`
`Filed on behalf of Proxyconn, Inc.
`By:
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`Matthew L. Cutler (mcutler@hdp.com)
`
`
`Bryan K. Wheelock (bwheelock@hdp.com)
`
`
`Douglas A. Robinson (drobinson@hdp.com)
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`
`Harness, Dickey & Pierce, PLC
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`
`7700 Bonhomme Ave., Suite 400
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`
`Clayton, MO 63105
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`
`Tel: (314) 726-7500
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`
`Fax: (314) 726-7501
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`
`
`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________
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`MICROSOFT CORPORATION
`
`Petitioner
`
`v.
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`PROXYCONN, INC.
`
`Patent Owner
`
`_____________
`
`Case IPR2012-00026
`Case IPR2013-00109
`Patent 6,757,717 B 1
`_____________
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`PROXYCONN, INC’S OPPOSITION TO MICROSOFT’S
`CORRECTED MOTION TO EXCLUDE EVIDENCE
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`Case IPR2012-00026; IPR2013-00109
`Patent 6,757,717 B1
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`TABLE OF CONTENTS
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`I.
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`Introduction ...................................................................................................... 1
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`II.
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`Relevant Facts .................................................................................................. 2
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`A.
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`The Technology at Issue ....................................................................... 2
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`B. Dr. Konchitsky’s Training and Experience ........................................... 3
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`III. Legal Standard ................................................................................................. 4
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`IV. Dr. Konchitsky Provides Reliable, Relevant, and Helpful
`Testimony ........................................................................................................ 5
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`A. Dr. Konchitsky Appropriately Testified from the
`Perspective of A Person Having Ordinary Skill in the Art ................... 5
`
`B. Dr.Konchitsky’s Specialized Knowledge Will Help the
`Board Understand the Evidence and Determine Facts in
`Issue ....................................................................................................... 8
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`C. Dr. Konchitsky’s Declaration Testimony Also Meets the
`Requirements of FRE 702(b)-(d) ........................................................ 14
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`V.
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`Conclusion ..................................................................................................... 15
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) ...................................................................... 1, 5
`
`Kumho Tire Co. v. Carmichael,
`526 U.S. 137 (1999) .......................................................................... 5
`
`Mytee Prods., Inc. v. Harris Research, Inc.,
`439 Fed. Appx. 882 (Fed. Cir. 2011) ................................................ 8
`
`SEB S.A. v. Montgomery Ward & Co.,
`594 F.3d 1360 (Fed. Cir. 2010) .................................................... 7, 8
`
`Sundance, Inc. v. DeMonte Fabricating Ltd.,
`550 F.3d 1356 (Fed. Cir. 2006) ........................................................ 8
`
`Other Authorities
`
`37 C.F.R. § 42.62 ................................................................................... 4
`
`Federal Rule of Evidence 702 ....................................................... passim
`
`
`
`ii
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`Patent Owner Proxyconn, Inc. (“Proxyconn”) submits this memorandum in
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`opposition to “Microsoft Corporation’s Corrected Motion to Exclude Evidence”
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`(Paper No. 56). Microsoft’s Motion requests exclusion of Proxyconn’s technical
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`expert, Dr. Alon Konchitsky. Because Dr. Konchitsky has provided relevant,
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`helpful, and reliable expert testimony in this proceeding—consistent with FRE 702
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`and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)—Microsoft’s
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`motion should be denied.
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`I.
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`Introduction
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`This proceeding concerns technology for addressing issues (particularly
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`speed) involved when a client computer requests data for a remote computer.
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`Based on the prior art selected by Microsoft, Patent Owner Proxyconn submitted
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`the expert declaration of Dr. Alon Konchitsky. Dr. Konchitsky is well-versed in
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`data communications networks, having (among other things) designed such
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`systems for cellular communications networks. He holds a bachelor’s degree in
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`Computer Science, is a Professional Engineer (Electrical Engineering), and holds a
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`Ph.D. in Electrical Engineering. In 1997,1 he wrote his thesis on Migration from
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`central [cloud] computing to personal computing [pc].” Dr. Konchitsky is well-
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`versed in the technology at issue, and offered cogent, reliable, and relevant
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`testimony comparing the patent-in-suit to the prior art at issue in this proceeding.
