14.
Affiliate links that contain URLs that participate in affiliate programs are
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affiliate targets. Id. at 8:17–18. 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 8:18–20. 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 8:21–25. If affiliate codes exist, the system determines if
the affiliate codes need to be replaced at step 424. Id. at 8:40–42. 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 8:42–45. 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 8:28–33. 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 8:33–37.
D. Illustrative Claim
Claims 1 and 7 are independent method claims. Claims 2–6 depend
directly from claim 1. Claim 1 is reproduced below:
1. A method for operating an automated affiliate manipulation
system comprising:
receiving a request for preexisting data from a first
computer,
identifying the requested preexisting data at an
intermediary computer, the intermediary computer being
separate from the first computer, analyzing the requested
preexisting data at the intermediary computer to automatically
identify at least one data element corresponding to an affiliate-
capable merchant,
determining that the at least one data element comprises
an existing affiliate code
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determining that the existing affiliate code does not
comprise the preferred affiliate code,
creating modified data at the intermediary computer by
automatically associating the preferred affiliate code with the
data element, and removing any existing affiliate code associated
with the data element, the modified data comprising at least one
affiliate link, wherein the affiliate link comprises a URL
associated with the affiliate-capable merchant, delivering the
modified data to the first computer, and communicating the
affiliate code to the affiliate-capable merchant upon selection of
the affiliate link.

Ex. 1001, 8:56–9:12.

E. The Prior Art
Petitioner relies on US Patent No. 6,804,660 B2, issued October 12,
2004 (“Landau”) (Ex. 1010). Petitioner also relies on the Declaration of
Dr. Michael Shamos (the “Shamos Declaration”) (Ex. 1007) in support of
its arguments.
F. Instituted Grounds
References Basis Claims Instituted
§ 101 1–7
Landau § 102(a) 1–7
G. Standing
We determined, in the Decision on Institution, that the ’214 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 ’214
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,
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after considering the record again, we reaffirm our determination in the
Decision on Institution and conclude that the ’214 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).
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.”
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B. Patentability of Claims 1–7 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
(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
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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 ʼ214 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 1–7 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 ’214 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. 25.
Petitioner focuses its § 101 arguments on claims 1 and 7, arguing that the
claims are not meaningfully limited because they are directed to mental
processes. Id. at 27–32. 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”
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are steps that can be performed by a person. Id. at 25; 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,
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.
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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 ʼ214 patent claims “cover a method of
operating an automated affiliated manipulation system” and thus are like the
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

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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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 ’214 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 ʼ214 patent, the allocation of
commissions, is a business need, not a technological problem. The steps
recited in the ’214 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 ’214 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 ’214 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-
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
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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 ’214 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. 16.
Petitioner responds that the abstract idea embodied in the ’214 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 10–11. Petitioner states that steps 1–3 of claim 1 can be
reduced to “the mental process of identifying a web address that includes an
affiliate code,” “step 4 involves the mental process of determining that the
detected affiliate code is not a preferred affiliate code,” and “step 5 merely
consists of replacing the detected affiliate code with the preferred affiliate
code.” Pet. 28, 30–31. We are not persuaded that the case at hand
resembles the situation in PNC Bank, in that Petitioner here has identified
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sufficiently how each step of the challenged claims ties in to the abstract
idea. Id. at 27–32; Reply 10–12.
We conclude, therefore, that Petitioner has demonstrated that the ʼ214
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 1–7 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 ‘receiving a
request for preexisting data from a first computer,’ ‘delivering [] modified
data to the first computer, and communicating [an] affiliate code to [an]
affiliate-capable merchant upon selection of [an] affiliate link.’” Pet. 28.
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Petitioner further argues that “no novel or otherwise unique machine is
needed to perform the claimed methods.” Id. at 32.
Patent Owner argues that the ’214 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. 1001 at 1:23–28) 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 ’214 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.
Patent Owner’s argument that the claims are meaningfully limited
because they recite steps performed by an intermediate computer is
unavailing. PO Resp. 22–23. We are not convinced that reciting a standard
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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
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
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independent claim 7, also drawn to a method, as claim 7 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. 1001,
9:13–24. Claim 6 further comprises “defining the intermediary computer as
a server.” Id. at 9:25–26. We have also reviewed these dependent claims,
and, for similar reasons as discussed above, we determine that claims 2–6 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 ʼ214 patent are not patentable because they
are directed to ineligible subject matter under 35 U.S.C. § 101.
C. Asserted Ground of Unpatentability Under 35 U.S.C. § 102
Landau discloses a method, system, and computer program for
affording “Virtual Affiliates” access to an existing affiliate system. Ex.
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
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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 1–7 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 1–7, which are therefore anticipated by Landau.” Pet. 32–51.
Petitioner argues that “claim 7 is anticipated by Landau for at least the
reasons stated above with regard to claim 1” and that “the difference in
claim language is not sufficient to alter the above analysis of Claim 1 with
respect to Landau.” Id. at 42. Petitioner’s Landau claim chart refers back to
its claim 1 analysis to disclose the claim 7 elements. Id. at 49–52.
Patent Owner responds that Landau, which is directed to a “pre-
arranged hub or pool of affiliate networks in which a webmaster in one
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 existing affiliate code does not
comprise the preferred affiliate code.” Ex. 1001, 8:66–67, 9:1–2. Petitioner
identifies the “target Webmaster ID” of Landau as disclosing the “preferred
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affiliate code” of claim 1, alleging that the “determining that the existing
affiliate code does not comprise the 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. 35, 44–45. Specifically,
Petitioner argues that Landau discloses a URL containing a unique
identifying code for the Webmaster within his origin affiliate system (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. (citing Ex. 1010, 14:46–66).
Regarding these limitations, Patent Owner discusses, first, how the
specification of the ’214 patent determines that “the data element is not
associated with a preferred affiliate code.” See PO Resp. 25–26. 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 the claim
language and have no bearing on the anticipation analysis.” Reply 16–17.
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 the preferred affiliate code
(Landau’s target Webmaster ID). The target Webmaster ID is the preferred
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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
existing affiliate code does not comprise the 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 “determining whether to replace the webmaster ID.” Id. at 27.
In Landau, Patent Owner argues, the source Webmaster ID is always
replaced. Id. 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 17–18. To disclose
“determining that the at least one data element comprises an existing affiliate
code” and “determining that the existing affiliate code does not comprise the

