`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`______________
`
`Case CBM2012-00003
`Patent 8,140,358
`______________
`
`Before the Honorable JAMESON LEE, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`REBUTTAL DECLARATION OF SCOTT ANDREWS ON BEHALF OF
`PETITIONER LIBERTY MUTUAL INSURANCE CO. REGARDING U.S.
`PATENT NO. 8,140,358
`
`I, Scott Andrews, hereby declare under penalty of perjury:
`
`I have previously been asked by Liberty Mutual Insurance (“Liberty”) to testify
`
`as an expert witness in this action. As part of my work in this action, I have been
`
`asked by Liberty to respond to certain assertions and opinions offered by Mr. Ivan
`
`Zatkovich and Progressive Casualty Insurance Co. (“Progressive”) in this proceeding
`
`concerning U.S. Patent No. 8,140,358 (“the ‘358 patent”).
`
`
`
`
`
`Liberty Mutual Exhibit 1034
`Liberty Mutual v. Progressive
`CBM2012-00003
`Page 00001
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`I.
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`Prior Testimony
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`
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`1.
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`I am the same Scott Andrews who provided a Declaration in this matter
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`executed on September 15, 2012 as Exhibit 1025.
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`II. Experience, Qualifications, and Compensation
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`2. My information regarding experience, qualifications, and compensation
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`are provided along with my prior Declaration, Exhibit 1025, and CV, Exhibit 1026.
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`III. Scope of Study and Rebuttal Opinions
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`A. Questions Presented
`
`3.
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`I have been asked to respond to certain assertions and opinions of Mr.
`
`Ivan Zatkovich expressed in his declaration of June 11, 2013 as Exhibit 2007, and
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`certain assertions of Progressive in its Patent Owner’s Response of June 12, 2013.
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`B. Materials Considered
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`4.
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`In developing my opinions below, and in addition to the materials
`
`identified in my prior Declaration at paragraph 13, I have considered the following
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`materials:1
`
` Declaration of Mr. Ivan Zatkovich (Ex. 2007);
`
` CV of Mr. Ivan Zatkovich (Ex. 2008)
`
` The ‘076 application (Ex. 2012);
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` The ‘650 application (Ex. 2004);
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`1 Unless noted, all emphases in cited portions are added.
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`2
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`Page 00002
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` Patent Owner’s Response Pursuant to 37 C.F.R. § 42.220 (Paper 33)
`(“Opposition” or “Opp.”);
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` Board’s Decision on Institution of Covered Business Method Review
`(Paper 15);
`
` Excerpts from Microsoft Press Computer Dictionary, Third Ed. (Ex.
`2010; Ex 1036);
`
` All other materials referenced as exhibits herein.
`IV. Analysis and Opinions
`
`A. Mr. Zatkovich’s Opinions Regarding Nakagawa’s Disclosure of
`Storing and Transmitting Selected Vehicle Data
`
`5.
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`Progressive admits that Nakagawa “does collect ‘vehicle data’ from a
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`control bus, using ‘various sensors to detect how a user is operating [the] car.’” Opp.
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`21 (emphasis original). Mr. Zatkovich states that this detected data is “converted to
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`point values on the vehicle, and those point values are stored as usage data…and
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`subsequently transmitted to the server.” Ex. 2007, ¶ 42. Mr. Zatkovich opines that
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`such “point values” are not “selected vehicle data” because they do not “represent
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`recognizable aspects of operating the vehicle as required by claim 1.” Ex. 2007, ¶ 42-
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`43. I do not agree. As explained below, Nakagawa discloses storing and transmitting
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`“selected vehicle data.”
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`6.
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`To begin with, Nakagawa expressly and repeatedly discloses that the on-
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`board device stores and transmits the detected/collected vehicle data: “When the user uses
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`car 1, an on-board apparatus (on-board) apparatus installed in car 1 collects, via various
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`sensors, information relating to the operation of car 1 by the user and information relating to the
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`installation status of safety equipment. The collected information is provided from the on-board
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`apparatus to the car insurance company 2.” (Ex. 1005, [0048]); “Data collected by the operating
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`status detection means 7 and installation status detection means 8 is sent to the on-board radio
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`part 9 via a control bus 11 while control by the on-board control part 12 is being
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`received. The on-board radio part 9 sends data detected as above to server apparatus 6,
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`installed at the car insurance company 2, via radio.” (Ex. 1005, [0056]); “The on-board
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`control part 12 controls the entire on-board apparatus 4. Also, the on-board control
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`part 12 contains memory that is not pictured. This memory stores data collected by operating
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`status detection means 7 and installation status detection means 8 and data received via
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`radio by the on-board radio part 9.” (Ex. 1005, [0058]).
