Filed on behalf of Roy-G-Biv Corporation
`
`By: Richard T. Black
`Foster Pepper PLLC
`1111 Third Avenue, Suite 3400
`Seattle, Washington 98101-3299
`Tel:
`(206) 447-6251
`Fax: (206) 749-2062
`Email:
`blacr@foster.com
`Registration No.: 40514
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`ABB, INC.
`Petitioner
`
`v.
`
`ROY-G-BIV CORPORATION
`Patent Owner
`_____________________
`
`Trial No.: IPR2013-00062
`(pursuant to Joinder with IPR2013-00282)
`U.S. Patent No. 6,516,236B1
`____________________
`
`PATENT OWNER ROY-G-BIV (“RGB”)
`AMENDED MOTION FOR OBSERVATIONS ON CROSS
`EXAMINATION
`
`
`
`
`
`By: Richard T. Black
`Foster Pepper PLLC
`1111 Third Avenue, Suite 3400
`Seattle, Washington 98101-3299
`Tel:
`(206) 447-6251
`Fax: (206) 749-2062
`Email:
`blacr@foster.com
`Registration No.: 40514
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`ABB, INC.
`Petitioner
`
`v.
`
`ROY-G-BIV CORPORATION
`Patent Owner
`_____________________
`
`Trial No.: IPR2013-00062
`(pursuant to Joinder with IPR2013-00282)
`U.S. Patent No. 6,516,236B1
`____________________
`
`PATENT OWNER ROY-G-BIV (“RGB”)
`AMENDED MOTION FOR OBSERVATIONS ON CROSS
`EXAMINATION
`
`
`
`
`
`As permitted by the Board by Its order dated January 7, 2014 (Paper 64),
`
`Patent Owner, Roy-G-Biv Corporation, submits
`
`the following Amended
`
`Observations on the November 20, 2013 cross-examination testimony of ABB
`
`reply declarant Dr. Richard Voyles [Exhibit 2013], and the December 4, 2013
`
`cross-examination of ABB reply declarant Dr. Nikolas Papanikolopoulos [Exhibit
`
`2014].
`
`The text below follows as closely as possible the recommended format
`
`template as indicated in the Trial Practice Guide and previous orders by the Board.
`
`In accordance with the Trial Practice Guide, each of the Observations 1-12 below
`
`provides a concise statement of the relevance of the precisely identified testimony
`
`to a precisely identified argument.
`
`ABB Expert Voyles’ Opinions Regarding Reliability of RGB Expert
`1.
`Stewart
`
`
`In Exhibit 2013, on page 38, lines 5-10 and 12-25, ABB expert Dr. Voyles
`
`was asked, “In your opinion, is Dr. Stewart an intelligent man?” Dr. Voyles
`
`responded “Absolutely.” Dr. Voyles was further asked “In your opinion, is Dr.
`
`Stewart a reliable computer scientist?” He responded “Yeah…Reliable by familiar
`
`definitions of ‘reliable.’” This testimony is relevant to the arguments on pages 10 –
`
`11 of ABB’s Reply Brief regarding the reliability of Dr. Stewart’s opinions. This
`
`1
`
`
`
`
`testimony is relevant to the weight that should be afforded Dr. Stewart’s
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`Declaration.
`
`
`
`2.
`
`Dr. Voyles’ Opinions Regarding Reliability of Dr. Stewart’s Opinions
`on Certain Claim Terms
`
`In Exhibit 2013, on page 38 lines 16-25 and page 89, lines 5-6, Dr. Voyles
`
`testified that he holds Dr. Stewart in “high regard” in “certain areas of expertise,”
`
`and that “I hold him in high regard as a software engineer. As a specialist in
`
`embedded systems.” (p. 38), and further, “It’s a very broad field, but [computer
`
`science is] one of his fields of expertise” (p. 89). On page 40, lines 16-19, Dr.
`
`Voyles testified that, in his own doctoral work, Dr. Voyles “relied upon the
`
`Chimera software developed by Dr. Stewart,” and on page 41, lines, 6-8, Dr.
`
`Voyles testified that Dr. Stewart was responsible for “develop[ing] port based
`
`objects.” This testimony is relevant to the argument on page 10-11 of ABB’s Reply
`
`Brief regarding Dr. Stewart’s expertise in computer science and software. This
`
`testimony is also relevant to the weight of Dr. Stewart’s opinions concerning the
`
`meaning of software related claim terms such as “function” and “code.”
`
`ABB Expert Papanikolopoulos’ Opinions Regarding the Expertise of
`3.
