Trials@uspto.gov
`571-272-7822
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`IPR2013-00004, Paper 52
`IPR2013-00007, Paper 50
`Date Entered: March 18, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`KYOCERA CORPORATION,
`Petitioner
`
`v.
`
`PATENT OF SOFTVIEW, INC.,
`Patent Owner
`____________
`
`Case IPR2013-00004
` IPR2013-00257
`Patent 7,831,926
`
`Case IPR2013-00007
`IPR2013-00256
`Patent 7,461,353
`__________________
`
`
`Before BRIAN McNAMARA, STACEY WHITE (VIA VIDEO HOOKUP)
`AND BRYAN MOORE, Administrative Patent Judges.
`
`
`
`
`RECORD OF ORAL HEARING
`
`1
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`
`571-272-7822
`
`
`
`
`
`
`IPR2013-00004, Paper 52
`IPR2013-00007, Paper 50
`Date Entered: March 18, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`KYOCERA CORPORATION,
`Petitioner
`
`v.
`
`PATENT OF SOFTVIEW, INC.,
`Patent Owner
`____________
`
`Case IPR2013-00004
` IPR2013-00257
`Patent 7,831,926
`
`Case IPR2013-00007
`IPR2013-00256
`Patent 7,461,353
`__________________
`
`
`Before BRIAN McNAMARA, STACEY WHITE (VIA VIDEO HOOKUP)
`AND BRYAN MOORE, Administrative Patent Judges.
`
`
`
`
`RECORD OF ORAL HEARING
`
`1
`
`
`
`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`ERIC C. COHEN
`
`JOHN C. ALEMANNI
`
`MICHAEL S. TOMSA and
`
`BEN J. YORKS
`
`KATTEN MUNCHIN ROSENMAN, LLP
`
`525 West Monroe Street
`
`Chicago, Illinois 60661-3693
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`SAMUEL K. LU
`
`MORGAN CHU and
`
`BABAK REDJAIAN
`
`Irell & Manella, LLP
`
`840 Newport Center Drive, Suite 400
`
`Newport Beach, California 92660-6324
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`P R O C E E D I N G S
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`
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`JUDGE MCNAMARA: Good morning. Everybody be seated.
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`Okay. Good morning again and welcome to the Board, the Patent Trial
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`Appeal Board. Today we have the oral hearing in, let me see, Case IPR
`
`2013-00004, which has been joined with IPR 2013-00257 and IPR
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`2013-00007, which has been joined with IPR 2013-00256.
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`We have allowed, I believe, three hours for these hearings. And
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`I think the trial order basically says we'll hear, let me see, first from the
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`Petitioner on the underlying case. I think we have an issue also pending on
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`the -- we have an issue pending on claim construction, and we also have a -- is
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`there a motion to exclude, I think?
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`So, we'll hear from the Petitioner first on the underlying issues.
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`Then we'll hear from the Patent Owner -- the Patent Owner, and then we'll go
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`from there. Is everybody ready to proceed?
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`MR. CHU: We are, Your Honor.
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`MR. LU: Yes.
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`JUDGE MCNAMARA: Let's begin with the Petitioner. Did
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`you want to reserve some time or anything?
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`MR. COHEN: Yes. We would like to reserve approximately
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`45 minutes or so, at least the time we don't use for rebuttal.
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`JUDGE MCNAMARA: Okay. So, you expect this to be about
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`a 45-minute discussion?
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`MR. COHEN: Yes, Your Honor.
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`
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`3
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
`
`JUDGE MCNAMARA: Okay.
`
`MR. COHEN: My name is Eric Cohen. I represent Petitioner
`
`Kyocera Corporation. With me is my associate, Michael Tomsa, my partner,
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`Richard Bower, both with -- all of us are with the law firm of Katten Munchin
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`Rosenman, LLP. With me also is Ms. Maria Nelson, who is the chief IP
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`counsel of Kyocera.
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`I should let my co-counsel introduce himself and his team, and
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`then we'll begin.
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`MR. ALEMANNI: Good morning, Your Honor, I'm John
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`Alemanni with Kilpatrick, Townsend & Stockton representing Mobility --
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`Motorola Mobility LLC. and with me is David Reece.
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`JUDGE MCNAMARA: Good morning, all.
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`MR. ALEMANNI: Good morning.
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`MR. COHEN: Good morning, Your Honor.
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`JUDGE MCNAMARA: Let me point out also that we have
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`Judge Stacey White remotely from Dallas, I believe.
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`JUDGE WHITE: Yes, Dallas.
