U.S. Patent No. 7,356,482
`Covered Business Method Review
`Patent Owner Preliminary Response
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`Case No. CBM2014-00168
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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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`____________________
`
`Salesforce.com, Inc.,
`Petitioner
`
`v.
`
`Applications In Internet Time LLC,
`Patent Owner
`____________________
`
`US Patent No. 7,356,482
`Issue Date: April 8, 2008
`Title: Integrated Change Management Unit
`____________________
`
`Covered Business Method Patent Review No. 2014-00168
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`_________________________________________________________________
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`PATENT OWNER’S PRELIMINARY RESPONSE TO THE PETITION
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`U.S. Patent No. 7,356,482
`Covered Business Method Review
`Patent Owner Preliminary Response
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`Table of Contents
`Introduction .......................................................................................................... 1
`I.
`II. The petition should be denied because the ‘482 patent is not a covered
`business method patent. ................................................................................... 2
`A.
`The ‘482 patent is not directed to a “financial product or
`service.” ................................................................................................. 2
` The ‘482 patent is directed to a technical invention. ........................... 6
`B.
`III. The claims of the ‘482 patent are definite. ....................................................... 9
`IV. The petition fails to show that any claim is likely invalid in view of
`prior art because two references are not citable and the other
`references lack claim limitations. .................................................................. 17
`A.
`The grounds that rely upon Gordon and Haverstock must be
`rejected because each is a section 102(e) reference. ........................... 21
`1.
`Section 102(e) references do not qualify as prior art in
`covered business method review proceedings. ......................... 21
`2. Gordon and Haverstock are, at best, pre-AIA § 102(e)
`references and therefore do not qualify as prior art in a
`covered business method review proceeding. ........................... 22
`The petition admits that Peters does not invalidate any of the
`claims. .................................................................................................. 23
`The petition admits that Bederson I and Bederson II do not
`invalidate any of the claims. ................................................................ 25
`The petition does not show that Peters in combination with
`Bederson I and/or Bederson II likely invalidate any of the
`claims. .................................................................................................. 29
`V. Claim construction is irrelevant as the petition fails on procedural and
`substantive grounds. ...................................................................................... 30
`VI. Conclusion ...................................................................................................... 31
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`B.
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`C.
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`D.
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`U.S. Patent No. 7,356,482
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`Exhibit List
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`Exhibit 2001 Microsoft Developer Network, Deployment Patterns (available at
`http://msdn.microsoft.com/en-us/library/ff646997.aspx)
`Exhibit 2002 Techopedia definition of a “Program Layer” (available at
`http://www.techopedia.com/definition/24812/program-layer)
`Exhibit 2003 Techopedia definition of a “Layer” (available at
`http://www.techopedia.com/definition/2016/layer-object-oriented-
`design)
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`U.S. Patent No. 7,356,482
`Covered Business Method Review
`Patent Owner Preliminary Response
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`I.
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`Introduction
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`Case No. CBM2014-00168
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`Patent owner respectfully requests that the Board deny the petition for lack
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`of standing, and, in the alternative for failure to show that any claim is likely
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`invalid.
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`The petition for covered business method review of U.S. Patent No.
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`7,356,482 (“the ‘482 patent”) fails because the ‘482 patent is not directed to a
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`financial product or service, and the claims are directed to a technical invention.
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`Because on either basis the ‘482 patent is not a covered business method patent,
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`there is no standing.
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`Regardless of standing, the petition fails to meet procedural requirements
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`and fails to show that any of the claims is likely unpatentable. The petitioner
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`challenges all of the claims for indefiniteness, anticipation and obviousness.
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`Regarding indefiniteness, the petition alleges that the meaning of “layer” does not
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`make sense in the claims. Yet petitioner relies upon an inapt definition. Using a
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`sensible definition, the claims are definite. Regarding the petition’s numerous prior
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`art challenges, two of petitioner’s references are not citable because they are prior
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`art, at best, under pre-AIA § 102(e). The petition admits that the other references,
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`alone and in combination, fail to disclose all limitations of the claims. As such, the
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`petition must be denied for failure to show that at least one claim is likely invalid.
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`II.
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`The petition should be denied because the ‘482 patent is not a
`covered business method patent.
