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`Filed: May 28, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`HEWLETT-PACKARD COMPANY,
`Petitioner
`
`v.
`
`MPHJ TECHNOLOGY INVESTMENTS, LLC,
`Patent Owner
`_____________
`
`Case IPR2013-00309
`Patent 6,771,381
`_____________
`
`PETITIONER HEWLETT-PACKARD COMPANY’S REPLY TO PATENT
`OWNER’S RESPONSE
`
`
`
`
`
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`Case No. IPR2013-00309
`Patent No. 6,771,381
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`
`TABLE OF CONTENTS
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`Page
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`I.
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`Overview .......................................................................................................... 1
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`II. MPHJ Urges Inconsistent Constructions Rather Than Amending .................. 2
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`III. MPHJ Mischaracterizes Inherency Law and Provides Stale Citations ........... 5
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`IV. MPHJ Fails to Apply BRI in Its Claim Construction ...................................... 6
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`V. MPHJ’s “Module” Arguments Are Meritless ................................................. 7
`
`VI. Allegedly Missing Details Are Admittedly Standard Windows
`Features ............................................................................................................ 9
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`VII. MPHJ’s Arguments for Narrow Constructions Are Unsupported ................ 10
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`VIII. MPHJ Resorts to Several Nonsensical Constructions and Arguments ......... 10
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`IX. MPHJ Ignores Alternative Limitations ......................................................... 12
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`X. MPHJ’s Attack on Mr. Wibbels Underscores Anticipation .......................... 14
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`XI. Conclusion ..................................................................................................... 15
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`i
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`Case No. IPR2013-00309
`Patent No. 6,771,381
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`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`In re Omeprazole Patent Litig.,
`483 F.3d 1364 (Fed. Cir. 2007) ............................................................................ 6
`
`Smithkline Beecham Corp. v. Apotex Corp.,
`403 F.3d 1331 (Fed. Cir. 2005) ............................................................................ 6
`
`Welker Bearing Co. v. PHD, Inc.,
`550 F.3d 1090 (Fed. Cir. 2008) ............................................................................ 8
`
`
`RULES
`
`37 C.F.R. § 42.23 ....................................................................................................... 1
`
`37 C.F.R. § 42.51(b)(1)(iii) .................................................................................... 2, 5
`
`
`PATENTS
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`U.S. Patent No. 6,771,381 .................................................................................passim
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`U.S. Patent No. 7,477,410 .......................................................................................... 5
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`ii
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`Case No. IPR2013-00309
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`
`EXHIBIT LIST (37 C.F.R. § 42.63(e))
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`Exhibit
`
`Description
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`1001 U.S. Patent No. 6,771,381 to Klein
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`1002
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`File History of 6,771,381
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`1003 Referenced Statutes
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`1004 U.S. Patent No. 5,666,495 to Yeh
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`1005 Declaration of Mark Wibbels
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`1006
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`ScanJet 5 Product Documentation
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`1007
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`ScanJet 4Si Product Documentation
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`1008 HP 9100C Digital Sender Product Documentation
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`1009 HP Laser Jet 3100 Product Documentation
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`1010 U.S. Patent No. 6,611,291 to Dow et al.
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`1011 U.S. Patent No. 5,499,108 to Cotte et al.
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`1012 Curriculum Vitae of Mark Wibbels
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`1013
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`Press Releases of Caere Corp., Biscom, Inc., Cardiff Software, Inc.,
`Castelle, & Diamond Head Software, Inc.
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`1014 HP 9100C Digital Sender Press Release
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`1015 HP ScanJet 5 Press Release
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`1016 Demand Letter Documents
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`1017 Declaration of Jennifer R. Bush
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`Exhibit
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`Description
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`1018
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`Excerpts from RICHARD J. MARTIN AND GLENN E. WEADOCK,
`BULLETPROOFING CLIENT/SERVER SYSTEMS (1997).
`
`1019 Direct Testimony of Glenn E. Weadock in United States v. Microsoft
`Corp., No. 98-1232 (D.D.C. Nov. 1, 2002) and State of New York et al.
`v. Microsoft Corp., No. 98-1233 (D.D.C. Nov. 1, 2002).
`
`1020
`
`1021
`
`Prism 4.1–Developer’s Guide to Microsoft Prism, Appendix A:
`Glossary,
`https://web.archive.org/web/20140125142437/http://msdn.microsoft.co
`m/en-us/library/ff921135(v=pandp.40).aspx (last visited May 19, 2014).
