EXHIBIT 1002
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`TO PETITIONER GOOGLE INC.’S
`PETITION FOR COVERED BUSINESS
`METHOD REVIEW OF
`U.S. PATENT NO. 8,118,221
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`TO PETITIONER GOOGLE INC.’S
`PETITION FOR COVERED BUSINESS
`METHOD REVIEW OF
`U.S. PATENT NO. 8,118,221
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`GOOGLE INC.
`Petitioner
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`v.
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`SMARTFLASH LLC
`Patent Owner
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`U.S. Patent No. 8,118,221
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`_____________________
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`Covered Business Method Review Case No. Unassigned
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`_____________________
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`DECLARATION OF DR. JUSTIN DOUGLAS TYGAR
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`1
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`Google Exhibit 1002 Page 00001
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`I, Dr. Justin Douglas Tygar, declare as follows:
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`I have been retained as an expert witness on behalf of Google Inc. (“Google”
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`or “petitioner”) in connection with the instant Covered Business Method
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`(“CBM”) review petition.
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`1.
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`2.
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`I am being compensated for my time in connection with this CBM review at
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`my standard consulting rate, which is $500 per hour up to a maximum of
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`$5,000 per day. My compensation is not dependent on the substance of my
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`opinions, my testimony, or the outcome of this CBM review.
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`3.
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`I understand that the petition for CBM review involves U.S. Patent No.
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`8,118,221 (“the ’221 patent”), Ex. 1001.1
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`4.
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`I have reviewed and am familiar with the ’221 patent, including claim 3 (the
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`“challenged claim”). I have reviewed and am familiar with six patents
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`related to the ’221 patent: U.S. Patent Nos. 7,334,720, 7,942,317, 8,033,458,
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`8,061,598, 8,336,772, and 8,794,516. I have reviewed and am familiar with
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`the file histories for the ’221 patent and the six related patents.
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`5.
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`I am familiar with the general state of the technology at issue in the ’221
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`patent as of October 25, 1999, its purported priority date.
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`1 All references to “Ex. __” in this declaration refer to the Google Exhibits
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`concurrently filed with Google’s CBM petition.
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`2
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`Google Exhibit 1002 Page 00002
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`In preparing this declaration, I have considered each of the documents cited
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`herein. I have also relied on my experience in the relevant art in connection
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`with forming my opinions.
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`QUALIFICATIONS
`Since 1998, I have been a Full Professor at the University of California,
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`Berkeley. I hold a professor position in two departments at U.C. Berkeley:
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`the Department of Electrical Engineering and Computer Sciences (Computer
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`Sciences Division) and the School of Information. Before joining U.C.
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`Berkeley, I was a tenured professor at Carnegie Mellon University in
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`Computer Science, where I had a faculty appointment since 1986. I received
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`my Ph.D. in Computer Science from Harvard University in 1986. I have
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`extensive research, teaching, and industry experience in the areas of
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`computer security and electronic commerce, with a special research interest
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`in digital rights management as it relates to those areas.
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`6.
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`I.
`7.
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`8.
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`I have helped build a number of security and electronic commerce systems.
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`Together with my colleague at Carnegie Mellon, Marvin Sirbu, I developed
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`Netbill, a patented electronic payment system that was licensed to
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`CyberCash (now part of Verisign). For the U.S. Postal Service, I designed
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`the two dimensional “Information Based Indicia” postage indicia that have
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`now become a widely used standard. Together with my graduate students, I
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`3
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`Google Exhibit 1002 Page 00003
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`designed the architecture and a foundational operating system used on
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`secure coprocessors, Dyad. Together with my graduate students, I designed
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`Micro-Tesla, a light-weight cryptographic architecture that ultimately
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`became a standard of the Internet Engineering Task Force and is widely used
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`in sensor webs.
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`9.
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`I served as chair of the Defense Department’s ISAT Study Group on
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`Security with Privacy and was a founding board member of the Association
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`for Computing Machinery’s Special Interest Group on Electronic Commerce.
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`10.
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`I have written three books, including Secure Broadcast Communication in
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`Wired and Wireless Networks (with Adrian Perrig), which has become a
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`standard reference. My fourth book, Adversarial Machine Learning, is
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`scheduled to be published by Cambridge University Press in 2015.