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`JUDGE MCNAMARA: With me today, and this is Judge
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`Moore.
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`MR. COHEN: Good morning, Judge White. We're going to
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`focus in this hearing on certain issues of prior art and certain issues. We're
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`not waiving any other arguments. All the other arguments have been briefed.
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`Everything is fully briefed and we stand on our briefs.
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`So we would like to focus on what we think are some of the
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`more important issues in this hearing.
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`JUDGE MCNAMARA: Okay. I see you have some
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`demonstratives.
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`MR. COHEN: We do. We have some demonstrative exhibits.
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`We filed the demonstratives with the Board.
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`JUDGE MCNAMARA: Does the court reporter have a copy?
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`MR. COHEN: The court reporter does have a copy.
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`JUDGE MCNAMARA: Okay. Do you have another extra
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`copy? Another copy around that you can give us up here?
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`MR. COHEN: Yes. Now, in addition to the demonstratives,
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`we're also going to be looking at some pages from the record. So -- and we're
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`not going to do the demonstratives in order.
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`JUDGE MCNAMARA: That's perfectly fine.
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`MR. COHEN: Okay. So and I've got this clicker and I hope I
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`can hit the right button. I have been practicing, but I'm not sure I'm all that
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`good.
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`JUDGE MCNAMARA: Good luck.
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`MR. COHEN: Thank you. So we would like to start looking at
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`Claim 1 of the '353 Patent. This was a claim the Board characterized in one
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`of his decisions including the IPR as it represented a claim. And, so we chose
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`this claim just to highlight some of the issues here.
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`We have bracketed in blue the claim limitations that relate to
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`the hardware. This claim is a wireless device. Some of the claims that claim
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`wireless device as mobile devices, mobile phones. All of the hardware
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`limitations are basically standard features found at the time of the invention.
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`Any PDA, they are found in the Zaurus PDA that we cited, and that is one of
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`the pieces of prior art that is involved in virtually every combination. And
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`those hardware elements that are found in Zaurus are common to all PDAs at
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`the time. We don't think that they're disputed.
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`The rest of the claim involves limitations that I'm going to
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`characterize as software limitations. And some of those claim limitations are
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`contested. And, so the issue really is, are those software claim elements, the
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`ones that are contested, found in a combination of Zaurus and Pad++ or in
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`Zaurus and the other combinations that are before the Board? We're going to
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`focus on Zaurus and Pad++.
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`As Your Honor indicated, there is a claim construction issue,
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`what is the proper construction of the -- what I'm going to call the preserves
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`limitation. And then finally, was there a motivation to combine the teachings
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`of the Zaurus publication. And there is a total of about 340 pages of them in
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`Pad++.
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`Just we have, I think, six prior art exhibits for you to focus on,
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`too. We'll answer questions on Tsutsumitake, Hara, SVG and SVF if the
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`Board has any questions. Actually, Mr. Alemanni and I are going to divide
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`the argument, so he is going to handle the questions on those two prior art
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`references. And so if the Board has a question and one of us is prepared to
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`answer it and the other one is standing here, we'll switch if that's okay with
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`the Board.
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`
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`Okay. What was Zaurus? Zaurus was like any other PDA with
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`wireless Internet access. It has a touch screen, a display, memory, storage, so
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`on, so forth. So Zaurus was like any PDA. And just to sort of highlight an
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`issue up front, we filed from the petition a declaration -- actually two
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`declarations have been submitted by a Dr. Jack Grimes.
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`I have here page 20 from PX-1021 of the Grimes' declaration.
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`And we've highlighted -- we have taken the liberty of highlighting paragraph
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`118 where Dr. Grimes opines that the Pad++ references provides an enabling
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`disclosure for one skilled in the art or an implementation on a PDA having a
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`smaller display.
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`So Dr. Grimes, although he didn't -- and this declaration --
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`these declarations were filed in three exams filed by Apple at least the year
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`before we filed our petition for an Inter Parts Review and we just basically
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`copied them and submitted them with our petition. And then subsequently we
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`retained Dr. Grimes. Dr. Grimes gave an opinion on combining Pad++ to the
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`PDA.
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`So what is different about Zaurus from any other PDA? And
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`now I'm going to look at Defendant's Demonstrative Exhibit 5. Zaurus had a
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`zoomable browser. That's what's different. And what we're looking at here in
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`Demonstrative Exhibit 5 is Plaintiff's Exhibit 1004 at pages 645 to 646. And
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`these are the translations of the documentation for Zaurus.