`
`Federal Trade Commission’s Memorandum in Support of Motion to
`Dismiss in MPHJ Tech. Invs., LLC, et al. v. FTC, et al., No. 14-11
`(W.D. Tex. Jan. 13, 2014).
`
`1022 Complaint in MPHJ Tech. Invs., LLC v. Dillard’s, Inc., No. 14-4 (D.
`Del. Jan 3, 2014).
`
`1023
`
`1024
`
`Excerpts from GLENN E. WEADOCK AND MARK WILKINS, WINDOWS 95
`REGISTRY FOR DUMMIES (1998).
`
`Excerpts from GLENN E. WEADOCK AND MARK WILKINS, WINDOWS 98
`REGISTRY FOR DUMMIES (1998).
`
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`The Board issued its Institution of Inter Partes Review on November 21,
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`2013. Paper 9. MPHJ filed its Response and Opposition to Petition on
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`February 28, 2014. Paper 20. HP submits this reply under 37 C.F.R. § 42.23.
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`I.
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`Overview
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`As explained in the Petition, the specification and claims of the ’381 are
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`inconsistent and otherwise flawed. MPHJ chose not to provide any explanation via
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`a Preliminary Response. The Board confirmed the failings of the ’381 and in some
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`cases expressly invited MPHJ to address these defects. See, e.g., Paper 9 p.19.
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`MPHJ decided not to amend, despite telling the Board that it planned to do so.
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`Paper 11 p.2. MPHJ’s Response ignores these defects even in the face of the
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`Board’s observation that determining a broadest reasonable interpretation (“BRI”)
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`requires them to be considered. See, e.g., Paper 9 pp.17, 19-20.
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`MPHJ now proposes narrow constructions that lack a basis in law. The
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`Response misconstrues inherency and BRI standards, presents arguments
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`inconsistent with MPHJ’s own prior statements and those of its expert, and ignores
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`the points made by HP, focusing instead on irrelevant arguments that the
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`references do not expressly detail features that were disclaimed as conventional in
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`the ’381. Furthermore, MPHJ’s attack on Mr. Wibbels’ level of skill serves only to
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`underscore that a POSA would find that the references anticipate the claims. In
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`sum, MPHJ articulates no error in the Board’s reasoning.
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`II. MPHJ Urges Inconsistent Constructions Rather Than Amending
`Rather than taking to heart the Board’s observations and seeking to amend
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`the flawed claims, MPHJ argues for narrow, unsupported interpretations.
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`Illustrative is claim 8’s recitation of “integrat[ing] the computer data management
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`system into an external application,” which system the Board noted “includes a
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`memory and a processor.” The Board said, “[i]t is not clear how that hardware
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`portion … can be integrated by embedding or running anything.” Id. p.20. In
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`response, MPHJ admits that “[t]he Board has a valid point” but suggests that a
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`POSA would nonetheless understand the “wherein” clause of claim 8 to pertain
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`only to the software components of the system. Ex. 2002 ¶36. In other words,
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`according to MPHJ, a POSA would construe claim 8 in a way that is at odds with
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`the explicit language of the claim.
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`MPHJ follows this approach throughout its Response, arguing for narrow
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`constructions of claim terms that MPHJ could have sought to amend. Such
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`constructions not only defy a natural reading, but also run contrary to prior
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`assertions made by MPHJ and its expert—none of which MPHJ has disclosed to
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`the Board as required by 37 C.F.R. § 42.51(b)(1)(iii).
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`For example, MPHJ asserts that the claims extend only to a “standalone
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`modular application” running on a computer and not to other programs, such as
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`firmware operating on a device (e.g., a scanner or printer). Paper 20 p.2; Ex. 2002
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`¶19. However, the ’381 states, “[t]he VC invention is software ... [that] … can
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`reside on a PC, LAN/WAN server, digital device (such as a digital copier)”
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`(Ex. 1001 Abstract; see also id. 5:58-60, 46:22-24, 69:55-57) and “VC is in one
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`embodiment and optionally a standalone application” (id. 8:66-67 (emphasis
`
`added)). The ’381 expressly urges that “the claims be regarded as including such
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`equivalent constructions.” Id. 42:49-52; see also id. 85:3-12.
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`A second example is Mr. Weadock’s selective use of references to support
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`MPHJ’s positions. In providing a narrow definition of “application,” Mr.