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`11.
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`I have been an active researcher in the fields of computer security and
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`electronic commerce continuously since 1982.
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`12. My complete curriculum vitae is submitted as Google Exhibit 1003.
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`13. My findings explained in this declaration are based on my years of education,
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`research, and industry experience in computer security and e-commerce
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`technologies, including as applied to digital rights management.
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`4
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`Google Exhibit 1002 Page 00004
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`II. LEVEL OF ORDINARY SKILL IN THE ART
`14. Counsel for the petitioner asked me to provide an opinion regarding the skill
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`level of a person of ordinary skill in the art of the ’221 patent as of October
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`25, 1999.2
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`15. Counsel for the petitioner has informed me that the hypothetical person of
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`ordinary skill in the art is presumed to have knowledge of all references that
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`are sufficiently related to one another and to the pertinent art, and to have
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`knowledge of all arts reasonably pertinent to the particular problem that the
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`claimed inventions address. A person of ordinary skill is capable of drawing
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`inferences and taking creative steps.
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`16.
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`In my opinion, a person of ordinary skill in the art with respect to the ’221
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`patent would have had at least a Bachelor’s degree in computer science or
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`equivalent experience.
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`17. My understanding of a person of ordinary skill in the art is based on my
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`education and professional experience. Since 1986, I have been a computer
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`2 All opinions that I express in this Declaration with respect to the ’221
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`Patent, its disclosure, the construction and scope of its claims, the validity of its
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`claims, and the scope and content of the prior art are from the perspective and view
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`of what a person skilled in the art would have understood, regardless of whether I
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`expressly identify it as such.
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`5
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`Google Exhibit 1002 Page 00005
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`science professor and I have been teaching undergraduate, masters, and
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`doctoral students in computer science, and I am familiar with the abilities of
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`students at those levels of education. A person with a computer science
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`degree would understand and be able to practice the teachings of the asserted
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`patents, including understanding their descriptions of systems and devices
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`and associated hardware and functionality.
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`18.
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`I received my doctoral degree in computer science in 1986, and have
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`actively been a computer science professor researching topics in computer
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`security, electronic commerce, and distributed systems since that time, so in
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`the late 1990s, I had far exceeded the education and experience of a person
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`of ordinary skill in the art.
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`III. STATE OF THE ART
`19. By October 25, 1999, both e-commerce and anti-piracy methods for digital
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`content were well understood concepts. For example, WO 99/07121 A2 (Ex.
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`1004), describes fundamental aspects and features of e-commerce including
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`browsing content for purchase, payment verification, and digital delivery of
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`purchased content. Ex. 1004 at Abstract. As another example, U.S. Patent
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`No. 5,790,423, which was filed on June 13, 1995, and which issued on
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`August 4, 1998, is directed to anti-piracy methods in the context of digital
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`content distribution systems and discloses a system for distributing audio
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`6
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`Google Exhibit 1002 Page 00006
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`content from a remote source over the Internet in which use rules for
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`satisfying copyright protection criteria are coded into the control program.
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`Ex. 1005 at 11:60-12:59.
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`20. By October 1999, I had personally worked on e-commerce and anti-piracy
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`projects such as the NetBill project, the Dyad project, and the development
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`of electronic postage metering services for the USPS.
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`21. By October 1999, multiple commercial services combining e-commerce and
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`anti-piracy elements had launched.
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`22. For example, from 1998 on, the Softbook ebook system was commercially
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`available. Ex. 1006 (SOFTBOOK PRESS Secure Information Delivery to a
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`Distributed Workforce, CIO Magazine, Aug. 1, 1999) at 4. This system
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`involved a handheld ebook-reader device that could be plugged into a phone
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`line to download material available from Softbookstore, an e-commerce site
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`from which books and trade journals could be purchased. Id.; see also Ex.
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`1007 (Electronic books to hit the shelves, New Straits Times, Aug. 24, 1998,
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`Computimes) at 27. In the Softbook system, “[i]nformation is encrypted to
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`prevent duplication, and the system is secure to prevent unauthorized use.”
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`Ex. 1006 at 4.
