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Case: 17-2161 Document: 38 Page: 1 Filed: 02/23/2018

No. 17-2161

FOR THE FEDERAL CIRCUIT

PATRICK ZUILI, RECEIVED


Appellant
v. ttti 2 3 Z0\8
GOOGLELLC,
United States Court of Appeals
Appellee For The Federal Circuit

2017-2161, 2017-2258, 2017-2267

Appeals from the United States Patent and Trademark


Office, Patent Trial and Appeal Board in Nos.
CBM2016-00008, CBM2016-00021, CBM2016-00022.

RESPONDENT-APPELLANT'S PETITION FOR REHEARING OR REHEARING


EN BANC

Patrick Zuili
Inventor & Patent Owner,
Appellant, pro se
20777 Palm Island Drive
Boca Raton, Florida, 33498
Patrick@tenderbox.tv

ANDREW JOHN PINCUS,


Mayer Brown LLP,
Washington,
DC, for appellee. Also
represented by PAUL
WHITFIELD HUGHES,
SAQIB SIDDIQUI,
Case: 17-2161 Document: 38 Page: 2 Filed: 02/23/2018

JONATHAN WEINBERG;
ROBERT G. PLUTA, Chicago,
IL.
Attorneys for Google

Contents

I. RULE 35 STATEMENT OF REASONS FOR REHEARING EN BANC ....... 4

STATEMENT ............................................................................................... 8

II. ARGUMENTS ....................................................................................... 9

1. The panel stated three primary contentions of Petitioner Zuili but

discussed none of them or provided any counter arguments for the

contentions ................................................................................................ 9

n. The Panel's Decision Flouts CAFC's and PTAB's Deferential

Standards ................................................................................................ 15

III. CONCLUSION ................................................................................. 16

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I. RULE 35 STATEMENT OF REASONS FOR REHEARING EN BANC

Petitioner Patrick Zuili respectfully requests a rehearing en bane because the

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

unless: en bane consideration is necessary to secure or maintain uniformity of the

court's decisions; or the proceeding involves a question of exceptional importance.

Here, the consideration is necessary due to the following reasons.

A. To maintain uniformity in court's decisions.

At the same time, when Patrick Zuili is threatened by USPTO to go to jail if he

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
Case: 17-2161 Document: 38 Page: 4 Filed: 02/23/2018

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

validated implicitly the suppression of evidence that intentionally occuned on Internet

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

assimilate this huge fraud?

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Case: 17-2161 Document: 38 Page: 5 Filed: 02/23/2018

One thing is clear those corrupted evidences "have the usual

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

another example about lying before the court.

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

Google. Is it simply a question of Corporatism between some powerful judges of

the USPTO and judges of CAFC that prevails here?

Again no comment by CAFC regarding the PTAB switching boards in the middle

of proceedings or the PTAB accepting the removal of Rosenthal as Google's

attorney without initial approval by PTAB but no sanction for this lack of

improper behavior by USPTO against Rosenthal is again giving a strong

impression of double standards at the USPTO with Judge Jameson Lee and Judge

Eastham and at the CAFC with Judge Wallach and Prost.

Petitioner Patrick Zuili has presented several evidences and technical

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
Case: 17-2161 Document: 38 Page: 6 Filed: 02/23/2018

clear evidence of fraud that have been submitted by Google's Chief of Litigation

Catherine Lacavera to Google attorneys, did Catherine Lacavera oversee such

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.

Believe the contrary would be a wrong decision of justice.

How judge's selection was performed at CAFC? At the USPTO evidence of

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.
Case: 17-2161 Document: 38 Page: 7 Filed: 02/23/2018

STATEMENT

Petitioner is appalled by the lack of reaction of the Federal Circuit Chief

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

landmark case Unwired Planet vs Google ruling, according to which petitioner's

patents in question do not qualify at all for CBM eligibility. By doing so this panel

has undermined the effectiveness of the CAFC of presenting an unbiased opinion.

