Billjco, LLC v. Apple Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BILLJCO, LLC,
Appellant
v.
APPLE INC.,
Appellee
______________________
2023-2189, 2023-2190
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2022-
00131, IPR2022-00310.
______________________
Decided: May 16, 2025
______________________
J OSEPH K UO, Saul Ewing Arnstein & Lehr LLP, Chi-
cago, IL, argued for appellant. Also represented by BRIAN
MICHALEK, ELIZABETH A. T HOMPSON; BRIAN L ANDRY , Bos-
ton, MA; COURTLAND COLLINSON MERRILL , Minneapolis,
MN.
K EVIN J OHN P OST , Ropes & Gray LLP, New York, NY,
argued for appellee. Also represented by BRIAN L EBOW ,
CASSANDRA B. ROTH ; J AMES RICHARD BATCHELDER ,
CHRISTOPHER M. B ONNY , J AMES L AWRENCE D AVIS , J R., East
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BILLJCO, LLC v. APPLE INC. 2
Palo Alto, CA; D OUGLAS HALLWARD-D RIEMEIER , Washing-
ton, DC.
______________________
Before CHEN, SCHALL , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
BillJCo, LLC (“BillJCo”) appeals two final written de-
cisions of the Patent Trial and Appeal Board (the “Board”)
determining that certain claims of U.S. Patent
Nos. 8,639,267 (the “’267 patent”) and 9,088,868 (the
“’868 patent”) are unpatentable under 35 U.S.C. § 103 in
view of several grounds asserted in the inter partes review
petition filed by Apple, Inc. (“Apple”). BillJCo challenges
the Board’s claim construction, findings regarding the con-
tent of the prior art, and findings on BillJCo’s evidence of
objective indicia of non-obviousness. For the following rea-
sons, we affirm the Board’s decisions.
I
We begin with the challenged aspects of the Board’s
analysis of claims 1, 5, 13, 20, 21, 29, 30, 34, 42, and 49 of
the ’267 patent.
First, the Board did not adopt BillJCo’s proffered con-
struction of the claim term “privilege” to exclude “prefer-
ences” and explained that “[n]o further construction of the
term ‘privilege’ is necessary.” J.A. 6–7. On appeal, BillJCo
argues that the Board erred by construing “privilege” to in-
clude preferences. Appellant’s Br. 26. The strongest sup-
port for BillJCo’s construction argument is that the
’267 patent specification expressly identifies user “prefer-
ences” and user “permissions” as different types of “con-
ceivable user configurations.” U.S. Patent No. 8,639,267
col. 2 ll. 45–48. But this support is insufficient and the
specification does not support the inclusion of BillJCo’s de-
sired negative limitation: construing “privilege” to exclude
“preferences.” Our court has “identified claim
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BILLJCO, LLC v. APPLE INC. 3
constructions that exclude a particular element as includ-
ing a ‘negative limitation’ and held that such exclusions
must find support either in ‘the words of the claim’ or
through an ‘express disclaimer or independent lexicogra-
phy in the written description that would justify adding
that negative limitation.’” Ethicon LLC v. Intuitive Surgi-
cal, Inc., 847 F. App’x 901, 907 (Fed. Cir. 2021) (quoting
Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323
(Fed. Cir. 2003)). None of these bases for importing a neg-
ative limitation into the claim language is present here.
We thus adopt the Board’s construction of this term.
Second, the Board agreed with Apple that Haberman1
teaches the “privilege-data limitation.” J.A. 9. BillJCo ar-
gues that “there is no evidence, let alone substantial evi-
dence, to support the conclusion that Haberman’s
preferences are actually privileges.” Appellant’s Br. 39.
We disagree and hold that substantial evidence—including
Haberman’s disclosure, e.g., paragraphs 121, 164–66,
and 168—supports the Board’s finding.
Third, the Board declined to adopt BillJCo’s construc-
tion of “destination identity” and declined to further con-
strue that term. J.A. 7. We agree with the Board that,
during oral argument before the Board, BillJCo’s counsel
“explained that [its] destination-identity argument is the
same as its privilege argument.” J.A. 10; J.A. 1413–15
(“So, the destination identity is part and parcel with the
privilege versus progress [sic] argument.”). Because we
have rejected BillJCo’s “privilege” versus “preferences” ar-
gument, we agree with the Board and Apple that we need
not further address this issue. J.A. 7; Appellee’s Br. 30–31;
see Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be
1 U.S. Patent Application Publication
No. 2005/0096044 (“Haberman”).
