throbber
trials@uspto.gov
`571-272-7822
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`CBM2014-00190, Paper No. 46
`March 8, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`SAMSUNG ELECTRONICS AMERICA, INC., ET AL,
`Petitioner,
`vs.
`SMARTFLASH LLC,
`Patent Owner.
`- - - - - -
`CBM2014-00190 (Patent 7,334,720)
`Technology Center 2800
`
`Oral Hearing Held: Wednesday, January 6, 2016
`
`
`
`Before: JENNIFER S. BISK; RAMA G. ELLURU; GREGG
`ANDERSON (via video link); and MATTHEW R. CLEMENTS (via video
`link); Administrative Patent Judges.
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`
`CRR, RDR
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`The above-entitled matter came on for hearing on Wednesday,
`January 6, 2016, at 1:35 p.m., Hearing Room B, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
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`APPEARANCES:
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`ON BEHALF OF PETITIONER APPLE:
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`J. STEVEN BAUGHMAN, ESQ.
`Ropes & Gray LLP
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-6807
`202-508-4600
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`CYNDI WHEELER, ESQ. (via telephone)
`Apple Representative
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`ON BEHALF OF PETITIONER SAMSUNG:
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`W. KARL RENNER, ESQ.
`THOMAS ROZYLOWICZ, ESQ.
`Fish & Richardson P.C.
`1425 K Street, N.W., 11th Floor
`Washington, D.C. 20005
`202-783-5070
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`JULIE HAN, ESQ. (via telephone)
`Samsung Representative
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`APPEARANCES: (Continued)
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`ON BEHALF OF THE PATENT OWNER:
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`MICHAEL R. CASEY, PH.D., ESQ.
`Davidson Berquist Jackson & Gowdey LLP
`8300 Greensboro Drive
`Suite 500
`McLean, Virginia 22102
`571-765-7705
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`CBM2014-00190 (Patent 7,334,720)
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`P R O C E E D I N G S
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`(1:35 p.m.)
`JUDGE ELLURU: This is the final hearing for
`CBM2014-00190, Samsung Electronics America, Inc. and
`Samsung Electronics Company Limited versus Smartflash
`LLC; CBM2015- 00118, Apple Inc. against Smartflash LLC,
`which has been consolidated with this case.
`I'm Judge Elluru. To my right is Judge Bisk. And
`appearing remotely from San Jose is Judge Clements and from
`San Diego is Judge Anderson.
`Let's begin with appearances of counsel, starting
`with Petitioner Samsung, please.
`MR. RENNER: Yes, Your Honor. This is Karl
`Renner, and with me is Tom Rozylowicz, and on the phone
`Julie Han.
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`JUDGE ELLURU: Thank you. For Petitioner
`
`Apple?
`
`MR. BAUGHMAN: Your Honor, Steve Baughman
`from Ropes & Gray, and on the phone Cyndi Wheeler from
`Apple.
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`JUDGE ELLURU: And from Patent Owner?
`MR. CASEY: Michael Casey, Your Honor, from
`Davidson Berquist Jackson & Gowdey on behalf of Patent
`Owner Smartflash.
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`JUDGE ELLURU: Thank you. Each party,
`Samsung and Smartflash, will have 15 minutes each of total
`time to present its arguments.
`Petitioner Samsung has the burden so it will go
`first. Then Patent Owner Smartflash will argue its opposition
`to Petitioner's case and then, if Petitioner Samsung has
`reserved any time, Petitioner can use that time for rebuttal.
`Please remember that Judges Clements and
`Anderson cannot see whatever is being projected on the
`screen. So when you refer to a demonstrative on the screen,
`please state the slide number so they are aware of which
`exhibit you are referring to. And also please identify the case
`number to which you are referring when you are referring to a
`particular case.
`I will use the clock on the wall in the hearing room
`to time you and will give you a warning when you are reaching
`the end of your argument.
`Mr. Renner, you may begin when you are ready.
`MR. RENNER: I would like to reserve five
`minutes, Your Honor.
`May it please the Board. I'm Karl Renner here on
`behalf of Samsung Corporation. This proceeding involves just
`two claims of the '720 patent, claims 13 and 14.
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`In our limited time together I would like to focus
`on just three points. First, without dispute, these claims are
`directed to an abstract idea.
`Second, in its briefing Smartflash has focused on
`only three elements, and those three elements themselves are
`abstract in nature and, in fact, per Smartflash's comments in
`the record, they themselves relate to the specific abstract idea
`that was called out for the entirety of the claims.
