UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`GOOGLE INC. and APPLE INC.
`Petitioners
`
`v.
`
`CONTENTGUARD HOLDINGS, INC.
`Patent Owner
`____________________
`
`Case CBM 2015-000401
`
`U.S. Patent 7,774,280
`Filed October 4, 2004
`Issued August 10, 2010
`Title: SYSTEM AND METHOD FOR MANAGING TRANSFER OF RIGHTS
`USING SHARED STATE VARIABLES
`
`____________________
`
`DECLARATION OF DAVID MARTIN, PH.D.
`
`1 Case CBM2015-00160 has been joined with this proceeding.
`
`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 1
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`

`
`TABLE OF CONTENTS
`
`INTRODUCTION ............................................................................................ 1
`I.
`II.
`BACKGROUND AND QUALIFICATIONS .................................................. 2
`III. MATERIALS CONSIDERED ......................................................................... 5
`IV. PERSON OF ORDINARY SKILL IN THE ART ........................................... 7
`V. APPLICABLE LEGAL STANARDS .............................................................. 7
`VI. OVERVIEW OF THE ‘280 PATENT AND THE ‘012 PATENT ................ 12
`VII. CLAIM CONSTRUCTION ............................................................................ 21
`VIII. THE ‘280 CLAIMS ARE NOT ANTICIPATED BY STEFIK ..................... 28
`VIII.A.
`Stefik and ‘280 Claim 1 ................................................................ 30
`VIII.A.1. “obtaining a set of rights associated with an item, the set
`of rights including a meta-right specifying a right that
`can be created when the meta-right is exercised” ................. 30
`
`Next-Set-Of-Rights Is Not a Meta-right ................ 32
`Copy, Transfer, Loan, And Similar Rights Are
`Not Meta-rights...................................................... 36
`VIII.A.2. “wherein the meta-right is provided in digital form and
`is enforceable by a repository” ............................................. 38
`VIII.A.3. “determining, by a repository, whether the rights
`consumer is entitled to the right specified by the meta-
`right” ..................................................................................... 39
`VIII.A.4. “exercising the meta-right to create the right specified
`by the meta-right if the rights consumer is entitled to the
`right specified by the meta-right” ......................................... 45
`VIII.A.5. “wherein the created right includes at least one state
`variable based on the set of rights and used for
`determining a state of the created right” ............................... 47
`Stefik and ‘280 Claim 5 ................................................................ 47
`VIII.B.
`Stefik and ‘280 Claim 11 .............................................................. 47
`VIII.C.
`THE ‘280 CLAIMS ARE NOT OBVIOUS IN VIEW OF STEFIK .............. 47
`
`IX.
`
`i
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`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 2
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`

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`X.
`
`THE PROPOSED AMENDED CLAIMS ARE PATENTABLE OVER
`THE CLOSEST KNOWN PRIOR ART ........................................................ 52
`Amended 280 Claim 1 Over Closest Known Prior Art ................ 54
`X.A.
`X.A.1. Amended 280 Claim 1 Over Stefik ‘012 .............................. 56
`X.A.2. Amended 280 Claim 1 Over Stefik ‘980 .............................. 57
`X.A.3. Amended 280 Claim 1 Over Ireton ....................................... 58
`X.A.4. Amended 280 Claim 1 Over England ................................... 61
`X.A.5. Amended 280 Claim 1 Over Gruse ....................................... 65
`X.A.6. Amended 280 Claim 1 Over Ginter ...................................... 70
`X.A.7. Amended 280 Claim 1 Over Wyman.................................... 72
`X.B.
`Non-Obviousness of Amended 280 Claim 1 Over The
`Closest Known Prior Art ....................................................... 75
`XI. CONCLUSIONS ............................................................................................. 78
`
`ii
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`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 3
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`

`
`I.
`
`INTRODUCTION
`
`I, Dr. David Martin, declare as follows:
`
`1.
`
`I have been retained on behalf of ContentGuard Holdings, Inc.
`
`(“ContentGuard”), and its counsel, Fitch Even Tabin & Flannery LLP, as an expert
`
`in this proceeding. I am personally knowledgeable about the matters stated herein,
`
`and am competent to make this declaration.
`
`2.