`Dr. Stewart
`
`In Exhibit 2014, on page 14, lines 5-7, ABB expert Dr. Papanikolopoulos
`
`was asked: “Are you aware that ABB attempted to retain Dr. Stewart in these
`
`
`
`2
`
`
`
`
`matters?” to which he responded, “Yes.” Further, on page 61, lines 4-5, and again
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`on page 64, line 21, Dr. Papanikolopoulos testified that Dr. Stewart is a “very
`
`bright individual.” Finally, on page 62, lines 20-23, Dr. Papanikolopoulos was
`
`asked, “You've submitted multiple letters of recommendations for Dave Stewart in
`
`the past; is that correct?” to which he responded, “This is my recollection.” This
`
`testimony is relevant to the arguments on pages 10–11 of ABB’s Reply Brief
`
`regarding the reliability of Dr. Stewart’s opinions. This testimony is relevant to the
`
`weight that should be afforded Dr. Stewart’s Declaration.
`
`4.
`
`ABB Expert Papanikolopoulos’ Opinions Regarding the Software
`Expertise of RGB Expert Stewart
`
`In Exhibit 2014, on page 19, lines 13-18, Dr. Papanikolopoulos testified that
`
`“we continue to have interactions and even, for example, using the Chimera system
`
`in my lab at the University of Minnesota.” When asked, “That was a system that
`
`was designed and built by Dr. Stewart, correct?” he responded “Yes.” This
`
`testimony is relevant to the arguments on pages 10–11 of ABB’s Reply Brief. This
`
`testimony is relevant to the weight of Dr. Stewart’s opinions concerning the
`
`meaning of software-related claim terms such as “function” and “code.”
`
`5.
`
`Dr. Voyles’ Testimony Regarding Disputing Dr. Stewart’s Opinions
`
`In Exhibit 2013, on page 57, lines 21- page 58, line 3, Dr. Voyles was asked,
`
`“So one of your objectives in your retention in this matter was to review Dr.
`
`
`
`3
`
`
`
`
`Stewart's declarations, identify any disagreements that you had with respect to his
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`declarations, and then give your response in your declarations; correct?” Dr.
`
`Voyles responded, “That was part of my understanding.” At page 138, lines 15-24,
`
`Dr. Voyles was then asked, “Exhibit 2020 [is] an accurate summary of the different
`
`disputes you have with Dr. Stewart in this case?” to which he responded “Yes.”
`
`(Exhibit 2020 used in the deposition is attached as Exhibit 2017 in the IPR.) This
`
`testimony is relevant to the arguments on pages 10-11 of ABB’s Reply Brief
`
`concerning “component functions.” This testimony is relevant because Dr. Voyles,
`
`in Exhibit 2017, does not identify any disagreements with Dr. Stewart’s opinion
`
`that the asserted references do not teach “component functions.”
`
`6.
`
`Dr. Voyles Testimony Regarding the Component Function Limitation
`
`On page 142, lines 24-25, Dr. Voyles testified, “I find no specific references
`
`to actions in the Onika context” in his own declaration. That testimony is relevant
`
`to ABB’s argument on pages 22 and 52 of its Petition that Gertz’s “actions” are
`
`equivalent to “component functions,” This testimony is relevant because Dr.
`
`Stewart opines in paragraphs 26 and 40 of his Declaration [Exhibit 2011] that
`
`Gertz’ actions are not “functions,” and therefore cannot be “component functions.”
`
`
`
`4
`
`
`
`
`7.
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`Dr. Papanikolopoulos’ Testimony Regarding the Component Function
`Limitation
`
`In Exhibit 2014, on page 112, lines 17-20 Dr. Papanikolopoulos was asked
`
`to “Please confirm for me that [the term “component functions”] appears only in
`
`paragraph 23 of your ‘236 declaration,” to which he responded “As you stated,
`
`nowhere else.” On page 113, line 12-15, Dr. Papanikolopoulos was asked, “The
`
`term “component function” appears only in paragraph 24 of the Papanikolopoulos
`
`‘557 declaration, correct?” to which he responded “Yes.” Additionally, on page
`
`121, lines 15-20, Dr. Papanikolopoulos was asked, “The best example that you've
`
`located in the Gertz reference of explicitly teaching that an action is a “function” is
`
`Figure 1 on page 42 of 198 in the Gertz thesis, correct?” to which he responded,
`
`“Yes.” This testimony is relevant to ABB’s argument on pages 22 and 52 of its
`
`Petition that Gertz’s “actions” are equivalent to “component functions.” This
`
`testimony is relevant because Dr. Papanikolopoulos does not challenge Dr.