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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Case: 17-2161 Document: 38 Page: 8 Filed: 02/23/2018

document of the 2002 because evidence was illegally suppressed thanks to IAB for a

so-called transition glitch due to the so called migration.

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

biased decisions in favor of Google?

II. ARGUMENTS

I. The panel stated three primary contentions of Petitioner Zulll but discussed

none of them or provided any counter arguments for the contentions.

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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Case: 17-2161 Document: 38 Page: 9 Filed: 02/23/2018

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

by a pay-per-click system cannot make Zuili patents CBM eligible.

Petitioner Zuili agrees that CBM review is limited to patents 'that claim a

method or corresponding apparatus for performing data processing or other

operations used in the practice, administration, or management of a financial product

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].

For determining whether the patents in question, lie within technological

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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Case: 17-2161 Document: 38 Page: 10 Filed: 02/23/2018

went along in their opinion with their judges' colleagues at the USPTO. This is

probably due to corporatism by some judges or pervasive influence of Google in

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

that panels were rigged.

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

presented by the petitioner in order to invalidate the Zuili Patents,

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

eligibility should be overtw·ned.

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

such detection technology is performed? If Google is able at forcing few Judges to

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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Case: 17-2161 Document: 38 Page: 11 Filed: 02/23/2018

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

understanding of the technology of the Zuili Patent. There is no monetary transaction

being claimed in the patents.

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

problem and technical problem.

CAFC and PTAB both incorrectly determined that the preamble of the claims

is limiting in nature. As explained above, the pay-per-click system is specifically

recited in the preamble of claim 1 as an environment for such technology. Therefore,

the pay-per-click system should be treated only as an environment. (Unwired Planet

LCC vs Google Inc. (Fed. Cir. 2016)).

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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Case: 17-2161 Document: 38 Page: 13 Filed: 02/23/2018

argues that CAFC panel has not analyzed the patent in accordance with the priority

date of the patent i.e. 2002.

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

happens in a web-based environment. There is nothing abstract. It cannot be done on

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

timestamp. The time interval is considered to find out invalid clicks.

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
Case: 17-2161 Document: 38 Page: 14 Filed: 02/23/2018

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

petition and also appeal briefs and Mandamus.

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

reasons. Same court different stances.

Google on the same day got Mr. Gray's 66-page testimony, read and understood it

and prepare a 70 Pages petition and filed it.

Execution date of the Mr. Stephen Gray's testimony: 16th October 2015

Date when Google counsel filed its Petition for the '057 Patent:

16th October 2015

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

if they ever existed.

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Case: 17-2161 Document: 38 Page: 15 Filed: 02/23/2018

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.

A rehearing or rehearing en bane should be granted because in Appellant view, the

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

consider this legitimate request for rehearing.

Respectfully Submitted,

Dated: February 22, 2018


/Patrick Zuili/
Inventor & Patent Owner,
Appellant, pro se
20777 Palm Island Drive
Boca Raton, Florida, 33498
Patrick@tenderbox.tv

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Case: 17-2161 Document: 38 Page: 16 Filed: 02/23/2018

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g), I certify the following:

This petition for rehearing or rehearing en bane complies with the type·volume

limitation of Federal Rule of Appellate Procedure 35(b)(2)(A) because it contains less

than 3,900 words, excluding the parts exempted by Federal Rule of Appellate

Procedure 32(f).

This petition complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5), (c) and Circuit Rule 32(b), and the type style

requirements of Federal Rule of Appellate Procedure 32(a)(6), because this petition

has been prepared in a proportionately spaced typeface using the 2013 version of

Microsoft Word in 12·point Century Schoolbook font.

Dated: February 22, 2018

/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

with the Clerk of the Court using an overnight mail carrier.

Dated: February 22, 2018

/Patrick Zuili/

Patrick Zuili

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Case: 17-2161 Document: 38 Page:18886956740
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