Amazon.com, Inc. v. Zitovault, LLC, 111618 FEDFED, 2017-2147

Docket Nº:2017-2147
Opinion Judge:Stoll, Circuit Judge.
Party Name:AMAZON.COM, INC., AMAZON.COM, LLC, AMAZON WEB SERVICES, INC., BAZAARVOICE, INC., GEARBOX SOFTWARE, LLC, Appellants v. ZITOVAULT, LLC, Appellee
Attorney:Dan L. Bagatell, Perkins Coie LLP, Hanover, NH, argued for appellants. Also represented by Grant Edward Kinsel, Los Angeles, CA; Christina Jordan McCullough, Jonathan R. Putman, Seattle, WA. Justin Nemunaitis, Caldwell Cassady & Curry, Dallas, TX, argued for appellee. Also represented by Jason Do...
Judge Panel:Before Prost, Chief Judge, O'Malley and Stoll, Circuit Judges. Prost, Chief Judge, dissenting.
Case Date:November 16, 2018
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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AMAZON.COM, INC., AMAZON.COM, LLC, AMAZON WEB SERVICES, INC., BAZAARVOICE, INC., GEARBOX SOFTWARE, LLC, Appellants

v.

ZITOVAULT, LLC, Appellee

No. 2017-2147

United States Court of Appeals, Federal Circuit

November 16, 2018

This disposition is nonprecedential.

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2016-00021, IPR2016-01025.

Dan L. Bagatell, Perkins Coie LLP, Hanover, NH, argued for appellants. Also represented by Grant Edward Kinsel, Los Angeles, CA; Christina Jordan McCullough, Jonathan R. Putman, Seattle, WA.

Justin Nemunaitis, Caldwell Cassady & Curry, Dallas, TX, argued for appellee. Also represented by Jason Dodd Cassady; Michael Raymond Casey, Oblon, McClelland, Maier and Neustadt, LLP, Alexandria, VA.

Before Prost, Chief Judge, O'Malley and Stoll, Circuit Judges.

OPINION

Stoll, Circuit Judge.

Amazon.com, Inc., Amazon.com, LLC, Amazon Web Services, Inc., Bazaarvoice, Inc., and Gearbox Software, LLC, (collectively, "Amazon"), appeal from a final written decision of the Patent Trial and Appeal Board in which the Board held that Amazon failed to prove Zito-Vault, LLC's U.S. Patent No. 6, 484, 257 unpatentable. The Board did not err in its claim construction, and it correctly held Amazon to its burden of proof. Because it did not err in finding Amazon failed to carry that burden and because it did not violate Amazon's procedural due process rights, we affirm.

Background

ZitoVault's '257 patent seeks to improve computer systems' handling of encrypted communications. See '257 patent col. 3 l. 65-col. 4 l. 1. Rather than using a single "main" server to decrypt every communication, the disclosed system also enlists the computers receiving the communications as decryption agents, thereby avoiding bottlenecks, as shown in Figure 2.

(Image Omitted)

Id. at Fig. 2; see also id. at col. 7 ll. 21-34. Representative claims 1 and 6 describe the claimed invention: 1. A system for conducting a plurality of cryptographic sessions over a distributed network of computers, employing a distributed automaton running on the network comprising M agents for servicing N number of simultaneous cryptographic sessions wherein bandwidth and number of sessions are scalable by the M agents and latency is potentially reducible to zero comprising:

a main server;

one or more clients communicating over the distributed network with said main server and agents;

M agents communicating with the main server for enlisting additional agents to support incremental cryptographic sessions with the clients to maintain system performance at a desired level; and for encrypting and decrypting communication traffic as it arrives from the clients via the main server, the agents comprising a single-to-many connection (1 client, M agents) with respect to the clients, such that portions of the bandwidth are equally divided among the M agents for processing, and the agents combine the processing power of all computers connected to the system to service encryption and decryption and enable bandwidth to be scalable by the M agents and to reduce latency substantially to zero.

***

6. A method for implementing a scaleable software crypto system between a main server and one or more agent servers communicating with one or more clients such that performance of the crypto system is increased to meet any demand comprising

providing a secure communication between the main server, agent server, and one or more clients such that communication between the main server and agent server enlists additional agent servers to support incremental secure sessions in response to maintaining performance at a desired level.

Id. at claims 1, 6 (emphases added to highlight disputed claim term).

After ZitoVault sued Amazon for infringement, Amazon petitioned for inter partes review of the '257 patent. Amazon raised three grounds of unpatentability, each based on U.S. Patent No. 6, 065, 046 ("Feinberg"), and each instituted by the Board.

Over the course of the IPR, the parties' dispute crystalized around the issue of whether Feinberg discloses the claimed "sessions." Amazon relied on Feinberg for every claim limitation reciting "sessions." But Amazon did not delineate exactly where Feinberg describes the claimed sessions and did not explain what constitutes a session in Feinberg's system. Amazon also did not propose a construction of "sessions," but its expert testified that a "session generally refers to one or more communications exchanged between two entities over some period of time." J.A. 540.

At the institution stage, the Board accepted Amazon's contention that Feinberg discloses "sessions." Citing a telecommunications dictionary, it preliminarily construed "sessions" as "a set of transmitters and receivers, and the data streams that flow between them." J.A. 180. It found that "based on that construction, the mere exchange of data (e.g., encrypted code modules), as disclosed in Feinberg, falls within the scope of the claimed sessions." Id.; see also J.A. 185-86 ("[W]e adopt a broader construction of the term 'session' that encompasses simply the exchange of [data] packets.").

In its Patent Owner Response, ZitoVault maintained that Feinberg lacked the claimed sessions. It offered expert testimony that a "session" "must refer to a connection with a defined beginning and end" so that the server can determine which incoming data belongs to which session. J.A. 219-20, 1184-86. ZitoVault further contended that Amazon's petition was defective because it "fail[ed] to specifically identify what it contends is the 'session' in Feinberg or how that session is initiated, maintained, or terminated." J.A. 235. ZitoVault separately urged the Board to find that a reference must disclose "negotiating the initiation of a stream with a defined beginning and end," to disclose a "data stream," as required by the Board's preliminary construction of "sessions." J.A. 237-38.

At oral argument before the Board, Amazon conceded that a "session" would have a beginning and an end, J.A. 317, 319-20, 327, but it maintained that a reference need not disclose "protocol level" details regarding data stream initiation and termination to meet the claims, J.A. 319-20. In response to questions from the Board, Amazon specifically invited the panel to require a beginning and an end as part of its construction of "sessions," J.A. 326-27, asserting that "there can't be any meaningful doubt" that Feinberg discloses a session with a "recognizable beginning and end," J.A. 381.

In its final written decision, the Board narrowed its preliminary construction of "sessions." It construed the term as "a set of transmitters and receivers, and the data streams that flow between them wherein each data stream flowing between the transmitters and receivers has a recognizable beginning of the data stream transmission and a recognizable end of the data stream transmission." J.A. 15 (emphasis added). It...

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