`Paper 65
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` Trials@uspto.gov
`Tel: 571-272-7822 Entered: January 14, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`LIBERTY MUTUAL INSURANCE COMPANY
`Petitioner
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`v.
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`PROGRESSIVE CASUALTY INSURANCE COMPANY
`Patent Owner
`____________
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
`____________
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`Held: October 15, 2013
`____________
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`Before JAMESON LEE, JONI Y. CHANG and MICHAEL R. ZECHER,
`Administrative Patent Judges.
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`J. STEVEN BAUGHMAN, ESQUIRE
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`NICOLE M. JANTZI, ESQUIRE
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`JAMES MYERS, ESQUIRE
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`
`Ropes & Gray
`One Metro Center, Suite 900
`700 12th Street, NW
`Washington, DC 20005-3948
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`ON BEHALF OF THE PATENT OWNER:
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`CALVIN P. GRIFFITH, ESQ.
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`JAMES L. WAMSLEY, ESQUIRE
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`JOHN V. BIERNACKI, ESQUIRE
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`Jones Day
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`901 Lakeside Avenue
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`Cleveland, Ohio 44114-1190
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`The above-entitled matter came on for hearing on Tuesday, October
`15, 2013, commencing at 1:05 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE LEE: We can go on the record.
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`We sent out an order outlining the procedure, who's
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`coming up first, who's second, and so on and so forth. By that
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`order, what we intended was, this is a combined oral hearing, so
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`the transcript of the hearing can be relied on by either party in
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`either case.
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`In other words, we're not going to segregate any portion
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`of this hearing and say only this half is usable in one and the
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`other half is usable in the other. So, with that understanding, is
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`there any objection from either side?
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`MR. BAUGHMAN: No, Your Honor.
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`MR. GRIFFITH: No, Your Honor.
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`JUDGE LEE: Great. We've allocated only an hour of
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`argument time for each party, total, but we understand this is
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`really a session for two cases. So, if you do go over, we will be
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`lenient on that. So, you don't really have to rush. We have all
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`the way until 4:00, if nece ssary, if we ask you many questions.
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`So, essentially, you have some extra time if you need to go -- use
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`it.
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`So, let me know who's representing the Petitioner and
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`then the Patent Owner, please.
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`MR. BAUGHMAN: Your Honor, for Petitioner, Steve
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`Baughman, from Ropes & Gray; and with me, my colleagues,
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`James Myers, and Nicole Jantzi, also from Ropes & Gray; and we
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`also have a representative of Liberty in the audience today,
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`Michael Johnson.
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`MR. GRIFFITH: Your Honor, Calvin Griffith on behalf
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`of the Patent Owner, Progressive Casualty Insurance Co. with
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`Jones Day; and with me is my partner James Wamsley, also of
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`Jones Day, and John Biernacki; and then Charles Jarrett, the
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`general counsel for Progressive, is here as well.
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`JUDGE LEE: Thank you very much.
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`Any time you're ready, Mr. Baughman, you can proceed.
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`MR. BAUGHMAN: Thank you, Your Honor, and may it
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`please the Board.
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`Patent 8,140,358
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`Again, my name is Steve Baughman. I'm counsel for
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`Petitioner, and what I'd propose to do at the outset is to give the
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`Board an overview of the suggested plan we have to address the
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`issues in these two cases. We obviously are happy to address
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`any questions the Board may have as well.
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`The three topics we propose to discuss today are, first,
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`Progressive's claimed priority date; seco nd, the grounds of
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`rejection based on Toyota's patent application, Nakagawa; and
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`third, the grounds of rejection based on the Geostar references
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`based on Kosaka. My plan is for my colleague James Myers to
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`address the first topic, and I'll address the seco nd topics.
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`There's one procedural point we would like to make at
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`the outset, in addition to reserving 30 minutes of our time, if I
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`could, for rebuttal. Progressive has submitted a 99 -page set of
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`demonstratives, which we understand are not evidence. So, we
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`just wish to confirm our understanding that while the whole
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`document has been filed with the Board in these proceedings,
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`again, we understand they are not evidence, and only the portions
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`actually discussed during the hearing today, it is our
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`understanding, would be considered by the Board. The rest are
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`not essentially demonstratives.
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`In other words, we're just trying to confirm it's not a
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`99-page surreply brief to which we don't get a chance to respond.
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`So, we just wanted to set forth for the record our understanding
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`of that submission.