`A. The ‘482 patent is not directed to a “financial product or
`service.”
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`The ‘482 patent has over 18,000 words. Two of those 18,000+ words are
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`“financial” and one is “finance.” Petitioner premises standing on those three words.
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`Those three words, though, when viewed in context are not even about financial
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`products or services, and they do not demonstrate that the subject matter of the
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`‘482 patent is a financial product or service.
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`The ‘482 patent is directed to a software tool for creating application
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`software. The application software being created is business software, and the
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`inventive software tool is itself business software. The ‘482 patent explains that the
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`inventive software tool is especially useful for businesses that are regulated,
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`because changes in regulations impact how their applications software must
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`operate. While some of these regulated businesses might be in finance industries,
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`the inventive software tools is not a financial product or service, even though it
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`might be useful for a finance business in creating finance-related application
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`software. Nothing in the petition contradicts this.
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`Review of the three uses of the word “financial/finance” in context
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`demonstrates that the ‘482 patent is directed to business software. As Senator
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`Leahy explained, even “business software” does not fall within the coverage of the
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`U.S. Patent No. 7,356,482
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`covered business methods if the software is “common in business environments
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`across sectors” and has “no particular relat[ionship] to the financial services
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`sector.” 157 Cong. Rec. S 5402, 5441 (comments of Senator Leahy on the AIA).
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`Within the ‘482 patent’s lengthy “Background of the Invention” section, two
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`paragraphs spaced far apart use the term “financial”:
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`Control of industrial and commercial activities by means of
`federal, state and
`local
`laws, statutes, ordinances and
`regulations ("regulations" herein) is endemic in the United
`States. Examples of activities that are regulated by such
`regulations include: environmental health and safety ("EH&S";
`Titles 7, 10, 29, 30, 40, 42 and 49 of the Code of Federal
`Regulations and related state and local codes); administrative
`procedures applicable to government personnel (Title 5);
`agricultural activities (Titles 7 and 9); creation, use, treatment
`and disposal of nuclear materials (Title 10); conversion and
`distribution of usable forms of energy, power and water (Titles
`10 and 18); banking, financial and securities activities and
`foreign trade Titles 12, 15, 16, 19 and 22); space and
`aeronautical activities (Title 14); commercial trade practices
`(Title 16); food, drugs, cosmetics, medical treatments and
`devices ("FDCMTD"; Title 21); transportation of persons and
`cargo (Titles 23 and 49); housing and urban development (Title
`24); firearms production and
`trade (Title 27); workers
`compensation (Title 29); mining and related activities (Title
`30); national defense activities (Titles 15 and 32); navigation
`and navigable waters (Title 33); education (Title 34); activities
`in and on parks, forests, public lands and other public property
`(Titles 36 and 43); intellectual property activities (Title 37);
`veterans' pensions and relief (Title 38); postal service activities
`(Title 39); public contracts and public property management
`(Titles 41 and 48); public health (Title 42); emergency
`management and assistance (Title (44); grant of public welfare
`and assistance (Title 45); telecommunications (Title 47); and
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`wildlife and fisheries activities (Title 50). Some of the most
`pervasive regulations concern EH&S and FDCMTD activities.
`(‘482 patent, col. 1, lines 13-44).
`…
`A hazardous waste generator must demonstrate that it has the
`financial ability to cover liability claims involving sudden or
`non-sudden discharges from the facility. An owner or operator
`must monitor and inspect all on-site tanks that treat or
`accumulate hazardous waste. A spill or other discharge must be
`reported to the National Response Center ("N.R.C.") within 24
`hours after the incident occurs, and a detailed report on such
`incident must be submitted to the E.P.A. within 30 days after
`the incident. RCRA is enforced concurrently with applicable
`state statutes. (‘482 patent, col. 5, lines 61- col. 6, line 3.)
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`One must look carefully to find the word “financial” in either of these
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`paragraphs. It is not prominent, and the minor placement demonstrates that the
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`‘482 patent is not about financial products or services. Instead, these two
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`paragraphs simply show the numerous regulated industries to which the invention
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`could provide benefit. In the first of these two paragraphs, regulated financial
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`activities are simply part of a long list of regulated businesses and organizations
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`that use business software and could benefit from the invention. The second of
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`these two paragraphs discusses hazardous waste generators, which are another
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`example of regulated businesses that use business software and could benefit from
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`the invention. Neither of these references suggests that the invention is directed to
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`a financial product or service.