`
`I understand that Google Inc. (“Google”) filed a Petition for Covered
`
`Business Method Review regarding certain claims of United States Patent No.
`
`7,774,280 (“the ‘280 patent”), which was accompanied by the Declaration of
`
`Benjamin Goldberg, Ph.D. I am aware that, after ContentGuard submitted its
`
`Preliminary Response, the Patent Trial & Appeal Board (“PTAB”) issued a Decision
`
`on June 24, 2015 instituting trial only as to claims 1, 5 and 11. I understand that the
`
`trial will address issues of alleged anticipation by U.S. Patent No. 5,634,012 to Stefik
`
`et al. (“Stefik”), and obviousness over the combination of Stefik and the knowledge
`
`of one of ordinary skill in the art. I understand that the Decision did not institute trial
`
`on any other grounds asserted in Google’s Petition.
`
`3.
`
`I have been asked to provide my conclusions and bases thereof regarding
`
`several aspects of the issues in dispute. Based on my investigation in this matter, I
`
`conclude that Google and Dr. Goldberg have not shown that issued claims 1, 5 and
`
`11 of the ‘280 patent are invalid based on Stefik, alone or in combination with the
`
`knowledge of one skilled in the art.
`
`1
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 4
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`

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`4.
`
`I have also been requested to provide my opinion about the patentability
`
`of an amended version of claim 1, proposed in the alternative by ContentGuard. My
`
`analysis and conclusions regarding that subject are also presented below.
`
`5.
`
`I receive compensation at my standard hourly rate of $525 per hour for
`
`my time working on this matter, plus expenses. I have no financial interest in
`
`ContentGuard or in the ‘280 patent, and my compensation is not dependent on the
`
`outcome of this trial. The conclusions I present are due to my own judgment.
`
`6.
`
`I am also engaged by ContentGuard, and its litigation counsel, McKool
`
`Smith P.C., as an expert in the following litigations: ContentGuard Holdings, Inc. v
`
`Google, Inc. (E.D. Tex. Case 2:14-cv-00061-JRG) and ContentGuard Holdings, Inc.
`
`v Amazon.com, Inc., et al. (E.D. Tex. Case 2:13-cv-01112-JRG). My role in those
`
`litigations has included providing opinions rebutting the invalidity theories regarding
`
`the ‘280 patent asserted by the Defendants’ retained experts, Dr. Prakash and Mr.
`
`Ward. I have also provided opinions regarding infringement of the ‘280 patent by
`
`systems of the Defendants.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`I have over 35 years of professional experience with computer software,
`
`7.
`
`and I have worked with the Internet and associated technologies since the late 1980s.
`
`I began using web browsers in 1993. I taught computer science to graduate and
`
`undergraduate computer science students for 10 years. I earned a Ph.D. in Computer
`
`
`
`2
`
`
`
`
`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 5
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`

`
`Science from Boston University in 1999. My Ph.D. research was in the area of
`
`Internet security and privacy. I earned a Bachelor of Science degree with distinction
`
`in Computer Science and Mathematics from Iowa State University in 1993. I have
`
`worked at the University of Denver as an Assistant Professor, at Boston University
`
`as a Research Assistant Professor, and at the University of Massachusetts Lowell as
`
`an Assistant Professor. In these positions, I performed research in the areas of
`
`computer security and privacy on the Internet. I am currently an independent software
`
`consultant.
`
`8. My experience also includes teaching courses in Introduction to Object
`
`Oriented Programming (C++); Foundations of (Theoretical) Computer Science;
`
`Computer Security I: Principles of Cryptography and Network Security; Computer
`
`Security II: Applied Computer Security; Unix Software Tools; Computer
`
`Networking; Introduction to Computer Science II (C++); Introduction to Computer
`
`Science I (C++); Special Topics in Systems: Computer Security; Advanced Unix
`
`Programming; Formal Languages and Automata; Introduction to Computer Science
`
`(C).
`
`9.