`
`Stewart’s opinions in paragraphs 26 and 40 of his Declaration [Exhibit 2011] that
`
`Gertz’s actions are not “functions,” and therefore cannot be “component
`
`functions.”
`
`8.
`
`
`ABB Expert Voyles’ Definition of Function
`
`In Exhibit 2013, on page 55, lines 7-17, Dr. Voyles was asked “What is the
`
`relationship between a function and a subroutine?” and responded that “In the
`
`
`
`5
`
`
`
`
`broad sense they're very similar. …. I think most computer scientists at a general
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`level would say those are essentially -- those are similar concepts.”
`
`This testimony is relevant to ABB’s argument on pages 9-10 of its Reply,
`
`which cites Voyles’ Declaration [Exhibit 1130] at ¶¶ 39, 42-46 for the proposition
`
`that “‘function’ broadly encompasses ‘in-line’ functions, constructs in scripting
`
`languages, interpreted languages, and also visual programming constructs,
`
`regardless of how the program is stored or executed.” This testimony is relevant to
`
`ABB’s proposed definition for “function” and Dr. Stewart’s opinions at ¶ 40 of his
`
`Declaration [Exhibit 2011] that “actions” and other configuration files in the Gertz
`
`Reference “are clearly not ‘functions’…and they do not contain executable code.”
`
`9.
`
`Declarants’ Testimony Regarding Certain Claim Terms
`A.
`In Exhibit 2013, on page 129, lines 19-20 Dr. Voyles testified that: “a
`
`“Core Driver Function” Limitation
`
`control task is the embodiment of a port based object.” On page 129, line 25 – page
`
`130, line 4, he testified, “‘control task’ is used by Stewart to represent a control
`
`module … written within
`
`the port based object architecture….”
`
` Dr.
`
`Papanikolopoulos testified at Exhibit 2014, on page 44, line 23- page 45, line 7
`
`(referring to his declaration), “I have an argument in [paragraph] 51 about a port-
`
`based object … having certain functions associated with it and one example is the
`
`
`
`6
`
`
`
`
`cycle.” This testimony is relevant because it relates to whether a control task is
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`itself a function, or a port based object that has certain functions associated with it.
`
`B. New “Cycle” Function Argument
`In Exhibit 2014, on page 127, lines 7-16, Dr. Papanikolopoulos was asked,
`
`“Do you contend that the cycle function in the Stewart reference meets any of the
`
`claim limitations in the RGB patents?” to which he responded, “Yes.” Dr.
`
`Papanikolopoulos was asked further, “Which claim limitation in the RGB patents
`
`do you contend is satisfied by the cycle function in the Stewart reference?” He
`
`responded, “I will categorize this as an extended driver function.” On page 128,
`
`line 10 – 129, line 4, Dr. Papanikolopoulos was asked, “Why in your opinion is the
`
`cycle function in the Stewart reference an extended driver function for purposes of
`
`the RGB patents?” to which he responded, “It can be simulated or emulated. I
`
`prefer the term emulated. It can be emulated. So a cycle can be decomposed into
`
`more fundamental components.” Questioned further about his opinion of “cycle
`
`function”, he responded, “It’s one of the … methods that’s the port-based object
`
`which is described as part of a more broader object-oriented environment.”
`
`Finally, Dr. Papanikolopoulos, at page 125, lines 19-22, was asked, “one of
`
`the functions that is internal to the port-based object is the cycle function, correct?”
`
`to which he responded, “Yes.” This testimony is relevant to ABB’s arguments on
`
`pages 11-12 of ABB’s reply that “the cycle function for any give port-based object
`
`
`
`7
`
`
`
`
`(PBO) corresponds to…a ‘primitive operation’ that…has an association to a ‘core
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`driver function This testimony is relevant because had ABB included this argument
`
`in its Petition, RGB could have pointed out that a “cycle function” does not meet
`
`the limitations of claims 16 and 46 of the ‘557 patent relating to the driver
`
`functions being “exposed” not “hidden.”
`
`“Extended Driver Function” Limitation/ “Configurations”
`
`C.