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`So translation, why the translation? Zaurus was only marketed
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`in Japan. But the documentation, of course, is a printed publication and it's
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`prior art. So this clearly says that you can reduce or -- it's looking at a web
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`page. You can reduce it or you can magnify it by tapping on this one button,
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`which is part of it.
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`Moving to Defendant's Demonstrative Exhibit No. 9, Pad++. It
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`is a collection of articles totaling 300 and -- about 340 pages. It discloses
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`vector graphics. That was in the original Grimes declaration, Exhibit 1021 at
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`paragraphs 25, 26. It discloses zooming and panning, again in the Grimes
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`declaration, and discloses scalable
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`vector-based content that supports a scalable
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`resolution-independent representation of the HTML-based content, as the
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`Board found in its decision at page 26. And I believe that's cited from the
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`decision on the '353 Patent.
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`Pad++ can follow links across the Internet as Dr. Grimes found
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`in his original declaration, Exhibit 1021. And in his original declaration,
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`Dr. Grimes opined that Pad++ preserves -- discloses preserving the layout and
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`functionality of the web page when zoomed and panned.
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`So a combination of Pad++ with Zaurus we say discloses all of
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`the elements in all of the claims and in combination of other references --
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`either alone or in combination of other references as the Board found in its
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`decision. And I'm not going to go through each one because we have got a lot
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`of claims, a lot of references.
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`Issue: Does Pad++ disclose preserving the original layout
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`functionality and design? Plaintiff's Demonstrative Exhibit 11, 12 and 13
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`show three pages from the Pad++ documentation and --
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`JUDGE MCNAMARA: I know you've been using designations
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`Plaintiff and Defendant. I assume you're talking about the Plaintiff in the
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`litigation being the Patent Owner here and the Defendant being the Petitioner.
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`Is that right?
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`MR. COHEN: I hope I have been using it in that way, but I'll
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`try to be clear.
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`JUDGE MCNAMARA: I just wanted to make sure we were
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`talking about the same parties.
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`MR. COHEN: This is my first time in the patent office arguing
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`in an inter parts review, which I'm sure is going to be true of most of us. So
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`let me -- thank you for the reminder. It's an old habit.
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`Dr. Grimes -- just to make the record clear, Dr. Grimes
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`submitted on behalf of the Petitioner, he submitted on behalf of Apple, who is
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`the Defendant in the lawsuit and the filing of the re-exam.
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`So does Pad++ disclose preserving the original page layout,
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`functionality and design? And the answer is, looking at pages 287, 289 and
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`291 of Exhibit 1006, the Pad++ tour, the answer is yes.
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`When looking at Demonstrative 11, Petitioner's Demonstrative
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`Exhibit 11, this is Ben Bederson's home page. This is a screen shot of Ben
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`Bederson's home page. And what was this displayed on? It was obviously
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`displayed on a desktop computer because that's what the folks who designed
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`Pad++ were working with. This shows the -- Ben Bederson's home page at
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`one zoom level. Note that the heading is centered. And just note the layout
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`of this.
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`Defendant's Demonstrative Exhibit 12, another zoom level. It's
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`zoomed out a little bit from the first one. Layout is exactly the same. It is just
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
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`zoomed out.
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`Demonstrative Exhibit 13, this is from page 289 of
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`Exhibit 1006. Pad++ tour. And again, this is zoomed way in but the layout is
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`the same, and Dr. Grimes opined that the hyperlinks in this all worked.
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`Now I don't want to -- I'm going to sort of -- their argument
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`here is, "Well, this doesn't show what the original page layout was." There is
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`no evidence that anything that Ben Bederson put in his home page or any
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`code that he put in his home page is missing. It's not a very complicated
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`home page. It doesn't have a lot of format. But there is no evidence that it
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`had it in the first instance. There is nothing in Dr. Grimes' declaration that
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`said that it -- there is no evidence. He never looked at the original HTML
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`code. There is no evidence that anything here was missing. So under any
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`construction, any construction, whether you adopt theirs or ours, Pad++
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`preserves the original page layout functionality and design.
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`JUDGE MCNAMARA: Let me ask this question. What is
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`layout? What is the layout and the functionality and the design? One of the
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`issues that the Patent Owner has brought up is that the original layout,
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`functionality and design isn't preserved. And they say, well, for example, you
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`know, maintaining the layout after the web page has been initially rendered
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`doesn't mean that it preserves the original layout, functionality and design.
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`So the question that comes to my mind then is, what do we
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`mean when we talk about layout, functionality and design?
