In Win for Google, CAFC Reverses PTAB Decision Upholding Bot Detector Patent Claim

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday reversed a Patent Trial and Appeal Board (PTAB) finding that Google had failed to prove one claim of a patent directed to CAPTCHA-like technology unpatentable. The opinion was authored by Judge Taranto and the panel included Chief Judge Moore and Judge John H. Chun of the U.S. District Court for the Western District of Washington, sitting by designation.

Nobots LLC’s U.S. Patent No. 9,595,008 is titled “Systems, Methods, Apparatus for Evaluating Status of Computing Device User.” Google LLC successfully petitioned the PTAB for inter partes review (IPR) of all 20 claims of the patent and ultimately rejected the challenges to claims 18 and 19 while holding all other claims to be unpatentable.

On appeal, Google contested only the patentability of claim 19, arguing that the Board’s claim construction of “acquiring interest data” was erroneous. Google had presented U.S. Patent Application No. 2008/0114624 (Kitts) to the Board as prior art rendering claim 19 unpatentable for anticipation or obviousness. Kitts is titled “Click-Fraud Protector,” and “describes a method of using data attributes to estimate a likelihood of whether a user seeking access to a website on a remote server is a bot,” according to the CAFC opinion.

Claim 19 includes a paragraph a) reciting “acquiring interest data from the client computing device prior to delivery of issued data by the server to the client computing device….” Nobots argued that the phrase “‘acquiring interest data’ requires that at least some of the interest data acquired be ‘active data,’ even though the ’008 patent defines ‘interest data’ as ‘active or passive data, whether available or acquired data.’”

Google, on the other hand, argued that “‘acquiring’ has its ordinary meaning and the verb’s object, the two-word phrase ‘interest data,’ is expressly defined such that wholly passive data qualifies, so the three-word verb-and-object phrase is properly construed to mean the process of getting any data, including passive data, that otherwise qualifies as ‘interest data…’” The Board adopted Nobots’ construction and held that Google had therefore not shown the claim to be unpatentable.

The CAFC, however, found that the Board’s claim construction was erroneous because it flouted the rule that claims should be given “their ordinary meaning in the context of the claim and the whole patent document.” A straightforward analysis of the three-word phrase in question leads to the conclusion that the claim means “gaining possession of whatever is within the category of ‘interest data,’ which can be passive data alone,” said the CAFC. Since the phrase is not  explicitly defined in the specification, it does not meet the “high standard for redefinition.”

Nobots’ argument that the specification’s use of “its equivalents and verb forms” with respect to definitions defeats Google’s construction was “not clear enough to justify Nobots’s construction in light of all that undermines it,” said the court. The PTAB’s decision on claim 19 was therefore reversed.