UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS A1\/IERICA, INC. and
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`Petitioner,
`
`V.
`
`SMARTFLASH LLC,
`
`Patent Owner.
`
`Case CBM2014-00199
`
`Patent 8,118,221 B2 .
`
`PATENT OWNER’S RESPONSE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS A1\/IERICA, INC. and
`
`SAMSUNG ELECTRONICS CO., LTD.,
`
`Petitioner,
`
`V.
`
`SMARTFLASH LLC,
`
`Patent Owner.
`
`Case CBM2014-00199
`
`Patent 8,118,221 B2 .
`
`PATENT OWNER’S RESPONSE
`
`
`
`TABLE OF CONTENTS
`
`PATENT OWNER’S LIST OF EXHIBITS ........................................................... .. ii
`
`I.
`
`II.
`
`III.
`
`INTRODUCTION ......................................................................................... .. l
`
`STATEMENT OF MATERIAL FACTS .........
`
`.........
`
`.................................l
`
`THE BLOOM DECLARATION SHOULD BE GIVEN LITTLE OR
`NO WEIGHT ................................................................................................. ..2
`
`A.
`
`B.
`
`No Evidentiary Standard Is Disclosed in the Bloom Declaration.........2
`
`Dr. Bloom Is Not a Disinterested Party ......................................
`
`...... ..3
`
`IV.
`
`CLAIM CONSTRUCTION .......................................................................... ..4
`
`CLAIMS 2 AND 11 OF THE ‘22l PATENT ARE NOT
`
`ANTICIPATED ................................................. ., .......................................... ..6
`
`A.
`
`Claims 1, 2 and 11 ofthe ‘22l Patent ................................................. ..6
`
`B.
`
`Anticipation of Claims 2 and 11 in Light of Ginter ............................ ..7
`
`VI.
`
`CONCLUSION .......................................................................................... .._..42
`
`
`
`PATENT OWNER’S LIST OF EXHIBITS
`
`Exhibit Number
`2001
`2002
`
`Exhibit Description
`,
`I
`} Congressional Record - House, June 23, 2011, H4480-4505 ‘
`I Congressional Record - Senate, Sep. 8, 2011, S5402—5443
`
`
`
`'
`
`2003-2023
`
`Reserved
`
`2024
`
`Samsung’s Motion To Stay Litigation Pending CBM Review
`
`2025-2054
`
`Reserved
`
`2055
`
`Deposition Transcript of Jeffrey A. Bloom dated May 19,
`
`2015
`
`Non-Confidential Portion of Deposition Transcript of Jeffrey
`
`A. Bloom dated May 20, 2015
`
`Confidential Portion of Deposition Transcript of Jeffrey A.
`
`Bloom dated May 20, 2015
`
`Reserved
`
`
`
`I.
`
`INTRODUCTION
`
`The present proceeding involves a single ground for trial: Whether claims 2
`
`and 11 of U.S. Patent No. 8,118,221 are anticipated by
`
`Patent No. 5,915,019
`
`to Ginter et al. (hereinafter “the ‘019 Patent” or “Ginter”) (Exhibit 1023). In
`
`support of this Patent Owner’s Response, reference will be made to concurrently
`
`filed Exhibits 2055-2057: (1) the non—confidential Deposition Transcript of Jeffrey
`
`A. Bloom, PhD., dated May 19, 2015, (2) the non-confidential Deposition
`
`Transcript of Jeffrey A. Bloom, PhD., dated May 20, 2015, and (3) the confidential
`
`Deposition Transcript of Jeffrey A. Bloom, PhD., dated May 20, 2015,
`
`respectively. Those deposition transcripts refer to Exhibit 1003, the Declaration of
`
`Jeffrey A. Bloom, Ph.D. (hereinafter “the Bloom Declaration”).
`
`H.
`
`STATEMENT OF MATERIAL FACTS
`
`1.
`
`The Bloom Declaration does not state that Dr. Bloom’s opinions
`
`presented therein were based on a “preponderance of the evidence” standard.
`
`’ 2.
`
`The Bloom, Declaration does not state that Dr. Bloom’s opinions
`
`presented therein were based on a “more likely than not” evidentiary weight
`
`standard.
`
`
`
`III.
`
`THE BLOOM DECLARATION SHOULD BE GIVEN LITTLE OR NO
`
`WEIGHT
`
`A.