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`7.
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`In fact, Mr. Zatkovich actually acknowledges that the on-board device
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`stores and transmits the detected data when he states: “Certain data obtained from these
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`two detection means 7 and 8 is sent by the on-board radio part 9 to the server apparatus
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`6.” Ex. 2007, ¶ 11.
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`8.
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`Nakagawa further discloses that the data received from the on-board
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`device and stored at the server as “user data” includes data that represents particular
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`detected aspects of operating the vehicle: “Specifically, when the user data includes data
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`relating to speeding and the length of time for which speeding occurs, non-use or inappropriate use
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`of seatbelts, application of ABS other than during an accident, sudden acceleration and
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`deceleration, or data showing that brake pads have not been replaced despite being worn,
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`4
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`processing will occur to increase the standard insurance premium by a certain
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`percentage and calculate an increased premium. In contrast, when the user data includes
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`data relating to driving within the speed limit, appropriate use of seatbelts and head rests, and
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`appropriate replacement of brakes and hoses, processing will occur to discount the standard
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`insurance premium by a certain percentage and calculate a discounted premium.” Ex.
`
`1005, [0072]. These types of “user data” disclosed in Nakagawa are the same types of
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`vehicle data disclosed in the ‘358 Patent: “[O]ne or more recorded aspects of machine
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`operation may include speed, acceleration events, deceleration events…seat belt use…” Ex.
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`1001, 16:7-14. They clearly “represent recognizable aspects of operating the vehicle as
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`required by claim 1.” Cf. Ex. 2007 ¶ 42.
`
`9.
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`Second, the additional numeric “usage data” disclosed in Nakagawa also
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`satisfies the “selected vehicle data” limitation. The numeric “usage data” are—even
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`as Mr. Zatkovich reads Nakagawa—at a minimum, calculated or derived from vehicle
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`sensors, and therefore are still “vehicle data” according to the ‘358 Patent. See Ex.
`
`1001 7:12-13 (disclosing that vehicle data “monitored and/or recorded by [in-vehicle]
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`device 300 include [not only] raw data elements [but also] calculated data elements,
`
`derived data elements, and subsets of these elements.”). These data are derived from
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`vehicle data that “represents aspects of operating the vehicle” and are thus “related to
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`a level of safety or an insurable risk in operating a vehicle” because, for example, they
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`represent the “degree of safe operation” and “danger status.” Ex. 1005, [0065].
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`5
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`10. Mr. Zatkovich also claims that Nakagawa’s “usage data” is not vehicle
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`data because Nakagawa describes storing information in “point form.” Ex. 2007 ¶ 40,
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`42. This is no different from the ‘358 Patent, which states: “[O]ne or more recorded
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`aspects of machine operation may include speed, acceleration events, deceleration
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`events…seat belt use…” Ex 1001, 16:7-14. A POSITA would understand that events,
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`such as seat belts being used or not, or deceleration above a pre-defined threshold, are
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`simply represented by numeric values, that may be normalized scores or “points”,
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`indicating that some monitored value has occurred or exceeded a threshold. One
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`skilled in the art would understand that it is not necessary to store all monitored
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`values of a parameter of interest. Instead this POSITA would understand that
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`recording the events where monitored parameters satisfy some event criteria (too fast,
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`too hard, seatbelts buckled, etc.) is just as representative of vehicle data, and is much
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`more efficient than simply monitoring and storing all of the sensor values all of the
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`time. The fact that “usage data” may be calculated or derived from certain measured
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`data simply allows the certain measured data to be stored efficiently and presented in a
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`meaningful way to the user, but these individual parameter point values are still related
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`directly to the parameters (e.g., “vehicle data”) that they represent, and are generally
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`more directly related to, for example, a level of safety in operating a vehicle. Another
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`way to understand this is that at least some of Nakagawa’s usage data is in relation to
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`pre-set standards or thresholds. For example, while Nakagawa may measure the
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`height of the headrest, the goal of the measurement, and the resulting usage data that
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`Page 00006
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`can be calculated or derived, is to determine if the headrest is at the correct (i.e., safe)
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`height. This is determined by measuring the height, but the value that is stored is not
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`necessarily the height, but rather, an indication of the correctness of the height.