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`The third use of the word “financial” is to explain that the business content
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`layer of the disclosed system may include specific details regarding the structure of
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`an organization:
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`The business content layer includes business knowledge,
`logical designs, physical designs, physical
`structures,
`relationships, and data associated with a selected area of
`business activity. A business area can be a functional field
`within an organization, such as finance or human resources, or a
`particular type of business, such as printing or a (specialty) food
`business, for which business-related data must be accumulated
`and managed. The business content layer is defined by and
`referenced in the metadata layer so that the necessary objects,
`tables, columns, relationships, functions, procedures and data
`can be read and updated by the Java data management layer.
`The business content layer may be characterized as a business
`content database. (‘482 patent, col. 12, lines 16-28.)
`Here again, while the term “finance” is used, it is not used to describe a
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`financial product or service.
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`In sum, none of these three minor uses of the term “financial” relates to the
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`disclosure of an invention directed to financial products or services. Furthermore,
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`the ‘482 patent nowhere else discloses a financial product or service. Rather, the
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`‘482 patent is directed to the kind of business software which as Senator Leahy
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`explained, is not specific to the financial services sector and is not “covered.”
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`Petitioner also argues that the ‘482 patent is directed to a “financial product
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`or service” because it was examined by Art Unit 705. As the petitioner admits,
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`though, Art Unit 705 handles patent applications directed to business software.
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`Though Art Unit 705 might have issued some covered business method patents,
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`petitioner’s suggestion that all patents from Art Unit 705 are covered is simply
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`wrong. No presumption should be drawn from this fact.
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`Therefore, the ‘482 patent is not a covered business method patent because
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`the specification and the claims are not directed to a financial product or service,
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`nor is it directed to the administration of a financial product or service.
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`B. The ‘482 patent is directed to a technical invention.
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`The ‘482 patent is directed to technical inventions and solves technical
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`problems using technical inventions. The inventions of the ‘482 patent are directed
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`to a software tool which provides a “relatively seamless system for creating robust
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`solutions without the use of programmers and/or programming.” (‘482 patent, col.
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`9, lines 26-32.) To achieve this, “The invention includes an integrated framework
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`of technical functions for tracking and managing regulatory compliance, non-
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`regulatory requirements and other change-intensive business activities.” (‘482
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`patent, col. 9, lines 64-67.) Software tools inherently provide technical solutions to
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`technical problems.
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`Here, the inventive software tools allows for automatic and dynamically
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`generated functions and interfaces designed to change as regulations in the industry
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`change. Thus, “The most important aspect of the server-based, programming-free
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`model is the system’s ability to create, change and (re)configure the application
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`system at one location and to promptly make the modified application system
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`available elsewhere within the enterprise as well.” (‘482 patent, col. 10, lines 42-
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`46.) Therefore, the ‘482 patent is not a covered business method patent because it
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`is directed to a technological invention.
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`Petitioner points to claim 1 as lacking a technological feature, but admits
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`that all of the elements of claim 1 are technical. Four of these elements are clearly
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`not general purpose computer components: “first layer,” “second layer,” “third
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`layer,” “change management layer.” The petition fails to cite any prior art as
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`showing any of these elements. 1 See Decision Denying Institution of Covered
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`Business Method Patent Review in Experian Marketing Solutions, Inc. v. Rpost
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`Communications Ltd., Case CBM2014-00010, Paper 20 at 9 (PTAB April 22,
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`2014) (“Petitioner’s conclusory language in the petition that none of the steps of a
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`                                                            
`1 If, despite 37 C.F.R. § 42.6(a)(3), the PTAB were to undertake an archeological
`exploration into the fifty page declaration cited in the petition for support, no
`support would be found. The declarant has no apparent expertise in business
`software, and is not shown to even satisfy the minimum requirements of one of
`ordinary skill in the art as proposed by the petition. The declarant has no apparent
`“work experience or research related to database management, data entry, and
`software for data processing and analysis functions,” which is petitioner’s
`definition of one of ordinary skill in the art. Thus, the opinion of the expert is not
`relevant. Perhaps as a reflection of this lack of expertise, on the technological
`invention issue, the declarant simply presents the same unsupported conclusion as
`the petition.