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`1 The ‘717 patent was filed on September 16, 1999.
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`1
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`Microsoft wishes to exclude Proxyconn’s proffered expert for strategic
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`reasons, but must resort to irrelevant side issues, and distort Dr. Konchitsky’s
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`testimony, to support its position. Indeed, Microsoft’s argument is essentially that
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`Dr. Konchitsky should be excluded because Microsoft’s proffered technical expert,
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`Dr. Darrell Long, says so. Specifically, Dr. Long presented a laundry list of trivia
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`items that, he says, an expert “should” know but which Dr. Konchitsky allegedly
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`does not. Microsoft’s approach is flawed for multiple reasons. Specifically,
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`Microsoft presents no corroborating evidence supporting its arguments. Rather,
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`Microsoft relies on the ipse dixit of Dr. Long. Even with that, to make its
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`arguments Microsoft is forced to amend its definition of a person of ordinary skill
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`in the art (again unsupported by testimony) and distort Dr. Konchitsky’s deposition
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`testimony. These failings in Microsoft’s motion are shown in detail below.
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`Microsoft’s motion represents an effort to distract from the core issues of
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`this case, on which Dr. Konchitsky is demonstrably qualified to provide expert
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`testimony. Because Dr. Konchitsky meets the requirements of FRE 702, as shown
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`below, Microsoft’s motion should be denied.
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`II. Relevant Facts
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`A.
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` The Technology at Issue
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`The ‘717 patent at issue in this proceeding is entitled “System and Method
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`for Data Access.” Ex. 1001, p. 1 at (54). According to its statement of the “Field
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`2
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`of Invention,” the ‘717 patent “relates to data access in networks. Specifically, the
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`invention is concerned with a method, system and apparatus for increasing the
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`speed of data accessing in communication networks.” Id. at 1:10-15.2 This is fully
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`consistent with Dr. Konchitsky’s declaration testimony that the “‘717 Patent relates
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`to data access. As described in the Background (col. 1, lines 8-26) the problem
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`addressed is a client computer requesting data from a remote computer.” Ex. 2002,
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`p. 4 at ¶ 13.
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`B. Dr. Konchitsky’s Training and Experience
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`Dr. Konchitsky has extensive education and training in computer science
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`and the related field of electrical engineering. He holds a B.A. degree from Tel
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`Aviv University A.C. and a Professional Engineer certificate from Tel Aviv
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`Institute of Technology. See Ex. 1022 (Konchitsky C.V.) at 1. He was awarded a
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`Ph.D. in Electrical Engineering by Bournemouth University (U.K.). Id. He also
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`received post-graduate training in CDMA Engineering at the University of
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`California San Diego. Id. As a part of his studies, Dr. Konchitsky authored a
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`master thesis on “Migration from central [cloud] computing to personal computing
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`[pc]” in 1997.
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`2 Petitioner’s proffered expert, Dr. Darrell Long, also cites to this passage in his
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`description of the “Field of the Invention.” See, e.g., Ex. 1025, p 3 at IV.
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`3
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`In addition to his academic credentials, Dr. Konchitsky has extensive work
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`expertise in technologies involving wireless communication devices.3 Through
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`these efforts, Dr. Konchitsky has obtained expertise in a variety of software
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`applications, including “distributed computing,” “client server,” “remote desktop,”
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`and “media streaming.” Ex. 1022 at 1. All of these are directly related to the
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`technology at issue in this proceeding.
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`III. Legal Standard
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`Federal Rule of Evidence 702 governs the admissibility of expert testimony
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`in inter partes review proceedings. See 37 C.F.R. § 42.62 (Federal Rules of
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`Evidence apply in IPR proceedings). Rule 702 provides:
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`A witness who is qualified as an expert by knowledge, skill, experience,
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`training or education may testify in the form of an opinion or otherwise if:
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`3 Microsoft (p. 3) asserts that Dr. Konchitsky’s work “has been focused on voice
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`communications and mobile and wireless technologies.” Aside from ignoring Dr.
