accessiBe Ltd v. AudioEye Inc

1. Case Identification

• Case #: IPR2022-01491
• Patent #: 10,928,978
• Filed: September 6, 2022
• Petitioner(s): accessiBe Ltd.
• Patent Owner(s): AudioEye, Inc.
• Challenged Claims: 1-3, 6-14, and 16-20

2. Patent Overview

• Title: Modular Systems and Methods for Selectively Enabling Cloud-Based Assistive Technologies
• Brief Description: The ’978 patent relates to automating the remediation of websites to make them compliant with web accessibility guidelines. The system programmatically assigns descriptive attributes to web page elements to provide audible descriptions for users of assistive technologies.

3. Grounds for Unpatentability

Ground 1: Claims 1-3, 6-14, 16, and 18-20 are obvious over Springer in view of Hendry and Meron

• Prior Art Relied Upon: Springer (Application # 2004/0148568), Hendry (Application # 2013/0104029), and Meron (Application # 2014/0180846).
• Core Argument for this Ground:
  • Prior Art Mapping: Petitioner argued that Springer taught the core system of a non-transitory medium with code to programmatically assign descriptive attributes (e.g., alt-text) to web page elements. Springer's system accesses a page's HTML/DOM, uses "checker" tools to find accessibility issues, and "fixer" tools to apply remediation code. Petitioner contended that Hendry taught retrieving remediation code (e.g., JavaScript) from a remote server to be executed on a client machine, satisfying the "retrieving...from a remote server" limitation. Finally, Petitioner asserted Meron taught amending a web page to display a toggle-able "accessibility button" (icon) which, when clicked, displays a toolbar with user controls for dynamically changing font size, magnification, and color contrast.
  • Motivation to Combine: A Person of Ordinary Skill in the Art (POSITA) would combine Springer's accessibility remediation engine with Hendry's remote server architecture to leverage superior processing power and centralized data storage. This combination would then be integrated with Meron's user interface controls to provide improved customizability and user experience, a known goal in web accessibility.
  • Expectation of Success: A POSITA would have a high expectation of success, as integrating these known web technologies was routine. The underlying logic for identifying accessibility issues and applying fixes would remain largely unchanged when implementing them in a remote server architecture or adding a user-facing control panel.

Ground 2: Claims 1-3, 6-14, 16, and 18-20 are obvious over Lehota in view of Hendry and Meron

• Prior Art Relied Upon: Lehota (Application # 2010/0205523), Hendry (Application # 2013/0104029), and Meron (Application # 2014/0180846).
• Core Argument for this Ground:
  • Prior Art Mapping: This ground presented an alternative to Springer, arguing Lehota taught the foundational system. Petitioner asserted Lehota disclosed a system for increasing web accessibility by modifying a website's DOM using an "accessibility widget" containing JavaScript code. This widget modifies HTML attributes, adds readable titles, and labels form elements. As in Ground 1, Hendry was relied upon for its teaching of retrieving remediation code from a remote server, and Meron was relied upon for its teaching of a toggle-able icon and user control toolbar.
  • Motivation to Combine: The motivation was similar to Ground 1. A POSITA would combine Lehota's widget-based DOM modification system with Hendry's remote server architecture for efficiency and scalability. Adding Meron's user controls would be a logical step to allow users to customize the accessibility features provided by Lehota's widget, aligning with Lehota's disclosure that "more individualized modifications are possible."
  • Expectation of Success: Success was expected with minimal experimentation, as Meron's UI is a conventional way to manage user preferences, and Hendry provides a standard client-server model for deploying web-based tools like Lehota's widget.

Ground 3: Claim 17 is obvious over Springer, Hendry, and Meron, further in view of Folkens

• Prior Art Relied Upon: Springer (Application # 2004/0148568), Hendry (Application # 2013/0104029), Meron (Application # 2014/0180846), and Folkens (Application # 2015/0286658).

• Core Argument for this Ground:

  • Prior Art Mapping: This ground built upon the combination in Ground 1 to address the specific limitation of dependent claim 17, which required that the "descriptive attribute is generated by an artificial intelligence algorithm." Petitioner argued that Folkens disclosed an AI-based solution for image recognition that receives an image and returns a "computer generated review," including "image tags identifying the contents of the image." This directly taught the use of an AI algorithm to generate the descriptive attribute.
  • Motivation to Combine: A POSITA would be motivated to improve the automated remediation taught by Springer. While Springer's "ImageFixer" could add alt-text, it might be generic. Incorporating the AI-based image recognition system of Folkens would allow the combined system to generate more accurate, meaningful, and contextually relevant descriptive attributes, representing a predictable improvement.
  • Expectation of Success: A POSITA would expect success in integrating Folkens's AI system into the Springer/Hendry/Meron framework, as it would function as an enhanced module within Springer's "fixer" tool to generate the text for the alt-attribute before it is applied to the webpage.

• Additional Grounds: Petitioner asserted additional obviousness challenges, including grounds substituting Brown (Patent 7,010,581) for Meron as the source for a user-facing control interface, and grounds based on Lehota that paralleled the Springer-based grounds.

4. Arguments Regarding Discretionary Denial

• Petitioner argued that discretionary denial under §314(a) based on the Fintiv factors would be inappropriate. The petition asserted that:
  • The trial date in the parallel district court litigation was uncertain, and the case was likely to be transferred, weighing against denial.
  • There had been no significant investment in the court proceeding, as no substantive discovery had occurred and the claim construction hearing was cancelled.
  • The petition raised different arguments and prior art combinations than those presented in preliminary invalidity contentions in the district court.
  • The petition presented a strong case with compelling evidence of unpatentability, which, under recent USPTO guidance, weighs heavily against discretionary denial.

5. Relief Requested

• Petitioner requested institution of an inter partes review and cancellation of claims 1-3, 6-14, and 16-20 of the ’978 patent as unpatentable.