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`claim requires any novel and unobvious technological implementation, or solves a
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`technical problem, without more, is not sufficient to demonstrate that the claimed
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`subject matter is not a technical invention.”) For example, one of these elements is
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`“a change management layer for automatically detecting changes that affect an
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`application.” Certainly, automatic detection of changes that affect an application is
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`inherently technical and it is new. The petition does not and cannot show
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`otherwise. On this basis alone the petition is defective and should be denied for
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`lack of standing.
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`Furthermore, the processing of data in a particular manner at specified layers
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`of a layered model also is technical. See Decision Denying Institution of Covered
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`Business Method Patent Review in GSI Commerce Solutions, Inc., v. Lakshmi
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`Arunachalam, Case CBM2014-00101, pp. 11-12. Thus, even where the claims
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`have application to financial transactions and recite known elements, the petitioner
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`must show that the claims do not recite solving a technical problem using a
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`technical solution. Id. at 12-13. Because the ‘482 patent is not directed to a
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`financial product or service, and the claims recite technical inventions, the ‘482
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`patent is not a covered business patent.
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`III. The claims of the ‘482 patent are definite.
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`Though the petition asserts that claims 1-59 are invalid 35 U.S.C. § 112,
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`paragraph 2, due to indefiniteness, the petition only argues this with respect to the
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`terms “layer” and “change management layer.” However, these terms are definite
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`to a person skilled in the art2 when viewed in light of the specification and extrinsic
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`evidence.
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`Petitioner’s arguments have a fundamental flaw – petitioner uses an inapt
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`definition for the term “layer.” For certain, this term is used in a lot of varied fields
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`of endeavor, including physical fields (e.g., a cake layer or a layer of clothing) and
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`logical fields (e.g., in business software and in computer networking.) The proper
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`definition for “layer” is the one used in the field of business software, such as
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`software tools for creating business software.
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`Instead, petitioner cites definitions from the computer networking field. One
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`of petitioner’s definitions states, “Each layer is responsible for providing specific
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`services or
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`functions
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`for computers exchanging
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`information over a
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`communications network (such as the layers outlined in the ISO/OSI model), and
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`information is passed from one layer to the next.” (Petition p. 29.) The other of
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`2 For the purposes of this response, patent owner does not challenge this standard.
`However, patent owner reserves the right to modify its position should the covered
`business method get instituted.
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`petitioner’s definitions states, “In network architecture…” 3 Thus, both of
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`petitioner’s definitions are clearly related to computer networking, and are
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`therefore not appropriate in the context of business software. Using petitioner’s
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`fundamentally incorrect definition leads to a similarly incorrect interpretation of
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`the claims.
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`Patent owner agrees with petitioner that extrinsic references are useful to
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`demonstrate the meaning of “layer.” Using definitions which are relevant,
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`however, one can readily recognize that the ‘482 patent uses “layer” consistently
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`with the accepted definition. Here are three relevant definitions from extrinsic
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`sources:
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` “Although
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`the concepts of
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`layer and
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`tier are often used
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`interchangeably, the patterns in this chapter make a strong distinction
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`between the two terms. A layer is a logical structuring mechanism for
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`the elements that make up your software solution; a tier is a physical
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`structuring mechanism for the system infrastructure.” (Exh. 2001).
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` “A program layer is an independent operating component of a
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`software program. It works with the rest of the information (and other
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`                                                            
`3 Petitioner relies upon Exhibit 1022 for this quote, but Exhibit 1022 does not have
`any of what petitioner asserts here. It appears that petitioner omitted the relevant
`pages.
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`program layers) according to a certain sequence of data manipulation
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`tasks. Each layer typically interacts with the layers above and below
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`it.” (Exh. 2002).
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` “A layer, in the context of object-oriented design, is a set of classes
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`that share the same module dependencies with other modules,
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`implying that layer components are reusable as long as conditions stay
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`the same.” ( Exh. 2003).
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`These three definitions reflect that a “layer” in the field of business software
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`is “one or more functionally or logically related software components.”