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`B. Mr. Zatkovich’s Opinions Regarding Nakagawa’s Disclosure of a
`Database
`
`11. Mr. Zatkovich opines that Nakagawa does not disclose a database. See
`
`Ex. 2007, ¶¶ 26, 31, 33, 41, 49-50, 56. I do not agree. As explained below, a POSITA
`
`would understand Nakagawa to disclose a database.
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`12. Mr. Zatkovich defines a “database” according to the definition set forth
`
`in Microsoft Press Computer Dictionary, Third Ed. (Ex. 2010), which is “a file
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`composed of records, each containing fields together with a set of operations for
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`searching, sorting, recombining, and other functions.” Ex. 2007, ¶ 21. I note that Mr.
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`Zatkovich’s definition contains additional functions not recited in claim 1, which
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`states “a database…comprising records with operations for searching the records and
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`other functions.”
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`13. Mr. Zatkovich acknowledges that a POSITA would understand
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`Nakagawa to disclose storing data in “Direct Access Storage” or “General-purpose
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`data storage device such as Disk storage or Memory.” Ex. 2007, ¶¶ 34-36. But Mr.
`
`Zatkovich argues Nakagawa does not disclose a database because of the symbols used
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`in its drawings. In particular, Mr. Zatkovich attempts to differentiate the data storage
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`symbols used by Nakagawa (horizontal cylinder) from one of the data storage symbols
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`7
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`Page 00007
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`used in the patent (upright cylinder) by noting that the horizontal cylinder is a
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`standard ISO symbol for “Direct Access Memory,” while asserting that the upright
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`cylinder is the symbol for a database. It should first be pointed out that the ISO
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`standard that Mr. Zatkovich cites (ISO 5807) as the source for the direct access
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`memory includes no symbols for a database whatsoever. While an upright cylinder
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`symbol may commonly be used to denote a variety of data storage components (e.g.,
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`disk drive, general storage and databases) this symbol is not part of the set of
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`internationally recognized symbols provided in ISO 5807, as cited by Mr. Zatkovich
`
`(Ex. 2009)--nor is it included in ISO 8790, discussed below. In addition, symbol
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`definitions vary considerably, with many inconsistencies in conventional use.
`
`14. Mr. Zatkovich’s argument that direct access memory cannot be a
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`database is baseless. First, the term “direct access memory” simply means that the
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`data stored in such a memory can be accessed directly, as opposed to sequentially (as
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`one would need to access data on a storage tape, a “First In First Out”, or “Last In
`
`First Out” memory device). Thus, the specific type of memory disclosed by Nakagawa
`
`is not at all inconsistent with a database.
`
`15. Two standards, ISO 5807 and ISO 8790 (Ex. 1035) 2 define various
`
`symbols for flowcharts and information technology system documentation. See Ex.
`
`
`2 The document attached at Exhibit 1035 is a true and correct copy of ISO8790-1987
`– “Information Processing Systems – Computer System Configuration Diagram
`Symbols and Conventions,” published by the International Organization for
`
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`2009, Ex. 1035. Both of these standards include the horizontal cylinder and define
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`this as “direct access storage”, meaning that the data is directly available as opposed
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`to, for example, sequentially available. Ex. 2009, 3; Ex. 1035, 3. The definition from
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`ISO 8790 is reproduced below.
`
`
`16. Thus Nakagawa has simply used the international standard symbol for
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`the type of memory used to store the collected data, and in doing so has not implied
`
`that this data is not stored in a database. A POSITA would not infer from the use of
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`this (horizontal cylinder) symbol that the data in Nakagawa was not stored in a
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`database; such a person would simply infer that this data, and any of its associated
`
`database aspects would be stored in direct access memory. There are many examples
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`of databases stored in direct access memory. For example, the ISO 5807 cited by Mr.
`
`Zatkovich uses horizontal cylinders to designate items (e.g., customer file, inventory
`
`
`(...Continued)
`Standardization (ISO) in 1987 (1st ed.), which I downloaded from the official ISO web
`site (www.iso.org) on August 15, 2013.
