Wildseed Mobile, LLC v. Google LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILDSEED MOBILE, LLC,
Appellant
v.
GOOGLE LLC,
Appellee
______________________
2024-1846
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2023-
00248.
______________________
Decided: April 30, 2026
______________________
D AVID ALBERTI, Alberti Lim & Tonkovich LLP, Foster
City, CA, argued for appellant. Also represented by S AL
L IM , MICHELE R. WOODRUFF L YONS ; RICHARD M. BEMBEN,
RICHARD CRUDO, J ASON A. F ITZSIMMONS , STEVEN P APPAS ,
MICHAEL D. SPECHT , Sterne Kessler Goldstein & Fox
PLLC, Washington, DC.
T ARA L AUREN K URTIS , Perkins Coie LLP, Chicago, IL,
argued for appellee. Also represented by DAN L. BAGATELL ,
Hanover, NH; J ONATHAN I RVIN T IETZ, Washington, DC.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 2
______________________
Before P ROST , HUGHES , and STARK, Circuit Judges.
STARK, Circuit Judge.
Wildseed Mobile, LLC (“Wildseed”) appeals from a fi-
nal written decision of the Patent Trial and Appeals Board
(“Board”) holding claims 1-7 and 9-14 of its U.S. Patent No.
7,376,414 (the “’414 patent”) unpatentable as obvious over
a combination of three prior art references. Wildseed chal-
lenges the Board’s construction of two claim terms and ad-
ditionally contends that the Board’s analysis violates the
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-59.
We affirm.
I
A
Wildseed owns the ’414 patent, entitled “Method and
System for Inserting Advertisements into Broadcast Con-
tent,” which is “directed to providing advertisements for
playing on a mobile device based on previously provided in-
formation regarding the mobile device user.” J.A. 70. The
patent purports to allow advertisers “to differentiate adver-
tisements for cellular telephone users versus other types of
users,” enabling targeted advertising. ’414 pat. at 1:42-44.
The claimed methods involve selecting a targeted adver-
tisement based on information collected from a user’s mo-
bile device and inserting such an advertisement into user-
selected audio content by stopping the playback of user-se-
lected audio, playing the ad, recording user-selected con-
tent while the ad plays, and, when the ad is finished,
playing back the recorded content. The issues presented
on appeal relate to how the system obtains information
about a user in order to determine his or her interests.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 3
An embodiment depicted in Figure 5 of the ’414 patent
(reproduced below) is “a functional block diagram generally
illustrating an overview of system 500 for inserting adver-
tisements provided by advertisement server 506 into
streamed or broadcast content playing on a mobile device
502.” Id. at 9:12-15. “Advertisement client 504 is located
on mobile device 502 and determines the information about
the user . . . and provides this information to advertise-
ment server 508.” Id. at 9:24-27. That information “may
include any combination of physical location, preference,
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WILDSEED MOBILE, LLC v. GOOGLE LLC 4
user behavior and demographic information.” Id. at 9:28-
30.
The system collects user information via the client ad-
vertisement application, which is depicted in Figure 6 be-
low. The client advertisement application “is in
communication with several other modules that provide
different types of information, which in total are employed
to generate information regarding [the] user.” Id. at 9:48-
51. For example, “[d]emographic module 612 enables [col-
lection of] the demographics of a user” and “[b]ehavior mod-
ule 608” collects information regarding the “type and
frequency” of the user’s cellphone use. Id. at 10:7-24 (spec-
ification describing six modules: preferences, physical loca-
tion, recorder, demographic, behavior, and other source).
Of particular importance to this appeal is the “other
source” module, about which the specification says the fol-
lowing:
Additionally, other source module 606 enables
other sources to be used to provide information re-
garding the user, e.g., a message from another user
of another mobile device that identifies character-
istics of the current user of the mobile device. Also,
information can be provided by others (or the ac-
tual user) from a remotely located stationary com-
puting device about the mobile device user.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 5
Id. at 10:18-24. Once collected, the totality of information
is “used in determining advertisements to be played by the
user’s mobile device.” Id. at 11:20-21.