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`The 105 uses of the term “layer” the specification and claims agrees with
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`this definition. It is beyond the scope of this response, though, to demonstrate how
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`each use of the term “layer” is consistent with the definition, but some examples
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`may be helpful. In this regard the specification states (emphasis added):
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`Within the metadata layer, the relevant items (data entry
`forms, etc.) in the business content layer are defined, regulatory
`and non-regulatory changes in these items are implemented,
`and access thereto is provided. Within the business content
`layer,
`the relevant
`items are stored (and changed, as
`appropriate) for the specific business operations of concern to
`the end user. A business area or grouping in the business
`content layer is referenced and described by the metadata layer
`to enable management by the data management layer. The
`system’s four layers, plus the Configuration tools and the End
`User tools, are illustrated in FIG. 1. (‘482 patent, col. 9, lines
`52-63).
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`The metadata model has two main components, a
`business content data dictionary and an application component.
`The data dictionary describes or defines the data elements of the
`application system and the business content layer and how a
`data element is recorded and managed at the database
`management system (DBMS) level. The application component
`primarily
`records procedures
`for manipulating business
`information using data entry forms, worklists, processes,
`documents, reports and business logic. (‘482 patent, col. 12,
`lines 32-42).
`
` A
`
` business area can be a functional field within an
`organization, such as finance or human resources, or a
`particular type of business, such as printing or a (specialty) food
`business, for which business-related data must be accumulated
`and managed. The business content layer is defined by and
`referenced in the metadata layer so that the necessary objects,
`tables, columns, relationships, functions, procedures and data
`can be read and updated by the Java data management layer.
`The business content layer may be characterized as a business
`content database. (‘482 patent col. 12, lines 20-28).
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`layer
`is
`the Java data management
`No part of
`programmed for specific business content. Each procedure used
`by an end user is, or can be, tailored for specific business
`content and for specific user roles. The end user’s system may
`be (re)configured without programming and may be maintained
`without programming. The user interface is generated by the
`interpretation of the metadata layer delivered to the Java data
`management layer. (‘482 patent col. 15, lines 11-18).
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`All of these uses of “layer” conform to the definition that a “layer” is “one or
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`more functionally or
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`logically related software components.” They also
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`demonstrate that the invention is directed to business software, not computer
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`networking.
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`Likewise, the term “change management layer” would be readily understood
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`to one of ordinary skill in the art as “one or more software components that
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`monitors and/or recognizes changes or updates to application metadata in response
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`to pre-defined rules or manual configuration.” This definition also is supported by
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`the specification and the prosecution history. The ‘482 patent includes an extensive
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`description of the change management layer, sometimes also referred to as a
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`“change layer:”
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`E. Change Management Layer
`The change layer primarily involves an intranet or the
`Internet and uses one or more intelligent agents (IA's) that
`continually search on the Web for relevant changes in a selected
`business area. The changes may be regulatory and/or non-
`regulatory, and each IA is defined by rules and constraints that
`focus on the selected business area. When an IA discovers a
`relevant change, the IA obtains all available information
`concerning this change and delivers this information to the Java
`data management layer. A user may configure the system to
`apply pre-defined rules to the change in order to determine
`whether the change information delivered by the IA will be
`accepted and acted upon by the Java data management layer.
`Alternatively, the user may decide manually (or manually
`override the pre-defined rules) whether the delivered change
`information will be accepted and acted upon, or ignored.
`Assume that a data entry form is to be created based on
`the Department Table of the invention. FIG. 6 is a flowchart
`showing the steps used to accomplish this. In step 101, the
`Form Builder function is launched from the Tools Menu. In
`step 103, the form is given a name, and the Department Table is
`selected as the base table. In step 105, one or more fields are
`chosen for incorporation in the data entry form, and the form is
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`uploaded to the network. A maximum of three steps is required
`to create a data entry form using the invention. The data entry
`form and its definition may be assumed to be bug-free, because
`the underlying Form Builder has been thoroughly tested and
`confirmed to generate the correct metadata definition of the
`desired form.(‘482 patent, col. 16, lines 17-60.)