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`Weadock fails to mention that one of his own books (listed in Ex. 2002 App. B)
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`states, “[o]nce users start creating their own ad hoc applications, the concept of
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`‘application’ becomes so fluid and flexible as to be meaningless.” Ex. 1018 p.51.
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`He echoes a similar sentiment in his prior testimony (Ex. 2002 p.41), agreeing that
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`“it becomes very difficult to draw … a boundary between operating system and
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`application” and showing that in industry there can be minimal distinctions
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`between applications and operating systems, and modules and their physical
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`locations. Ex. 1019 pp. 5-8, 18-20. Clearly, Mr. Weadock’s statements in the
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`Response are at odds with his own prior writings and testimony.
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`Likewise, one of the other books that he selectively quotes incorporates both
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`application “features” and application “infrastructure” within the term
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`“application” —providing an understanding of “application” far broader than Mr.
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`Weadock urges in his declaration (e.g., Ex. 2002 ¶21). Ex. 2006 p.1. This book
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`also refers to modular programming as a “common” approach to building
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`applications, and the glossary defines “module” simply as “[a] logical unit of
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`separation in the application.” See id. p.5; Ex. 1020 p.1. This definition is almost
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`identical to the construction adopted by the Board. Paper 9 pp.13-15.
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`MPHJ’s prior statements to possible infringers and potential licensees for
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`this family of patents demonstrate the broad claim scope MPHJ has argued in the
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`past. See, e.g., Ex. 1016 at 13 (“our patent rights are addressed to end user
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`enterprise systems which use network scanners or MFPs interoperably with other
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`software/systems in order to practice the patented solution”). MPHJ asserts “a
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`typical example of what infringes” the ’381 without any reference to the
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`limitations now urged. Id. p.11. As the FTC succinctly characterized it, “MPHJ’s
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`letters claim that the recipients have likely infringed the MPHJ Portfolio by using a
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`scanner or multifunction printer that is connected to a network to permit a
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`document to be scanned directly to e-mail or other application.” Ex. 1021 p.5 n.4.
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`To Petitioner’s knowledge, MPHJ has never (before its Response) pointed to any
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`“standalone modular application” as a requirement for infringement, and it would
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`be improper to ignore MPHJ’s prior statements for purposes of BRI.
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`Similar inconsistencies arise regarding other claim terms. For example,
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`taking issue with the Board’s construction of the “Go operation” term, Mr.
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`Weadock simply says “this interpretation does not go quite far enough.” Ex. 2002
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`p.7. Yet, in litigation, MPHJ has asserted that identical language in related U.S.
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`Patent No. 7,477,410 (“the ’410”) is satisfied by a feature that “only requires the
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`user to ‘[p]ush the button … [t]hat’s about it.’” Ex. 1022 ¶¶235, 237.
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`MPHJ whipsaws another term in common with the ’410 by asserting in
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`litigation that “implementation of said protocols is a requirement … to
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`communicate and interface with external devices and applications” (Ex. 1022 ¶151
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`(emphasis added)), while MPHJ asserts here that SJ5 and Cotte do not recite
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`multiple protocols. Paper 20 pp.16-17, 34-35. In fact, Fig. 17 of Cotte shows not
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`only fax, but “Archive,” “Clipboard,” “Photocopy,” and “cc: Mail” as destinations,
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`each requiring a corresponding protocol. Ex. 1011 Fig. 17. Even if only fax had
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`been mentioned, a POSA would understand reference to Group III and Group IV
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`fax compression in Cotte (Ex. 1011 14:62) to disclose multiple protocols.
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`In none of these circumstances has MPHJ brought such inconsistencies to
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`the Board’s attention as required by 37 C.F.R. § 42.51(b)(1)(iii). If MPHJ wished
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`to avoid the consequences of appropriate BRI construction, it should have followed
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`through with its original proposal and moved to amend the claims.
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`III. MPHJ Mischaracterizes Inherency Law and Provides Stale Citations
`MPHJ improperly states the law regarding inherency and cherry picks
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`language from old cases to confuse the analysis regarding standard Microsoft
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`features. See Paper 20 pp.5, 48, n.6. The Federal Circuit has criticized and
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`clarified the cases MPHJ cites, explaining that inherent anticipation does not
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`require express recognition in the prior art. See, e.g., Smithkline Beecham Corp. v.
`
`Apotex Corp., 403 F.3d 1331, 1342 (Fed. Cir. 2005) (en banc, collecting authority
`
`and vacating panel decision). Disclosures that would point a POSA to Microsoft
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`Windows need not explain every detail about its features.