The parties agree claim 1 is representative of the four
independent claims at issue here. It recites:
A method for playing content and advertisements
on a cellular device, comprising:
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WILDSEED MOBILE, LLC v. GOOGLE LLC 6
(a) autonomously providing to a server, by
the cellular device, information associated
with a user of the cellular device, the infor-
mation taken by the cellular device from a
message sent to the cellular device from an-
other user of another cellular device, the
message identifying characteristics of the
user of the cellular device;
(b) receiving from the server, by the cellu-
lar device, at least one advertisement to be
played on the cellular device, wherein the
at least one received advertisement is de-
termined by the server based at least in
part on the provided information;
(c) if a determined time interval occurs,
stopping playing of the content, by the cel-
lular device, and playing the at least one of
the determined advertisements, by the cel-
lular device, the playing of the at least one
determined advertisement comprising:
recording, by the cellular device,
the content which playing was
stopped, while the at least one de-
termined advertisement is playing;
and
when the playing of the at least one
determined advertisement is com-
pleted, resuming the playing of the
stopped content, by the cellular de-
vice, from where the stopping of the
playing of the content occurred, us-
ing the recorded content.
Id. at 12:18-44 (emphasis added).
Claim 2 is illustrative of the challenged dependent
claims, each of which adds a requirement that the
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WILDSEED MOBILE, LLC v. GOOGLE LLC 7
information provided to the server “additionally include” at
least one of the information types listed in the dependent
claim. Claim 2 recites:
The method of claim 1, wherein the provided infor-
mation additionally includes at least one of the
group consisting of a preference of a user of the cel-
lular device, a demographic data of the cellular de-
vice, content played on the cellular device, or a
geographic location of the cellular device.
Id. at 12:45-50 (emphasis added).
The ’414 patent belongs to a family of patents, which
claims priority to U.S. Provisional Patent Application
No. 60/290,592 (the “’592 application”). In connection with
prosecution of the ’592 application, the applicant submit-
ted internal company documents describing the purported
invention as a “[m]ethod of serving ads to a wireless
phone,” by interspersing targeted advertisements during
playback of songs recorded from the radio. J.A. 1088. The
’592 application does not indicate from where the claimed
system obtains information to create a user profile and en-
able targeted advertising.
Similarly, original claim 1 of the application that pro-
duced the ’414 patent was agnostic as to the source of the
user information used to identify targeted ads, referring
broadly to “information associated with a user of the mobile
device.” J.A. 907-08. The examiner rejected original claim
1 over the prior art reference Owensby.1 The examiner
found Owensby teaches providing, to a server, user-based
information from a mobile device, including user prefer-
ences, demographic data, user behavior, and content
1 Owensby is U.S. Patent No. 6,647,257, entitled
“System and Method for Providing Targeted Messages
Based on Wireless Mobile Location.”
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WILDSEED MOBILE, LLC v. GOOGLE LLC 8
played by the user on the device – all categories of infor-
mation that were enumerated in original claim 1 of the ’414
patent. In response to the rejection, the applicant removed
the specific categories of information from independent
claim 1 and moved them into dependent claim 2. In the
same amendment, the applicant added to claim 1 the infor-
mation “taken by the cellular device from a message sent
to the cellular device” limitation at issue in this appeal.
The applicant then argued that “Owensby targets ads
based on information that originates from an affirmative
act of the subscriber,” which is distinct from “the method of
claim 1 [which] requires that the provided information
originate from another source, in particular a message
from another user of another cellular device.” J.A. 642 (em-
phasis omitted). The examiner allowed amended claim 1
to issue.