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`The prosecution provides some further support. During prosecution, the
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`applicant distinguished one of the cited references by stating, “Nowhere does
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`Eager disclose or suggest any feature for monitoring applications and detecting
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`changes affecting the application, and in particular a change management layer for
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`‘automatically detecting changes that affect an application”. (Exh. 1002, p. 50,
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`which is the appeal brief filed 8-28-2007 at p. 10). Thus, the definitions for both
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`“layer” and “change management layer” are consistent with the specification and
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`prosecution history.
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`Turning to the claims it can readily be seen that, with an apt definition of
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`“layer,” the claims make sense. Of course, it is petitioner’s burden to show that the
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`claims are likely indefinite. Nonetheless, with the apt definition of layer in mind --
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`“one or more functionally or logically related software components” -- claim 1 and
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`the other claims make perfect sense:
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`1. A system for providing a dynamically generated application
`having one or more functions and one or more user interface
`elements; comprising:
`
`
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`a server computer;
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`Covered Business Method Review
`Patent Owner Preliminary Response
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`Case No. CBM2014-00168
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`one or more client computers connected to the server
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`computer over a computer network;
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`the server computer
`layer associated with
`a first
`
`containing information about the unique aspects of a particular
`application;
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`a second layer associated with the server computer
`
`containing information about the user interface and functions
`common to a variety of applications, a particular application
`being generated based on the data in both the first and second
`layers;
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`a third layer associated with the server computer that
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`retrieves the data in the first and second layers in order to
`generate the functionality and user interface elements of the
`application; and
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`a change management layer for automatically detecting
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`changes that affect an application,
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`each client computer further comprising a browser
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`application being executed by each client computer, wherein a
`user interface and functionality for the particular application is
`distributed
`to
`the browser application and dynamically
`generated when the client computer connects to the server
`computer.
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`Here too, the definition of “change management layer” as “one or more
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`software components that monitors and/or recognizes changes or updates to
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`application metadata in response to pre-defined rules or manual configuration”
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`makes sense.
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`U.S. Patent No. 7,356,482
`Covered Business Method Review
`Patent Owner Preliminary Response
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`Indeed, one need only compare the preamble of claim 1 to the patent
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`Case No. CBM2014-00168
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`owner’s proposed definition of “layer” to see that the proposed definition is
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`correct:
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`Claim 1 preamble
`A system for providing a dynamically
`generated application having one or
`more functions and one or more user
`interface elements
`
`Definition of “layer”
`a
`layer
`is one or more
`functionally
`or
`logically
`related software components
`
`That is, the system of claim 1 dynamically generates applications. The
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`application which the claimed system dynamically generates has one or more
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`functions and one or more user interface elements. Likewise, the system itself (i.e.,
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`the thing that generates the application) comprises multiple layers, and the layers
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`are one or more functionally or logically related software components.
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`The petition argues that how the first, second and third layers are defined in
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`the claims is contradictory. However, these arguments are premised upon a bad
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`definition of “layer” and import limitations and qualities of the claimed elements
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`that simply are not there. Petitioner’s unfounded arguments therefore should be
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`rejected.
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`The petition fails to show that claims 1-59 are likely indefinite. The terms
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`“layer” and “change management layer” have reasonably certain meanings
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`supported by the specification, the prosecution history and extrinsic evidence.
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`Covered Business Method Review
`Patent Owner Preliminary Response
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`IV. The petition fails to show that any claim is likely invalid in view of prior art
`because two references are not citable and the other references lack claim
`limitations.
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`Case No. CBM2014-00168
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`The petition also fails to show that any of the claims are likely invalid. In
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`this regard, the petition asserts that five references anticipate or render obvious the
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`claims. Two of petitioner’s references, Gordon and Haverstock, are at best pre-
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`AIA § 102(e) references. Because claims in a covered business method review
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`cannot be held invalid based upon pre-AIA § 102(e) references, petitioner’s
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`reliance upon Gordon or Haverstock fails.4 The petition fails to show that any of
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`the remaining references, Peters, Bederson I and Bederson II, or their combination,
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`discloses all of the limitations of any of the claims.
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`In addition to the substantive failure, the petition in many places is
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`procedurally defective. In particular, the petition in many places falls short of the
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`requirements of 37 C.F.R. § 42.304(b)(4). For example, the petition includes a
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`table which lists nine grounds of challeng