`
`No Evidentiary Standard Is Disclosed in the Bloom Declaration
`
`The Bloom Declaration does not disclose the underlying facts on which the
`
`opinions are based and is, therefore, entitled to little or no Weight. 37 CFR 42.65
`
`(“Expert testimony that does not disclose the underlying facts or data on which the
`
`opinion is based is entitled to little or no weight”). More specifically, the Bloom
`
`Declaration does not state the evidentiary weight standard (e.g., substantial
`
`evidence versus preponderance of the evidence) that Dr. Bloom used in arriving at
`
`his conclusions. Given that there is no evidence that Dr. Bloom even knows how
`
`much weight need be relied upon to show that a claim is nonstatutory, the PTAB
`
`can only afford little or no Weight to the testimony therein. To do otherwise would
`
`be to accept his opinions without knowing “the underlying facts
`
`on which the
`
`opinion is based” (i.e., how much evidence he thinks shows any of his opinions
`
`discussed therein).
`
`For example, when Dr. Bloom opines that he believes a statement to be true
`
`or-that he believes an element is inherently present, is that belief based on less than
`
`a preponderance of the evidence, or more?_ Without his having disclosedwhat
`
`evidentiary standard he used in forming his opinions, and given that there is no
`
`evidence that he even knew what evidentiary standard he was supposed to be
`
`-2-
`
`
`
`using, the PTAB cannot rely on his statements. Thus, the PTAB should find that
`
`his declaration is entitled to little or no Weight.
`
`B.
`
`Dr. Bloom Is Not a Disinterested Party
`
`Dr. Bloom took the position with respect to the ‘22l patent that “The claims
`
`of the '22l
`
`cover nothing more than the basic financial idea of enabling limited
`
`use of paid for and/or licensed content using conventional computer systems and
`
`’ components.” Exhibit 2055, 8114-8. However, as noted in paragraph 5 of the
`
`Bloom Declaration, Dr. Bloom is “currently Director of System Engineering and
`
`Software Development for Conditional Access and Identity Management Systems
`
`for SiriusXM radio.” Dr. Bloom further testified that SiriusXM radio has a product
`
`that enables paid for and/or licensed content to be stored locally and played back
`
`later in a disconnected fashion.
`
`Q. Does SiriusXM have a product or service that enables paid for
`
`and/or licensed content to be stored locally and played back later in a
`
`disconnected fashion from either the Internet or the satellite to which
`
`it received the inf— —- information?
`
`A. Yes, it _does.
`
`Q. Can you describe that product for me, please, Without disclosing
`
`any confidential information?
`
`
`
`A. On-demand content can be downloaded and stored locally and then
`
`played at a later, off-line time.
`
`Q. What's the name of the product that performs thatfunction?
`
`A. It's a feature in our Internet streaming product.
`
`Q. What's the name of the Internet streaming product?
`
`A. SiriusXM Internet Radio.
`
`V
`
`See Exhibit 2056, 179:1—2o.
`
`Moreover, when Dr. Bloom was questioned about the SiriusXM Internet
`
`Radio product
`Dr. Bloom refused to testify about its
`operation alleging that the information was confidential. See e.g. , Exhibit 2057,
`
`193 : 17-194:8; 195 :5-16. However, similarity between his employer’s products and
`
`the claims of the patent would provide Dr. Bloom with a motivation to be biased
`
`against the claims being found to be valid.
`
`IV.
`
`CLAIM CONSTRUCTION I
`
`Petitioner has alleged that ‘v‘For purposes of this CBM review, ‘payment
`
`data’ should be construed to include and be met by data that relates to previous,
`
`present, and/or prospective payment.” Petition at 6. However, “payment data” in
`
`the context of the challenged claims of the ‘22l patent should be interpreted to
`
`
`
`mean “data that can be used to make payment for content” when using a broadest
`
`reasonable interpretation}
`
`The ‘Z21 patent, col. 20, lines 59-62, states “payment data for making a
`
`payment ... is received from the smart Flash card by the content access terminal
`
`and forwarded to an e—payment system.” That is, thepayment data is usedfor
`
`making a payment. Furthermore, as can be seen in Figure l2c_ of the ‘Z21 patent,
`
`step S54 reads “PAYMENT FOR SCHEIVIE OWNER RECEIVED FROM CARD
`
`BY CONTENT ACCESS TERMINAL AND FORWARDED TO e-PAYIVIENT
`
`SYSTEM.” Step S55 then reads “PAYMENT RECORD DATA RECEIVED
`
`FROM e-PAYMENT SYSTEM BY CONTENT ACCESS TERMINAL AND
`
`FORWARDED TO CARD.” Both of those steps precede step S56 which recites
`‘l‘PAYI\/IENT RECORD DATA, PURCHASE REQUEST AND CARD
`REGISTRATION DATA TRANSl\/IITTED TO SCHEME OWNER.” Thus,
`
`“payment data” is not “data representing payment made for requested content
`
`1Patent Owner’s use ofthe “broadest reasonable interpretation” (BRI)
`
`standard herein is not an admission that the BRI standard is the proper standard for
`
`CBM proceedings such as this one. However, for the purposes ofthis proceeding
`
`based on the issues in the instituted proceeding, Patent Owner has presented its
`
`arguments utilizing the BRI standard for “payment data.” Patent Owner reserves
`
`its right to argue for a different standard at a later date or in a different proceeding.