`And even if those three -- this is a third point --
`even if those three elements were additional to the abstract
`idea, they fail to offer any inventive concept that would
`transform the otherwise abstract concept into a patent eligible
`idea.
`
`Slide 34, please. In slide 34, which is up on the
`screen, we see the abstract ideas that were submitted both by
`the Petitioner's briefing as well as the Institution Decision for
`the '720 patent. You will see these are largely consistent.
`In fact, they involve restricting access to content,
`that is, data, under a license, that is, a set of rules relating to
`payments and usage of content.
`And as we will see, the three concepts that are
`focused upon, the three elements that are focused upon by
`Smartflash all fall within either articulation.
`So it is Samsung's position that whichever
`articulation is chosen, to represent the claim as an abstract
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`idea in undisputed fashion, but the elements that are advanced
`by Smartflash are themselves within that abstract idea.
`Now, Smartflash offers neither evidence nor
`argument to the contrary and, therefore, it is uncontested that
`these claims are directed to an abstract idea, whichever
`articulation is chosen.
`Slide 9, please. To the second point, why do we
`say that these are abstract?
`We look no further than Smartflash's briefing
`themselves, where they tell us that the three elements they
`look to, the three elements of the claims which are produced
`here on this slide number 9, that these are directed to
`addressing piracy, they are core to it, and that the storage of
`digital content and payment data together, it enables content to
`be obtained effectively and legitimately.
`So these elements are directed to the core concept
`of enabling content to be obtained effectively and legitimately.
`Obtaining legitimately. That's licensing content. It's content.
`It's data. These concepts, as they are described by Smartflash
`themselves, fit squarely within the abstraction that is
`articulated with respect to the claims as Your Honors have
`noted and as well as Smartflash -- as well as Samsung.
`And this makes sense. If we boil these claim
`elements down as Ultramercial did, what we see is that their
`functional equivalents are really very basic elements,
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`receiving an access rule, retrieving content, storing the access
`rule, is a routine and conventional activity. And we saw in
`Ultramercial, in fact, that they looked at similar ordinary
`activities and they dismissed them. They said they simply
`instruct the practitioner to implement the abstract idea with
`routine and conventional activities and, as such, they did not
`find them transformative.
`Slide 13, please. As to the third point, to the
`extent that these do transcend somehow and provide something
`additional to the abstract idea, we still note that they fail to
`introduce an inventive concept.
`Smartflash's patent specification reinforces this
`point. It says that these functions can be performed by
`conventional computer components. They didn't introduce
`any transformative content. They don't override conventional
`processing. They simply store things the way that things have
`always been stored.
`We can see this in Bloom's declaration at
`paragraph 23 and at 126. And we see it also endorsed by Dr.
`Bloom in paragraphs 123 to 126 of his declaration where he
`talks about the fact that there is nothing inventive about the
`concepts of receiving or writing data.
`Whether that data is identified as content or access
`rules or payment validation data, it is still data and you are
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`still writing and receiving it. Whether the same location or
`otherwise, again, these are standard computer access problems.
`Also shown in the upper left-hand portion of the
`slide, paragraph 119 of Dr. Bloom's declaration explains that
`the proliferation of radio stations back in the early 20th
`Century, it saw concerns raised about illegitimate use of
`copyright information, concerns about the widespread use very
`easily through radio station broadcasting, concerns that are
`similar to the piracy concerns that are at play here.
`And we saw that Dr. Bloom in paragraph 120,
`which is at the middle of the slide, he recognized the notion of
`Performance Rights Organizations, PROs, such as ASCAP,
`these organizations that were put forward with tracking
`methods that were used to allow regulation of usage according
`to licensing rules.
`If you look at the next slide, 14, paragraphs 124
`and 126 further demonstrate this point. They turn to radio
`station broadcasting agencies, radio stations themselves.
`And in radio stations they have program directors
`using license rules that they knew about, the rules that were
`set forth by licensing regimes ASCAP and otherwise, that
`would inform playlist generation at a radio station.
`So the radio station which had the vinyl and/or
`ultimately CDs, it also had new rules that were enforced by the
`program director by virtue of his creation of playlists. The
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`radio disc jockey would play the content according to these
`rules and would log that content in so that it could later
`comply with licensing regulations.
`JUDGE ELLURU: Counsel, can you please
`respond to Patent Owner's argument that these claims have an
`inventive concept because the content and the access rule is in
`one place?