`
`I have received the following honors throughout my academic and
`
`professional career: Teaching Excellence Award for U. Mass Lowell Computer
`
`Science Department (2007); Teaching Excellence Award for U. Mass Lowell
`
`Computer Science Department (2004); One of four nominees for Outstanding
`
`Research in Privacy Enhancing Technology Award (2003); Outstanding Teaching
`
`
`
`3
`
`
`
`
`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 6
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`

`
`Fellow, Department of Computer Science, Boston University (1996); University
`
`Graduate Fellowship, Boston University (1993-1994); Top Graduating Senior in
`
`Mathematics, Iowa State University, Spring (1993); Top Graduating Senior in
`
`Computer Science, Iowa State University, Spring (1993); Honorable Mention,
`
`National Science Foundation Graduate Fellowship (1993); Honorable Mention,
`
`Department of Defense Graduate Fellowship (1993); Phi Beta Kappa membership
`
`(liberal arts honor society) (1990); Phi Kappa Phi membership (engineering honor
`
`society) (1990); Pi Mu Epsilon (mathematics honor society) (1990); Upsilon Pi
`
`Epsilon (computer science honor society) (1990); Arthur Collins Foundation
`
`Scholarship, Spring (1992); Dio L. Holl Award for Outstanding Senior, Spring
`
`(1992); Shell Oil Foundation Scholarship, Spring (1991); Barry Goldwater
`
`Scholarship (1989-1990).
`
`10.
`
`I have been a member of the following professional societies: the
`
`Association for Computing Machinery and the Institute for Electrical and Electronics
`
`Engineers.
`
`11.
`
`I have extensive experience analyzing software. For example, I have
`
`examined software from Amazon, Apple, Google, Microsoft, Samsung, Yahoo!, and
`
`other companies, and have written expert reports and testified regarding this and other
`
`software. I have previously reviewed DRM and security software.
`
`12. A true and correct copy of my curriculum vitae is included at the end of
`
`this declaration, which provides further details regarding my background and
`
`
`
`4
`
`
`
`
`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 7
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`

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`qualifications. This CV identifies my publications and a list of all cases in which I
`
`have testified at trial or at deposition.
`
`13. The ‘280 patent concerns hardware and software systems for managing
`
`rights to digital content in computer networks. I recognize this technology as being
`
`well within the sphere of my experience and expertise, and I understand the
`
`technology described in the ‘280 patent fully. I believe my experience and education
`
`in this industry qualifies me to explain this technology and to address the issues of
`
`patent validity from the perspective of a person of ordinary skill in the art. I am
`
`qualified to submit expert analyses in this proceeding.
`
`III.
`
`MATERIALS CONSIDERED
`14.
`I have reviewed and considered the following documents:
`
` U.S. Patent No. 7,774,280 to Nguyen et al. (“the ‘280 patent”)(Ex.
`1001);
`
` U.S. Patent No. 5,634,012 to Stefik et al. (“the ‘012 patent”)(Ex.
`1002);
`
` The prosecution history file for the ‘280 patent;
`
` Google’s Petition for Covered Business Method Patent Review of
`the ‘280 patent (Paper 1), including the exhibits cited therein;
`
` Declaration of Benjamin Goldberg, Ph.D. (Ex. 1014);
`
` Decision – Institution of Covered Business Method Patent Review
`in CBM2015-00040 (Paper 9);
`
`
`
`5
`
`
`
`
`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 8
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`

`
` U.S. Patent Application Publication No. 2002/0077984 to Ireton
`(“Ireton”)(Ex. 2014);
`
` U.S. Patent No. 6,327,652 to England et al. (“England”)(Ex.
`2015);
`
` U.S. Patent No. 6,389,538 to Gruse et al. (“Gruse”)(Ex. 2016);
`
` U.S. Patent No. 5,892,900 to Ginter et al. (“Ginter”)(Ex. 2017);
`
` U.S. Patent No. 5,260,999 to Wyman (“Wyman”)(Ex. 2018);
`
` Decision Denying Institution of Inter Partes Review in IPR2015-00351
`(Ex. 2019);
` Decision Denying Institution of Inter Partes Review in IPR2015-00352
`(Ex. 2020);
` Decision Denying Institution of Inter Partes Review in IPR2015-00353
`(Ex. 2021);
` Decision Denying Institution of Inter Partes Review in IPR2015-00354
`(Ex. 2022);
` Transcript of the deposition of Benjamin Goldberg, Ph.D. dated August
`24, 2015 (Ex. 2010); and
` The additional background materials mentioned below
`declaration.