`
`-5-
`
`
`
`l lE EE l l9 l
`
`
`
`
`
`lll 1l
`
`data,” as payment has not yet been madewhen the payment data of step S54 is
`
`sent. Therefore, Petitioner’s requested claim construction for “payment data”
`
`should not be adopted; and “payment data” should be interpreted to mean “data
`
`that can be used to make payment for conten .”
`
`V.
`
`CLAIMS 2 AND 11 OF THE ‘221 PATENT ARE NOT ANTICIPATED
`
`A.
`
`Claims 1, 2 and ll ofthe ‘22l Patent
`
`Independent claim l of the ‘22l patent recites:
`
`l. A dataaccess terminal for retrieving data from a data
`
`supplier and providing the retrieved data to a data carrier, the terminal
`
`comprising:
`
`a first interface for communicating with the data supplier;
`
`a data carrier interface for interfacing with the data carrier;
`
`a program store storing code implementable by a processor; and
`
`a processor, coupled to the first interface, to the data carrier
`
`interface and to the program store for implementing the stored code,
`
`the code comprising:
`
`code to read payment data from the data carrier and to forward
`
`the payment data to a payment validation system;
`
`code to receive payment validation data from the payment
`
`validation system;
`
`code responsive to the payment validation data to retrieve data
`
`from the data supplier and to Write the retrieved data into the data
`
`carrier.
`
`
`
`;
`
`
`
`
`
`I l l 1
`
`Challenged claim 2 depends from claim 1 and recites:
`
`2. A data accessterminal as claimed in claim 1, further
`
`comprising code to transmit at least a portion of the payment
`
`validation data to the data supplier or to a destinationreceived from
`
`the data supplier.
`
`Claim 11 depends from claim 1 and recites:
`
`11. A data access terminal according to claim 1 integrated with
`
`at least one of a mobile communication device, a personal computer,
`
`an audio/video player, and a cable or satellite television interface
`
`device.
`
`B.
`
`Anticipation of Claims 12 and 11 in Light of Ginter
`
`As shown in greater detail below, given that claim 1 of the ‘221 patent is not
`
`anticipated, neither claim 2 nor claim 11 (ie, the challenged claims) is anticipated
`
`either.
`
`1.
`
`Element “1(f)”
`
`The Petition designates as element “1(f)” of claim 1 of the ‘22l patent the
`
`limitation: “code to receive payment validation data from the payment validation
`
`system.” Petition‘ at 35.. With respect to element “1(f),” the Petition alleges that:
`
`
`
`The payment validation system then replies with payment
`
`validation data resulting from the analysis (in, e. g., an administrative
`
`response object); the payment validation data is received by CPU 654
`
`of electronic appliance 600. Ginter at l6l:42—l62:6 (“The
`
`clearinghouse may, as a result of this analysis, may generate one or
`
`more responsive administrative objects that it then sends to the end
`
`user’s electronic appliance 600”), 162:5-6 (“The end user's electronic
`
`appliance 600 may process events that update its secure database 610
`
`and/or SPU 5050 contents based on the administrative object
`
`received”), 162:3 8-64; Bloom at, e.g., W 59, 80-82.
`
`That is, the only element alleged to correspond to the “payment Validation
`
`data” is an “administrative response object.” Dr. Bloom confirmed this in
`
`his deposition when he testified:
`
`Q. Did you base your opinion on the fact that Ginter anticipates
`
`... the challenged claims of the '22l patent based on the fact that
`
`payment validation data is anything other than an administrative
`
`object which is communicated back to a user node as part of a budget
`
`request?
`
`A. No.
`
`Exhibit 2055, 54:3—lO.