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`Likewise, Mr. Weadock’s belief that a POSA in 1992 would not understand
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`Cotte’s disclosure of sending email as including LAN or Internet is irrelevant. See
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`Ex. 2002 ¶72. The relevant inquiry is whether a POSA reading Cotte in the
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`1998/1999 timeframe would understand “email” to include LAN or Internet. See
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`In re Omeprazole Patent Litig., 483 F.3d 1364, 1373 (Fed. Cir. 2007) (recognition
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`at time of prior art reference is not necessary to anticipation).
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`IV. MPHJ Fails to Apply BRI in Its Claim Construction
`MPHJ points to various locations in the specification as “not supporting”
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`HP’s and the Board’s claim construction. For example, in response to the Board’s
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`conclusion that the claimed modules can overlap, Mr. Weadock argues that “the
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`’381 specification does not disclose [module overlap].” Ex. 2002 ¶26. But this is
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`not the standard to be applied. As Mr. Weadock himself reports, “words of the
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`claim must be given their plain meaning unless such meaning is inconsistent with
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`the specification.” Ex. 2002 ¶53 (emphasis added). MPHJ does not even assert
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`that the plain meaning articulated by the Board is inconsistent with the
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`specification.
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`MPHJ also states that “[n]owhere in the specification of the ’381 patent is
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`‘application’ or ‘software application’ used in the context of device firmware.”
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`Paper 20 p.6. Even if this statement by MPHJ were correct (contra Ex. 1001 5:55-
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`60), it is beside the point. The specification cannot be inconsistent with the plain
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`meaning, but the specification need not provide an example for the plain meaning
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`to apply. Thus, assertions that the patent does not use a term in a specific way
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`have no impact on BRI.
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`V. MPHJ’s “Module” Arguments Are Meritless
`MPHJ’s module arguments fail for several independent reasons. First, none
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`of the independent claims requires more than one module. The use of “at least one
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`of” in claims 1 and 14 allows that some embodiments could include only a single
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`module. Claim 12 is a system claim reciting a module used with a method, and
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`thus this module is not afforded patentable weight. Ex. 1001 87:15-44. Claim 13
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`recites a single “server module” claim that only references other modules in a
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`manner that lacks antecedent basis and cannot be given patentable weight. Id.
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`87:45-88:6. Claim 15 makes no mention of “modules” or related limitations at all.
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`Id. 88:37-57. Thus, MPHJ’s alleged distinction falls apart for at least the
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`independent claims. Other uses of “module” in dependent claims are similarly
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`flawed. As one notable example, the Board points out that claim 9 recites a term,
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`“the server module,” that lacks antecedent basis. Paper 9 p.17. This is the only
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`module that the ’381 ever describes other than as “a counterpart to an aspect that is
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`found on a conventional copier.” Ex. 1001 8:59-60; c.f. 7:66-8:1 (all modules
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`described as corresponding to aspects of conventional copier). Thus, MPHJ’s
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`“modules” argument fails in such instances as well.
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`Second, under PTO regulations, the phrase “module for” is a functional,
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`“non-structural term.” MPEP 2181(I)(A) (citing Welker Bearing Co. v. PHD, Inc.,
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`550 F.3d 1090, 1096 (Fed. Cir. 2008)). The ’381 itself states, “while the above
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`discussion has separated the various functions into separate layers of functionality,
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`the layers may be combined, physically and/or logically, and various functions
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`may be combined together.” Ex. 1001 85:9-12.
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`Third, MPHJ has done nothing to disrupt the Board’s sound reasoning.
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`MPHJ argues “the fact that software can perform a data processing function does
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`not mean the software is designed so that a discrete ‘process module’ performs that
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`function.” Paper 20 p.41 (emphasis in original). However, the Board has properly
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`concluded that even if “modules” were required, both Cotte and SJ5 have them.
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`Paper 9 pp.32, 38. Thus, MPHJ’s arguments regarding modules are distinctions
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`without a difference.
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`VI. Allegedly Missing Details Are Admittedly Standard Windows Features
`MPHJ attempts to distinguish the references as lacking certain features, but
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`those are features that MPHJ has admitted to be conventional rather than
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`patentable distinctions. For example, Mr. Weadock asserts that it is “not a given
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`that software running on Windows in 1998 would use the Windows registry.” Ex.