`MR. RENNER: Yes, Your Honor. Thank you for
`asking. I would say a few things about that. As we earlier
`had mentioned, we believe that this concept is nothing other
`than storing data in a single place. Storing data itself is an
`abstraction that is consistent with the abstract idea articulated
`with respect to the claim itself.
`The storing of data is nothing more than taking the
`same data you are going to use for the licensing, in order to
`observe a licensing you have to have data, and we see there
`are various cases that have addressed the notion of actually --
`of storing content and actually putting data in the same place,
`for instance.
`We have Digitech, the case -- I will skip right to
`that. In Digitech Image Technologies, we found a claim that
`was ineligible. It was directed to a combination of first and
`second data type.
`Now, those were in a profile. The profiles have to
`be stored, of course, but the notion was they pulled two pieces
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`of data together in the profile, and that was claimed, and that
`claim was found to be ineligible. This was not a
`transformative combination.
`We also look to a case like CyberSource where we
`think about storing of data. A computer act clearly has been
`distinguished. We look at general and mirror manipulations of
`data and computer readable medium. And that's all the data
`storage would be.
`So even if these claims were given the credit for
`storing two things in one place, we think, number 1, that's
`consistent with the abstract idea that has been articulated both
`by the Board and by Petitioners in the petition. So we don't
`have an additional element. And if you did look at the
`additional element, you would find no inventive concept.
`Now, additionally we have, as I was mentioning,
`the director at radio stations that were putting together
`playlists. We think those playlists exist at a radio station. So
`did the vinyl. So did the records or the CDs. So at a single
`location in the pre-Internet, pre- computerization era, you
`would actually have the content and you would also have the
`list.
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`You would have the rules that regulated the
`playback of that content. Storage of this is a computer
`operation, which is merely nothing more than doing what is
`conventional.
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`JUDGE BISK: Can you go through that last
`example again?
`MR. RENNER: Pardon me?
`JUDGE BISK: Can you go to that last example
`again? I didn't catch it.
`MR. RENNER: Sure. And it's probably best found
`if we do look here at paragraphs 124 and 126 of Bloom's
`declaration.
`In these paragraphs they do talk about the notion
`of a program director of a radio station. This program
`director's job was to put forth playback lists. Those are lists
`that had not too many and not too few --
`JUDGE BISK: So where are those lists kept?
`MR. RENNER: They are supposed to be kept at
`the radio station so that a disc jockey could have access.
`JUDGE BISK: It's on a computer? The radio
`station is the storage?
`MR. RENNER: So it is a facility.
`JUDGE BISK: The storage facility is the entire
`radio station; is that the analogy we're making?
`MR. RENNER: The location, exactly. It is a
`common location. In the pre-Internet, pre-computerization
`world, before there would have been laptops, before there
`would have been proliferation, in the early 20th Century,
`before computers were used for these kinds of operations,
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`surely there would have been paper records, and at the same
`facility there would be vinyl.
`Later, of course, it would transition to CDs and
`there would be electronic versions I'm sure of the list as well
`and at the same location.
`JUDGE BISK: The radio station is a building with
`both lists in it and records in it?
`MR. RENNER: It may be in the same room where
`the DJ would be operating to play back the record. He is
`going to pull a record, he is going to put it on a turntable, and
`he's going to do so consistent with the playlist that he has in
`his hand.
`
`JUDGE BISK: Okay. And you don't think that
`that would be inventive to have all of that on a tiny thing that
`somebody could put in their pocket?
`MR. RENNER: Well, Your Honor, I think that
`would be a transition to a computerized version of exactly the
`same scenario. I mean, what is the computer representation of
`that activity? If you are looking at that activity, how would
`you computerize it? You would store things.
`JUDGE ELLURU: But clearly a storage room is
`not portable.
`MR. RENNER: Correct. Correct, Your Honor, but
`I don't believe the claim requires portability.
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`JUDGE BISK: And where are the rules in that, in
`your example?
`MR. RENNER: Two places. Number 1, the
`program director himself would know the rules that are the
`licensing restrictions that he's going to apply. Number 2 is he
`creates --
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`JUDGE BISK: So they're not stored at the radio
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`station?
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`MR. RENNER: He is in the radio station,
`presumably. He has got to give the paper to the DJ. And,
`number 2, he creates the list, which would be a list of songs to
`be played back that would have to be followed by the DJ.
`JUDGE BISK: Okay.