`15. Naturally, my review of these materials was informed by my education,
`
`this
`
`in
`
`my experience in and knowledge of industry, and my work as both a professor and
`
`consultant.
`
`
`
`6
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 9
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`

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`IV.
`
`PERSON OF ORDINARY SKILL IN THE ART
`16.
`I have been asked to address the issues from the perspective of a
`
`person of ordinary skill in the field of the ‘280 patent. I agree with Dr. Goldberg
`
`that such a person would hold a bachelor’s degree in electrical engineering, computer
`
`science or a related field with a few years (e.g., two years) of experience with digital
`
`content distribution and/or computer security. (Ex. 1014 at ¶10.) I consider myself
`
`to have at least the credentials of a person of ordinary skill in the art, and am
`
`capable of addressing the issues from the perspective of such a person. As a result
`
`of my education, academic experience, and industrial experience, I am familiar with
`
`digital rights management technology and also with the state of that technology in
`
`November, 2001, when the ‘280 patent was first applied for.
`
`V.
`
`APPLICABLE LEGAL STANARDS
`17. As a technical expert, I am not offering any legal opinions. Rather I am
`
`offering technical assessments and opinions. In rendering my analysis, I have been
`
`informed by counsel regarding various legal standards for determining patentability.
`
`I have applied those standards informing my technical opinions expressed in this
`
`report.
`
`18. The patent claims describe the invention made by the inventors and
`
`describe what the patent owner owns and what the owner may prevent others from
`
`doing. I understand that an independent claim sets forth all the requirements that
`
`must be met in order to be covered by that claim. I further understand that a
`
`
`
`7
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 10
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`dependent claim does not itself recite all of the requirements of the claim but refers
`
`to another claim and incorporates all of the requirements of the claim to which it
`
`refers.
`
`19.
`
`It is my understanding that a prior art reference is anticipatory only if it
`
`discloses each and every limitation of the claim (as properly construed) at issue. In
`
`other words, every limitation of a claim must identically appear in a single prior art
`
`reference for it to anticipate a claim. I also understand that for a claim to be
`
`anticipated, each claim limitation must be disclosed in a single prior art reference,
`
`and the claimed arrangement or combination of those limitations must also be
`
`disclosed in that same prior art reference.
`
`20.
`
`I have also been informed that a prior art reference must be enabling to
`
`be anticipating. A prior art reference is enabling when it describes the claimed
`
`invention sufficiently to permit a person of ordinary skill to make the invention
`
`without undue experimentation.
`
`21.
`
`It is my further understanding that a claimed invention is unpatentable
`
`if the differences between the invention and the prior art are such that the subject
`
`matter as a whole would have been obvious at the time the invention was made to a
`
`person having ordinary skill in the art to which the subject matter pertains.
`
`Obviousness, as I understand it, is based on the scope and content of the prior art,
`
`the differences between the prior art and the claim, and the level of ordinary skill in
`
`the art.
`
`
`
`8
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 11
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`22.
`
`I understand that when evaluating obviousness, one must not consider
`
`whether the claimed invention would have been obvious to a layman or to an expert;
`
`not use hindsight when comparing the prior art to the claimed invention; not consider
`
`what was learned from the teachings of the patent, or use the patent as a road map
`
`for selecting and combining items of prior art. In other words, one should avoid using
`
`the challenged patent as a guide through the maze of prior art references, combining
`
`the right references in the right way so as to achieve the result of the claims at issue.
`
`Instead, one must put oneself in the place of a person of ordinary skill at the time the
`
`invention was made and consider only what was known before the invention was
`
`made and not consider what is known today.
`
`23.
`
`I understand that obviousness should be considered in light of the
`
`problem facing the inventor and the complexity of the alternatives for solving the
`
`problem. That individual elements of the claimed invention are disclosed in the prior
`
`art is not alone sufficient to reach a conclusion of obviousness.
`
`24.
