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No. 17-2161
Patrick Zuili
Inventor & Patent Owner,
Appellant, pro se
20777 Palm Island Drive
Boca Raton, Florida, 33498
Patrick@tenderbox.tv
JONATHAN WEINBERG;
ROBERT G. PLUTA, Chicago,
IL.
Attorneys for Google
Contents
STATEMENT ............................................................................................... 8
contentions ................................................................................................ 9
Standards ................................................................................................ 15
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Panel's Opinion in this appeal has raised several questions on the conduct of the
judges and on the manner in which CAFC operates. Petitioner understands that
Hearings and rehearing's en bane are not favored and ordinarily will not be ordered
lies, Google has blatantly lied (described in Mandamus 17-101 and Appeal Brief) but
Judge Wallach and Judge Prost fully validated Arguments of Google's attorneys which
are often perceived by those powerful and politically correct judges as intellectually
sound arguments. IAB has intentionally suppressed the evidence just before Google
filed the fu·st CBM proceeding against Brite Smart. The more than perfect timing
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between filing the first CBM and the erasing the evidence was without any doubt the
purpose of a coordinated action that was carried out by IAB jointly with Google. What
"candidly" Patrick Zuili affirmed during oral hearing that it was impossible for anyone
including judges or even appellant to validate or invalidate the 2002 evidence document
with certainty without having the original document. In order for U.S Court of Appeal
to provide legal certainty and trust, Judges needs to do more, for instance by cross
referencing the documents presented to Brite Smart by Google counsels by the law firm
of Mayer Brown, Appellant had found that the affidavit of 2004 clearly contradicts the
forged 2002 evidence. Google was the force behind such illegal forged evidence and
Appellant has proved that the 2002 evidence were in reality fabricated evidence. Judge
Wallach and Prost must not knowingly validate fabricated evidence and erred in issuing
a positive opinion in favor of the party that cheated before this court of law and
previously see the 17-101 Mandamus. Is justice blind? lacks integrity? lack of due
process or in the mind of judges Prost and Wallach or is Google is too big to do anything
wrong?
It is surprising to see that a Federal High Court and its Chief Justice has
archives Way Back Machine and subsequently prevented the Appellant when asked at
oral hearing to give his expert opinion if the document were forged or not. no wonder
why those documents were intentionally removed from Way Back Machine. How Judges
considered as experts in their fields would be the last ones in a court of appeal to
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trademark in the precision of the detail" which often carry the signature look
of liars. For example, the email sent by Google's counsel to Patrick Zuili was
Just from looking at all those illegal evidence it is clear that Judge Wallach's
opinion have been rushed to the judgment. Judge Wallach and Prost have totally missed
the questions surrounding the bungling and the manufactured evidences presented b~t
Again no comment by CAFC regarding the PTAB switching boards in the middle
attorney without initial approval by PTAB but no sanction for this lack of
impression of double standards at the USPTO with Judge Jameson Lee and Judge
arguments in its appeal and mandamus writ but the CAFC panel did not responded
to any of the Zuili argument but rather did a copy paste job by narrating the PTAB's
order of Judge Lee. Moreover, the order for oral hearing stated that the decision can
be given just by reading briefs. If the briefs and the Mandamus were included in the
opinion that would have fine, but to the petitioner's surprise, notwithstanding the
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clear evidence of fraud that have been submitted by Google's Chief of Litigation
submission of fake evidence? Judge Wallach could have charged lawyers with false
statement but ignored this aspect of the fraud completely. Perjury and fraud that
have been fully described in the Mandamus writ case 17-101 and why those elements
described by Appellant have been denied by the Court of Appeal of the Federal
Circuit?
For the sake of legal certainty, the CAFC would not withhold the
determination of the truth and the eligibility is the trace back process, Appellant may
adduce evidence on appeal for the sake of the truth and the integrity of justice. It will
be bad jurisprudence to follow the errors of decisions at the USPTO and replicate
them at the CAFC regarding this case. The Zuili patents are not CBM because they
are covering detection of users and clicks and certainly are not a pay-per-click system.
interference and obstruction of justice was detailed in the Madison blog showing the
way the panels were setup by former USPTO Director Michelle Lee in order to get
the desired decision outcome. At the CAFC Judge Prost selects Judge Wallach known
to be very good to Google in the past, and herself and Judge Rena. The silence of judge
Rena in this opinion provides a lot of meaning on the way selection has been
conducted since the beginning including the denial of the Mandamus by CAFC.