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`Konchitsky’s other experience, Microsoft’s motion glosses over the fact that, by
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`necessity, wireless communication (including voice) over cellular networks
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`involves “the sending of data over communication networks”—which is what
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`Microsoft asserts is the “technology at issue in this IPR.” Microsoft’s Motion at 3.
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`4
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`(a) the expert’s scientific, technical, or other specialized knowledge will help
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`the trier of fact to understand the evidence or to determine a fact in issue;
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`(b) the testimony is based on sufficient facts or data;
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`(c) the testimony is the product of reliable principles and methods; and
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`(d) the expert has reliably applied the principles and methods to the facts of the
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`case.
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`Fed. R. Evid. 702 (emphases added). The Supreme Court has held that this Rule
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`requires that expert testimony be both (a) reliable; that is, it “must be supported by
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`appropriate validation—i.e., ‘good grounds,’ based on what is known” and (b)
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`relevant (i.e., helpful); that is, “Rule 702’s ‘helpfulness’ standard requires a valid
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`scientific connection to the pertinent inquiry as a precondition to admissibility.”
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`Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590-92 (1993); see also
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`Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (holding that Rule 702
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`applies to all expert testimony, not just “scientific” testimony).
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`
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`Dr. Konchitsky’s declaration testimony meets these standards.
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`IV. Dr. Konchitsky Provides Reliable, Relevant, and Helpful Testimony
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`A. Dr. Konchitsky Appropriately Testified from the Perspective of A
`Person Having Ordinary Skill in the Art
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`Dr. Konchitsky meets the definition of a “person of ordinary skill in the art”
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`proffered by Microsoft’s own expert. Specifically, Dr. Long testified that such a
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`person “in 1998-99 would hold a B.S. degree in computer science and would have
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`part of his study courses in operating systems, networking, data compression and
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`computer security.” Ex. 1025, p. 3 at IV. Or, “[a]lternatively, a person would
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`develop the level of ordinary skill in the art in 1998-99 by obtaining an M.S. in
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`computer science and by writing his or her thesis in an area related to data storage
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`and/or computer security.” Id. at p. 4.
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`Dr. Konchitsky holds a B.A. degree in computer science, and a Ph.D. in
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`electrical engineering, during which studies he wrote his 1997 thesis on “Migration
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`from central [cloud] computing to personal computing [PC].” Ex. 1022
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`(Konchitsky C.V.) at pp. 1, 6.4 This work alone qualified Dr. Konchitsky as a
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`person of ordinary skill in the relevant field (i.e., data access in networks) under
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`Dr. Long’s definition. Any differences between Dr. Konchitsky’s degrees and Dr.
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`4 Microsoft’s Motion (p. 4) also adds the purported requirement that “A person of
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`ordinary skill in the art would have had several years of practical experience
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`working in operating systems, in particular the data storage subsystem (or the
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`equivalent post-graduate academic work).” Neither Dr. Long nor Microsoft
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`explain the basis for this requirement. Regardless, Dr. Konchitsky’s work
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`experience, as illustrated on his C.V., concerns data transfer and thus is relevant to
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`this proceeding.
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`Long’s hypothetical person (i.e., B.A. in computer science vs. B.S. in computer
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`science; Ph.D. in electrical engineering (with relevant thesis) vs. M.S. in computer
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`science) would in any way prevent Dr. Konchitsky from testifying as to what that
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`hypothetical person would know. Notably, Microsoft makes no specific argument
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`on this point, and instead points to side issues (concerning, for example, what
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`“organizations” Dr. Konchitsky should be a member of) in a tailored effort to
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`exclude Dr. Konchitsky under the guise of adding to the qualifications of a person
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`of ordinary skill.
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`Moreover, even if Dr. Konchitsky did not have the exact qualifications of a
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`person of ordinary skill in the art, that would not a basis for automatic exclusion.