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`2002 ¶48. He fails to mention that the ’381 itself describes such features as being
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`part of the known background architecture upon which the alleged invention was
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`implemented. Ex. 1001 9:28-32, 73:31-35, 74:14-22. Perhaps more striking is his
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`failure to cite his own writings on this point, for example his book WINDOWS 95
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`REGISTRY FOR DUMMIES, which describes the Registry as “at the center of
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`everything that Windows does.” Ex. 1023 p.12. His follow-on book, WINDOWS 98
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`REGISTRY FOR DUMMIES, goes further and states that “[e]very document we’ve
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`seen that discusses the Registry invariably refers to it as ‘the heart of Windows 98.’
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`That’s true; the Registry contains just about every bit of information that matters
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`about the hardware and software in a Windows 98 PC.” Ex. 1024 p.3.
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`To suggest that a standard Windows feature or component in a claim
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`somehow has patentable significance is both legally incorrect and meaningless as a
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`practical matter, since the claim would be invalid in any event. To illustrate, an
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`anticipated system claim cannot be made patentable by adding a limitation that the
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`system needs to be connected to a power source, as such detail would be
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`understood by a POSA, whether implicitly or notoriously. See MPEP 2144.01,
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`2144.03.
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`VII. MPHJ’s Arguments for Narrow Constructions Are Unsupported
`MPHJ urges several new limitations on claim terms but does not back up
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`those arguments. For example, MPHJ’s assertion that “module” should be limited
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`to a “plug-and-play” capability (Paper 20 p.8) has no basis in the specification of
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`the ’381, and thus is not the BRI of this claim term. See MPEP 2111.
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`In another example, MPHJ argues that a “Go operation” means “an
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`operation that begins a process and requires no further action from the user to
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`complete.” Ex. 2002 ¶31 (emphasis added). Mr. Weadock’s only “support” for
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`this argument is that the Board’s construction “does not go quite far enough” and
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`“is not the intent of the ’381 as [he] read it.” Id.
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`In a further example, Mr. Weadock makes the conclusory statement that
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`“dynamically” means “on the fly.” Id. ¶37. Neither the specification portion Mr.
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`Weadock points to, nor any other, supports this narrow construction. MPHJ is
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`seeking to obtain, via unwarranted constructions, limitations that MPHJ could have
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`expressly sought to add via a motion to amend if MPHJ were willing to live with
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`such narrower claims for enforcement purposes as well.
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`VIII. MPHJ Resorts to Several Nonsensical Constructions and Arguments
`MPHJ’s extreme arguments highlight its desperate attempts to distinguish
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`the claims from the cited references. One of the most egregious examples of
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`overreach is MPHJ’s assertion that “physical buttons” disclosed in the SJ5
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`reference cannot be “virtual copy operation means.” Paper 20 p.44. This reading
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`contorts the claim by ignoring the initial word in the phrase “enable virtual copy
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`operation means.” Nothing precludes a physical button from enabling such means;
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`MPHJ’s response is disingenuous in suggesting otherwise.
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`In another example, MPHJ asserts that the “abort” button of SJ5 does not
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`disclose a means for resetting. Id. SJ5 discloses that operation of the abort key not
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`only stops scanning but also causes the system to “return to the main menu and
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`start over.” Ex. 1006 p.24. This description is precisely what a “reset” is.
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`A third example is MPHJ’s dual assertion that claim 2 requires that a
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`destination for an electronic document include a scanner, and that Cotte does not
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`include a scanner. Paper 20 p.22. Any reading that would require a scanner to be
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`a destination for an electronic document calls into question the viability of this
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`claim: the ’381 only discusses a scanner as a device that creates electronic
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`documents, not a device that would receive them. See, e.g., Ex. 1001 FIG. 28
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`(showing a unidirectional arrow going out from a scanner but bidirectional arrows
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`for other components and applications). In any event, Cotte is entitled “Document-
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`Driven Scanning Input Device ...,” so to suggest that Cotte does not disclose a
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`scanner is to simply ignore the reference in its entirety. Ex. 1011 (emphasis
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`added).
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`Similarly, MPHJ equates the claimed “destination application” with a
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`“currently executing software program,” citing portions of the specification that
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`say nothing about “destination” or “executing” applications, but instead “existing”
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`applications. Paper 20 p.8. Even on its face this argument proves nothing; MPHJ
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`apparently just sought to say something on this point, regardless of persuasiveness.
