NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
INTELLECTUAL VENTURES II LLC,
Appellant
v.
COMMERCE BANCSHARES, INC., COMPASS
BANK, FIRST NATIONAL BANK OF OMAHA,
Cross-Appellants
______________________
2016-1519, 2016-1520
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in No.
IPR2014-00801.
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INTELLECTUAL VENTURES II LLC,
Appellant
v.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
Appellee
______________________
2016-1528
______________________
2 INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES,
INC.
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
00682.
______________________
Decided: March 27, 2017
______________________
BYRON LEROY PICKARD, Sterne Kessler Goldstein &
Fox, PLLC, Washington, DC, argued for appellant. Also
represented by LORI A. GORDON.
MARC WADE VANDER TUIG, Senniger Powers LLP, St.
Louis, MO, argued for cross-appellants. Also represented
by ROBERT M. EVANS, JR.; HILDA C. GALVAN, Jones Day,
Dallas, TX; GEOFFREY K. GAVIN, Atlanta, GA; JASON
STEWART JACKSON, Kutak Rock LLP, Omaha, NE. Cross-
appellant Commerce Bancshares, Inc. also represented by
KYLE G. GOTTUSO, Senniger Powers LLP, St. Louis, MO.
Cross-appellant Compass Bank also represented by MARK
HOWLAND, Carrington Coleman Sloman & Blumenthal,
Dallas, TX.
JOEL ROBERT MERKIN, Kirkland & Ellis LLP, Chicago,
IL, argued for appellee. Also represented by KENNETH R.
ADAMO, EUGENE GORYUNOV, MEREDITH ZINANNI.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
In two inter partes review proceedings, IPR2014-
00682 and IPR2014-00801, the Patent Trial and Appeal
Board determined that certain claims of U.S. Patent No.
6,715,084 were unpatentable. The patent owner, Intellec-
tual Ventures II, LLC, appeals, arguing that the Board’s
determinations of unpatentability relied on an unreason-
INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES, 3
INC.
ably broad construction of the claims. The petitioners in
IPR2014-00801, Commerce Bancshares, Inc., Compass
Bank, and First National Bank of Omaha (collectively, the
Banks), cross-appeal the Board’s rejection of their patent-
ability challenge to claim 33 in that proceeding.
We affirm the Board’s decision in IPR2014-00682.
The affirmed holding of unpatentability applies to all of
the claims at issue in the other proceeding, IPR2014-
00801, including claim 33. We therefore dismiss the
appeals from the Board’s decision in IPR2014-00801 as
moot.
I
The ’084 patent describes and claims systems and
methods for “broad scope” network-intrusion detection.
According to the patent, conventional intrusion-detection
systems analyzed data entering a single host or computer.
’084 patent, col. 3, line 51 through col. 5, line 42. The
invention analyzes data that has entered multiple hosts
and computers, thereby enabling the detection of anoma-
lies that would be more difficult or impossible to recognize
by analyzing data from only a single host or computer.
Id., col. 5, lines 44–56. The ’084 patent issued from U.S.
Patent Application No. 10/108,078 and claims a priority
date of March 26, 2002.
Claim 26 is representative of the claims at issue.
That claim recites: “A data collection and processing
center comprising a computer with a firewall coupled to a
computer network, the data collection and processing
center monitoring data communicated to the network, and
detecting an anomaly in the network using network-based
intrusion detection techniques comprising analyzing data
entering into a plurality of hosts, servers, and computer
sites in the networked computer system.” ’084 patent, col.
14, lines 18–25. Claims 28 and 30–33 depend from claim
26. ’084 patent, col. 14, lines 33–37, 43–56.
4 INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES,
INC.
In April 2014, International Business Machines Corp.
(IBM) petitioned for inter partes review of various claims
of the ’084 patent. In May 2014, the Banks petitioned for
inter partes review of all claims. The Board instituted
review in two separate proceedings—for IBM, IPR2014-
00682; for the Banks, IPR2014-00801. In both cases, the
Board instituted review of claims 26, 28, and 30–33 and
denied review of the remaining claims. See Int’l Bus.
Mach. Corp. v. Intellectual Ventures II LLC, No. IPR2014-
00682 (P.T.A.B. Oct. 30, 2014), Paper No. 11; Commerce
Bancshares, Inc. v. Intellectual Ventures II LLC, No.
IPR2014-00801 (P.T.A.B. Dec. 1, 2014), Paper No. 7. Only
claims 26, 28, and 30–33 are at issue in the appeals before
us.
In IBM’s proceeding, IPR2014-00682, the Board con-
cluded that the challenged claims would have been obvi-
ous over Phillip A. Porras & Alfonso Valdes, Live Traffic
Analysis of TCP/IP Gateways, in Proc. 1998 ISOC Symp.
on Network & Distributed Sys. Sec. 1 (1997) (Porras), in
combination with William R. Cheswick & Steven M.