`JUDGE ELLURU: And your time is up. If you
`would like to finish up, that would be fine.
`MR. RENNER: Yes, Your Honor. I'll say a few
`words if I could. I wanted to draw analogies to Ultramercial,
`Your Honor. I wanted to make sure that Your Honors had seen
`that in Ultramercial we saw that the Federal Circuit had
`actually identified just a couple elements as additional in a
`long claim.
`If you look at slide number 16, you can see that
`there were many steps articulated that spoke to how you would
`computerize the processes involved with Ultramercial, the
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`processes that were about regulating media access based on
`payment in the form of an advertisement.
`They reduced this down to, in slide number 17,
`showing an advertisement before delivering free content. A
`very short statement, a statement that isn't very detailed at all.
`And they said that the majority, I quote, the
`majority of limitations, that were in that long claim we just
`looked at, they simply describe only the abstract idea and,
`therefore, they focused on only a few additional elements.
`Slide number 18, please. Among those elements,
`updating an activity log, and restrictions on public access.
`These are quite similar to the concepts, at least the first,
`updating an activity log, there they recited restrictions on
`public access. In our claims that we see here there are no such
`restrictions.
`And the Federal Circuit in the Ultramercial cases,
`as you can see at the lower right, they had indicated that these
`claims required intricate and complex computer programming
`and extensive computer interface. We have no similar
`articulation. And still the Federal Circuit found those claims
`to be insufficient.
`They said that they simply instruct the practitioner
`to implement the abstract idea on routine, conventional
`activity. The point is that they were able to look at a
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`computerized version of a practice and to dismiss it
`nevertheless.
`Now, we have seen that the Federal Circuit is not
`only -- it is not challenged by different types of data or
`mundane computer systems like we've talked about, in the
`Digitech computer and the CyberSource cases, but we also saw
`in Ultramercial the final two steps were about writing data.
`So even there they didn't distinguish the writing
`data that they had in that claim as one of the additional two
`abstract steps.
`With that I will reserve the remainder of my time.
`JUDGE ELLURU: Thank you.
`MR. RENNER: Thank you.
`JUDGE ELLURU: You have two minutes
`remaining on rebuttal.
`(Pause)
`JUDGE ELLURU: You may begin.
`MR. CASEY: Thank you, Your Honor. Your
`Honor, a couple points that tie into some of the questions that
`Judge Bisk asked.
`One of the issues that is raised in the Motion to
`Exclude is whether or not the information that Dr. Bloom
`relies on for his discussion of access rules and other
`information is even from the proper time frame.
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`For example, Your Honor, the paragraph 125 of Dr.
`Bloom's declaration, as shown in the Petitioner's
`demonstrative number 12, cites to paragraph 125 and, as you
`can see, Dr. Bloom is discussing not things that predate the
`patent, but he is talking about the programming for Internet
`radio stations that occurred in 2003. So this isn't relevant to
`the question of what was conventional at the time. And that's
`an important thing to keep in mind.
`One of the other issues, Your Honor, is that it is --
`Petitioner indicated a number of times where he said that it is
`without dispute that the claims are directed to an abstract idea.
`That is still, even if Patent Owner says nothing about that, it is
`still the Petitioner's burden to prove that the claims are
`directed to an abstract idea.
`The briefs focused on step 2, but it is -- the Patent
`Owner could have filed no response and it would still be the
`burden of the Petitioner to prove that these are directed to an
`abstract idea, to move on to the second step.
`In addition, Your Honors, it is undisputed,
`although we heard Petitioner discuss a number of times that
`this is all conventional processing, it is undisputed that the
`petition does not show the existence of code responsive to the
`payment validation data to receive at least one access rule
`from the data supplier and to write the at least one access rule
`into the data carrier, where the at least one access rule
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`specifies at least one condition for accessing the retrieved data
`written into the data carrier, the at least one condition being
`dependent upon the amount of payment associated with the
`payment data forwarded to the payment validation system, as
`claimed at the end of claim 3 of the '720 patent.
`As a result, Your Honor, by this omission alone,
`the Petitioner cannot show that this is a conventional system.
`The Patent Owner described the fact that this element is
`undisputed as not being present within the law -- sorry, the
`abstract idea of controlling access to and providing control of
`content.
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`So, Judge Elluru, you look like I have lost you.
`JUDGE ELLURU: I am not sure I follow your
`argument.
`MR. CASEY: Okay.