`In Exhibit 2013, on page 68, lines 21-23, Dr. Voyles testified that
`
`“configurations in Onika were all specified as text files.” On page 69, lines 11 and
`
`14-15, he testified that configurations “were not software per se” because “they
`
`don’t implement a formal language.” When asked whether the “configurations” in
`
`the Gertz Reference “contained” subroutines (as observed above, Dr. Voyles
`
`testified that the term “function” means a “subroutine”), Dr. Voyles testified at
`
`page 75, line 24-page 76, line 8, configurations “certainly reference subroutines”
`
`and that as for the configurations, “they didn’t contain the executable code.” See
`
`also Voyles Dep. at 80:16-18 (only “referring to executable code segments”); and
`
`Voyles Dep. at 79:9-11 (“[t]he configurations generated by Onika, did not contain
`
`programming instructions that were compiled”). Finally, Dr. Voyles also testified
`
`at page 80, line 19 – page 81, line 1 that “I don’t like the word ‘contain’” and
`
`agreed with his earlier declaration that “the configurations generated by Onika
`
`referred to code that was executed by a computer.” This testimony is relevant to
`
`
`
`8
`
`
`
`
`ABB’s argument on pages 21 and 52 of the Petition that the “configurations” in the
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`Gertz Reference are “extended driver functions.” This testimony is relevant
`
`because it is consistent with the Stewart Declaration at ¶ 41 [Exhibit 2011], which
`
`states that “[c]onfigurations are merely configuration information and are not
`
`executable. They cannot be ‘functions.’”
`
`“Component Code” Limitation
`
`D.
`In Exhibit 2013, on page 142, line 13 – line 25 Dr. Voyles was asked, “Do
`
`you specifically refer to “actions” anywhere in your declaration submitted in this
`
`case?” to which he responded, “No. I find no specific references to actions in the
`
`Onika context.” This testimony is relevant to the argument on page 23 of the
`
`Petition that “by describing that the control tasks and configurations (‘driver
`
`functions’) are connected to the actions (‘component functions’), Gertz discloses
`
`that Onika contains the claimed component code,” as well as Dr. Stewart’s
`
`opinions in paragraph ¶ 44 of his Declaration [Exhibit 2011], that “there is no
`
`‘code’ in Onika relating ‘actions’ to ‘configurations’ and ‘control tasks.’”
`
`10. Dr. Papanikolopoulos’s Reliance Upon Publications Outside the Cited
`References
`
`In Exhibit 2014, on page 33, line 20 – page 34, line 4; page 38, line 16 –
`
`page 39, line 9, page 41, lines 7-17, page 69, lines 14-22, and page 69, line 24 –
`
`page 70, line 7, Dr. Papanikolopoulos testified that he relied upon five publications
`
`
`
`9
`
`
`
`
`not of record in ABB’s Petition (Exhibit Nos. 1131 and 1133-1136) listed on page
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`11 of his declaration (Ex. 1132). On page 41, line 25 – page 42, line 13, and page
`
`42, line 19 – page 44, line 8, he responded “Yes” to the question, “Does the
`
`Stewart Workshop contain details regarding Chimera or Onika that were not
`
`disclosed in the Gertz or Stewart reference?” (“Stewart Workshop” in this
`
`testimony refers to ABB Exhibit 1134), explaining in these sections that Exhibit
`
`1134 “gives a far broader definition of the port-based object” in comparison “to the
`
`Stewart reference” This testimony is relevant to the relevance and admissibility of
`
`at least those portions of the Papanikolopoulos Declaration (Ex. 1132) that rely on
`
`such new references.
`
`11. Dr. Papanikolopoulos’s Reliance Upon Personal Knowledge Outside the
`References
`
`In Exhibit 2013, on page 23, lines 8-12, Dr. Papanikolopoulos was asked if
`
`he was “familiar with Onika beyond what’s set forth in the Gertz reference based
`
`upon
`
`the Sandia engagement, correct?”
`
`to which he responded “Yes.”
`
`Additionally, on page 24, line 21 – page 25, line 7, Dr. Papanikolopoulos was
`
`asked if he “knows details about Onika that are not reflected in the Gertz
`
`reference” to which he responded, “Yes.” He was further asked in this section,
`
`“you have also some knowledge about Chimera beyond what’s reflected in the
`
`Stewart reference based upon your use of Chimera in your lab, correct?” to which
`
`
`
`10
`
`
`
`
`he responded, “Yes.” Similarly, on page 28, lines 17-21, Dr. Papanikolopoulos
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`was asked “Do you have any knowledge of the implementation of Onika beyond
`
`what’s written in the Gertz reference?” to which he responded “Yes.” Further, on
`
`page 29, lines 20-24 he was asked, “Are you aware of any details relating to the
`
`implementation of Chimera beyond what’s written in the Stewart reference?” to
`
`which he responded, “The answer is yes.” Finally, on page 33, line 20 – page 34,
`
`line 4, he was asked “Other than the content of the Stewart Reference and the
`
`Gertz reference, what else did you rely upon in forming your opinions as set forth
`
`in your declarations?” to which he responded that, “My declarations state that I
`
`looked at the particular references as instructed by the board, and also the
`
`background information that I have as part of my role as an academician and as a
`
`researcher.”