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BILLJCO, LLC v. APPLE INC. 4
construed that are in controversy, and only to the extent
necessary to resolve the controversy.”).
Fourth, the Board agreed with Apple that “Haberman
teaches the claimed destination identity.” J.A. 10. BillJCo
argues that “Apple fail[ed] to demonstrate that Haberman
discloses this limitation.” Appellant’s Br. 42. We disagree
and hold that substantial evidence—including Haberman’s
disclosure, e.g., paragraphs 26–27, 36, 168, and 181—sup-
ports the Board’s finding.
II
We now turn to the challenged aspects of the Board’s
analysis of claims 1, 2, 5, 20, 24, 25, 28, and 43 of the
’868 patent.
First, in construing the claim term “user specified loca-
tion based event configuration,” the Board determined that
the phrase “should not be narrowly construed to mean
‘privilege data,’” as BillJCo proposed. J.A. 30. BillJCo ar-
gues that the Board erred by not construing the subject
claim limitation as “reciting configuring privilege data.”
Appellant’s Br. 34. We disagree. Instead, we agree with
the Board that the ordinary meaning of this limitation in
light of the specification and the claim language does not
limit “user specified location based [ ] configuration” to
“privilege data.” J.A. 30 (alteration in original). As Apple
explains, the claim term recites neither “privilege” nor any
word or phrase that means “privilege”—like “permission”—
and instead, it recites “configuring a user specified location
based event configuration.” U.S. Patent No. 9,088,868
col. 283 ll. 55–63; Appellee’s Br. 40. BillJCo’s cited por-
tions of the specification, ’868 patent Title, col. 12 ll. 11–18,
do not persuade us that the Board erred. That the ’868 pa-
tent title contains the word “permissions” and the specifi-
cation describes “[a] user friendly configuration
environment . . . wherein [interchanging information] . . .
causes triggering of privileged actions configured by users”
do not convince us that we should construe “user specified
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BILLJCO, LLC v. APPLE INC. 5
location based event configuration” as reciting configuring
privilege data. Id. col. 12 ll. 11–15. The specification dis-
closes “user[] preferences, credential information, permis-
sions, customizations, billing information, surfing habits,
and other conceivable user configurations.” Id. col. 2 ll. 46–
48 (emphasis added). Plainly, the specification contem-
plates that there are user configurations other than privi-
leges or permissions. See, e.g., id. Figs. 38, 45 (users also
configure groups, actions, and parameter information,
among other things). We thus reject BillJCo’s arguments
and adopt the Board’s construction.
Second, the Board rejected BillJCo’s argument that
Haberman fails to disclose or make obvious the “user spec-
ified location based event configuration” limitation because
BillJCo’s “contentions [we]re based on its proposed con-
struction” regarding “configuring privilege data,” which
the Board did not adopt. J.A. 38. On appeal, BillJCo ar-
gues that “each of the ’868 [patent’s] Challenged Claims re-
quire configuring of privilege data.” Appellant’s Br. 43.
This argument fails in light of our decision to adopt the
Board’s construction of “user specified location based event
configuration” above. Substantial evidence—including Ha-
berman’s disclosure, e.g., paragraph 168, and Apple’s ex-
pert testimony, which the Board credited—supports the
Board’s finding that Haberman teaches this limitation as
properly interpreted by the Board.
Third, the Board construed the claim term “identifier
data,” determining that the term should not be narrowly
construed to mean “grantee identity,” as BillJCo proposed.
J.A. 30–31. BillJCo argues that “the grantee identity cor-
responds to the claimed identifier data, which is then com-
pared with configured privilege data,” and that “[t]he
Board provide[d] little, if any, explanation for not deter-
mining that the subject claim limitation relates to config-
uring privilege data.” Appellant’s Br. 37. We agree with
the Board that, although BillJCo’s cited portion of the spec-
ification, ’868 patent col. 120 ll. 46–59, provides that a
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BILLJCO, LLC v. APPLE INC. 6
permission is granted from a grantor identity to a grantee
identity, and that actions associated with the permission
can automatically occur, nothing in the cited passage de-
fines “identifier data” as “grantee identity.” J.A. 31. The
passage does not mention “identifier” at all, let alone
clearly define identifier data as grantee identity. We thus
adopt the Board’s construction.