`JUDGE ELLURU: What is undisputed, that that is
`not part of the abstract idea?
`MR. CASEY: The Petitioner has not shown that
`such an element existed. And as a result --
`JUDGE ELLURU: In the prior art?
`MR. CASEY: In anywhere, Your Honor, yes.
`JUDGE BISK: Is that required to be an abstract
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`idea?
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`CBM2014-00190 (Patent 7,334,720)
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`MR. CASEY: Is it required to be an abstract idea?
`If they are going to show that the claims are directed to
`nothing more than the abstract idea --
`JUDGE BISK: So you are saying step 2?
`MR. CASEY: Step 2, Your Honor, yeah.
`JUDGE BISK: Okay.
`MR. CASEY: The claim can become more than an
`abstract idea if it has got elements in it that aren't found
`anywhere in the prior art. And that's the issue. The Petitioner
`does not ever state that that element was known.
`And, in fact, the Petitioner's expert was questioned
`about that on direct -- on cross- examination during his
`deposition, and he admitted that that was not actually present.
`In addition, Your Honor, the Patent Owner
`discussed a number of elements. I have put up slide 2 of
`Petitioner's demonstratives, and it is claims 3 and 13, claim 13
`being the dependent claim off of claim 3, and claim 13 being
`one of the two claims at issue.
`As we look at Dr. Bloom's testimony, Dr. Bloom
`indicated that alternatives exist for not only the code to
`repayment data, the code to repayment validation data, the
`code responsive to the payment validation data, the code
`responsive to the payment validation data to receive at least
`one access rule, and also that the access rule is written into
`the data carrier and that the condition of the access rule is
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`CBM2014-00190 (Patent 7,334,720)
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`dependent upon the amount of payment associated with the
`payment data forwarded to the payment validation system.
`So Dr. Bloom has admitted there is actually
`nothing from any of the codes that is required in order to meet
`the limitation of providing access to -- providing controlled
`access to the data that is stored on the data carrier. As a
`result, it is significantly more than just a claim to the abstract
`idea itself. There is nothing that is required as each of these
`things has alternatives that are present.
`And, in fact, Your Honor, we set forth in the
`Patent Owner's response claim charts showing, or a
`comparison chart showing how these claims compare with
`Ultramercial -- sorry, with DDR. And, in fact, Your Honor,
`there is a direct correlation between the kinds of elements in
`DDR and the kinds of elements recited in claim 3 of the
`patent.
`
`And, for example, Your Honor, the last step of
`using data received -- sorry, retrieved, in the DDR claim
`directly parallels both the code responsive to payment
`validation data to write the retrieved data into the data carrier
`and code responsive to the payment validation data to receive
`at least one access rule from the data supplier. I won't read
`the whole limitation because I'm sure you are well aware of it.
`As a result, this is a mechanism by which you can
`see that claim 3 and claim 13 is directed to not just the
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`CBM2014-00190 (Patent 7,334,720)
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`
`
`abstract idea but more and, as a result, it meets the
`requirements for 35 U.S.C. 101, patent eligibility.
`Moreover, Your Honor, claim 14 is directed
`towards the actual, an actual number of specific types of
`hardware that are -- into which the data access terminal of
`claim 3 is integrated, again, showing that it is not limited to
`the abstract idea.
`Your Honor, for claim 14 the -- sorry, for both
`claims 13 and 14, as I mentioned earlier, Dr. Bloom agreed
`under cross- examination, Exhibit 2057, page 159, lines 14 to
`18, that his report doesn't even allege with respect to the '720
`patent that "the reporting requirements changed for any of the
`Performance Rights Organization based on the price of the
`sound recording being administered."
`And when asked if the report does allege that, his
`answer was no, the report doesn't say that.
`So Dr. Bloom doesn't say that this is all directed
`towards conventional activity. Instead, the system is directed
`to more than the abstract idea of controlling access to content.
`It is directed towards a particular system for performing that
`function.
`
`And as one can see from slide 8 of Patent Owner's
`demonstratives, none of the code elements are required in
`order to meet this alleged abstract idea.
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`CBM2014-00190 (Patent 7,334,720)
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`
`In addition, Your Honor -- excuse me just one
`second, Your Honor. Sorry, Your Honor, I misplaced my
`notes.
`
`Sorry, Your Honor. In addition, with respect to
`claim -- sorry, with respect to claim 3 and 13, it is important
`to see that the alternatives described by Dr. Bloom are not
`only alternatives that can be for some of the elements.