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STATEMENT
Justice Sharon Prost who decided to be part of the three-member panel, and none of
the panel members were not even there to ask questions about forgery and Google
criminal activities. Petitioner Patrick Zuili wants to raise certain questions in front
of the panel. How CAFC gave a ruling in favor of a party that lied and did forgery
which is all described on mandamus writ and Appeal brief? Why did CAFC did not
addressed arguments that petitioner put inside the brief? Is CAFC panel trying to
protect a party against the other by not raising questions which can bring negative
impact? Also, with judge Rena in the panel, CAFC did not even touched upon its
patents in question do not qualify at all for CBM eligibility. By doing so this panel
Not only the evidence of 2004 and 2002 contradict each other. During patent
infringement lawsuit with Brite Smart, Google did produce 2004 IAB exhibits but
during the CBM petition proceedings, they produced 2002 IAB exhibits out of the
blue, probably to present a case stronger to a party without attorney and at the same
time deleted the Web archive data which could have proved the authenticity of the
IAB exhibits. Let's not fall on this trap. Google is unable to submit the original
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document of the 2002 because evidence was illegally suppressed thanks to IAB for a
In view of the Appeal brief and the Mandamus, CAFC must adjust its sights.
Why judge Wallach seems to only copy and paste large extract from judge Lee and
also some Google statements? It will be of catastrophic proportion for Google to have
judges with integrity to see the culpability of Google. Not surprising now that Mayer
Brown wants to have the judges wave the real 2004 evidence to only retain the
obviously faked 2002 evidence that apparently Judge Prost and Wallach both want
to keep. By validating strictly Google's side and avoiding to talk about fraud elements
described in Zuili's documents is very troublesome. Why are they continuing to issue
II. ARGUMENTS
I. The panel stated three primary contentions of Petitioner Zulll but discussed
The panel stated that Mr. Zuili has three primary contentions on appeal,
arguing (1) the Patents-in-Suit are not eligible for CBM review, see Appellant's Br.
51-63, (2) the PTAB erred in finding the Asserted Claims patent-ineligible under§
101, see id. at 63-72, and (3) the overall integrity of the PTAB proceedings may be
compromised.
-=---· -.--
Panel tried to avoid anything that would give credit to patent owner, it just
focuses how Google right is even with tainted evidence, Google is right. not focused
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on its decision given in the case of Unwired Planet Vs Google which clearly showed
that a patent for ink used in banknotes cannot make it CBM eligible. Similarly, a
method for detection of internet users and a method of detecting invalid clicks used
Petitioner Zuili agrees that CBM review is limited to patents 'that claim a
or service, except that the term does not include patents for technological inventions.
The patent owned by Petitioner Zuili clearly presents and claims a technological
invention to detect internet users and invalid clicks. Detecting invalid clicks in 2002
was impossible due to which advertisers were getting billed illegally half of the time.
For the same reason, Google was illegally charging for invalid clicks to their clients
for which Google got caught and agreed to a very smooth settlement for a total amount
of $90 million in 2006 with other online advertisers. [Lane's Gift & Collectibles
Lawsuit].
exception, panel states that We have reviewed the PTAB's interpretation of the
language of AIA § 18(d)(l) in Google I-III and determine that it accords with our
case law. Nowhere it states that, panel has considered or even read Petitioner's Zuili
arguments while trying to explain why the patents lie within technological exception
as well. This is an injustice to the petitioner Zuili who has been trying hard as pro se
to explain the arguments to PTAB and then to CAFC panels. 98% of the time CAFC
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went along in their opinion with their judges' colleagues at the USPTO. This is
multiple spheres which is stronger than many judges who would like to admit it.
IPWatchdog.com and Madison blog showed that panels were stacked with the judge
with the profile to get the desired outcome for the petitioner of a CBM proceeding and
CAFC panel in total partiality m its short 6-page decision has excluded
everything of the appellant 110 pages' brief and response by ignoring what was
CAFC Panel repeated the exact same errors committed and supported by
PTAB's decision. CAFC reaffirmed the wrong assessment again each invalid click is
a fraudulent transaction that should be deducted from the merchant's invoice. This
is totally wrong as clearly explained in the first pages of the Appeal brief, again and
again the Zuili patents are describing a detection technology in the process ofidentifving
users and invalid clicks, none of the Zuili claims are describing any money flow. CBM
CAFC deliberately missed completely that the detection of internet users and
fake clicks does not incorporate any flow of money. How do you explain that detection
technology if you cannot provide the words such as merchants or pay-per-clicks where
swallow one lie after another, what is the real state of justice system? Similar to a
patent for a worm detector being used by an online merchant selling fresh apples
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online, the apple merchant is not going to deduct the apple with worms on the client
invoice because those apples with worms are immediately discarded by the worm
detector, only safe apples are put in client's shipping box. The worm detection is
made before any invoicing process by the online merchant. Therefore, PTAB and
CAFC panel are wrong in their respective reasoning and approach in their
PTAB and CFAC panel, with the help of Google, have forcefully tried to give
monetary color to the patents. There is no movement of money or anything like that.
Detecting worms like detecting users or invalid clicks does not involve any movement
of money. See Unwired Planet vs Google case in which Judge Rena gave very
important opinion. The same should be applied in Petitioner's Zuili case but although
Judge Rena was included in this panel, CAFC's Chief Justice Sharon Prost appointed
personally herself as chief of that panel with judge Wallach giving very little chance
to judge Rena.