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`Rather, the Federal Circuit has repeatedly stated that to provide relevant and
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`reliable testimony, an expert need not have experience in the exact field of
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`technology at issue. See SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360,
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`1373 (Fed. Cir. 2010). 5 Likewise, whether the expert has a background in
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`5 To this point, Microsoft’s citation (pp. 3-4) to Sundance, Inc. v. DeMonte
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`Fabricating Ltd., 550 F.3d 1356, 1361 (Fed. Cir. 2006) is inapposite. Sundance
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`involved the exclusion of a patent attorney who proffered expert testimony on
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`issues of infringement and invalidity but had no demonstrated experience in the
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`technical field at issue, nor related fields. 550 F.3d at 1361–62. Indeed, the
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`accordance with the exact qualifications of one of ordinary skill in the art as
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`proposed by the parties is also not determinative. See Mytee Prods., Inc. v. Harris
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`Research, Inc., 439 Fed. Appx. 882, 886–88 (Fed. Cir. 2011). Instead, the correct
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`inquiry is whether the proffered expert has “sufficient relevant technical expertise
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`to testify about the claim invention.” SEB, 594 F.3d at 1373.
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`In short, Microsoft’s arguments regarding the person of ordinary skill do not
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`support exclusion of Dr. Konchitsky and instead serve only to distract from the
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`core issue of whether his testimony is reliable, relevant, and helpful. It is.
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`B. Dr.Konchitsky’s Specialized Knowledge Will Help the Board
`Understand the Evidence and Determine Facts in Issue
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`Dr. Konchitsky is experienced and skilled in the relevant field. Dr.
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`Konchitsky has substantial experience in mobile and wireless technologies and
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`networks, which are, of course, data communication networks. See Microsoft’s
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`motion at p. 3 (“The technology at issue in this IPR… involves generally the
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`sending of data over communication networks.”). Based on his experience and
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`knowledge, Dr. Konchitsky details the prior art reference and how each prior art
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`reference compares to the ‘717 patent. Dr. Konchitsky further explains, again
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`Federal Circuit distinguished the Sundance case in SEB. SEB, 594 F.3d at 1373
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`(“This case comes nowhere close to the unusual situation in [Sundance].”)
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`based on this knowledge and experience, how Microsoft is attempting to twist the
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`prior art to disclose the claimed invention of the ‘717 patent, where it does not.
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`Realizing the weight and propriety of Dr. Konchitsky’s declaration,
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`Microsoft attempts to create side issues which distract away from the questions at
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`issue in this IPR. To do so, Microsoft invents its own litmus test, consisting of
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`specific trivia questions, often referring to abstract concepts and systems, to test
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`Dr. Konchitsky. These questions are not tied to the ‘717 patent, or the field of
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`invention, as defined by Microsoft. Dr. Konchitsky answers these questions, but
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`not to the satisfaction of Dr. Long, Microsoft’s expert, or Microsoft itself. This is
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`not a basis for exclusion.
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`Specifically, for example, relating to the GET Request in the HTTP
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`protocol, Microsoft’s limited citation shows that Dr. Konchitsky is “generally
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`familiar” the request, but he “would need to read [] again.” Dr. Konchitsky’s
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`entire answer is below:
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`Despite Microsoft’s depiction, Dr. Konchitsky’s explaination that the HTTP
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`protocol is substantial. This is confirmed by Ex. 2006, a copy of the protocol (not
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`submitted by Microsoft). HTTP is the foundation of data communication for the
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`World Wide Web. It is not, as Microsoft presents it, something that can or should
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`be memorized. Moreover, it is not clear whether the questions are directed to 1998
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`or the present. If the question refers to 1998, Microsoft is arguing Dr. Konchitsky
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`should be excluded, because he would need to refresh his recollection of the HTTP
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`protocol that was in place more than fifteen years ago. If the question is directed to
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`the present, it is irrelevant.
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`Microsoft also argues the HTTP protocol is prior art, implying Dr.