Fourth, the Board found that the prior art disclosed the
claimed “identifiers.” The Board found that a person of or-
dinary skill in the art would have been motivated to com-
bine the teachings of Haberman with the teachings of
Boger,2 and that the combination of Haberman and Boger
teaches a “first identifier.” J.A. 43–46. The Board further
agreed with Apple that both Haberman and Boger each dis-
close a “first identifier.” See J.A. 44. Substantial evi-
dence—including Haberman’s disclosure (e.g.,
paragraph 132), Boger’s disclosure (e.g., paragraph 6), and
Apple’s expert testimony—supports the Board’s findings.
The Board then found that Haberman teaches the “second
identifier” and “third identifier,” and that Boger teaches
the “third identifier” to the extent Haberman does not ex-
plicitly teach it. See J.A. 48–50. Again, substantial evi-
dence—including Haberman’s disclosure (e.g.,
paragraphs 27 and 36) and Boger’s disclosure (e.g., para-
graphs 3–4, 6, and 9)—supports the Board’s findings. Sub-
stantial evidence—including Haberman’s disclosure,
Boger’s disclosure, and Apple’s expert testimony—also sup-
ports the Board’s findings regarding motivation to combine
the teachings of Haberman and Boger.
III
Last, we address BillJCo’s challenges to the Board’s
findings regarding objective evidence of non-obviousness.
2 U.S. Patent Application Publication
No. 2002/0159401 (“Boger”).
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BILLJCO, LLC v. APPLE INC. 7
BillJCo’s asserted objective evidence of non-obviousness in-
cluded copying and commercial success.
The Board found BillJCo’s circumstantial evidence of
copying insufficient to suggest that Apple copied the pa-
tented technology. BillJCo does not cure this deficiency on
appeal. BillJCo argues that “at least Challenged Claims 1
and 22 of the ’267 Patent and Challenged Claims 1 and 24
of the ’868 Patent cover Apple devices” and that “Apple’s
access to the patented technology and implementation of
devices that embody the Challenged Claims is substantial
evidence of the challenged claims’ nonobviousness.” Appel-
lant’s Br. 56–57. Again, this is insufficient. “Copying re-
quires duplication of features of the patentee’s work based
on access to that work, lest all infringement be mistakenly
treated as copying.” Liqwd, Inc. v. L’Oreal USA, Inc.,
941 F.3d 1133, 1137 (Fed. Cir. 2019) (citation omitted).
BillJCo’s asserted evidence does not meet these require-
ments. Accordingly, the Board reasonably found that this
evidence is entitled to little weight.
Next, the Board found that the alleged touting by Ap-
ple, on which BillJCo relies, relates to the products’ func-
tionality, not their commercial success. Commercial
success is “usually shown by significant sales in a relevant
market, and that the successful product is the invention
disclosed and claimed in the patent.” Chemours Co. FC,
LLC v. Daikin Indus., Ltd., 4 F.4th 1370, 1378 (Fed. Cir.
2021) (citation omitted) (collecting cases where sales fig-
ures, or sales information, alone constituted evidence of
commercial success). Here, as Apple explains, “BillJCo
submitted no sales data, public statements, or any other
evidence that could be used to infer commercial success.”
Appellee’s Br. 63. We hold that the Board reasonably
found that this evidence is entitled to little weight.
Finally, the Board found that, although BillJCo relies
on licensing agreements pertaining to the patented tech-
nology as evidence of commercial success, it did not
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BILLJCO, LLC v. APPLE INC. 8
demonstrate a sufficient nexus between the challenged
claims and the evidence offered. Substantial evidence sup-
ports this finding. The asserted licenses cover more than
thirty patents, and BillJCo failed to provide any evidence
regarding the weight or importance of the ’267 patent or
’868 patent to these agreements. “While licenses can some-
times tilt in favor of validity in close cases, they cannot by
themselves overcome a convincing case of invalidity with-
out showing a clear nexus to the claimed invention.” ABT
Sys., LLC v. Emerson Elec. Co., 797 F.3d 1350, 1361
(Fed. Cir. 2015). Here, BillJCo “points to no evidence that
the licenses it cites were taken based on the merits of the
invention claimed in the [’267 or ’868] patent.” Id. at 1362.
Accordingly, the Board reasonably found that this evidence
is entitled to little weight.
IV
We have considered BillJCo’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s decisions.
AFFIRMED
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