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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preferred affiliate code,” Petitioner relies on the steps disclosed in Figure 6
of Landau. Pet. 34–35 (citing Ex. 1010, 14:46–66), 43–45. 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). 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 code.” Reply 18. We are persuaded that Landau
determines that the data element comprises an existing affiliate code, and
determines that the existing affiliate code does not comprise the preferred
affiliate code, in operation 508 and in steps 604 and 606. Ex. 1010, 14:44–
66.
Claim 1 also requires “analyzing the requested preexisting data at the
intermediary computer to automatically identify at least one data element
corresponding to an affiliate-capable merchant.” 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. 34–35 (citing Ex. 1010, 14:45–51). Petitioner reiterates in its Reply that
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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. 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 system (target system
identifier).” Reply 18 (citing Ex. 1010, 14:58–61). The claim language
requires “analyzing the requested 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-
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capable merchant. Landau, through steps 604 and 606, discloses this
limitation.
Claim 1 also requires “creating modified data at the intermediary
computer by automatically associating the preferred affiliate code with the
data element.” Ex. 1001, 9:3–5. To disclose this limitation, Petitioner relies
on Landau’s creation of a new, transformed URL in “new URL
determination operation 612,” in which the “new URL is determined based
on the target Merchant and the target Webmaster ID.” Pet. 35–36, 45 (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.
30–31. 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 modify data, but rather replaces it completely.” Id. at 31.
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.
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Claim 7 requires, in part, “determining that the existing affiliate code
is not associated with a preferred commercial agent.” Ex. 1001, 10:12–13.
Petitioner’s arguments for claim 7 are substantially similar to its arguments
for claim 1, particularly with respect to this limitation, about which
Petitioner states that the phrases “determining that the existing affiliate code
is not associated with a preferred commercial agent” from claim 7 and
“determining that the existing affiliate code does not comprise the preferred
affiliate code” from claim 1 “appear to be equivalent.” Pet. 39. 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 41.
Patent Owner’s arguments for claim 7 are similar to those for claim 1,
with the exception of the “preferred commercial agent” limitation. PO Resp.
31. Patent Owner faults Petitioner’s identification as “[a]t best” including an
affiliate-capable merchant and an affiliate code or ID. PO Resp. 32.
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. 1001, 6:24–26. 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
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“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 7, however, requires “determining that the existing affiliate
code is not associated with a preferred commercial agent.” In the Landau
example cited by Petitioner, the data element comprises an existing affiliate
code associated with a preferred commercial agent (i.e., 1001, associated
with Webmaster Fred). Thus, Petitioner has not shown that Landau
discloses “determining that the existing affiliate code is not associated with a
preferred commercial agent,” because Landau determines that the existing
affiliate code is 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.
1001, 9:13–24. Claim 6 further comprises “defining the intermediary
computer as a server.” Id. at 9:26. Petitioner presents separate arguments
directed to whether Landau anticipates claims 2–6. Pet. 37–39, 46–49.
Specifically, Petitioner argues that Landau “discloses these claim limitations
to the extent the system of Landau is usable to retrieve data from multiple
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sources and to 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 37. Petitioner also cites to specific examples
in Landau in which the various permutations of claims 2–5 are disclosed. Id.
at 38–39, 46–48. Regarding claim 6, Petitioner cites to Landau’s example in
which an intermediate computer, namely, the Essociate server, is defined as
a server. Id. at 39 (citing Ex. 1010, 18:15–17). We have also 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 1–6 are
anticipated by Landau. Petitioner has not established by a preponderance of
the evidence that claim 7 is anticipated by Landau.
D. Conclusion
We determine that Petitioner has established by a preponderance of
evidence that claims 1–7 are unpatentable.
III. MOTION TO EXCLUDE
Petitioner filed a Motion to Exclude (Paper 30, “Mot. to Excl.”), to
which Patent Owner responded (Paper 36) and on which Petitioner filed a
Reply (Paper 37). 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
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determination. The Motion to Exclude, therefore, need not be decided as to
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 1–7 of U.S. Patent No. 7,818,214 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