B
Google Inc. (“Google”) petitioned for inter partes review
(“IPR”) of claims 1-7 and 9-14 of the ’414 patent based on a
combination of three prior art references: Frerichs,2 Kawa-
saki,3 and Kauffman.4 The Board instituted IPR; in its in-
stitution decision, the Board agreed with the parties that
2 Frerichs is U.S. Patent No. 6,684,249, entitled
“Method and System for Adding Advertisements over
Streams Audio Based upon a User Profile over a World
Wide Area Networks of Computers.” J.A. 1042-62
3 Kawasaki is U.S. Patent No. 6,539,375, entitled
“Method and System for Generating and Using a Computer
User’s Personal Interest Profile.” J.A. 1063-73
4 Kauffman is U.S. Publication No. 2007/0083886,
“Seamless Arbitrary Data Insertion for Streaming Media,”
and is not included in the joint appendix.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 9
no claim terms required construction at that point.
Wildseed, in its Patent Owner Response, raised a dispute
about the claim term “information taken by the cellular de-
vice from a message.” Wildseed argued that the plain and
ordinary meaning of this term is limited to verbatim ex-
traction of information from a message, thereby excluding
information that can be derived or generated from the mes-
sage but is not explicitly contained in the message itself.5
Google countered that the plain and ordinary meaning of
“taken” is broad enough to encompass information gener-
ated or derived from message text.
The difference between the parties’ claim construction
proposals is illustrated by the following example. A user
receives a text message that reads: “Let’s play Pebble
Beach today.” In Wildseed’s view, the system only extracts
these exact words, so it does not discern from this message
any indication that the user is likely interested in golf. In
Google’s view, by contrast, the system may derive from ref-
erence to “Pebble Beach,” a famous golf course, that the
user is interested in golf, so it can send the word “golf” to
the server, even though “golf” is not found in the text of the
message itself.
The Board reviewed the claim language, specification,
and prosecution history and rejected Wildseed’s proposed
construction. The Board observed that only one portion of
the specification discusses the “other sources” module and
refers directly to taking information from text messages,
and that excerpt did not contain anything that would indi-
cate to a person of ordinary skill in the art that “infor-
mation taken by the cellular device from a message” is
limited to verbatim extraction. With respect to the prose-
cution history, the Board explained that the applicant’s
5 Wildseed does not argue that the patentee was its
own lexicographer or that there was a disclaimer of claim
scope during prosecution.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 10
amendment narrowed independent claim 1 by specifying a
particular source of information, text messages, but found
the amendment had nothing to do with whether infor-
mation “taken” from the text messages includes or excludes
derived information. Thus, to the Board, the amendment
was irrelevant to resolution of the claim construction dis-
pute. The Board further noted that Google’s broader con-
clusion was consistent with dictionary definitions
submitted by both parties. Applying its construction, the
Board found all of the challenged independent claims obvi-
ous over Kawasaki, which it found discloses the claimed
“information taken by the cellular device from a message.”
J.A. 32-33.
The Board also sided with Google regarding the parties’
dispute as to the meaning of “additionally include[d]” infor-
mation that must be taken from a message as in claim 1, a
term that appears in the challenged dependent claims. Ap-
plying Google’s understanding of the term, the Board found
the dependent claims unpatentable as obvious over Fre-
richs.
Wildseed timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
II
We review the Board’s ultimate claim construction de
novo and its subsidiary factual findings regarding extrinsic
evidence for substantial evidence. See Personalized Media
Commc’ns, LLC v. Apple Inc., 952 F.3d 1336, 1339 (Fed.
Cir. 2020). Claims are generally construed according to
their plain and ordinary meaning as understood by a per-
son having ordinary skill in the art after reviewing the
claim term in the context of the patent. See Phillips
v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005)
(en banc).
“We review the Board’s compliance with the procedural
requirements of the [APA] de novo.” Axonics, Inc
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WILDSEED MOBILE, LLC v. GOOGLE LLC 11
v. Medtronic, Inc., 75 F.4th 1374, 1380 (Fed. Cir. 2023).
“The central inquiry is whether we can reasonably discern
that the Board followed a proper path, even if that path is
less than perfectly clear.” Medtronic, Inc. v. Teleflex Inno-
vations S.a.r.l., 70 F.4th 1331, 1344 (Fed. Cir. 2023) (inter-
nal quotation marks and brackets omitted).