CAFC and Board have applied incorrect comparison to achieve the desired
outcome of the petition. Overcharging advertisers for invalid clicks is not a business
problem as Google claimed. Petitioner Zuili argues that, in August 25th 2017 press
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reports including zerohedge 1 and the WSJ2 various reports indicated "first tacit
admission that Google AD Network bas few [technical) protections against fake
"traffic". This is a clear and implicit admission that user and click detection described
by Zuili patents are not business problems but technical problems. Also, neither the
PTAB nor CAFC has clearly tried to distinguish what they meant by business
CAFC and PTAB both incorrectly determined that the preamble of the claims
With respect to the analysis of Abstract idea and the patents in suit, CAFC
panel holds that the Asserted Claims are directed to the abstract idea of collecting,
transmitting, analyzing, and storing data to detect fraudulent and/or invalid clicks
based on the time between two requests by the same device or client. CAFC panel has
analyzed the patent as per the current technological advancements due to which
everything has seemed to obvious or abstract to the CAFC and PTAB. Petitioner Zuili
1
http://www.zerohedge.com/news/2017-08-25/google-refund-fake-traffic-
advertising-revenue
2
https://www.wsj.com/articles/google-issuing-refunds-to-advertisers-over-fake-
traffic-plans-new-safeguard-1503675395
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argues that CAFC panel has not analyzed the patent in accordance with the priority
When something is new, it does not look abstract but as time progresses and
technology evolves, everything seems to be abstract. The day on which human began
to encrypt data for security reasons, it was too novel concept but as time passes by, it
seemed abstract as well. The technology should be analyzed in the period it was
developed and not in the current time. Claims of the three patents are drawn
specifically towards the concept of tracking user entities and thereafter detecting
invalid clicks based on the time between two requests by the same device. First of all,
there is a requirement of a tracking device with respect to each click on the basis of
first, second and third code. After that invalid clicks are detected. The whole process
a pen and paper. The claim limitation of three patents requires a communication
network to make it happen. Codes are sent to the device as a cookie or first code and
after that. second and third codes are received when a click is made which has a
At first place, claims of three patents are not directed to any patent ineligible
concept; therefore, this second step of inventive concept analysis does not hold.
Also, patent does not merely require a general-purpose computer but at least two
computing devices, one at client side and one at server side connected with each other
over a communications network in which codes are first stored as cookie on the client
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side and then encoded codes are obtained at server side used to keep track of the
clicks, their time and other parameters as seen in the light of specification.
ii. The Panel's Decision Flouts CAFC's and PTAB's Deferential Standards
The CAFC panel states that We have independently reviewed Mr. Zuili's claims
in light of the record but find his claims insufficiently supported. Which claims have
CAFC reviewed? Could CAFC pay attention to the facts presented by Zuili inside this
Board-White considered IAB exhibits as potential prior arts while second Board-
Lee completely thrashed the use TAB exhibits as potential prior arts citing other
Google on the same day got Mr. Gray's 66-page testimony, read and understood it
Execution date of the Mr. Stephen Gray's testimony: 16th October 2015
Date when Google counsel filed its Petition for the '057 Patent:
Similarly, in the other two CBMs for patents '763 and '667, Google filed CBM
case just a day after receiving Stephan's Gray testimony which proves that the
testimony is highly biased and tainted with the interests of Google. IAB deployed
robots.txt on "iab.net" right at the time Google filed its first CBM petition which
means that Google had a clear intent to literally erase any alleged proof supposed as
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III. CONCLUSION
The Opinion released on February 9, 2018 is not sound because this opinion
completely disregards the basic principle of the rule oflaw where perjury and forgery
of Google's activity have prevailed despite being described in the Mandamus and the
Appellant briefs. Therefore, the Federal Circuit Court's opinion is deeply biased and
flawed. The constitutional duty of judges was to provide fair ground to the prose party
but what was submitted by Zuili was basically, to use a metaphor: "left in a draw".
CAFC has allowed the party with the manufacturing of evidence prevails over
establishing the truth by the Appellant. Furthermore, the CBM eligibility is wrong.
Court's latest opinion is deeply flawed, and rests on a shaky foundation. The main
issue before CAFC was whether a "human mistake" has occurred by overlooking
important crucial facts, hopefully Chief Judge Prost is now well informed and will
Respectfully Submitted,
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CERTIFICATE OF COMPLIANCE
This petition for rehearing or rehearing en bane complies with the type·volume
than 3,900 words, excluding the parts exempted by Federal Rule of Appellate
Procedure 32(f).
Appellate Procedure 32(a)(5), (c) and Circuit Rule 32(b), and the type style
has been prepared in a proportionately spaced typeface using the 2013 version of
/Patrick Zuili/
Patrick Zuili
Case: 17-2161 Document: 38 Page: 17 Filed: 02/23/2018
CERTIFICATE OF SERVICE
I hereby certify that on this 22st day of February, 2017, I filed the foregoing
/Patrick Zuili/
Patrick Zuili
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