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`Konchitsky should know it because it is prior art. But there is absolutely no basis
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`to suggest an expert must have detailed knowledge of all prior art. Further,
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`Microsoft misstates the content of the prior art at issue here in an attempt to justify
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`its (and Dr. Long’s) discussion of the GET request. In reality, though, that prior art
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`does not refer to the GET request, but merely mentions the “HTTP/1.1 hypertext
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`transfer protocol.” EX1004 at 14:4-5. Further, there is no reference to the “GET
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`Request” in the ‘717 patent.
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`Microsoft’s motion also discusses cache servers. Microsoft argues that Dr.
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`Konchitsky “do[es] not recall” the details of caching servers. But Microsoft’s
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`citation cuts short Dr. Konchitsky’s response in a way that misrepresents Dr.
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`Konchitsky’s testimony. Rather than indicating he does not understand caching
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`servers, Dr. Konchitsky’s testimony illustrates his familiarity with them (EX. 1025
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`at 110:4-6):
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`Dr. Konchitsky goes on to detail the memories in such servers at the relevant
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`time frame. See EX. 1025 at 110:4-111:12. Microsoft asked a total of 3 questions
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`on caching servers. Dr. Konchitsky stopped short of opining about non-volatile or
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`volatile memory being part of prior art caching systems—and appropriately so,
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`because that was outside the scope of his declaration. Dr. Konchitsky is not a
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`source of prior art in this proceeding. Microsoft has the burden of presenting
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`invalidating prior art. While Microsoft may be unhappy with the prior art it
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`selected, it is improper to ask Dr. Konchitsky to fill the holes and then claim him to
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`be unqualified when he does not. Indeed, based on Dr. Konchitsky’s response to
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`Microsoft’s three questions— none directed to the prior art cited in this IPR—Dr.
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`Long states, “he is utterly unfamiliar with the state of the art in caching servers in
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`1998.” EX. 1025 at 6:2-4. This is a conclusion without basis.
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`Additionally, Microsoft cites to a number of terms, acronyms, and even an
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`individual, which it argues are the basic knowledge to anyone involved in the art.
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`Microsoft, however, does not tie these concepts or systems to the ‘717 patent, or
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`the field of the invention Microsoft itself defined.
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`Even so, Microsoft takes liberties with Dr. Konchitsky’s testimony there too.
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`For example, Microsoft alleges Dr. Konchitsky merely refers to NFS as “one of
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`those file systems,” when, in fact, Dr. Konchitsky not only recognized NFS as a
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`file system but indicated that he had previously designed such file systems. See
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`EX. 1024 at 151:23-5, reduced below.
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`However, according to Microsoft, because Dr. Konchitsky did not associate
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`NFS with Sun Microsystems, he cannot possibly be an expert. Microsoft’s
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`summary of Dr. Konchitsky’s knowledge of NFS is typical of its other examples
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`and unpersuasive.
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`Throughout its Motion, and to contradict statements made by Dr.
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`Konchitsky, Microsoft relies solely on Dr. Long’s declaration. Noteworthy, Dr.
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`Long fails to make any representation that his declaration is based on memory
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`alone, and not the result of reviewing particular resources—which were not
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`afforded to Dr. Konchitsky as he sat in deposition. Indeed, Dr. Long has reviewed
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`and cited to a 2004 Ph.D. thesis from a colleague—which, of course, is irrelevant
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`to the 1998 time frame of the ‘717 patent.
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`Microsoft further attempts to call in to question the experience and expertise,
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`and designate Dr. Konchitsky as a non-expert, merely because he has not published
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`relevant articles and does not belong to so-called organizations in the field. It is
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`likely that Dr. Konchitsky’s credentials differ from Dr. Long’s , because Dr.
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`Konchitsky worked in the relevant industry, while Dr. Long has spent his career in
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`academia, where such publishing activities are encouraged, if not required. These
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`mere facts do not diminish Dr. Konchitsky’s expertise in the relevant field.