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`I'd also like to recap for the Board where we are in
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`terms of open issues. It's our understanding that the only
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`questions remaining here today involve the validity of Claim 1,
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`because Progressive has not separately argued the validity of any
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`of Claims 2 through 20. So, we understand that any dispute on
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`those points was waived and that all of the claims rise or fall --
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`JUDGE CHANG: Excuse me, Counsel.
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`MR. BAUGHMAN: Yes, Your Honor.
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`JUDGE CHANG: We have two pro ceedings. So, are
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`you -- are you saying that for both proceedings, the only issue is
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`Claim Number 1?
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`MR. BAUGHMAN: That's our understanding, Judge
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`Chang, so -- but I'm happy to spell that out for each of the
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`proceedings. So, in 2012 -00003, the Board f ound a prima facie
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`case for invalidity of Claims 1, 19, and 20, based on the Toyota
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`Nakagawa reference, and all other dependent claims based on the
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`combination of Nakagawa and some additional art. Progressive
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`has disputed anticipation by Nakagawa only wit h respect to
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`Claim 1. They didn't raise issues with respect to Claims 2
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`through 20 separately from that Claim 1 argument.
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`The same is true for the other proceeding today,
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`CBM2013-00009, where the Board found a prima facie case of
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`invalidity for Claims 1 , 3, 5, 8, 9, 19, and 20, based on Section
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`103 combinations of the RDSS reference and the Geostar 10 -K in
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`light of Kosaka, with some additional references added for other
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`Patent 8,140,358
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`dependent claims. Again, it's our understanding that Progressive
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`has responded only with respect to Claim 1, so that it has
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`arguments for Claims 2 through 20, but they are identical with
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`the arguments they're making for the first claim.
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`And finally -- yes, Your Honor?
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`JUDGE LEE: I hear what you're saying, but what I'd
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`like to add is that you're telling us what your understanding is,
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`and our not commenting on it does not necessarily mean we
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`agree with your under -- agree with you that that is the case or
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`not.
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`MR. BAUGHMAN: Understood, Judge Lee.
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`JUDGE LEE: So, we could choose not to respond, but
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`at the end of the day, maybe the Board figures that it's still your
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`burden to demonstrate the unpatentability, and you haven't got a
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`prima facie case. I'm just thinking out loud. It's theoretically
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`possible --
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`MR. BAUGHMAN: Understood, Your Honor.
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`JUDGE LEE: -- that something might not work out the
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`way you like. You know, our not saying anything doesn't mean
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`we agree with you one way or the other. It's just we recognize
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`your understanding.
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`MR. BAUGHMAN: And that understanding, j ust to be
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`clear, is based on the Institution Decision in which the Board
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`found a prima facie case for all of the claims, and Progressive
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`Patent 8,140,358
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`has not, in its response in either trial, argued with the analysis
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`for any claim except for Claim 1.
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`And regarding Nakagawa, Progressive also argues that
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`certain claims are entitled to a priority date earlier than the
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`reference, but that argument only affects four of the claims,
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`Claims 1, 9, 19, and 20. And Mr. Myers will address that
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`Progressive has not shown entitleme nt for an earlier priority date
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`for those claims as well.
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`So, with that, I will turn the podium over to my
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`colleague Mr. Myers.
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`MR. MYERS: Good afternoon, Your Honors.
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`The priority date argument with respect to the '650
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`application is important beca use Progressive asserts that the
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`Nakagawa Toyota reference is not prior art, and so if the
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`Progressive application, '650, is not -- does not give priority to
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`the '358 claims, then Nakagawa is, in fact, prior art and is
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`available to invalidate the claims of the '358 patent.
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`What I'd like to do first is to take a look at the '358
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`Claim Number 1 and note that what we have here is a system that
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`monitors -- and there are one, two, three, four, five -- six
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`limitations. It's a very detailed system. And in our reply brief,
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`in pages 3 and in 10, we point to Federal Circuit precedent that
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`says Progressive's not entitled to selectively pluck, using
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`hindsight, elements. And we submit that that's exactly what
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`they've done.
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`They take a web server over here, they ta ke a database
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`over there, they take a wireless transmitter that goes to an
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`operations control center, they take the words "ratings
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`algorithm" down here, and like the Frankenstein monster, they
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`assemble it and they claim, lo and behold, that's Claim 1. But
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`nowhere in the '650 application is the system itself described.