Bellovin, Firewalls and Internet Security (1st ed. 1994)
(Ex. 1008) (Cheswick). See Int’l Bus. Mach., No. IPR2014-
00682 (P.T.A.B. Oct. 21, 2015), Paper No. 35 (IPR2014-
00682 Decision). In relevant part, Porras describes a
hierarchical system of “surveillance monitors” (or “mod-
ules”), one at the enterprise level, others at individual
gateways. 16-1528 J.A. 680. “The enterprise monitor is
identical to the individual gateway monitors (i.e., they use
the same code base), except that it is configured to corre-
late activity reports produced by the gateway monitors.
The enterprise monitor employs both statistical anomaly
detection and signature analyses to further analyze the
results produced by the distributed gateway surveillance
modules, searching for commonalities or trends in the
distributed analysis results.” Id. at 680–81.
In determining that the challenged claims would have
been obvious, the Board rejected Intellectual Ventures’
INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES, 5
INC.
argument that the relevant claims of the ’084 patent
require the “data collection and processing center” to
directly analyze some data that enters the network.
Instead, the Board concluded, the claims in their broadest
reasonable construction may be satisfied if the “data
collection and processing center” indirectly analyzes data
that enters the network by analyzing results of analyses
conducted by other network devices that directly receive
the data. Based on that construction, the Board conclud-
ed that the required claim elements are disclosed in
Porras through its descriptions of “anomaly reports” and
“analysis results” sent to a central server. See IPR2014-
00682 Decision 15–16.
In the Banks’ proceeding, IPR2014-00801, the Board
instituted review only on the Banks’ anticipation chal-
lenge based on U.S. Patent Application Publication No.
2003/0110392 (Aucsmith). In its Final Written Decision,
the Board found that Aucsmith anticipated claims 26, 28,
and 30–32 but not claim 33. Commerce Bancshares, No.
IPR2014-00801 (P.T.A.B. Oct. 21, 2015), Paper No. 23.
Intellectual Ventures appeals the Board’s determina-
tions of unpatentability in both proceedings, principally
on the basis of its rejected claim-construction argument.
The Banks cross-appeal the Board’s finding of no antici-
pation of claim 33 in the Banks’ proceeding, IPR2014-
00801. Because we conclude that the Board’s decision in
IBM’s proceeding, IPR2014-00682, properly determines to
be unpatentable all of the claims at issue in both proceed-
ings, we address only that decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(4)(A).
II
In this case, claim construction is dispositive. Intel-
lectual Ventures’ challenge to the ruling in IBM’s proceed-
ing, IPR2014-00682, rests entirely on a claim-construction
challenge. For the reasons we explain, we reject that
challenge and therefore affirm the Board’s cancellation of
6 INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES,
INC.
claims 26, 28, 30–33 in that proceeding. That affirmance
moots the appeal in the Banks’ proceeding, IPR2014-
00801.
The Board adopts the broadest reasonable construc-
tion in a matter like this. Cuozzo Speed Techs., LLC v.
Lee, 136 S. Ct. 2131, 2142–46 (2016). We review that
construction de novo, because there was no factual evi-
dence introduced that is pertinent to the construction.
See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831,
840–42 (2015); D’Agostino v. MasterCard Int’l Inc., 844
F.3d 945, 988 (Fed. Cir. 2016).
A
Intellectual Ventures argues that the ordinary mean-
ing of certain claim limitations—“monitoring data com-
municated to the network,” “detecting an anomaly in the
network,” and “analyzing data entering into a plurality of
hosts, servers and computer sites”—excludes systems in
which other network devices, having received data, for-
ward only anomaly reports or analysis results to the “data
collection and processing center,” without forwarding any
of the raw, system-entering data. We disagree. The claim
language, given its broadest reasonable construction in
light of the specification and the prosecution history, is
not limited to direct data analysis.
Intellectual Ventures’ position depends on the simple
assertion that “analyzing data,” as an ordinary-language
matter, is limited to directly examining the raw data. But
Intellectual Ventures does not support that assertion with
any specialized technical linguistic evidence or point to
anything distinctive about the particular kind of “data” at
issue here. Rather, it asks us simply to agree with its
restrictive view of “analyzing data” based on our general
familiarity with English.