`
`
`
`El
`
`E5st
`
`However, the converse is not always true. That is, an administrative object
`
`does not always contain payment validation data. Dr. Bloom expressly testified:
`
`Q. So if I told you that Ginter described an administrative object in a
`
`particular portion of the specification and I didn't tell you what kind of
`
`administrative object it was, you wouldn't know what was in that
`
`administrative object, correct?
`
`A. That's true.
`
`Exhibit 2055, 21:8—14.
`
`1.
`
`Element “‘ l (g)”
`
`The Petition designates as element “1(g)” of claim 1 of the ‘22l patent the
`
`limitation: “code responsive to the payment validation data to retrieve data from
`
`the data supplier and to write the retrieved data into the data carrier.” Petition at
`
`36. With respect to element “l(g)”, the Petition alleges:
`
`Responsive to the payment validation data (e. g., administrative
`
`object) received from the payment validation system (e. g.,
`
`clearinghouse), CPU 654 of electronic appliance 600 retrieves data
`
`’
`
`(e. g., content object) from the data supplier (e.g., external object
`
`repository) and writes the retrieved data into PEA 2600’s secondary
`
`storage, removable/replaceable memory 2622.
`
`
`
`
`
`
`
`232 EEl lEls
`
`In support of that allegation, the Petition cites two paragraphs worth of quotes to a
`
`number of portions of Ginter, but without any substantive analysis of why those
`
`quotes allegedly teach element “l(g)”. In fact, none of the cited sections in either
`
`paragraph actually provide support for such an allegation as none of the cited
`
`sections show “code
`
`to retrieve data from the data supplier and to write the
`
`retrieved data into the data carrier” and/or that the retrieval and writing are
`
`responsive to the payment validation data.
`
`Each of those paragraphs further includes a reference to a number of
`
`paragraphs of the Bloom Declaration. However, those paragraphs (and the
`
`citations to Ginter noted in the cited Bloom Declaration paragraphs) also fail to
`
`show “code
`
`to retrieve data from the data supplier and to write the retrieved
`
`data into the data carrier” and/or that the retrieval and writing are responsive to the
`
`payment validation data.
`
`1.
`
`The First Paragraph of Element “l (g)”
`
`The first cited Ginter section (i.e., 289:67—290:2) listed in the first paragraph
`
`(i.e., the paragraph crossing pages 36 and 37 of the Petition (“the first ‘l(g)’
`
`paragraph”)) as allegedly relating to element “1(g)” asserts that element “l(g)” is
`
`disclosed because “If the transaction is authorized .
`
`.
`
`. the container packager takes
`
`this package of control information and the content and forms an appropriate
`
`container .
`
`.
`
`. the container is transmitted across the network to the end user.”
`
`-10-
`
`
`
`
`
`
`
`
`
`
`
`
`
`iit
`
`EI
`
`lJ E
`
`Petition at 36-37. However, such a citation does not even allege that the container
`
`is written into the data carrier or that the container is written into the data carrier
`
`“responsive to the payment validation data.” In fact, Dr. Bloom confirmed in his
`
`deposition that the container does not inherently include “payment validation data
`
`and that it is not responsive to payment validation data when he testified:
`
`Q. And so when this [paragraph crossing columns 289 and 290]
`
`says, [“]When the container and any transactions related to delivery
`
`have been completed, the container is transmitted across the network
`
`to the end user[“]; it doesn't inherently have payment validation data
`
`in it, correct?
`
`A. Yeah, correct.
`
`Q. And it could be written to a user's VDE not responsive to
`
`payment validation data because it doesn't have any, correct?
`
`A. It could.
`
`Exhibit 2055, 77:2l—78:6.
`
`Page 37 of the Petition then cites 41 :7-12 and alleges that Ginter discloses,
`
`“[a PEA and connected electronic appliance] can securely exchange information
`
`related to a transaction, with .
`
`.
`
`. transaction information flowing back to the card.”
`
`However, such an allegation does not allege What the “information related to a
`
`-11-
`
`
`
`EE
`l2
`
`%e5
`z
`
`
`
`l l : I
`
`transaction” is nor does the cited section show that the “information related to a
`
`transaction” is written “responsive to the payment validation data.”
`
`The Petition then cites to 229: l 8434 (“Portable appliance 2600 may, in one
`
`embodiment, comprise means to perform substantially all of the functions of a
`
`VDE electronic appliance 600. Thus, e. g., portable appliance 2600 may include the
`
`means for storing .
`
`.
`
`. information”). However, such an allegation does not allege
`
`what the “information” is nor does the cited section show that the “information” is .