`
`I also understand that when considering the obviousness of a patent
`
`claim, one should consider whether a teaching, suggestion or motivation to combine
`
`the references exists so as to avoid impermissibly applying hindsight when
`
`considering the prior art. I understand that the previous approach to motivation to
`
`combine required a teaching, suggestion, or motivation to be found explicitly or
`
`implicitly: (1) in the prior art; (2) in the knowledge of those of ordinary skill in the
`
`art; or (3) from the nature of the problem to be solved. However, I understand that a
`
`
`
`9
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 12
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`more expansive and flexible approach is now used when determining obviousness
`
`and the motivation to combine references. I understand that the legal determination
`
`of the motivation to combine references allows recourse to logic, judgment, and
`
`common sense, but that any such motivation to combine references must still avoid
`
`the improper application of hindsight or reliance on the patentee’s disclosure of his
`
`invention as found in the patent specification, drawings, and claims.
`
`25.
`
`I understand that if the teachings of a prior art reference would lead one
`
`skilled in the art to make a modification that would render that prior art device,
`
`system, or method inoperable, then such a modification would generally not be
`
`obvious. I also understand that if a proposed modification would render the prior art
`
`device, system, or method unsatisfactory for its intended purpose, then there is strong
`
`evidence that no suggestion or motivation existed at the time of the subject invention
`
`to make the proposed modification.
`
`26.
`
`I understand that it is improper to combine references where the
`
`references teach away from their combination. I understand that a reference may be
`
`said to teach away when a person of ordinary skill, upon reading the reference, would
`
`be discouraged from following the path set out in the reference, or would be led in a
`
`direction divergent from the path that was taken by the applicant. It is also my
`
`understanding that the degree of teaching away will depend on the particular facts;
`
`in general, a reference will teach away if it suggests that the line of development
`
`flowing from the reference’s disclosure is unlikely to be productive of the result
`
`
`
`10
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 13
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`sought by the applicant. I understand that a reference teaches away, for example, if
`
`(1) the combination would produce a seemingly inoperative device, or (2) the
`
`references leave the impression that the product would not have the property sought
`
`by the applicant or would no longer achieve the intended purpose(s) of the references
`
`being modified or combined.
`
`27.
`
`I understand that the first step in determining either validity or
`
`infringement is to properly construe the claims. Dr. Goldberg offered interpretations
`
`of a several terms found in the claims at issue, and the Panel’s Decision addressed
`
`the meanings of certain terms. I am advised that the claims are construed in a CBM
`
`proceeding using their broadest reasonable construction in light of the specification
`
`of the patent in which they appear. I understand that, under this standard, claim terms
`
`are given their ordinary and customary meaning as would be understood by one of
`
`ordinary skill in the art in the context of the entire disclosure. The claim language
`
`should be read in light of the specification as it would be interpreted by one of
`
`ordinary skill in the art. I am further advised that the broadest reasonable meaning
`
`given to claim language should take into account any definitions presented in the
`
`specification. I understand that any special definitions for claim terms must be set
`
`forth with reasonable clarity, deliberateness, and precision.
`
`28. My opinions regarding the broadest reasonable meaning that a person of
`
`ordinary skill in the art would give to certain disputed claim terms are also addressed
`
`below.
`
`
`
`11
`
`
`
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 14
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`VI.
`
`OVERVIEW OF THE ‘280 PATENT AND THE ‘012 PATENT
`29. The ‘280 patent is based on and supported by a provisional application
`
`originally filed on November 20, 2001. The ‘280 patent is drawn to specific
`
`technologies in the field of computer security, more specifically, in the area of digital
`
`rights management. Although the Internet has fundamentally altered the way in
`
`which digital content is accessed by consumers, from its earliest days there has been
`
`concern about how owners of content could continue to protect the fruits of their
`
`labor.
`
`30.
`
`In the early 1990s, a team at Xerox’s Palo Alto Research Center, led by
`
`Mark Stefik, obtained a number of patents for their digital rights management
`
`technologies, including the ‘012 patent asserted by Google as prior art against the
`
`‘280 patent in this proceeding.
`
`31. The title of Stefik’s ‘012 patent is “System for Controlling the
`
`Distribution and Use of Digital Works having a Fee Reporting Mechanism.” Stefik’s
`
`solution included introducing the concepts of repositories and usage rights into a
`
`system for content distribution. “Usage rights” signifies rights granted to a recipient
`
`of a digital work, and defining how a digital work can be used and if it can be further
`
`distributed. Each usage right may have one or more specified conditions which must
`
`be satisfied before the right may be exercised. Stefik envisioned that the
`
`“repositories” would be trusted computer entities that embody enforcement elements
`
`in the system. The repositories are trusted to fairly and reliably carry out transactions
`
`
`
`12
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 15
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`in the system. As such, the repositories are required to maintain three types of
`
`“integrities” – physical, communications, and behavioral – in support of the
`
`associated usage rights.