III
Wildseed challenges the Board’s claim constructions
with respect to two disputed terms: (a) “taken . . . from a
message,” as used in illustrative independent claim 1; and
(b) the “provided information additionally includes,” as
used in illustrative dependent claim 2.
A
The Board agreed with the parties that it should apply
the plain and ordinary meaning of the claim term “taken
. . . from a message,” but it had to resolve the parties’ dis-
pute as to what that plain and ordinary meaning actually
is. All agree that it includes extracting verbatim infor-
mation from a text message. Google adds that it also in-
cludes information generated or derived from exact text.
Wildseed does not. The Board agreed with Google’s
broader construction and we do as well.
Claim 1 recites a system for autonomously providing to
a server information “taken by the cellular device from a
message sent to the cellular device.” ’414 pat. 12:22-23.
Nothing in the claim language, specification, or prosecu-
tion history would indicate to a skilled artisan that the in-
formation must be extracted verbatim from a text message.
Wildseed accuses the Board of improperly viewing the
term “taken” in isolation, ignoring the context provided by
the claims, which requires that the information be “taken
by [a] cellular device from a message.” Wildseed further
argues that the Board failed to appreciate the grammatical
structure of the claim language, which Wildseed insists in-
dicates that what is “taken” from a message must be
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WILDSEED MOBILE, LLC v. GOOGLE LLC 12
preexisting and cannot, therefore, be deduced. Wildseed
also argues that the claims elsewhere use the term “deter-
mine” or “determine based on” to denote the generation or
derivation of new types of data, so the different term
“taken” has to have a different, and narrower meaning.
We disagree with Wildseed. The claim language
merely limits the source of the information, i.e., that it be
“from a message,” but does not limit how the information
obtained from that source is used. Wildseed’s suggestion
that the doctrine of claim differentiation supports its posi-
tion is mistaken, as nothing about the Board’s construction
renders any claim term improperly superfluous. Under the
Board’s construction, “determined” includes only generated
information, while “taken” includes both generative infor-
mation and verbatim extraction, consistent with the pre-
sumption that different claim terms have different scope.
See Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361,
1368-69 (Fed. Cir. 2005).
Nor are we persuaded by Wildseed’s suggestion that
the Board’s construction is somehow infected by hindsight,
failing to appreciate the limitations of the technology that
existed in 2001. A skilled artisan would understand that
cell phones of that era were capable of effectively deducing
or deriving information that is not expressly stated, for in-
stance through database retrieval (e.g., an entry associat-
ing “Pebble Beach” with golf courses). See J.A. 2285-88
(Google’s expert Dr. Henry Houh explaining that skilled ar-
tisan would be motivated to combine Frerich’s 2001-era
cellphone with Kawasaki’s ability to apply “algorithms and
rules,” without needing modern artificial intelligence or
neural networks).
Turning to the specification, Wildseed relies primarily
on what it labels “the key disclosure in column 10,” Open.
Br. at 31-37, which is the only portion of the specification
addressing information taken from a message. That dis-
closure is as follows: “other source module 606 enables
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WILDSEED MOBILE, LLC v. GOOGLE LLC 13
other sources to be used to provide information regarding
the user, e.g., a message from another user of another mo-
bile device that identifies characteristics of the current
user of the mobile device.” ’414 pat. 10:18-22 (emphasis
added). Like the Board, all that we discern from this state-
ment is that text messages received by the user are one ex-
emplary source of information; it does not speak to the
issue of verbatim extraction as opposed to generation of in-
formation. And, contrary to Wildseed’s contention, the
specification provides multiple examples of a system deriv-
ing information for provision to the server. See, e.g., id. at
9:48-51 (describing modules in embodiment of Figure 6 as
being “employed to generate information regarding a user
of the mobile device”) (emphasis added); id. at 9:58-64
(providing that module in Figure6 may “analyze[]” “GPS,
Assisted GPS and/or triangulation of wireless signals” “to
determine the physical location of the user’s mobile device,
e.g., at a sports stadium”); id. at 10:8-11 (demographic
module of Figure 6 may “determine[]” user’s spending hab-
its through “various questionnaires or surveys”); id. at
10:16-17 (behavior module of Figure 6 can “determine[]”
“type and frequency” of user’s cell phone usage); id. at
10:45-47 (Figure 8 “illustrates . . . the process for generat-
ing information regarding the user of a mobile device.”).