`
`written “responsive to the payment validation data.” Dr. Bloom confirmed that
`
`when he testified:
`
`Q. Column 229, Lines 18 to 34 does not disclose writing a
`
`retrieved data item into PEA 2600's removable memory in response
`
`to payment validation data received from a payment validation
`
`system, correct?
`
`A. Correct.
`
`Exhibit 2055, 139:3-8.
`
`Page 37 of the Petition then cites 65:61-67 (“Stored in each electronic
`
`appliance secondary memory 652 may be, e. g. ...objects 300 containing VDE
`
`controlled property content and related information”). That cited section,
`
`however, does not disclose that the objects 300 were written “responsive to the
`
`payment validation data” or that responsive to the payment validation data the
`
`-12-
`
`
`
`“CPU 654
`
`writes the retrieved data into PEA 2600’s secondary storage,
`
`removable/replaceable memory 2622” as alleged on page 36 of the Petition. Dr.
`
`Bloom confirmed this when he testified:
`
`Q. So that section [65:61-67] does not disclose, in response to
`
`payment validation data, received from a payment validation
`
`system[,] writing the retrieved data into the PEA's removable,
`
`replaceable memory, correct?
`
`A. No.
`
`Exhibit 2055, 136222-137:4.
`
`The Petition then cites to 230215-19 (“Removable/replaceable memory 2622
`
`may comprise a memory cartridge or memory medium such as a bulk storage
`
`device, for providing additional long-term or short—term storage”). Petition at 37.
`
`That section does not disclose what is stored in the removable/replaceable memory
`
`2622 or Whether What is stored in the removable/replaceable memory 2622 is
`
`written there “responsive to payment validation data.” Thus, none of the citations
`
`in the first “l(g)” paragraph disclose “code responsive to the payment validation
`
`data to retrieve data from the data supplier and to Write the retrieved data into the
`
`data carrier.” '
`
`-13-
`
`
`
`2.
`
`Paragraphs 49, 60 and 82 of the Bloom Declaration
`
`a.
`
`Paragraph 49
`
`I The first “1(g)” paragraph additionally cites to paragraphs 49, 60 and 82 of
`
`the Bloom Declaration. Paragraph 49 of the Bloom Declaration states:
`
`49. When PEA 2600 and electronic appliance 600 are electronically
`
`coupled (for example, wirelessly, or through PEA 2600’s external bus
`
`interface 2606 and electronic appliance 600’s data carrier interface)
`
`electronic appliance 600 may read data from PEA 2600’s secure
`
`database 610 and may Write data to PEA 2600’s
`
`removable/replaceable memory 2622. See Ginter at 41 :7-16, 48:65-
`
`49:14, 65:61-67."
`
`That paragraph, therefore, does not disclose “code responsive to the payment
`
`Validation data to retrieve data from the data supplier and to Write the retrieved
`
`data into the data carrier” as it does not discuss any Writing into the memory 2622
`
`as being responsive to the payment validation data. Indeed, that paragraph cites
`
`Ginter at 41 :7-16 and’65:6l-67, which were discussed above as not showing
`
`Writing into the data carrier responsive to the payment validation data. Paragraph
`
`49 further cites 48:65-49:14, but that section also fails to disclose Writing into the
`
`data carrier responsive to the payment Validation data.
`
`-14-
`
`
`
`b.
`
`Paragraph 60
`
`Without any substantive analysis of the sections that it cites, paragraph 60 of
`
`the Bloom Declaration alleges:
`
`60.
`
`SPU 500 and/or CPU 2616 implement code to, responsive to the
`
`payment validation data (for example, the administrative response
`
`object received from the clearinghouse), retrieve, via the Wireless
`
`interface, selected item(s) of multimedia content from a data supplier
`
`and to Write the retrieved item(s) into removable/replaceable memory
`
`2622. See Ginterat 224:6l-225:6; see also Ginter at 20:23-29, 62:64-
`
`65, 63:34-41, 161:42-162:6, 163:38-61, 175:3-176:1, 184234-40,
`
`209:64-66; 224:66—225:8, 281 :7-l9,«289:67-290:2, 312:6-9.
`
`However, under cross-examination, Dr. Bloom admitted that not a single one of the
`
`thirteen referenced sections listed above disclosed retrieving an item of multimedia
`
`content from a data supplier responsive to the payment validation data, as set forth
`
`in the table below.
`
`Ginter citation Deposition testimony of Dr. Bloom
`
`V
`
`
`
`
`224:6l-225:6
`
`Q.