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`23. Similarly, prior to 1999, Liquid Audio developed, licensed, and deployed
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`software and systems for the sale, delivery, and playback of digital music.
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`7
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`Google Exhibit 1002 Page 00007
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`In October 1997, it published through its website a document entitled
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`“Music on the Net,” which describes its platform for selling copy-protected
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`files over the Internet. Ex. 1008 (Image of Liquidaudio.com cached October
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`10, 1997; Linked “Music on the Net” Research Report) at 19. The document
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`also describes competing services such as Cerberus and Eurodat, which also
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`sold digital music in 1997. Id. The Eurodat service incorporated “an anti-
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`piracy mechanism that ensures that downloaded music can only be played
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`from the server it was encoded on.” Id.
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`24. Liquid Audio extensively promoted its platform in 1998 through programs
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`such as its Indie 1000 program, which provided artists with a turn-key
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`solution for secure sales of digital content. Ex. 1009. This program
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`emphasized the combination of anti-piracy measures with e-commerce
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`functionality: “The Liquid Audio system combines sophisticated multi-layer
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`encryption with inaudible digital watermarking technology to protect your
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`intellectual property. This advanced system provides the most
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`comprehensive, anti-copy and anti-piracy technology available today . . .
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`When a music fan wants to buy your music they just click on ‘Buy
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`Download’ in the Liquid MusicPlayer and enter the necessary payment
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`information. You determine the price for the songs.” Id. at 2.
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`8
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`Google Exhibit 1002 Page 00008
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`25. The examples above show that the combination of e-commerce systems with
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`anti-piracy measures was well-established both in theory and in commercial
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`practice by October 25, 1999.
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`IV. OVERVIEW OF THE ’221 PATENT
`26. The ’221 patent states that its alleged invention “relates to a portable data
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`carrier for storing and paying for data and to computer systems for providing
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`access to data to be stored.” Ex. 1001 at 1:20-23. The ’221 patent states that
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`the alleged “invention is particularly useful for managing stored audio and
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`video data, but may also be applied to storage and access of text and
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`software, including games, as well as other types of data.” Id. at 1:25-28.
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`The stated goal of the ’221 patent is to respond to the “urgent need to find a
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`way to address the problem of data piracy.” Id. at 1:49-55.
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`27. The ’221 patent describes the core of its supposed invention as “a method of
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`providing portable data comprising providing a portable data storage device
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`comprising downloaded data storage means and payment validation means;
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`providing a terminal for internet access; coupling the portable data storage
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`device to the terminal; reading payment information from the payment
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`validation means using the terminal; validating the payment information;
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`and downloading data into the portable storage device from a data supplier.”
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`Id. at 1:60-67.
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`9
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`Google Exhibit 1002 Page 00009
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`28. Data storage means and data encryption were conventional technologies as
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`of October 1999. The ’221 patent provides various suggestions for the data
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`storage means and the optional data encryption used in its system. Id. at
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`2:44-3:45. The specification identifies FLASH RAM as a known example
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`of data storage means; the specification identifies Pretty Good Privacy and
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`PKI (Public Key Infrastructure) as known examples of data encryption. Id.
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`29. The ’221 patent also describes a portable data carrier that could be integrated
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`into mobile communications devices. Portable data carriers were also
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`known and conventional hardware as of October 1999. The ’221 patent
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`specification identifies a “standard smart card” as an example of known
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`portable data carriers. Id. at 11:29.
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`30. The ’221 patent also describes the use of rules to govern access to stored
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`data. Id. at 4:38-5:16. The specification identifies known examples of such
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`rules, including “specify[ing] . . . a predetermined number of accesses” and
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`allowing “unlimited plays but only on specified players.” Id. at 23:33-41.
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`31. The specification of the ’221 patent also discloses that the alleged invention
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`uses e-payment systems known at the time of its filing, such as MONDEX,
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`Proton, and Visa, for payment and payment verification functions. Id. at
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`13:35-55.
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`10
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`Google Exhibit 1002 Page 00010
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`V. CLAIM CONSTRUCTION
`32. Counsel for the petitioner has informed me that terms in the challenged
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`claims must be given their broadest reasonable construction in light of
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`the ’221 patent’s specification, which means that the words of the claims
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`should be given the broadest possible meaning that is consistent with the
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`statements of the specification.
