The Federal Circuit has reversed a decision by the Patent Trial and Appeal Board (PTAB or Board) finding that Google had failed to prove one claim of an anti-bot patent unpatentable.
Nobots LLC is the owner of U.S. Patent No. 9,595,008, titled “Systems, Methods, Apparatus for Evaluating Status of Computing Device User.” Nobots sued Google for alleged infringement of the patent in April of 2022.
The patent describes and claims methods of detecting whether a computing device accessing a remote server is being operated by a person or an automated program (“bot”).
The court noted that
The patent describes the prior-art Completely Automated Public Turing test to tell Computers and Humans Apart (“CAPTCHA”), which identifies a user as a “human” or “bot” based on whether the user’s response to a query is correct or incorrect. … The patent’s proposed advance involves comparing various attributes of a user to those of an expected human user, and, in most embodiments, computing a likelihood that a device is bot-operated, with access denied if that likelihood exceeds a specified threshold.
Google successfully petitioned the US Patent and Trademark Office (USPTO) to institute an inter partes review (IPR), under 35 U.S.C. §§ 311–19, of all twenty claims of the ’008 patent.
The PTAB rejected Google’s challenges to claims 18 and 19 while holding all other claims to be unpatentable.
Google appealed the upholding of claim 19.
The patent distinguishes “passive data” from “active data.” It identifies passive data as data typically stored onto a user’s device or transmitted to a remote location, such as the internet protocol address or geographic location of the device, and it identifies active data as data not typically so stored or transmitted, such as a user’s keystrokes or time of response to stimuli.
The patent defines “interest data” as comprising the following:
active or passive data, whether available or acquired, that correlates to any data within model data, whether obtained prior to or after the generation of issued data. Thus, interest data includes time independent available data and acquired data, unless qualified differently.
(Emphasis added by court.)
At issue on appeal was the Board’s claim construction of the claim phrase “acquiring interest data.”
Google asserted that U.S. Patent Application No. 2008/0114624 (Kitts) rendered claim 19 unpatentable for anticipation or obviousness.
Kitts, titled “Click-Fraud Protector,” 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. The attributes may include the user’s internet protocol address and residence, which the court noted are “passive data” under the ’008 patent.
Nobots argued that claim 19’s reference to “acquiring interest data” required 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.”
The court noted that
The three-word phrase, “acquiring interest data,” consists of two parts: the verb “acquiring” and its object “interest data.” It is proper to divide the phrase in that way. The syntactic structure is one of verb and object. There is evident parallelism with the language of the other steps of the method—“acquiring” (interest data), “comparing” (to model data), and “generating” (a confidence level). And the phrase as a whole has no familiar, ordinary meaning as a unit that is different from the sum of its two parts.
Also, said the court,
The verb “acquiring” has a plain and ordinary meaning of obtaining, getting, gaining possession, or the like (all relevantly synonymous). It is not limiting as to what must be obtained. That question is addressed in the phrase’s second part, “interest data,” which is a two-word noun phrase and which has no ordinary meaning. It is a phrase that is expressly defined in the specification.
Under that definition, “interest data” undisputedly can be “passive data.”
Thus, the court concluded that “acquiring interest data” applies even when only passive data are obtained, and it reversed the Board’s contrary claim construction.
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