`
`Is it your understanding of Column 224, Line 61, to 225,
`
`
`
`
`
`
`
`
`Line 6 that Ginter discloses retrieving from a data supplier an
`
`item of multimedia content responsive to receiving payment
`
`validation data?
`
`..15__
`
`
`
`Ginter citation
`
`Deposition testimony of Dr. Bloom
`
`A. No.
`
`Exhibit 2055, 59:21—60:1.
`
`20:23-29
`
`Q. So Column 20, Lines 23 to 29 does not disclose retrieving
`
`from a data supplier an item of multimedia content responsive to
`
`receiving payment validation data, right --
`
`A. It does not --
`
`Q. -— it's a higher level?
`
`A. -— does not describe it at the level that you just described,
`
`right.
`
`Exhibit 2055, 59:21-60:1
`
`62:64-65
`
`Q.
`
`Column 62, Lines 64 to 65 of Ginter do not disclose
`
`retrieving from a data supplier an item of multimedia content
`
`responsive to receiving payment validation data?
`
`A. Correct.
`
`Exhibit 2055, 6l:23—62:2
`
`63:34-41
`
`Q.
`
`Column 63, Lines 34 to 41 do not disclose retrieving from
`
`a data supplier an item of multimedia content responsive to
`
`receiving payment validation data, correct? '
`
`14 A. Yeah, correct.
`
`
`
`
`
`
`
`161:42-162:6
`
`
`
`Ginter citation
`
`
`
`Deposition testimony of Dr. Bloom
`
`
`
`
`
`
` 163:3 8-61
`Q. And so it [163:38-61] does not disclose retrieving data from a
`
`
`
`data supplier responsive to payment validation data, correct‘?
`
`A. Correct.
`
`
` 175 :3—l76:1
`
`Exhibit 2055, 64:22-25.
`
`Having previously testified that he was interpreting payment
`
`validation data as an administrative object (see 54:3-10, 50:24-
`
`51 :4), Dr. Bloom testified:
`
`Q.
`
`That section [175:3-176:1] does not describe
`
`retrieving data from a data supplier responsive to that
`
`administrative object, correct?
`
`A. Correct.
`
`Exhibit 2055, 65:21-25.
`
` 184234-40
`
` Q. And so it [section 184:34-40] doesn't disclose
`
`-17..
`
`Exhibit 2055, 62:10-14.
`
`Q. So it [section 161 :42-162:6] does not disclose retrieving from
`
`a data supplier an item of multimedia content responsive to
`
`receiving payment validation data, correct?
`
`A. Right.
`
`Exhibit 2055, 63 :7—l l.
`
`
`
`Ginter citation Deposition testimony of Dr. Bloom
`
`retrieving data from a data supplier based on payment
`
`validation dat
`
`--
`
`A. No.
`
`Q. —- payment validation data either, correct?
`
`A. Correct.
`
`Exhibit 2055, 66:1-16.
`
`209264-66
`
`Q.‘ ... That section does not describe retrieving data from a data
`
`supplier responsive to payment validation data, does it?
`
`A. No, it doesn't.
`
`Exhibit 2055, 6727-10.
`
`224266-225 2 8
`
`Q. Column 224, Line 66
`
`describes a user obtaining access to a
`
`particular VDE object, but that section in its entirety does not
`
`_
`
`describe receiving data from a data supplier responsive to
`
`payment validation data, does it?
`
`A. That's correct.
`
`Exhibit 2055, 68:16-23.
`
`28117-19
`
`Q. And so it does not discuss receiving data from a data supplier
`
`A. Correct.
`
`responsive to payment validation data, correct?
`
`
`
`
`Ginter citation
`
`
`
`Deposition testimony of Dr. Bloom
`
`Exhibit 2055, 69:23-70:1.
`
`289:67—290:2
`
`
` Q. And so when this says, When the container and any
`
`
`
`
`
`
`
`
`container is transmitted across the network to the end user; it
` doesn't inherently have payment validation data in it, correct?
`
`transactions related to delivery have been completed, the
`
`A. Yeah, correct.
`
`
`
`p
`
`'t
`
`.
`
`n 1 cou
`Ad't
`
`ldb
`
`ewri en oausers
`'ttt
`'VDE t
`
`no res onszve 0
` payment validation data because it doesn't have any, correct?
` A. It could.
`Exhibit 2055, 77:21-78:6.
`
`
`supplier responsive to payment validation data, does it?
`
`. ... That section doesn't disclose retrieving data from a data
`
`
`
`Q
`
`
`
`Exhibit 2055, 73:2-5.
`
`
`A. No, it doesn't.