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`file, and received order file) that a POSITA would understand as databases. Ex. 1036,
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`24. Another such example is in the ‘358 patent itself.
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`17.
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`Indeed, the ‘358 patent uses three different symbols for the storage of data,
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`and in each case a POSITA would interpret them as being associated with databases.
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`For example, in Figure 5, the stored sensor data 502 and event data 500 are depicted
`
`using the direct access (horizontal cylinder) storage symbol, while data storage 518 is
`
`depicted using an upright cylinder. It is also useful to note than in relation to Figure 5,
`
`the ‘358 patent describes storage device 518 (depicted with a vertical cylinder) as a
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`“non volatile memory.” Ex. 1001, 13:15-17 (“In some systems, data is stored 516 in a
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`media or nonvolatile memory”).
`
`
`In Figure 6, this same data storage unit is referred to as a database, and a slightly
`different symbol (an upright cylinder with two rings around the top) is used.
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`18.
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`In order for the stored sensor data 502 and event data 500 of Figure 5 of
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`the ‘358 patent to be later stored in database 518, the relationships between the data
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`value and the specific data parameter types (e.g., speed and the value of the speed)
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`would need to be maintained when the data was stored in the direct access memory
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`devices (500 and 502) shown in Figure 5. Thus, for the ‘358 patent to preserve the
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`database structure of the collected data, these devices would themselves need to be
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`structured as databases.
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`19. A POSITA would also find that Nakagawa’s “user data” is necessarily
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`stored in a database. Mr. Zatkovich acknowledges that “user data” is stored at the
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`server. Ex. 2007, ¶¶ 17, 34-35. Nakagawa explicitly discloses that the “user data” is
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`“recorded in the memory provided inside the control part 22 on the server side.” Ex.
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`1005, [0068].
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`20. As discussed above, Nakagawa also explicitly discloses that “user data”
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`recorded in memory at the server includes multiple types of data and information,
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`including, e.g., “data relating to speeding and the length of time for which speeding
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`occurs, non-use or inappropriate use of seatbelts, application of ABS other than
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`during an accident, sudden acceleration and deceleration, or data showing that brake
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`pads have not been replaced despite being worn,” as well as “data relating to driving
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`within the speed limit, appropriate use of seatbelts and head rests, and appropriate
`
`replacement of brakes and hoses.” Ex 1005, [0072]. The data stored at the server
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`also includes “user data” for multiple users/insurance subscribers keyed to a particular user
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`“ID.” See, e.g., Ex 1005, [0061] (“The control part 22 on the server side is equipped
`
`with memory, which is not pictured, and data relating to car insurance subscribers is
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`stored in this memory as ‘user data’.”); [0067], [0068] (“Here, the control part 22 on
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`the server side updates the “user data” recorded in memory that corresponds to the received
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`ID (step T4).”)
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`21. Moreover, Nakagawa’s Figure 6 also illustrates that this user data must
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`be stored in a database. Specifically, a database includes ordered values that bear some
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`relationship to one another. At the most basic level these records may be simply a
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`value and a name for the value, for example, “speed” (i.e., name) and “60” (i.e., value).
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`If these values are not stored together (as a record) then their relationship will be lost,
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`and it would not be possible to later (at the end of the month in the case of Figure 6)
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`display the variety of measured parameters and their values, as is depicted in Figure 6,
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`and thus Nakagawa’s user data is necessarily stored in a database.
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`22.
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`For these different types of “user data” to be recorded in “memory”
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`(Ex. 1005 [0068]) (e.g., “Direct Access Storage” or “General-purpose data storage
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`device such as Disk storage or Memory”) in a way that can be located and retrieved
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`later based on user ID (e.g., to update a particular piece of data) (cf. Opp. 25, Ex. 2007
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`¶ 55), a POSITA would understand that such data is stored in a form that maintains
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`this link to user ID, which is referred to, in the same Microsoft Press Dictionary relied
`
`upon by Mr. Zatkovich, as a “file”: “the basic unit of storage that enables a computer to
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`distinguish one set of information from another. A file is the ‘glue’ that binds a
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`conglomeration of instructions, numbers, words, or images into a coherent unit that a
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`user can retrieve, change, delete, save, or send to an output device.” Ex. 1036, 194. This is
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`consistent with the understanding of a POSITA.