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`Now, in addition to the -- to this plucking, this cobbling
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`together of pieces, there are two things that are absolutely
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`missing. They are, number one, the word "rating factor" never
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`appears, and there is no description not only of a rating factor,
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`but no description of a server configured to generate a rating
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`factor using a coupled, linked database. It's just not there.
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`Then, in addition, they point to a web server as a server,
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`but there is no language that shows how this server is configured
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`to generate a rating factor or to engage in insurance cost
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`computations.
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`Now, their answer to this is a simple one. Their answer
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`is it would be required, it is inherent, everyone would
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`understand. A POSITA would know that there was the
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`generation of a rating factor, that there was a server that was
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`doing these calculations.
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`You know what's wrong with that -- and it is completely
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`inconsistent with what happened in the original examination -- is
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`the reason for allowance. The original examiner -- and it is in
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`our Petition starting at page 2 and continuing at page 3. We
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`quote it, so it's been up front, it's from the beginning. But I
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`think that it's worth showing the Board that particular -- it is
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`Exhibit 1002 in the file history at pages 00026 and 27.
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`And what does the examiner have to say?
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`MR. GRIFFITH: Objection, Your Honor. I would like a
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`clarification here. We received some demonstratives from them
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`last week, and I believe they were file d with the Court, but I --
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`we didn't get anything marked up like this. And I don't think
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`that the Board's rules would properly allow for markups to be
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`made on the fly.
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`JUDGE LEE: Are you complaining about the
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`highlighting on the left and right margins?
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`MR. GRIFFITH: Well, I just don't know what -all
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`they're going to submit. I mean, if we're allowed to -- I couldn't
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`see the Post-It that they had put on there, so I'm not sure what
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`that said.
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`MR. MYERS: The Post-It is nothing more than the
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`exhibit number, 1002.
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`MR. GRIFFITH: That's fine. I couldn't see the Post -It.
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`I couldn't see what they were doing with this.
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`JUDGE CHANG: Do you have a copy for the opposing
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`counsel?
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`MR. MYERS: I can give him a copy of this, Your
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`Honor.
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`JUDGE CHANG: Because he might not be able to see
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`through the podium, so that way, he can see better.
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`MR. MYERS: Now, what we, in the Petition --
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`MR. GRIFFITH: And just -- this is fine, but this is my
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`concern, was that I'm not going to have what they're using. So,
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`if I want to go back to it or refer to in my remarks, I didn't have
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`a copy. But if I can get a copy as we go, that's fine.
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`JUDGE CHANG: Okay.
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`JUDGE LEE: But didn't they serve a copy to you? You
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`MR. MYERS: You have a wh ole set of the exhibits.
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`MR. GRIFFITH: I have their demonstrative exhibits,
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`yes, but this -- these were not in the demonstratives.
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`JUDGE LEE: What do you mean? When you --
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`Counsel, Mr. Myers, when you refer to something on the screen,
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`could you refer to the demonstrative slide number, so the court
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`reporter will know and anyone reading the transcript will know
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`which slide we're talking about?
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`MR. GRIFFITH: The demonstrative slide number.
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`MR. MYERS: This is Demonstrative Exhibit Number 2,
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`Your Honor, and we provided demonstratives. In our email, we
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`also indicated to them that we intended to use exhibits.
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`JUDGE LEE: I think opposing counsel just didn't know
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`which slide that was in your set.
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`MR. GRIFFITH: This is slide 2?
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`MR. MYERS: 358 is d emonstrative slide 2.
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`JUDGE LEE: It will help if you just identify the slide
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`number.
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`MR. MYERS: Okay.
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`JUDGE LEE: Thank you.
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`MR. MYERS: And, Your Honor, what we're using is the
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`exhibits. As we said in the email, we are using the actual
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`exhibits, and, you know, we intend to refer to actual exhibits.
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`JUDGE LEE: You may continue.
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`MR. MYERS: So, in the Petition, the examiner believed
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`that the prior art of record fails to teach where the server is
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`configured to process the selected vehicle data that represents
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`one or more aspects of operating the vehicle, with data that
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`reflects how the selected vehicle data affects a premium of an
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`insurance policy, safety, or level of risk, and where the server is
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`further configured to generate a rating factor based on the
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`selected vehicle data stored in the database.
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`So, the very basis, the innovative concept, the reason
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`for allowance of the '358 Claim 1 and all of the claims is exactly
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`what's missing in the '650 application. And here, Progressive is
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`saying everyone knew about it. POSITAs would know about it.