We do not agree: the permissible ordinary usage of
“analyzing data” is not limited to direct raw-data analy-
INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES, 7
INC.
sis. There is nothing unreasonable about saying, in a
range of circumstances, that a person or computer “ana-
lyzes” data by analyzing information about the data
rather than itself examining the raw data. Suppose that
a central system relies on several agents each to collect a
sample of data, to generate sample-size, mean, variance,
or other information about its sample, and to send the
information to the central system. It is reasonable to say
that the central system, when it then directly analyzes
the received information collectively, is analyzing the
sample data. Such indirect analysis of the raw data is
still analysis of the data.
The specification makes such usage a particularly
reasonable one in the context of this patent. In one
passage, the specification states that, in at least one
embodiment, “certain devices can be used as sensors to
sense data traffic and pass their findings on to the data
collection and processing center,” suggesting that the
invention is not limited to direct analysis. ’084 patent,
col. 7, lines 44–51. Intellectual Ventures’ only response is
to assert that the passage describes an unclaimed embod-
iment. But there is no basis for treating the specification
passage as unclaimed except Intellectual Ventures’ prior
conclusion that the ordinary meaning of the claim lan-
guage simply cannot include the described arrangement.
That is just the conclusion, as just explained, we cannot
accept.
Intellectual Ventures adds one contention based on
the “detecting an anomaly” claim language: it says that
the specification makes clear that “detecting” and “classi-
fying” anomalies are distinct in a way that excludes
indirect analysis of data. See ’084 patent, col. 4, lines 4–6
(“Most of the reported anomalies are purely coincidental
statistical exceptions and do not reflect actual security
problems.”); col. 4, lines 25–28 (“Expert systems (also
known as rule-based systems) have had some use in
misuse detection, generally as a layer on top of anomaly
8 INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES,
INC.
detection systems for interpreting reports of anomalous
behavior.”). The specification does not support the con-
tention. The cited passages establish no more than that
the claims include direct “detecting,” not that they ex-
clude indirect “detecting” (which Intellectual Ventures
characterizes as “classifying”). Moreover, in another
passage, the specification implies that further analysis of
“suspicious network traffic events” constitutes “detecting”
an “anomaly,” suggesting that “detecting” is not limited to
the initial determination of whether the data entering the
network is statistically aberrational. ’084 patent, col. 8,
lines 22–31 (“The present invention uses a multi-stage
technique in order to improve intrusion detection efficacy
and obtain broader scope detection. First, suspicious
network traffic events are collected (potentially in con-
text) and forwarded to a central database and analysis
engine, then the centralized engine uses pattern correla-
tions across multiple customer’s events in order to better
determine the occurrence and sources of suspected intru-
sion-oriented activity prior to actually alarming.”).
Nothing else in the record compels a different result.
Contrary to Intellectual Ventures’ contention, the prose-
cution history suggests that the claimed systems differed
from the prior art because they were limited to broad-
scope detection, i.e., collecting data from multiple hosts,
not because the claimed systems were limited to direct
analysis of raw data. 16-1528 J.A. 1063 (“None of the
cited prior art, on the other hand, discloses or suggests
the use of network-based intrusion techniques on the
analysis of data entering into a plurality of hosts, servers,
and/or computer sites in the networked computer system
. . . .”). And the relevant portions of the parties’ expert
declarations and deposition testimony merely recapitulate
the parties’ positions regarding the claim language and
specification evidence. We therefore see no reason to
disturb the Board’s claim construction.
INTELLECTUAL VENTURES II LLC v. COMMERCE BANCSHARES, 9
INC.
B
Intellectual Ventures does not argue that Porras fails
to disclose the required claim elements under the Board’s
construction of the claims. We therefore affirm the
Board’s determination in IBM’s proceeding, IPR2014-
00682, that claims 26, 28, and 30–33 would have been
obvious. The very same claims are at issue in the appeal
from the Board’s ruling in the Banks’ proceeding,
IPR2014-00801. Our affirmance of the Board’s cancella-
tion of those claims in IBM’s proceeding leaves no live
issue in the Banks’ proceeding. We therefore dismiss the
appeal and cross-appeal in IPR2014-00801. See Synopsys,
Inc. v. Lee, 812 F.3d 1076, 1077–78 (Fed. Cir. 2016); 13C
Charles Alan Wright et al., Federal Practice and Proce-
dure § 3533.10 (3d ed. 2017) (“Among the circumstances
that create mootness are rulings in other adjudicatory
proceedings, including rulings by the same court in the
same or companion proceedings . . . .”).
CONCLUSION
For the foregoing reasons, we affirm the Board’s final
written decision in IPR2014-00682 cancelling claims 26,
28, and 30–33. We dismiss Intellectual Ventures’ appeal
and the Banks’ cross-appeal in IPR2014-00801 as moot.
Costs awarded to IBM and the Banks.
AFFIRMED IN PART (APPEAL NO. 16-1528),
DISMISSED IN PART (APPEAL NOS. 16-1519, -1520)