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`23.
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`Furthermore, because the “user data” “represent[s] different types of
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`information”—e.g., “speeding,” “use of seatbelts,” “acceleration,” etc. (Ex. 1004,
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`[0072]), as well as information for different drivers (Id. [0061], [0068])—it must
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`necessarily be stored in “records,” as defined by Progressive (Opp. 11). This is also
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`defined in the Microsoft Press Dictionary relied on by Mr. Zatkovich. Ex. 2010, 399
`
`(defining “record” as “a data structure that is a collection of fields (elements), each
`
`with its own name and type. Unlike an array, whose elements all represent the same
`
`type of information and are accessed using an index, the elements of a record represent
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`different types of information and are accessed by name.”). I believe the dictionary
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`definition is incomplete because it excludes arrays (Ex. 2011 at 129:8-130:7), and I
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`note Progressive does not exclude arrays in its definition of “record.” Opp. 11. See
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`also; Ex. 2007 ¶ 23 (citing Microsoft definition but omitting “array” exclusion).
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`Regardless, a POSITA would understand that “user data” disclosed in Nakagawa is
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`stored in a file that comprises “records.”
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`24.
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` Mr. Zatkovich, excluding “arrays” from his personal definition of
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`“records,” opines that the functionality of Nakagawa could be achieved instead using
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`“simple arrays” of data that use “indexes to reference a value stored in the array”
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`because “there is only one type of data, a point value.” Ex. 2007, ¶ 55. I do not agree
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`that storage of “user data” disclosed in Nakagawa can be achieved using “simple
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`arrays” because, as described above, “user data” contains multiple types of data and
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`information, and it would not be possible to generate the report of Figure 6 if that
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`data were not stored in the form of records. More importantly, Mr. Zatkovich
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`mistakes types of data with types of information. Even if “user data” contains one
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`“type” of data (e.g., numerical values, rather than text, etc.), each of these data values
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`“represent[] different types of information”—e.g., “speeding,” “use of seatbelts,”
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`“acceleration,” etc., as well as information for different drivers. Ex. 1004, [0072], [0068].
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`Accordingly, they would not be stored as “arrays” whose elements, as explained in
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`this Microsoft definition, “all represent the same type of information.” Ex. 2010, 399.
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`25. Moreover, even if the “user data” of Nakagawa were stored in “arrays”
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`as described by Mr. Zatkovich, storage in such “arrays” is a type of database specifically
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`disclosed in the ‘358 patent: “For longer term storage or data analysis, data may be
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`retained in database(s) 2108 and 2114 (e.g., relational databases that may comprise one or
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`more flat files (2-dimensional arrays) that may be transformed to form new combinations
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`because of relations between the data in the records or other databases.” Ex. 1001,
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`31:36-41. A “flat file” is “a file consisting of records of a single record type.” Ex. 1036,
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`199. Mr. Zatkovich further notes that the “most common databases of this time (and
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`up till the present day) are “relational databases,” and that “characteristics of records
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`within a database described here were standard and would be present in any database that
`
`was implemented after 1990.” Ex. 2007, ¶ 20.
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`26. Therefore, even based on Mr. Zatkovich’s own declaration, the
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`Microsoft Press Dictionary Mr. Zatkovich relies upon, and the ‘358 Patent itself, a
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`POSITA would understand Nakagawa to disclose a database comprising records.
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`27. Mr. Zatkovich further opines that Nakagawa does not disclose a
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`database with “operations for searching the records” (Ex. 2007, ¶¶ 27-31), which he
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`states a POSITA would understand to mean the “ability to locate and retrieve one or
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`more specific records from among the many records in the database.” Ex. 2007, ¶ 28.
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`28. However, Nakagawa does disclose this ability. As I pointed out in my
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`prior Declaration, for example, Nakagawa discloses that “the control part 22 on the
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`server side updates the “user data” recorded in memory that corresponds to the
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`received ID.” Ex. 1005, [0068]; [0069]; see also Ex. 1025, ¶ 36. To update such stored
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`data keyed to a particular user, the server must necessarily “locate and retrieve one or
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`more specific records from among the many records” (see Ex. 2007 ¶ 28) so that the
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`server can make changes to (i.e., update) that particular driver’s data. This is common
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`sense and certainly would have been understood by a POSITA. To “update” stored
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`data, the particular data to be updated must necessarily be “located” and “retrieved.”