`
`32. Although the DRM architecture of the Stefik ‘012 patent allowed the
`
`publisher of a digital work some control over the usage rights granted to downstream
`
`parties of a distribution chain, this aspect of Stefik’s DRM scheme had certain
`
`limitations. For example, in the ‘012 patent, the usage rights to be associated with a
`
`distributed copy of a digital work are specified parameters of the usage right (e.g.,
`
`transfer, copy, loan) that is invoked to distribute the digital work. Stefik’s mechanism
`
`for permitting a party to create or transfer usage rights to another party could not be
`
`invoked independent of the transactions associated with exercising a usage right to
`
`transfer the content of the digital work to that party. In addition, only a few of the
`
`usage right transactions disclosed in Stefik permit associating usage rights with the
`
`distributed copy of the digital work that are broader than the rights of sender. I
`
`explain these aspects of the Stefik approach in more detail below.
`
`33. The ‘280 patent builds on the innovations taught by Stefik in the ‘012
`
`patent. Recognizing that “business models for creating, distributing, and using digital
`
`content and other items involve a plurality of parties,” i.e., content creators,
`
`publishers, distributors, and end-users (Ex. 1001 at 2:24-26), and that parties residing
`
`upstream in the distribution chain may wish to exercise “control over downstream
`
`parties” (id. at 2:33-34), the inventors of the ‘280 patent developed digital rights
`
`
`
`13
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 16
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`management technologies based on “meta-rights . . enforceable by a repository.” (Id.
`
`at Cl. 1, 15:13-14.) The ‘280 patent addresses limitations of prior DRM systems in
`
`which “the publisher cannot readily control rights granted to downstream parties”
`
`and the schemes are limited by “the concept of simply granting rights to others that
`
`are a subset of possessed right . . . .” (Id. at 2:34-39 and 45-48.)
`
`34. Claim 1 of the ‘280 patent is directed to a computer-implemented
`
`method for transferring rights adapted to be associated with items from a rights
`
`supplier to a rights consumer, the method comprising:
`
`obtaining a set of rights associated with an item, the set of rights including a
`meta-right specifying a right that can be created when the meta-right is
`exercised, wherein the meta-right is provided in digital form and is
`enforceable by a repository;
`determining, by a repository, whether the rights consumer is entitled to the
`right specified by the meta-right;
`and exercising the meta-right to create the right specified by the meta-right if
`the rights consumer is entitled to the right specified by the meta-right,
`wherein the created right includes at least one state variable based on the set
`of rights and used for determining a state of the created right.
`
`(Ex. 1001 Cl. 1.)
`
`35. The ‘280 patent confirms that usage rights define one or more permitted
`
`manners of use of digital content, such as viewing movies and e-books. (Id. at 2:14-
`
`19.) The patent specification states that “[m]eta-rights are the rights that one has to
`
`generate, manipulate, modify, dispose of or otherwise derive other rights.” (Id. at
`
`
`
`14
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 17
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`5:47-49.) Both usage rights and meta-rights are enforced by repositories. The
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`difference between usage rights and meta-rights is the result from exercising the
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`rights: When exercising usage rights, actions to content result. (Id. at 7:23-34.) For
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`example, usage rights can be for viewing, printing, or copying digital content. In
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`contrast, the exercise of meta-rights results in new or altered rights: “When meta-
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`rights are exercised, new rights are created from the meta-rights or existing rights are
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`disposed as the result of exercising the meta-rights.” (Id. at 7:28-31.) Claim 1 is
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`specific to meta-rights that can create a new right when exercised.
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`36. For example, Figure 11 of the ‘280 patent and the accompanying
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`description (Id. at 12:39-56) describes a license embodying a meta-right (shown on
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`the left as item 1101) that is exercised to create instances of a usage right for at least
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`two users (shown on the right in items 1102 and 1103).