`Alternatives can be used for all of the elements. And, as a
`result, Dr. Bloom admitted that you can build data access
`terminals as in claim 3 but without the various code elements
`while still enabling limited use of paid for and/or licensed
`content.
`
`And that's important because the argument that is
`made by Petitioner is that the abstract idea itself is what is
`covered. And really it is elements of code that perform a
`particular implementation that is more than just the abstract
`idea of storing content.
`The Petitioner argued that, in fact, a radio station
`itself performs all of these things. But, as Judge Bisk
`mentioned, the system doesn't write the access control
`information, the at least one access rule into the data carrier in
`a situation where you have a radio station.
`It may be stored in the head of the program
`director, but the access rule is not stored in the data carrier
`itself, the thing into which both payment -- sorry, from which
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`CBM2014-00190 (Patent 7,334,720)
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`payment validation -- sorry, payment data was read and the
`thing into which the content itself was downloaded and
`written.
`
`This is not a system that is similar to playing a
`record or a DVD in the prior art. It is not the computerization
`of the manual process. This is a transformation to a situation
`where the content is stored with the rule and, as a result, is a
`transformative change.
`In addition, Your Honor, as noted in claim 13, a
`number of the devices are specific devices, such as mobile
`communication devices, which, if the Petitioner's argument is
`that these were all conventional, there were no such devices at
`the time.
`
`So, Your Honor, in summary, the point that I
`wanted to make was it is uncontested that at least one of the
`elements was not known as a conventional element.
`The code systems or code pieces themselves
`provide evidence that this is not directed to an abstract idea
`because there are alternate ways to perform this, and both
`claims 13 and 14 should be found to be directed to eligible
`subject matter.
`JUDGE ELLURU: Counsel, your time has expired.
`I will give you another minute to wrap up if you would like it.
`MR. CASEY: No, Your Honor, that's fine.
`JUDGE ELLURU: Thank you, Mr. Casey.
`
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`CBM2014-00190 (Patent 7,334,720)
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`Mr. Renner, when you are ready.
`MR. RENNER: Your Honor, thank you. First I
`would like to address the notion of burden of proof. We saw
`in the preliminary Patent Owner proceeding in the Institution
`Decision an abstract idea was, indeed, recognized based on the
`proofs that were put forth in the petition and the proofs
`therein.
`
`Additionally, at that time in the scheduling order it
`said any arguments for patentability not raised in the response
`would be deemed waived. So we believe there would be a
`waiver in terms of there was no counter provided.
`Additionally, Your Honor, with respect to the
`DMCA, I just call Your Honor's attention to the --
`JUDGE BISK: I'm sorry. Can you explain exactly
`what they waived, what arguments they waived?
`MR. RENNER: My apologies. So we believe that
`we put forth an adequate amount of evidence to satisfy the
`burden and establishing the abstract idea. We believe Your
`Honors evaluated that and found that burden to have been
`satisfied. There were no arguments put forth by Smartflash
`that the burden had not been met.
`And in the scheduling order we see that there is a
`request for arguments that would be placed into the record to
`be there, otherwise be waived.
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`CBM2014-00190 (Patent 7,334,720)
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`If you look at slide number 12, this is the slide
`relating to the DMCA, there is briefing on this with respect to
`the Motion to Exclude, but I would just call your attention to
`the last sentence in the paragraph that indicates these
`restrictions formalized requirements and limitations that had
`been previously informally adopted. This was the testimony,
`uncontested testimony of Dr. Bloom, so the data is not
`believed to be in question with respect to the DMCA.
`And when you look at this, among the listed items,
`it is no more than two played consecutively and no more than
`three played consecutively. Quite clearly DMCA contemplates
`that there is a consumption, that the more you access the more
`you pay, is a limitation there that is actually in the art
`demonstrated. Pay more, get more, if you will.
`Your Honor, it is undisputed that when you read
`the claim into the record, any of the claims of many cases that
`we have had at the Federal Circuit would not be fully
`demonstrated in the prior art because they have been
`computerized. The prior art practices have been computerized.
`The whole point of claims that are about
`computerization is they introduced basic computerization
`techniques. Storing of data we believe to be precisely the
`same.
`
`We can see this illustrated, if you will, in the
`Accenture case, which I've reproduced a page of, which just
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`CBM2014-00190 (Patent 7,334,720)
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`shows the claim -- if we can get this -- where they are
`specifying here a relations

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