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`“Use Rule Data”
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`33. The Board wrote in Apple Inc. v. Smartflash LLC, CBM2014-00112,
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`CBM2014-00113, Paper 7 at 4 (Sept. 30, 2014) that “use rule data” means
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`“data for a rule specifying a condition under which access to content is
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`permitted.”
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`34. Although my opinion is that the broadest reasonable interpretation of “use
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`rule data” is broader than the Board’s prior interpretation, I have adopted the
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`interpretation of “use rule data” previously set forth by the Board for
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`purposes of arriving at the opinions set forth in this declaration.
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`“Payment Data”
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`35. The patent describes “payment data.” According to the specification,
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`“payment data” can be used “for making a payment to the system owner”
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`(Ex. 1001 at 20:59-60) and “a payment” can be “represented by the payment
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`data.” Id. at 9:4-6. The specification also teaches that “payment data” can
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`11
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`Google Exhibit 1002 Page 00011
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`store “a payment audit trail including payment amounts and data on to
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`whom payments have been made.” Ex. 1001 at 17:51-53.
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`36. The district court wrote in its claim construction order at page 11 that
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`“payment data” means “data that can be used to make payment for content.”
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`Ex. 1011 at 11.
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`37. Counsel has informed me that the district court uses a narrower interpretive
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`standard than the standard that applies to a CBM proceeding.
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`38. The broadest reasonable interpretation of the term “payment data” would
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`have been understood by a person of ordinary skill in the art to mean “any
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`information that can be used in connection with the process of making a
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`payment for content.”
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`“Payment Validation System”
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`39. The patent describes “payment validation system.” According to the patent
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`specification, the “payment validation system” is used “for validating the
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`data and authorizing the payment” (Ex. 1001 at 8:21-23) as well as returning
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`data such as “payment validation data.” Id. at 8:65-9:1, Claim 15
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`(“receiving payment validation data from the payment validation system”).
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`The patent also discloses that “[t]he payment validation system may be part
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`of the data supplier’s computer systems or it may be a separate e-payment
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`system.” Id. at 8:63-65.
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`12
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`Google Exhibit 1002 Page 00012
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`40. The patent owner wrote in its claim construction brief at page 7 that
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`“payment validation system” was a “system that returns payment validation
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`data in response to valid payment data.” Ex. 1012 at 7.
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`41. The district court wrote in its claim construction order at page 14 that
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`“payment validation system” is a “system that returns payment validation
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`data based on an attempt to validate payment data.” Ex. 1011 at 14.
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`42. Counsel for the petitioner has informed me that the district court uses a
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`narrower interpretive standard than the standard that applies to a CBM
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`proceeding.
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`43. The broadest reasonable interpretation of the term “payment validation
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`system” would have been understood by a person of ordinary skill in the art
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`to mean “any system that returns information in connection with an attempt
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`to validate payment data” (wherein “payment data” must be construed
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`broadly to include “any information that can be used in connection with the
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`process of making a payment for content”).
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`“Payment Validation Data”
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`44. The patent describes “payment validation data.” According to the patent,
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`“payment validation data” is data that a data access terminal can receive
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`from a “payment validation system” after “payment data” is forwarded to the
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`“payment validation system.” Ex. 1001 at 7:62-8:9, 8:63-9:1, Claim 15.
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`13
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`Google Exhibit 1002 Page 00013
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`45. The district court wrote in its claim construction order at page 37 that
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`“payment validation data” should be given its plain meaning. Ex. 1011 at 15,
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`37.
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`46. The patent owner wrote in its claim construction brief at page 10 that “none
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`of the claims of the patents-in-suit require that the payment validation
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`system be used to authorize payment.” Ex. 1012 at 10.
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`47. Counsel for the petitioner has informed me that the district court uses a
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`narrower interpretive standard than the standard that applies to a CBM
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`proceeding.
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`48. The broadest reasonable interpretation of the term “payment validation data”
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`would have been understood by a person of ordinary skill in the art to mean
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`“information returned in connection with an attempt to validate payment
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`data” (wherein “payment data” must be construed broadly to include “any
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`information that can be used in connection with the process of making a
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`payment for content”).