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`MR. COHEN: With Your Honor's permission, I am going to
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`get to that. And I would rather do that in sequence.
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
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`
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`JUDGE MCNAMARA: Okay. That's perfectly fine, but I just
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`want to -- you understand what the underlying question we have is.
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`MR. COHEN: That is the issue. But if we look at this -- if you
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`look at these three pages, nothing in the layout or design has changed when
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`you zoom in or out and the functionality works.
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`So under -- regardless of what it is or how you define it, one
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`cannot determine any differences in looking at these three zoomed versions of
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`these pages. There isn't any. It's all preserved. And so the question is -- and
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`so if their question is well, what was the HTML code? I mean there is no
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`evidence that what was in that code isn't preserved.
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`So let's move on. And let's just keep that in mind. And I'm
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`now at the claim construction issue, how to construe this term. So how does
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`this issue arise? Well, the petition explained that the Pad++ preserved the
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`original layout, functionality and design based on the slides I just showed you.
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`I'm now looking at Demonstrative Exhibit 20.
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`In their decision the Board found, based on the evidence that
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`was submitted, that we had at least satisfied the threshold to declare the inter
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`party review that Pad++ preserved the original layout, functionality and
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`design based on the Grimes declaration and the Pad++ references.
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`When we got this, the response of the Patent Owner, frankly,
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`we were shocked. Because the Patent Owner's response took the position that
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`is 180 degrees opposite of an explanation they gave when they added the
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`preserve limitation to the claims by amendment and then defined it.
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`They filed this amendment on May 20, 2008. I'm looking at
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
`
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`Exhibit 1002. At page 142. This is the prosecution history of the '353 Patent.
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`In context, when was this? May 20, 2008. It was about -- it was over a year
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`after Steve Jobs announced the introduction of the iPhone. I have blown up
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`Exhibit 1002 of the prosecution of the '353 Patent at pages 144 and 145. This
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`is the amendment. The claims previous to this May 20, 2008 amendment, the
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`claim said -- the claim said it "supports a scalable resolution-independent
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`representation of a web page that substantially retains the original page layout
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`and attributes of the content."
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`They couldn't get that claim language approved by the
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`examiner. The examiner rejected it on multiple occasions saying it was
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`indefinite under Section 112. They amended it. They amended it to say
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`preserves the original layout, functionality, a word that they added and design
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`of the content defined by its original format when scaled and rendered.
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`They amended it. Now, of course, where is this word
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`"preserved" found? The word, if you look at the specification, and we did a
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`word search, it's not found anywhere in the specification except for the claim.
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`You can't look at the specification and say, "What does preserve mean?"
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`because it wasn't there to begin with.
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`Now we're looking at page 2006 of the -- of that same
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`amendment and this is where the remarks section begins. And this refers to
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`an interview that occurred on May 5, 2008, 15 days before the amendment
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`was filed.
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`At page 218, so now we're -- this is a long remarks section. At
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`page 218, there is a heading, "Discussion new claim technology. Preserves
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
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`the original page layout, functionality and design of the Web content." This is
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`the heading. This is where the explanation starts about what this new claim
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`term means. Begins at page 218 of the '353 prosecution.
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`This is Defendant's -- excuse me. This is the Petitioner's
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`Demonstrative Exhibit 21 where we -- where we show the definition that they
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`gave. And it's now -- this is on page 233. Remember, the section started on
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`page 218. They have given approximately 15 pages of explanation of the
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`technology before they get around to defining it. And this is a definition.
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`"With respect to the scope of the terminology" -- the scope of the
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`terminology. This is a definition. There is no question about -- there can be
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`no question about this. "Preserving the," and then they bracket the language
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`-- "overall layout, functionality and design" and it's in quotes. "This refers to
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`preserving the design at interpreted by the browser."
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`Now, there is a footnote there. And the footnote says it's really
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`the browser's rendering it. "While at different zoom levels and panned
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`views." So it's as interpreted by the browser while at different zoom levels
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`and panned views. In other words, when you zoom in and out, it's preserved
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`after it's been laid out on the screen by the browser.
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`JUDGE MCNAMARA: Excuse me. Go back to that footnote
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`again, Footnote 8.
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`MR. COHEN: Can we blow that up, please? And this may not
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`be very clear when we blow it up.
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`JUDGE MCNAMARA: That's okay. You can just read it to
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`me. What does it say?
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
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`MR. COHEN: "More particularly, differences in page
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`interpretation will generally be a function of the browser's rendering engine."