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`We think that's inconsistent, and it is contrary to the arguments
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`they made to get this patent allowed.
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`Now --
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`JUDGE LEE: Can you tell us what "rating factor"
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`means? I didn't see in your Petition t hat you've taken a clear
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`view as to what that should mean, the term "rating factor."
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`MR. MYERS: We are comfortable with the Board's
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`definition, Your Honor, and we have not contested it.
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`JUDGE LEE: I understand, but why haven't you offered
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`your own view of what it is in your Petition?
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`MR. MYERS: Well, it's not described at all, Your
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`Honor, and so our view is that whatever it does mean, it is not
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`described or disclosed. And as I say, we are comfortable with
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`the Board's position with respect to "ratin g factor." We think
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`that it is a numerical factor. It's a number that is used to rate
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`either a driver's safety score or it is used --
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`JUDGE LEE: What do you mean, it's not described?
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`Are you saying the term is not used in their --
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`MR. MYERS: It is n ot used at all --
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`JUDGE LEE: -- in their specification?
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`MR. MYERS: -- and there is no description -- excuse
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`There is no -- we -- we offered and we said, on this
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`record, we agree with that interpretation, but added in the
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`clarification that an insu rance risk value would be a value that
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`reflects an associated level of insurance risk and, therefore, also
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`a corresponding insurance premium.
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`JUDGE LEE: I understand, but I would like to go back
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`in time. When you first filed your Petition, you didn't o ffer a
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`position on what "rating factor" means. Is that correct?
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`MR. MYERS: We offered on page 15 of our original
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`Petition a description of rating factor, and we said, "For review
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`purposes, this term is construed to mean, under the broadest
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`reasonable construction, based upon the disclosure in the '357
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`patent specification, a calculated insurance risk value, such as a
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`safety score or a usage discount."
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`JUDGE LEE: Does that include the additional
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`constraints on the term that the Patent Owner would like us to
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`read in, such as the classification by actuarial classes and so on
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`and so forth?
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`MR. MYERS: We do not believe that, and, in fact, we
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`have contested that in the declarations of Ms. O'Neil. We
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`believe that they've added additional verbiage and con cepts
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`beyond what the Board had in its definition and also what
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`Liberty Mutual had in its.
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`JUDGE LEE: So, you do not read our articulation of
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`what the term means as including all of those additional
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`constraints, such as the requirement of actuarial clas s
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`categorizations?
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`MR. MYERS: That is correct, Your Honor. And, in
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`fact, we've argued that in the reply and we've argued it in our --
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`or it has been presented in expert declarations, particularly of
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`Ms. O'Neil.
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`JUDGE LEE: Are there other ways insura nce premiums
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`can be calculated without using actuarial class categorizations
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`and --
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`MR. MYERS: Yes, Your --
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`JUDGE LEE: -- and such factors?
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`MR. MYERS: Yes, Your Honor. As an example would
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`be a multidriver discount, for example. It doesn't have a rating
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`factor. It's usually a promotional discount that's added on. And
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`some examples are provided in Ms. O'Neil's declarations and, in
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`particular, her reply declaration.
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`JUDGE LEE: Thank you.
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`MR. MYERS: Would you like for me to continue?
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`JUDGE LEE: Yes, please.
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`MR. MYERS: Thank you.
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`Your Honor, Demonstrative Number 2 -- excuse me --
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`yeah, I've labeled it Number 2. There was a cover page.
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`I would note, Your Honor, that this issue of '650
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`priority has been considered twice before by the Pa tent Office,
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`once in the original examination, and Progressive did not receive
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`priority for the '650 application, and that's in Exhibit 1002 at
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`000147 and at 000026; and then, of course, in the Institution
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`Decision of the Board. And we believe that the Pa tent Office
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`was right both times.
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`This is consistent with the decisions of the Patent Office
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`with respect to the '598 patent, which is the parent of the '358.
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`The '358 here is a double
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`continuation-in-part. There is the '650 application; then there's a
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`CIP application that resulted in the '598; and then there's a CIP
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`application that resulted in the '358. And so both times that the
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`Patent Office considered the parent '598 application, it decided
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`that it did not deserve priority.
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`And that's -- and this is in a different CBM. It is in
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`2013-00004. The exhibit number is the same, 1002, and the
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`pages are 1166 through 84, 1568 through 83, 1226 and 74
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`through 76. And this Board's Institution Decision did not grant
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`priority, and that was at page -- paper 11 at pages 22 through 30.