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`“Data Carrier”
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`49. The patent describes the use of a “data carrier.” “A portable data carrier has
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`an interface for sending and receiving data, non-volatile data memory for
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`storing received content data and non-volatile payment validation memory
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`for providing payment validation data to an external device.” Ex. 1001 at
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`14
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`Google Exhibit 1002 Page 00014
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`Abstract. The data carrier may “store both payment data and content
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`data.” Ex. 1001 at 4:32-33. The data carrier may comprise “non-volatile
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`data memory and non-volatile parameter memory storing use status data and
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`use rules.” Id. at 6:34-36. “The data carrier may also be integrated into
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`other apparatus, such as a mobile communications device.” Id. at 4:48-
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`49. The data carrier may “further comprise[] memory for storing data for
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`accessing a mobile communications network, for example to receive content
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`data over the network.” Id. at 6:9-12. In such an embodiment, “the data
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`carrier may replace a SIM (Subscriber Identity Module) card.” Id. at 6:12-
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`13. The data carrier may also “store[] access control data, such as a user ID
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`and password.” Id. at 5:33-34. Figure 2 provides an example of a portable
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`data carrier, namely a smart Flash card, and Figure 9 illustrates the
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`“components of a data carrier.” The patent also gives as examples of data
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`carriers a “ROM chip or disk.” Id. at 18:20.
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`50. The patent owner wrote in its claim construction brief at page 19 that “data
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`carrier” could be construed to mean a “medium capable of storing
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`information.” Ex. 1012 at 17.
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`51. The district court wrote in its claim construction order at page 22 that “data
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`carrier” means “medium capable of storing information.” Ex. 1011 at 22.
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`15
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`Google Exhibit 1002 Page 00015
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`52. Counsel has informed me that the district court uses a narrower interpretive
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`standard than the standard that applies to a CBM proceeding.
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`53. The broadest reasonable interpretation of the term “data carrier” would have
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`been understood by a person of ordinary skill in the art to mean any
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`“medium, regardless of structure, that is capable of storing information.”
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`VI. PATENT ELIGIBLE SUBJECT MATTER
`54. Counsel for the petitioner has informed me that laws of nature, abstract ideas,
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`and natural phenomena cannot be patented pursuant to 35 U.S.C. § 101.
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`Counsel for the petitioner has informed me that the Supreme Court has
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`endorsed a two-step approach for determining when a claim falls outside the
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`scope of Section 101. Counsel for the petitioner has informed me that the
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`first step is to determine whether the claim at issue is directed to a patent
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`ineligible concept like an abstract idea. If it is, the second step is to identify
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`“what else” is claimed so as to determine whether the claim amounts to
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`“significantly more” than the abstract idea.
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`55. Counsel for the petitioner has informed me that if a claim does not recite
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`significantly more than an abstract idea, it is invalid under Section 101.
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`Counsel for the petitioner has informed me that to constitute “significantly
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`more,” it is not sufficient to simply apply the abstract idea with a computer.
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`Counsel for the petitioner has informed me that neither is it sufficient to
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`16
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`Google Exhibit 1002 Page 00016
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`limit the claim to a particular technological environment or to add to the
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`claim insignificant post solution activity or well-understood, routine,
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`conventional activity. Counsel for the petitioner has informed that instead, a
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`claim directed at an un-patentable abstract idea must contain other elements
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`or a combination of elements (an “inventive concept”) sufficient to prevent
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`patenting the abstract idea itself. Counsel has informed me that a claim
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`directed at overriding a routine and conventional sequence of events may
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`also be patent eligible.
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`It Is My Opinion That Claim 3 Is Directed To An Abstract Idea
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`A.
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`It is my opinion that claim 3 of the ’221 patent is directed to the abstract idea
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`56.
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`of controlling access based on payment.
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`57. Claim 3 is expressly directed to that abstract idea. Under its broadest
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`reasonable interpretation, claim 3 recites “code to”: “read payment data,”
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`“forward payment data to a payment validation system,” “receive payment
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`validation data from the payment validation system,” and “retrieve data”
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`once validation of payment for that data has been received.