`
`The second half of paragraph 60 of the Bloom declaration asserts:
`
`In more detail, when selected item(s) of multimedia content are
`
`remotely available, PEA 2600 may, in response to an administrative
`
`object received from the clearinghouse, retrieve the selected items
`
`_19_
`
`
`
`from an object repository. See Ginter at 289:67—290:2. The retrieved
`
`items are then Written into PEA 2600’s secondary storage,
`
`removable/replaceable memory 2622. See Ginter at 229:l8—34, 65:61-
`
`67, 230:15-19.
`
`However, even asserting that “in response to an administrative object received
`
`from the clearinghouse,
`
`the selected items [are retrieved] from an object
`
`repository” does not show that the retrieving is responsive to payment validation
`
`data. Dr. Bloom expressly testified:
`
`Q. So if I told you that Ginter described an administrative object in a
`
`particular portion of the specification and I didn't tell you What kind of
`
`administrative object it was, you Wouldn't know what was in that
`
`administrative object, correct?
`
`A. That's true.
`
`Exhibit 2055, 21 :8-14. Dr. Bloom later testified that paragraph 60 did not disclose
`
`the kind of administrative object paragraph 60 was referring to when he testified:
`
`-20-
`
`
`
`Exhibit 2057, 205:l7—206:l. Thus, Ginter 289:67—290:2 does not disclose
`
`retrieving an item of multimedia content from a data supplier responsive to the
`
`payment validation data.
`
`The remaining three citations in paragraph 60 are similarly deficient in that
`
`they do not teach “The retrieved items are then Written into PEA 2600’s secondary
`
`storage, removable/replaceable memory 2622,” as alleged.
`
`Ginter citation Deposition testimony of Dr. Bloom
`
`
`
`229:l8-34
`
`Q. Column 229, Lines 18 to 34 does not disclose writing a
`
`
`
`retrieved data item into PEA 2600's removable memory in
`
`
`
`
`response to payment validation data received from a payment
`
`validation system, correct?
`
`A. Correct.
`
`Exhibit 2055, 139:3-8.
`
`65:61-67
`
`Q. So that section does not disclose, in response to payment
`
`validation data, received froma payment Validation system[,]
`
`Writing the retrieved data into the PEA's removable, replaceable
`
`memory, correct?
`___{
`
`-21-
`
`
`
`A. No.
`
`Exhibit 2055, 136:24-137:4.
`
`Ginter 230: 15-19 discloses “Removable/replaceable memory 2622 may comprise a
`
`memory cartridge or memory medium such as a bulk storage device, for providing
`
`additional long-term or short-term storage.” However, such a disclosure does not
`
`show that any item is written into such memory responsive to payment validation
`
`data. Thus, Ginter 230:l5-19 also does not anticipate element “l(g)”.
`
`c.
`
`Paragraph 82
`
`Without any substantive analysis of the sections that it cites, paragraph 82 of
`
`the Bloom Declaration alleges:
`
`82.
`
`CPU 654 and/or SPU 500 may implement code to, responsive
`
`to the payment validation data retrieved from the payment
`
`validation system, retrieve data (for example, the requested data
`
`item) from a data supplier (for example, external object
`
`repository). See Ginter at 289:67—290:2, 65:61-67 , 224266-
`
`22528, 20:23-29; see also Ginter at 63:34-41, 161 :42-162:6,
`
`163:38-61, 17523-22, 175247-176:1, l84:34—40, 281229-39,
`
`289:41-290:2, 312:6-9.
`
`-22-
`
`
`
`As described with respect to paragraph 60 and Dr. Bloom’s testimony, set forth
`
`above in the table of section b., Ginter 224:66-225:8, 20:23-29, 63:34-41, 161242-
`
`162:6, 163:38-61, 175:3-22, 175247-176:1, 184:34-40, 281:29-39, 289:41-290:2,
`
`and 312:6-9 do not disclose retrieving from a data supplier an item of multimedia
`
`content responsive to receiving payment validation data. Thus, 289167-290:2 and
`65:61-67 are the only remaining citations in the first portion ofparagraph 82 that
`
`have not already been shown to not teach retrieving from a data supplier an item of
`
`multimedia content responsive to receivingpayment validation data. Those two
`
`sections are similarly deficient as shown below.
`
`Evidence Ginter citation
`
`
`289:67-290:2
`
`“When the container and any transactions related to delivery
`
`have been completed, thecontainer is transmitted across the
`
`network to the end user.” No evidence that the container in the
`
`cited section is retrieved from a data supplier “responsive to the
`
`payment validation data retrieved from the payment validation
`
`system.”