`
`This testimony is relevant to the relevance and admissibility of his opinions
`
`concerning the scope and content of the Gertz, Stewart, and Morrow publications
`
`and to whether his opinions constitute those of a person of ordinary skill in the art
`
`or whether he applied his personal, expert knowledge outside of the cited
`
`references to fill in gaps.
`
`12. Additional Observations Relating to the Credibility of the Testimony
`In Exhibit 2014, on page 37, lines 3-15 (definition of “code”), page 119,
`
`lines 20-24 definition of “function”), page 123, lines 8-17 (definition of
`11
`
`
`
`
`
`
`“software”), page 129, lines 5-12 (definition of “program”), page 142, line 21 –
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`page 143, line 10 (definition of “computer program”), page 147, line 8 – 148, line
`
`20 (definition of “instruction”), page 149, line 10 – page 150, line 1 (definition of
`
`“program”), page 150, line 7 – page 151, line 5 (definition of “routine”), page 152,
`
`lines 8-20 (definition of “subroutine”), and page 153, lines 16-25 (definition of
`
`“statement”), Dr. Papanikolopoulos testified that he used broad definitions of claim
`
`terms, and disagreed with each of the definitions given to him from the Microsoft
`
`Press Computer Dictionary (excerpts attached as Exhibit 2016). Further, on page
`
`181, lines 2-9, Dr. Papanikolopoulos was asked, “If you were trying to find the
`
`meaning of a term in the 1994 to 1995 timeframe, would you consult a dictionary
`
`published around that time?” to which he responded, “Not really because computer
`
`science, at that point was often confused with various other disciplines, so I will
`
`lose [sic] my own judgment and experience.” This testimony is relevant to the
`
`reliability and admissibility of Dr. Papanikolopoulos’ definitions of software terms
`
`including “functions” and “code,” as well as how such definitions relate to those as
`
`understood by a person of ordinary skill in the art in 1994.
`
`
`
`
`
`
`
`12
`
`
`
`
`
`Dated: January 14, 2014
`
`
`Trial No.: IPR2013-00062
`U.S. Patent No. 6,516,236
`
`Respectfully submitted by:
`
`/Richard T. Black/
`RICHARD T. BLACK
`Foster Pepper PLLC
`1111 Third Avenue, Suite 3400
`Seattle, Washington 98101-3299
`Tel:
`(206) 447-6251
`Fax: (206) 749-2062
`Email:
`blacr@foster.com
`Registration No.: 40514
`
`/Richard S. Meyer/
`RICHARD S. MEYER
`Boies, Schiller & Flexner LLP
`5301 Wisconsin Avenue NW, Suite 800
`Washington, DC 20015
`Tel:
`(202) 237-2727
`Fax: (202) 237-6131
`Email: rmeyer@BSFLLP.com
`Registration No.: 32541
`
`
`
`13
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that a copy of the foregoing document was
`served on PETITIONER by placing a copy into U.S. EXPRESS MAIL directed to
`the attorneys of record for the petitioner at the following address:
`
`Richard D. Mc Leod
`Klarquist Sparkman LLP
`One World Trade Center, Suite 1600
`121 S.W. Salmon Street
`Portland, Oregon 97204
`
`Dated: January 14, 2014
`
`John D. Vandenberg
`Klarquist Sparkman LLP
`One World Trade Center, Suite 1600
`121 S.W. Salmon Street
`Portland, Oregon 97204
`
`By:
`
`/Richard T. Black/
`RICHARD T. BLACK
`Foster Pepper PLLC
`1111 Third Avenue, Suite 3400
`Seattle, Washington 98101-3299
`Tel:
`(206) 447-6251
`Fax: (206) 749-2062
`Email:
`blacr@foster.com
`Registration No.: 40514
`
`/Richard S. Meyer/
`RICHARD S. MEYER
`Boies, Schiller & Flexner LLP
`5301 Wisconsin Avenue NW, Suite 800
`Washington, DC 20015
`Tel:
`(202) 237-2727
`Fax: (202) 237-6131
`Email: rmeyer@BSFLLP.com
`Registration No.: 32541
`
`Attorneys for Patent Owner,
`Roy-G-Biv Corporation
`
`
`
`
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