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`Now, there is a very good explanation for why the
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`priority was not allowed. The application leading to the parent
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`'598 added 13 columns of text and 12 figures. And then the
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`application leading to the '358 added another 13 col umns of text
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`and 17 figures. So that the total added for the '650 application
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`was 26 columns of text and 29 figures, not at all surprising.
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`The missing parts of the '358 Claim 1 -- all claims fall
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`with Claim 1. If Claim 1 is the only independent claim, if there's
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`no priority to Claim 1, there's no priority for any of the
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`dependent claims. There's missing support in three areas. They
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`are identified in the Institution Decision. We support all of
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`them. The Institution Decision at 17 through 21.
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`Patent 8,140,358
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`Let's take a look at the next piece, which is the missing
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`claimed server.
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`JUDGE LEE: Can I bring your attention back to your
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`original Petition?
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`MR. MYERS: Yes, Your Honor.
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`JUDGE LEE: It seems like the only item you complain
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`about in the Petition on the topic of the priority date is the -- is
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`the issue about a server to generate a rating factor. Other than
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`that, there is no other specific item mentioned.
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`MR. MYERS: I think that's -- I would beg to differ with
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`Your Honor. In particular, we also ident ify that the server is not
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`configured to do insurance cost computations, and we point that
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`out from the quotation from the original examiner's statements.
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`And so I would say both of those are identified in the Petition.
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`And I would note that if you take a look at the issue, the
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`'358 patent, that the question of wireless transmission, which
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`we're going to talk about, is a wireless transmission configured
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`to transfer the selected vehicle data to a distributed network and
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`a server. So, the wireless issue i s contained in the server issue,
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`we believe, as well.
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`And when we talk about the server being configured to
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`process selected vehicle data, it represents one or more aspects
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`of operating the vehicle with data that reflects that; that's the
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`insurance computations. And then the server is further
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`configured to generate a rating factor based on the selected
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`vehicle data stored in the database; the database issue is there.
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`I would also note that there is a requirement that the
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`database be linked to the serve r to store selected vehicle data
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`transmitted by the wireless transmitter.
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`JUDGE LEE: Well, should you be limited to only the
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`elements that you identify and argue as something without
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`description in the '650 application?
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`MR. MYERS: Your Honor, I think that we are entitled
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`to rely on all of the bases that are set forth in the Institution
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`Decision. I think, one -- procedurally, you'll have to tell me
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`whether you think that that's appropriate, but I believe that's
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`number one, that the -- we're entitled to rely on all of the bases
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`set forth in the decision.
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`The second is, as I say, the server -- the remote server
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`and how it is configured -- is the key issue here. There is a
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`complete absence, and it shows up, as I think the Board notes in
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`the Institution Decision, in a whole variety of different
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`limitations. And so if you are saying, as a decision, that we are
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`forced to rely only on the bottom two, then I believe that these
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`two limitations are not supported, no question about it, and they
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`are explicitly and clearly raised in the Petition.
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`I also believe that because of how the way the word
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`"server" is used, being operatively linked to the database, that it
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`is -- the wireless issue, and the fact that the database is
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`mentioned in relation to the rating fa ctor in the last limitation,
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`that issue is also present as well. So, I believe that all -- once
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`you unwrap it, that all three of these different items are, in fact,
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`included in the original Petition.
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`JUDGE LEE: If I could trouble you to point out to me
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`where in the Petition -- I'm looking at page 12, right in the
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`middle of the page, and that is the only place you're identifying
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`features that are allegedly not described. Am I missing other
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`portions?
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`I mean, you can continue while your co -counsel is
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`looking for it. I'm basically looking for all the places that you're
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`attacking the lack of written description in the '650.
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`MR. MYERS: Right. And I believe it is also in -- in 12
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`we do that, and we also point out the absence in -- on pages 2
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`and 3 --
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`JUDGE LEE: Thank you.
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`MR. MYERS: -- with respect to the insurance
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`computations.
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`JUDGE LEE: Thank you.
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`MR. MYERS: So, the explicit issue, Your Honor, I
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`agree with you, is raised in 2 and 3 and on page 12 in our
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`Petition, and for the reasons that I' ve stated, I believe that we're
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`entitled to rely on all three -- the ways in which the Board has
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`presented this issue, but the server issue is intertwined in a
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`whole set of claim limitations.