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`A POSITA would thus understand Nakagawa to disclose a database with “operations
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`for searching the records”–-Nakagawa’s discussion of updating a particular user’s data
`
`necessarily discloses such a database. Similarly, to generate the display of Figure 6 the
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`system would at a minimum need to locate the record corresponding to, for example,
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`headrest height, and then read the score associated with that record. Thus the system
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`would require searching, sorting and the ability to retrieve the specific data elements
`
`and their values associated with the display.
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`29. Mr. Zatkovich further opines that Nakagawa does not disclose a
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`database with “other functions.” Ex. 2007, ¶¶ 32-33. Mr. Zatkovich states that a
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`POSITA would understand “other functions” to include “standard databases
`
`operations such as sorting records, updating records, adding records, or deleting
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`records.” However, Mr. Zatkovich does not provide any support for this statement.
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`The ‘358 Patent also does not recite these functions or what the “other functions”
`
`include.
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`30.
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`In any event, as discussed above Nakagawa does disclose, at minimum,
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`“updating records”: its server “updates the ‘user data’ recorded in memory.” Ex.
`
`1005, [0068]. In addition, as discussed above, a POSITA would understand
`
`Nakagawa to disclose storing the “user data” in a “file” containing records, which
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`necessarily allows a user to “retrieve, change, delete, save, or send [the stored information]
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`to an output device,” such as shown in the user display of Figure 6. Ex. 1036, 194.
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`31. Therefore, for at least the reasons stated above, a POSITA would
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`understand Nakagawa to disclose a database comprised of records with operations for
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`searching the records and other functions.
`
`32. Mr. Zatkovich’s position that Nakagawa does not disclose a database is
`
`entirely contrary to his position (in the same Declaration) that the ‘650 application
`
`inherently discloses a database with functionality for searching records and other
`
`functions. For example, Mr. Zatkovich opines that “searching records functionality is
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`exhibited by the need for the web server 220 and the charges algorithm 530 to access
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`selected vehicle data stored in data storage 518.” Ex. 2007, ¶ 93. He further opines
`
`that the “data storage 518 must necessarily further include other functionality, such as the
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`ability to write records into data storage, as evidenced by reference number 516,
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`where all events and data are stored in data storage 518. To store records in the
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`database 518, the database must have record writing functionality, which falls within
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`the scope of ‘other functions.’” Id. According to Mr. Zatkovich, the mere need to
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`store and access data in data storage is sufficient to disclose a database with searching
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`and “other” functionalities, and thus by Mr. Zatkovich’s own testimony these
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`limitations are certainly disclosed by Nakagawa.
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`C. Mr. Zatkovich’s Opinions Regarding Nakagawa’s Disclosure of
`Generating “Operating Level” at the Server
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`33. Mr. Zatkovich opines that “the operating levels point values shown in
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`the Vehicle display of Figure 7 either came from the Usage Data that was already
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`preprocessed in the vehicle, or that they are the same operating level point values that
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`were preprocessed on the vehicle, transmitted from the vehicle in step ST1 of Figure
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`5, and then sent back down to the vehicle in step ST10 of Figure 5.” Ex. 2007, ¶ 60.
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`I do not agree with Mr. Zatkovich’s reading of Nakagawa. As explained below,
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`Nakagawa discloses generating the “operating level” at the server.
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`34.
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`First, Progressive and Mr. Zatkovich suggest that the vehicle “display
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`means” displays simply “usage data” already stored on the vehicle as “operating levels.”
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`Id.; Opp. 28. This is unsupported by Nakagawa’s disclosure. Nakagawa discloses that
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`the “display means” displays “data relating to the car insurance premium” that is
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`received from the server. See Ex. 1005 [0073] (“When the insurance premium
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`calculation means 20 has calculated the car insurance premium…the fixed radio part
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`18 sends, by radio, the data relating to the calculated car insurance premium to the on-board
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`apparatus 4…The on-board apparatus 4 receives the data relating to the car insurance
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`premium…and the display means 10 displays the data relating to the car insurance premium”).
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`For example, Figure 5 clearly show that what is displayed at ST 10 is the “results
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`information” received from the server at ST9:
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`35.
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`Second, Mr. Zatkovich opines that the “operating levels” displayed on
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`the “display means” are the same “points” determined by the on-board apparatus.