Wildseed further focuses on Figure 8, a “flow chart that
illustrates an overview . . . of the process for generating
information regarding the user of a mobile device.” J.A. 79
(citing ’414 pat. 10:45-46 & Fig. 8). Wildseed argues that
steps 802 through 820 involve the collecting of information
about a user and providing it to the server, before the sys-
tem “generate[s] information about [the] user of a mobile
device for server.” J.A. 79 (capitalization normalized). We
agree, however, with the Board that, even if the embodi-
ment of Figure 8 restricts the “taking” steps from including
generation or extrapolation from the exact text of mes-
sages, there is no basis to import that limitation into the
claims. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d
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WILDSEED MOBILE, LLC v. GOOGLE LLC 14
1367, 1371 (Fed. Cir. 2014) (“While we read claims in view
of the specification, of which they are a part, we do not read
limitations from the embodiments in the specifications into
the claims.”).
Wildseed next contends that the prosecution history,
and particularly the ’592 provisional application, to which
the ’414 patent claims priority, supports its construction
because it discloses only data extraction. To the contrary,
the ’592 provisional application is of little, if any, relevance.
While a portion of the ’592 application discloses a system
in which pre-existing data (an identifier for a radio station)
is extracted from an SMS message, it nowhere defines or
discloses that pre-existing data must be extracted verbatim
from the message or that derived information is excluded.
In fact, varying degrees of extrapolation may be necessary
to identify which radio station users are discussing. See,
e.g., Google Br. at 40 (illustrating this point with examples
of messages referring to “100.3,” “FM 100.3 MHz,” “FM
100.3,” and “WBIG-FM”).
The amendments made during prosecution of the ’414
patent also do not support Wildseed’s proposed construc-
tion. The examiner initially rejected the claims as obvious
over Owensby because that reference teaches sending in-
formation from a user’s cellphone to an external server. In
response, the applicant added the “from a text message”
limitation to the independent claims, and distinguished
Owensby because the information it was sending to the
server “originates from an affirmative act,” while “the
method of claim 1 requires that the provided information
originate from . . . a message from another user.” J.A. 640-
42. As the Board correctly explained, these limitations re-
late only to the sources of the information (whether from a
text message or other source) and whether an affirmative
act of the user is required to initiate the provisioning of the
data to the server; they have nothing to do with the method
of obtaining the information, i.e., extraction of particular
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WILDSEED MOBILE, LLC v. GOOGLE LLC 15
words used in the messages or information derived in other
ways from the same source.
Finally, Wildseed takes issue with the Board’s citations
to dictionary definitions submitted by the parties. Because
we have resolved the parties’ claim construction dispute
based solely on the intrinsic evidence, we have no need to
consider the extrinsic evidence. See Seabed Geosolutions
(US) Inc. v. Magseis FF LLC, 8 F.4th 1285, 1287 (Fed. Cir.
2021) (“If the meaning of a claim term is clear from the in-
trinsic evidence, there is no reason to resort to the extrinsic
evidence.”) (internal quotation marks and brackets omit-
ted).
In sum, we agree with the Board that the correct con-
struction of “taken . . . from a message” includes infor-
mation generated or derived from the words used in a
message, and is not limited to verbatim extraction. As
Wildseed’s appeal of the Board’s obviousness determina-
tion regarding the challenged independent claims is based
entirely on Wildseed’s rejected claim construction, we af-
firm the Board’s conclusion that the challenged independ-
ent claims (claims 1, 9, 12, and 14) of the ’414 patent are
unpatentable.