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`JUDGE MCNAMARA: Now, I'm looking at that definition
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`that you have shown on the screen. "With respect to the scope of the
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`terminology preserving the overall layout, functionality and design of the
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`content, this refers to preserving the design as interpreted by the browser.”
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`Now, Counsel, I will ask you some questions because I really don't
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`understand what the "design as interpreted by the browser" means. But it
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`goes on to say, "While at different zoom levels and panned views, as opposed
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`to rendering the content identically to how it is rendered by a particular
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`desktop browser that may interpret the page design differently."
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`There's a lot there, so let me first ask you what it means to --
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`what is the design as interpreted by the browser? Is it the appearance? What
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`is it?
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`MR. COHEN: Okay. Again, we're going to get there. I have a
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`perfect example to show you. I just want to stress here they said, "Again, the
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`page layout to be preserved is as interpreted by the browser rather than as a
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`comparison to how it is rendered by a particular desktop browser."
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`Defendant's Demonstrative Exhibit 23 just points out that this definition that
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`they gave in prosecution is exactly 180 degrees opposite of what they said in
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`their -- what they said in prosecution is 180 degrees opposite of what they
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`said in their opposition.
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`So let's -- and I'm just going to jump up to Demonstrative
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`Exhibit 28, because I think this answers Your Honor's question. They
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
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`explain in their -- in the explanation of the technology, they explain the
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`different browsers, different existing browsers. Each browser is going to
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`interpret a web page differently. I mean, for example, some browsers might
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`not support certain plug-ins like Acrobat, Flash, TIFF images even. You
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`couldn't -- you had to have a plug-in when you -- back then when you got on
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`the patent office web page to pull out the images of the patent. So not all
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`browsers supported these plug-ins.
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`And the different -- so now we get to what is HTML? I think of
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`it as we call them HTML tags, and it's basically, if you remember the old
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`WordPerfect formatting, when you put a begin tag and an end tag to say I
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`want this bolded or I want to center this, things like that. So HTML had those
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`tags. And back in the day when you wrote a web page, you would have to use
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`those tags if you want to bold something. I actually did that once. It was a
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`painful exercise.
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`But, so on the left-hand side we have Netscape Navigator
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`displaying a web page and on the right-hand side of Demonstrative Exhibit 28
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`we have Internet Explorer displaying the web page.
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`And what they said -- and this is actually from page 229 of the
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`-- what they said about this was "It will be observed" -- now there was another
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`-- there was a previous page that looked almost identical to the Netscape
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`browser. It was Mozilla. Because they have the same rendering, it looked
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`almost exactly the same. And they said, "Portions of the web page are
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`rendered in a different manner by the IE7 browser, notably the left-hand
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`column.” So let's look at the left-hand column, what's different?
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
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`Well, we'll see there is a lot differences. Okay. So the
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`left-hand column of Netscape has a lot of formatting. It's got boxes. They've
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`got -- it's got words in boxes. There is a background, color, the lettering is
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`white against the dark background and it looks to me as if this is a table. And
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`then you've got some ads and some other things.
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`On the right-hand side, we have the same column as rendered
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`by the Internet Explorer -- Internet Explorer 7 browser. There is no
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`formatting at all. Now I would suggest that the formatting that's in Netscape
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`must have been HTML codes because as far as anybody knows, that kind of
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`formatting, the columns, the background and all those things would be
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`defined by HTML tags, it's not shown at all in the Microsoft Internet Explorer
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`7 browser on page 229 of the prosecution history.
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`So in conventional browsers, and they made this point, every
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`conventional browser is going to render -- is going to display a web page on
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`the screen differently. So you know we have -- I mean the layout I suppose if
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`the arrangement's columns and figures and everything. So how does this
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`work? How does HTML do this?
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`Well, HTML doesn't define a specific layout, spacial layout on
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`a screen. It basically defines relationships between objects. So you know --
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`so object two is to the lower right-hand side of object one and object three is
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`to the left of object two. And so when conventional browsers do this, they
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`basically -- they parse through all these objects and they set up a rendering
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`tree and then you sort of walk the rendering tree to put everything in its place
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`relative to each other.
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
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`But every browser does it differently. Every rendering of the
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`engine does this differently and they explained the prosecution history. The
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`fonts are going to be different because some browsers, some computers don't
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`support certain fonts. I mean certain font sizes may not be supported. And
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`Dr. Grimes explained this, by the way, in his reply declaration in chapter and
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`verse. I mean a lot of this is different.