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`58. The specification of the ’221 patent also teaches that the “invention” is
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`directed to the abstract idea of controlling access based on payment. The
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`specification states that the “invention” relates to “providing access” and
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`“paying.” Ex. 1001 at 1:20-23.
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`17
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`Google Exhibit 1002 Page 00017
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`B.
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`It Is My Opinion That Claim 3 Does Not Disclose An Inventive
`Concept That Is Significantly More Than An Abstract Idea
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`It is my opinion that claim 3 does not add anything of significance to the
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`underlying abstract idea of controlling access based on payment. The claim
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`simply applies that abstract idea to “data,” notes that the user may be
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`provided with additional information about the purchased data (such as
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`information about when the data may be accessed and about the value of the
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`59.
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`data), and recites generic computer components and functionality.
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`60. The computer hardware recited in claim 3—namely, a “data access
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`terminal,” a “data carrier,” an “interface,” and a “processor”—is generic and
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`conventional. The specification of the ’221 patent states that the “data
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`access terminal” may be “a conventional computer.” Ex. 1001 at 4:4-5.
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`And data carriers, interfaces, and processors have long been routinely used
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`in general purpose computers.
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`61. Alan Turing’s celebrated idealized computing automaton (now called a
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`“Turing Machine” in his honor) was introduced in 1937 in the paper “On
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`Computable Numbers, with an application to the Entscheidungsproblem”
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`Ex. 1014 (Proceedings of the London Mathematical Society, vol s2-42, pp.
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`230-265). On page 231, Turing notes “The machine is supplied a ‘tape’ (the
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`analogue of paper) running through it, and divided into sections (called
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`‘squares’) each capable of bearing a ‘symbol.’” Id. Turing’s “tape” serves
`18
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`Google Exhibit 1002 Page 00018
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`as a data carrier. Id. The machine also had a “head,” which allowed state
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`changes, and formed a “processor” with the other elements of the machine.
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`62. A “standard smart card,” which is the “data carrier” referenced in the ’221
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`patent specification (Ex. 1001 at 11:27-30), is a generic hardware device that
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`was well known in the prior art to the ’221 patent.
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`63. The generic processor and interfaces recited in the ’221 patent specification
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`(id. at 4:50-57), are also generic computer hardware components that were
`
`well known in the prior art to the ’221 patent.
`
`64. The functions performed by the “code” of claim 3 (namely reading,
`
`forwarding, receiving, retrieving, writing, and outputting) can be performed
`
`without a computer. Performing these functions with a computer is routine
`
`and conventional. Reading data from a “data carrier” (i.e., a standard smart
`
`card), forwarding data, receiving data, retrieving data, writing data into a
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`“data carrier,” and outputting data to a user are all generic, conventional,
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`routine computer functions that were well known in the prior art to the ’221
`
`patent.
`
`65. Reading and writing data in the context of computational machines dates
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`back at least to Charles Babbage’s and Lady Augusta Ada Lovelace’s
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`pioneering work on the “Analytical Engine” in the mid-1800s. Transmitting,
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`19
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`Google Exhibit 1002 Page 00019
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`receiving, and responding to data among a network of multiple computing
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`devices dates back at least to the ARPANET project of the late 1960s.
`
`66. To be clear, claim 3 of the ’221 patent does not recite the use of generic
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`computer hardware and functions to override some routine or conventional
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`sequence of events. Instead, claim 3 recites the use of a general purpose
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`computer to perform routine, conventional, well-known computer functions.
`
`C.
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`It Is My Opinion That Claim 3 of The ’221 Patent Is Patent
`Ineligible
`In light of the above, it is my opinion that claim 3 is not directed to patent
`
`67.
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`eligible subject matter and is thus invalid.
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`20
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`Google Exhibit 1002 Page 00020
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` hereby declare that all statements made herein of my own knowledge are true and
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` I
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`that all statements made on information and belief are believed to be true; and
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`further that these statements were made with the knowledge that willful false
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`statements and the like so made are punishable by fine or imprisonment, or both,
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`under Section 1001 of Title 18 of the United States Code.
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`
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`DATE:____________________
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`
`DR. JUSTIN DOUGLAS TYGAR
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`21
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`6 May 2015
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`Google Exhibit 1002 Page 00021
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