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`So, what about the server issue? The -- a person of
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`ordinary skill in the art would not find the server limitations are
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`explicitly disclosed nor required, and Mr. Andrews' reply
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`declaration, that's Exhibit 1034 at paragraph 43 says exactly that,
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`page 24. And he also makes the point that Zatkovich does not
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`have the qualifications to opine on the insurance aspect of the
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`claimed server limitation.
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`They're relying on a technical expert with no insurance
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`background at all, and he's making a set of expert opinions,
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`supposedly, about the presence of various insurance cos t
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`computations. That is in Mr. Andrews' reply declaration on
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`Exhibit 1034, paragraph 44, page 24.
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`JUDGE CHANG: Counsel, can I interrupt?
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`MR. MYERS: Now -- of course.
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`JUDGE CHANG: In the Patent Owner response, they
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`address to the presence of a ser ver. They point to Figure 2 and
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`also Figure 5 of that earlier application that you're talking about.
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`So, can you comment on that, why Figure 2 and Figure 5 --
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`because on the figure, there is a web server -- why that web
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`server cannot meet that claim limi tation?
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`MR. MYERS: The web server that's identified -- and
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`that's, again, in Mr. Andrews' reply declaration -- is designed to
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`present, over the Internet, informational content to the user.
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`There is no disclosure, if you go through Figures 5 and 2, of
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`insurance cost computations that are based on selected vehicle
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`data. There is nothing there that shows that the server is
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`generating a rating factor. So, there is a server, but what is not
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`present is any kind of description, either in the specification or
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`in the figures themselves, of the creation of a server that is
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`configured to do insurance cost computations and generate a
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`rating factor.
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`And it's at that point that Mr. Zatkovich says, well,
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`there is a rating algorithm that's there, and I tell you that this
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`rating algorithm would be required to have some kind of
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`processing done to it, so there must be a server. Don't know
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`where it is exactly, because -- and the problem -- the one that's
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`identified is a web server, but the problem Mr. Andrews points
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`out is that Mr. Zatkovich is confusing the definition of a
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`processor and a server.
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`A server requires a client device to actually ask for and
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`make requests. A processor is different. It processes
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`calculations. Now, that distinction would seem to be pretty
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`technical until you look at the claims, and if you look at Claim 1
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`of the '358 patent, you will notice that the word "a processor" --
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`that's what happens on the vehicle -- is identified. And the '650
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`application itself tells you that it's the data proces s logic that is
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`performing the insurance cost calculations. They're being done
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`onboard. And later, the word "server" appears throughout the
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`'358 patent, and there is no description of a configured server
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`doing the insurance cost computations.
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`Patent 8,140,358
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`Now, Mr. Andrews provides that expert testimony at
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`paragraph 46, page 25, of Exhibit 1034, and he also points out at
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`paragraph 48 that the algorithms are processed on the vehicle and
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`not necessarily carried out at a remote server. Any reasonable
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`reading of the '65 0 patent is that it is focused on sensors and
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`insurance computations on the vehicle. The remote server and
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`the remote system is not adequately described. There are a few
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`links here or there, but there is no description of a server that is
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`configured to do insurance cost computations and to generate a
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`rating factor back at the insurer.
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`All we see are a rating algorithm over here, the words
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`"web server" over there, and no indication about where those
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`cost computations are taking place at the insurer. Ins tead, we
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`are told in the application -- and a POSITA would recognize,
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`according to Mr. Andrews -- that the calculations with respect to
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`the premiums are being calculated on the vehicle itself. And
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`that's further confirmed by the description in the '650 ap plication
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`that the algorithm can be developed at the insurer, but it is
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`downloaded to the unit of risk. That's in Figure 6 of the patent.
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`There is no indication that the insurance cost
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`computations, rating factor, determinations of premium take
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`place at the insurer. So, there's a big difference between a server
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`and a processor as claimed in the '358. Our expert points this
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`out. Second, we don't know where the algorithms are being
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`performed. The only clue to that is that they're being performed
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`Case Nos. CBM2012-00003 and CBM2013-00009
`Patent 8,140,358
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`on the vehicle with a data process logic in the processor on the
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`vehicle.
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`JUDGE LEE: So, my understanding is it's your
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`position, then, you're not exactly sure where the rating factor is
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`generated, but to the extent you can tell, it's only on the vehicle?
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`MR. MYERS: Correct, Your Honor. What Mr. Andrews
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`said, it's not necessarily performed at a remote server or on a
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`distributed network. There is not a preclusion of computations
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`there, but there is no descripti
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