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`And so the conclusion -- what they said was preserving the
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`layout meaning after it’s been rendered by the browser because you have no
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`idea what the original -- what the layout is or the design is until it's rendered
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`by the browser. None whatsoever.
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`Not only are the left-hand columns different, but look at -- in
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`Demonstrative Exhibit 29 we have looked -- we have outlined in red other
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`parts of the web page and they are different. There are things that are
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`missing. There is formatting that is missing.
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`Not only are objects missing, and I suppose you could say these
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`objects might be plug-ins that aren't supported, but if you look at the left-hand
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`side of the upper red box on the Netscape page, it looks like there is some
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`other formatting there. It is a part of that content exists in the Microsoft
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`Internet Explorer page, but it is not -- it is not formatted the same. There is a
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`lot that's missing.
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`So that's what he was referring to. And this explanation, these
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`two figures on page 228 and 229 precede the definition by three or four pages.
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`That's what they're referring to.
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`Now they also -- they also made the same definition in the
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
`
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`prosecution of the '926 Patent. So what happened in the '926 Patent, the
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`examiner added the preserved limitation by an examiner's amendment. And
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`then they filed comments in response to the examiner's amendment, and they
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`-- in those comments they gave an almost identical definition.
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`With respect to preserving the original page layout, the page
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`layout to be preserved is determined as interpreted by the rendering/layout
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`engine on it rather than as a comparison to how the web page may be rendered
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`by a particular desktop browser. That is what they did in prosecution. So
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`when they filed their opposition, what did they say? "Simply maintaining the
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`layout after a web page has been initially rendered does not meet these claim
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`limitations." Well, their opposition and Dr. Grimes' declaration filed in
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`support of their opposition never mentioned the prosecution history. And I
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`don't know how the Patent Owner can satisfy his duty of candor by making an
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`argument like this and not even referring to or distinguishing the prosecution
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`history.
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`So we were very surprised. Could he have anticipated this
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`when we filed our petition? No. You wouldn't anticipate that they would
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`make this kind of argument? They never made it in district court. This
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`phrase was not at issue. The construction of this phrase was not at issue in the
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`district court.
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`Now in the district court, we argued the preserved word -- the
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`word preserved not found in the specification anywhere is indefinite. Because
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`if you look back through what they said does and doesn't preserve, it's loony
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`tunes. You can't figure it out.
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
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`Now Judge Stark said, oh, yes, you can. It is the look and feel.
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`We disagree with that. And if we go back to the District Court and have to go
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`back and litigate that case, that is certainly an issue we'll raise on appeal.
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`JUDGE MCNAMARA: Well again, that does raise the
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`question as to what the layout actually is. Is it the appearance or is it --
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`MR. COHEN: We say it is the appearance once it’s been put
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`on the screen by the rendering of it. According to Dr. Grimes and basically
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`according to the explanation that they gave and actually directly following
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`their explanation they say this is how one of ordinary skill in the art would
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`understand it. It has got to be after it’s been laid out on the screen because
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`there is no layout until it's been rendered because the layout is a function of
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`the -- of the web page.
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`And how it's -- you know, what's the design? I mean maybe is
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`has columns, maybe it has this, maybe it has that but if the rendering engine
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`doesn't support all the HTML codes, which Internet Explorer rendering engine
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`obviously didn't at the time, then it's whatever shows up on the screen.
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`Now what did they argue in claim construction? The original
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`functionality and design must be -- refers to the web page as designed for a
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`desktop computer. Well, what does that mean? We just saw web pages
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`designed for a -- a web page designed for a desktop computer. That looked
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`pretty different when you looked at the next page and looked at the Internet
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`Explorer.
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`We, in the district court, we said we agreed that original would
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`mean it's designed for a desktop computer because the whole purpose of their
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`Cases IPR2013-00004 & IPR2013-00257; IPR2013-00007 & IPR2013-00256
`Patent 7,831,926; 7,461,353
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`invention was to be able to display web pages -- was not to be able to display
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`the web pages designed for mobile devices. We're all familiar with the web
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`pages that we pull up when we take out our iPhone or our smart phone and
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`you pull down and say, the New York Times. We type in
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`www.newyorktimes.com and what comes up now -- it's different than then but
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`what comes up now is a mobile version. And that mobile version doesn't
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`zoom.
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`And this is going to be -- this is going to be very significant if
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`we get back and litigate this on the damages part of the case because this
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`whole zooming in and out on the web page on a small device is not really that
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`important anymore because most web pages and most, you know, web page
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`prov
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