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`Ex. 2007, ¶¶ 17, 60. This is also unsupported by Nakagawa’s disclosure. Nakagawa
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`discloses that displayed data received from the server contains “evaluation of
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`operating levels for one month [that] is calculated in numeric form and displayed to reflect the
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`amount by which the insurance premium will be multiplied.” Ex. 1005, [0076]. As shown in
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`Figure 7, this information is displayed in a graph form where the calculated total
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`“operating level” for each month is shown along with the amount by which the
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`insurance premium will be multiplied:
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`[0076] (“the evaluation of operating levels for one month is calculated in numeric
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`form and displayed to reflect the amount by which the insurance premium will be
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`Ex. 1005, Fig. 7,
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`multiplied”).
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`36. Therefore, even if individual “operating levels” were deemed to be the
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`same “usage data” calculated at the vehicle, the server must necessarily aggregate and
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`process the “usage data” to arrive at the total “operating level” for each month that is
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`sent to the vehicle and displayed.
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`37.
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`For example, the types of data that Mr. Zatcovich contends are
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`“operating levels” calculated at the vehicle include at least two types of “evaluations”:
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`(1) “evaluation of driving techniques,” including “deceleration” and “unreasonable
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`steering,” and (2) “evaluation of safe driving” such as “whether…safe distance is
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`being maintained.” Ex. 2007, ¶ 17. At a minimum, then, the server must calculate a
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`monthly total “operating level” for each of these evaluations to determine the amount
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`of premiums that will be changed and to send the results to the user for display at the
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`vehicle.
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`38.
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`Finally, Mr. Zatkovich opines that the total “operating level” calculations
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`displayed for each month “are the same operating level point values that were
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`preprocessed on the vehicle, transmitted from the vehicle in step ST1 of Figure 5, and
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`then sent back down to the vehicle in step ST10 of Figure 5.” Ex. 2007, ¶ 60. This is
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`also unsupported by Nakagawa’s disclosure. There is no disclosure in Nakagawa of
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`“calculat[ing] in numeric form” the “operating levels for one month” except in connection
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`with the server-determined information that is sent to the vehicle and then displayed. In fact, if the
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`total operating levels for a month were already calculated at the vehicle, there would
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`be no need for the server to download, store, and update all of the user data relating
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`to various operations of the vehicle, or to calculate premiums based on such user data.
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`Moreover, there would be no need for the operating levels to be “sent back down to
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`the vehicle” (as Mr. Zatkovich contends), if they are already stored at the vehicle.
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`This would be, to put it mildly, a ridiculously unnecessary exercise that no POSITA
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`would undertake: it certainly would be subject to Mr. Zatkovich’s caution that a
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`POSITA would avoid adding “expensive and unnecessary complexity.” Ex. 2007,
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`¶ 54. No POSITA would read Nakagawa to be teaching such an unnecessary and
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`wasteful transfer of data, but instead would understand Nakagawa to mean what it
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`says: these monthly operating level results are calculated at the server and sent to the
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`vehicle for display.
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`D. Mr. Zatkovich’s Opinions Regarding
`‘650 and
`the
`Applications’ Inherent Disclosure of Server Functionality
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`‘076
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`39. The following explanation was provided to me to
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`inform the
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`development of my opinions concerning whether the ‘650 and ‘076 applications
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`inherently disclose certain claim limitations of the ‘358 patent: when an explicit
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`limitation in a claim is not present in the written description whose benefit is sought,
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`it must be shown that a person of ordinary skill would have understood, at the time
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`the patent application was filed, that the description requires that limitation.
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`40. Mr. Zatkovich opines that the ‘650 application “necessarily” discloses (1)
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`processing the “selected vehicle data” (2) at the server as required by claim 1.3 Ex.
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`2007 ¶¶ 95-102. For example, Mr. Zatkovich opines:
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` Ex. 2007 ¶ 99: “[T]o generate a cost for the unit of risk based on the
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`relevant sensor data and event data, the charges algorithm 530 must necessarily
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`process that selected vehicle data with data that reflects how the selected
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`vehicle data affects a premium of an insurance policy.”
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`3 For this limitation, claim 1 recites: “where the server is configured to process
`selected vehicle data that represents one or more aspects of operating the vehicle with
`data that reflects how the selected vehicle