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`37. Meta-rights are particularly useful in multi-party, i.e., multi-tier
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`distribution models in which intermediate entities are relied on to issue rights and
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 18
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`distribute content. (Id. at 6:1-8.) For example, Figure 2 of the ‘280 patent shows
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`relationships between content providers, distributors and end users being managed
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`through meta-rights.
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`38. As illustrated, Publisher 210 publishes content for distribution to
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`distributors, such as Distributor 220, which distribute content to retailers, such as
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`Retailer 230. Retailer 230 sells content to end users, such as User 240. (Id. at 6:19-
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`22.) In this model, the parties may negotiate various business relationships with each
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`other, including relationships in which a recipient receives usage rights beyond those
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`possessed by the upstream party. (Id. at 6:22-27.) In such a model, meta-rights permit
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`the Publisher to control what type and how many rights Distributor 220 may grant to
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`Retailer 230, and what type and how many rights the Retailer 230 may grant User
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 19
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`240. (Id. at 6:47-52 and 58-60.) For example, Publisher 210 may grant a meta-right
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`214 permitting Distributor 220 to grant Retailer 230 a usage right derived from the
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`meta-right 214, such as the usage right 214’ to distribute or sell. The meta-right 214
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`also permits the Distributor to derive a meta-right 216, which in turn permits Retailer
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`230 to derive up to 500 usage rights 216’ granting end users the right to view and
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`print the digital work. The retailer may also grant meta-right 218 permitting the user
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`to share rights with other users. (Id. at 6:47-7:3.) The ‘280 patent further explains
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`that the different entities in the chain can be divisions, units or persons that are part
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`of a larger enterprise, which also has other roles, and that any party can be a supplier
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`or a consumer depending on their relationship with the adjacent party in the
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`distribution chain. (Id. at 6:12-15, 61-62.)
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`39. The ‘280 patent also explains that meta-rights can be specified in a
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`number of ways. For example, the patent describes an example of meta-rights being
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`specified using XrML, which is a type of rights expression language that can be used
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`to for meta-rights and usage rights. (Id. at 8:17-24 & Fig. 4.) The specification of a
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`meta-right includes a specific grant, “such as rights to offer usage rights, grant usage
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`rights, obtain usage rights, transfer usage rights, exchange usage rights ….” (Id. at
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`7:45-52.) It may also identify one or more parties to whom the meta-right is granted,
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`and may include conditions and state variables, which control the exercise of the
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`granted meta-right. (Id. at 7:53-58.) The decoupling of meta-rights from associated
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`content allows a content provider to concentrate on the business rules aspect of
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 20
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`content licensing, using appropriate systems optimized for such considerations,
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`without having to become immersed in the minutiae of DRM encodings and
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`enforcement of content.
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`40. Figure 12 illustrates an example of meta-rights containing conditions
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`and state variables used in deriving other rights.
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`A meta-right 1201 grants a distributor the right to issue site licenses for an e-book,
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`but only to affiliated clubs, and subject to the further condition that each site license
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`allow no more than 5 members to simultaneously play the e-book. The meta-right
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`1201 specifies the conditions “affiliated club” and “simultaneous use = 5.” It also
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`Patent Owner ContentGuard Holdings, Inc. - Exhibit 2009, p. 21
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`includes a state variable field 1207 for use in enforcing the affiliated club condition.
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`The meta-right 1201 is exercisable to derive corresponding meta-rights 1202 and
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`1203, granting the Acme and Foo clubs, respectively, the right to create and grant
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`“play” usage rights to their members. Exercising this meta-right creates other meta-
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`rights without action being perform on the content of the e-book. In the derived meta-
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`rights, the state variable field is populated with the particular club identity. The usage
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`rights 1204, 1205, 1206 derived from meta-rights 1202 and 1203 permit individual
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`members to play the e-book, subject to the condition of no more than 5 members of
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`one club playing the e-book simultaneously. (Id. at 12:59-13:8.) The example shows
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`how usage rights to play the e-book can be created for parties downstream of the
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`content provider in a manner controlled by meta-right specified by the content
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`provider. This does not involve exercising any usage rights associated with the e-
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`book and thus takes place without performing action on the e-book’s content.
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`41. The ‘280 patent permits asso