B
With respect to the patentability of the challenged de-
pendent claims (2-3, 10, 13),6 we again agree with the
Board, which correctly included within the scope of “the
provided information additionally includes” sources of in-
formation other than text messages.
To the extent Wildseed’s position with respect to the
dependent claims is based on its now-rejected proposed
6 Wildseed has not challenged the Board’s conclusion
regarding dependent claims 4-7, and 11 on appeal.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 16
construction for the “taken” term we have already dis-
cussed, it follows from what we have already held that we
must also reject its arguments concerning the dependent
claims. Wildseed contends that: (i) the information dis-
closed in claim 1 is limited to a single source, text mes-
sages; (ii) claim 1 provides the antecedent basis for the
information recited in claim 2; and (iii) therefore the infor-
mation recited in claim 2 must be taken from that same,
single source. As the premise for this logic lacks merit, so,
too, does Wildseed’s conclusion.
The specification further undermines Wildseed’s chal-
lenge to the Board’s analysis of the dependent claims. It
describes several modules that function in preferred em-
bodiments to collect various types of data (e.g., preferences,
physical location, recorder, demographic, behavior, and
other sources), revealing that text messages received by the
user are only one source among many from which these
modules pull information. See, e.g., ’414 pat. at 10:18-22
(“[O]ther source module 606 enables other sources to be
used to provide information regarding the user, e.g., a mes-
sage from another user of another mobile device that iden-
tifies characteristics of the current user of the mobile
device.”). The prosecution history on which Wildseed fur-
ther relies, see Open. Br. at 49 (citing J.A. 640), is no more
relevant, and of no greater help to Wildseed, in connection
with the dependent claims than it was in connection with
the independent claims, as we discussed above.
Thus, the dependent claims, like the independent
claims, require that some information be taken from the
text messages received by the user, but they do not pre-
clude taking information from other sources as well. We
agree with the Board’s construction of the disputed claim
term. As Wildseed does not dispute that substantial evi-
dence supports the Board’s finding that the dependent
claims are obvious when this construction is applied, we
affirm the Board’s finding that these claims are obvious.
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WILDSEED MOBILE, LLC v. GOOGLE LLC 17
C
Finally, Wildseed argues that the Board’s obviousness
analysis concerning dependent claims 2, 10, and 13 fails to
satisfy APA requirements, as it does not enable our review.
We disagree.
While we have acknowledged that it is not ade-
quate for the Board to summarize and reject argu-
ments without explaining why it accepts the
prevailing argument, we have also repeatedly ex-
plained that the Board is not required to address
every argument raised by a party or explain every
possible reason supporting its conclusion. The cen-
tral inquiry is whether we can reasonably discern
that the Board followed a proper path, even if that
path is less than perfectly clear.
Medtronic, 70 F.4th at 1344 (internal quotation marks and
brackets omitted).
The Board’s path with respect to these dependent
claims is reasonably discernable. The Board extensively
quoted the Petition, Patent Owner Response, and Reply,
summarizing the parties’ positions, and then explained
that it “agree[d] with [Google] and reject[ed] [Wildseed’s]
argument as not supported by the claim language.”
J.A. 58-60. Contrary to Wildseed’s contentions, the Board
cited intrinsic evidence for its conclusion and its analysis is
sufficient to enable our review. Hence, there is no APA vi-
olation. See Outdry Techs. Corp. v. Geox S.p.A, 859 F.3d
1364, 1369-70 (Fed. Cir. 2017) (concluding Board satisfies
APA when it clearly articulates and adopts arguments pre-
sented by litigant that are supported by record evidence
and reasoned explanation).
IV
We have considered Wildseed’s remaining arguments
and find they lack merit. Accordingly, for the reasons
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WILDSEED MOBILE, LLC v. GOOGLE LLC 18
provided above, we affirm the Board’s conclusion that
claims 1-7 and 9-14 of the ’414 patent are unpatentable as
obvious.
AFFIRMED
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