`
`
`65:61-67
`“Stored in each SPU 500 and/or electronic appliance secondary
`
`
`
`
`
`memory 652 may be, for example, an instance of ROS 602
`
`
`software, application programs 608, objects 30t) containing
`
`VDE controlled property content and related information, and
`
`_23_
`
`
`
`ll3
`
`llE
`
`l %
`
`
`
`
`
`
`
`t EE2 EI l
`
`Ginter citation
`
`Evidence
`
`management database 610 that stores both information
`
`validation data retrieved from the payment validation system.”
`
`associated with objects and VDE control information.” No
`
`evidence that the objects or content in the cited section is
`
`retrieved from a data supplier “responsive to the payment
`
`The end of paragraph 82 likewise asserts “Electronic appliance 600 may, for
`
`example, retrieve the selected data item via communications controller 666. See
`
`Ginter at 224:6l—225 :6.” However, such an assertion does not prove that the
`
`selected data item is retrieved responsive to payment validation data. Thus, none
`
`of the sections of Ginter cited in paragraph 82 anticipate element “l(g)”.
`
`3.
`
`The Second Paragraph of Element “l(g)”
`
`The second paragraph of analysis of element l(g) (i.e., the paragraph
`
`crossing pages 37 and 38 of the Petition) likewise fails to prove that Ginter teaches
`
`“code responsive to the payment validation data to retrieve data from the data
`
`supplier and to write the retrieved data into the data carrier.” As a preliminary
`
`matter, as discussed above, Ginter does not disclose “code responsive to the
`
`payment validation data to retrieve data from the data supplier,” so it also cannot
`
`-24-
`
`
`
`i ii l iIi
`
`
`
`
`
`r l liEiE E
`
`disclose writing the-retrieved data into the data carrier because the retrieved data
`
`was retrieved “responsive to the payment validation data” -— which Ginter does not
`
`cm.
`
`Furthermore, While the Petition asserts “CPU 654 of electronic appliance
`
`600 may, e.g., Write a content object into PEA 2600’s removable/replaceable
`
`memory 2622 in response to an administrative object with which the content object
`
`was retrieved,” such an assertion does not show that the “administrative object
`
`with which the content object was retrieved” contains payment validation data or
`
`that the content object is Written responsive to payment validation data. Dr. Bloom
`
`expressly testified:
`
`Q. So if I told you that Ginter described an administrative object in a
`
`particular portion of the specification and I didn't tell you What kind of
`
`administrative object it Was, you Wouldn't know What was in that
`
`administrative object, correct?
`
`A. That's true.
`
`Exhibit 2055, 21:23-14.
`
`The Petition then cites to a number of portions of Ginter as allegedly
`
`supporting the assertion that “a content object [is written] into PEA 2600’s
`
`removable/replaceable memory 2622 in response to an administrative object with
`
`-25-
`
`
`
`which the content object was retrieved.” The first citation is to 162238-64, but Dr.
`
`Bloom testified that:
`
`Q.
`
`Column 162, Lines 38 to 64 --
`
`A. Yeah.
`
`Q. -- do not disclose writing the retrieved data item into a PEA's memory in
`
`response to a payment validation -- sorry -- in response to payment
`
`validation data received from a payment validation system, correct‘?
`
`A. Correct.
`
`Exhibit 2055, 17-25.
`
`The second citation is to 190245-57 which asserts “The BILLING method
`
`map MDE may be delivered either as part of the content object or as a separately
`
`deliverable component that is combined with the control information at
`
`registration.” However, the BILLING method map MDE is not the payment
`
`validation data, as Dr. Bloom testified:
`
`Q. Did you base your opinion on the fact that Ginter anticipates
`
`the challenged claims of the '221 patent based on the fact that
`
`payment validation data is anything other than an administrative
`
`object which is communicated back to a user node as part of a budget
`
`request?
`
`A. No.
`
`-26-
`
`
`
`K,
`
`t ll
`
`:I
`
`EillE
`
`,
`
`
`
`
`
`
`
`Exhibit 2055, 54:3—10.
`
`The remaining sections of the paragraph also do not show “a content object
`
`[is written] into PEA 2600’s removable/replaceable memory 2622 in response to
`
`an administrative object with which the content object was retrieved,” as shown in
`
`the table below.
`
`Ginter citation
`
`Evidence
`
`41:7-12
`
`“The VDE card and the terminal (and/or online connection) can
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