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`C. Dr. Konchitsky’s Declaration Testimony Also Meets the
`Requirements of FRE 702(b)-(d)
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`Through at least his education and experience, Dr. Konchitsky is qualified as
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`an expert in the relevant field of art, as shown above. Further, his declaration and
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`deposition testimony illustrate that he does understand the patent-in-suit and the
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`prior art—i.e., the facts actually in issue in this proceeding. For example, Dr.
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`Konchitsky identifies Perlman as teaching synchronization, not data transfer, and
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`notes that a person of ordinary skill in the art trying to improve speed by reducing
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`bandwidth usage would not consider a synchronization system viable, because
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`Perlman is “wasting” bandwidth to keep nodes synchronized, even when there is
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`no need. Ex. 2002 at ¶1¶16-19. Further, while Microsoft muddles together the
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`distinct computers in Yohe (to support its agreement), Dr. Konchitsky recognizes
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`the computers as being physically and operationally separate. Ex. 2002 at ¶¶25-26,
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`34. And, Dr. Konchitsky further explains DRP discloses a caching server
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`incapable of storing digital digest in permanent storage memory. Ex. 2002 at
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`¶¶57-59. In short, Dr. Konchitsky’s testimony is “based on sufficient facts or data”
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`and thus meets FRE 702(b).
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`As also shown above, Dr. Konchitsky is also qualified to give relevant and
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`helpful testimony to the knowledge of a person of ordinary skill in the art
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`(including as that person is defined by Dr. Long). Dr. Konchitsky’s testimony
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`applies that hypothetical person’s knowledge to the technology at issue, and thus
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`that testimony “is the product of reliable principles and methods,” which he has
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`“reliably applied…to the facts of the case.” Dr. Konchitsky’s testimony thus also
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`complies with FRE 702(c) and 702(d).
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`V. Conclusion
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`Dr. Konchitsky is qualified by training and experience as an expert in the
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`technology at issue in this case—specifically, the art of data access over
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`communications networks, and specifically issues involved when a client computer
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`requests data from a remote computer. Unlike Dr. Long’s declaration statements
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`setting forth his uncorroborated views of what an expert in this field should know,
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`Dr. Konchitsky’s declaration testimony is based on his comparison of the ‘717
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`patent to the specific prior art at issue in this proceeding and thus is based on
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`“sufficient facts or data.” Dr. Konchitsky’s testimony is further based on reliable
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`principles and methods—namely, his knowledge of data transfer methods. And, he
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`has reliably applied those principles and methods to the facts of this case. Dr.
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`Konchitsky’s declaration testimony thus meets the requirements of FRE 702.
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`Accordingly, Microsoft’s motion should be denied.
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`Respectfully submitted by:
`
`/Matthew L. Cutler /
`MATTHEW L. CUTLER, Reg. No. 43,574
`BRYAN K. WHEELOCK, Reg. No. 31,441
`DOUGLAS A. ROBINSON, Reg. No. 59,703
`HARNESS, DICKEY & PIERCE, PLC
`7700 Bonhomme Ave., Suite 400
`Clayton, MO 63105
`Telephone: (314) 726-7500
`Facsimile: (314) 726-7501
`mcutler@hdp.com
`bwheelock@hdp.com
`drobinson@hdp.com
`
`Attorneys for Patent Owner, Proxyconn, Inc.
`
`
`
`
`Dated: October 21, 2013
`
`
`
`
`
`
`
`16
`
`
`
`Case IPR2012-00026; IPR2013-00109
`Patent 6,757,717 B1
`
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6(e)(4)
`
`It is hereby certified that on this 21st day of October, 2013, a copy of the
`
`foregoing document was served via FedEx and Electronic Mail upon the following
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`email addresses listed below:
`
`John D. Vandenberg
`john.vandenberg@klarquist.com
`Stephen J. Joncus
`stephen.joncus@klarquist.com
`Klarquist Sparkman LLP
`One World Trade Center
`Suite 1600
`121 S.W. Salmon Street
`Portland, Oregon 97204-2988
`Tel.: (503) 595-5300
`Fax: (503) 595-5301
`
`
`Attorneys for Petitioner, Microsoft Corporation
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`
`/Matthew L. Cutler /
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`
`
`17
`
`
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