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`Next, MPHJ asserts that Cotte and SJ5 do not disclose “presenting the data
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`comprising the at least one of paper and electronic paper as it is being copied,” but
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`only afterwards. Id. pp.25-26, 41-42 (emphasis added). It is axiomatic that image
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`data coming from a scanner cannot be shown until after the corresponding image
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`portion is scanned. Regardless, both Cotte and SJ5 disclose display of information
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`during the scanning process. See Ex. 1011 FIG. 17 (entitled “Incoming Pages”);
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`Ex. 1006 p.50 (“[a]s you scan items, they appear … as thumbnails”); see also id.
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`p.28 (“During Scanning” section)).
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`MPHJ suggests without explanation that a patentable distinction can come
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`from the term “third-party software.” In so doing, MPHJ ignores references to
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`third-party software in Cotte (e.g., “cc: Mail,” item 225 (Ex. 1011 FIG. 17)) and
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`incorrectly suggests ignoring references to bundled third-party software in SJ5.
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`IX. MPHJ Ignores Alternative Limitations
`Repeatedly, MPHJ pretends that alternative terms in the claims are all
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`required, and accordingly the Response does not address the alternatives. For
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`instance, the usefulness of Mr. Weadock’s declaration is brought to issue by the
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`way he treats elements [1.3] and [1.4]. See Ex. 2002 ¶¶75-77, 96-98. HP, Mr.
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`Wibbels, and the Board found that the appropriate construction of [1.4] requires
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`only one of “input, output, client or process modules, or external applications.”
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`Paper 9 p.11; see also Ex. 1005 ¶62. In fact, the entirety of [1.4] is merely an
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`alternative to [1.3] due to the “at least one of” clause at the end of [1.2]. But Mr.
`
`Weadock treats both of these elements as requirements. See Ex. 2002 ¶¶75-77, 96-
`
`98. Mr. Weadock repeats this approach in his discussion of claim 9 as well. Ex.
`
`2002 ¶47.
`
`Likewise, Mr. Weadock protests that the “presenting users with direct
`
`access” clause of [12.3] “is not preceded by the ‘at least one’ language that is
`
`reasonably interpreted elsewhere to indicate a logical ‘or.’” Id. ¶51. As shown by
`
`Exhibit 1005 ¶¶107-108, the claim includes five such “at least one of”-type clauses,
`
`and they unquestionably make the “presenting users with direct access” clause
`
`optional. That this clause is not immediately preceded by “at least one of” is only a
`
`result of the nested nature of these clauses.
`
`As a third example, Mr. Weadock urges that “at least one of tutorial and
`
`options” in [12.3] requires both a tutorial and options (Ex. 2002 ¶92 (emphasis
`
`added)), ignoring the fact that FIGS. 17 and 21B of Cotte disclose options, thus
`
`13
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`Case No. IPR2013-00309
`Patent No. 6,771,381
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`satisfying this limitation. Ex. 1005 ¶319.
`
`In sum, MPHJ simply pretends that alternative recitations (which MPHJ
`
`could have sought to remove via amendment) do not exist in the claims.
`
`X. MPHJ’s Attack on Mr. Wibbels Underscores Anticipation
`Mr. Weadock asserts that HP’s witness Mr. Wibbels is not even a POSA,
`
`much less an expert. See Paper 20 pp.9-12; Ex. 2002 ¶16. MPHJ’s denigration of
`
`Mr. Wibbels proves too much and further exposes the weakness of MPHJ’s
`
`attempt to ascribe patentable weight to standard Windows features.
`
`Mr. Wibbels holds dual bachelor’s degrees in mathematics and physics, a
`
`Masters in Engineering, and has been a “Distinguished Technologist/Strategist” at
`
`HP for a decade. See Ex. 1012 pp.1-2. MPHJ’s basis for dismissing Mr. Wibbels’
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`experience is that his work relates to “software applications [in] firmware” rather
`
`than in PCs—a distinction without effect. Paper 20 pp.9-12.
`
`But for purposes of argument, consider what it would mean if Mr. Wibbels
`
`were not even a POSA. Though MPHJ disagrees with certain constructions
`
`adopted by Mr. Wibbels (and HP and the Board), neither MPHJ nor Mr. Weadock
`
`have questioned whether Mr. Wibbels was truthful in his declaration. Mr. Wibbels
`
`recognized Windows features that he said would be understood as conventional by
`
`a POSA reading Cotte and SJ5. See Ex. 1005 ¶¶87-88. If Mr. Wibbels were not a
`
`POSA, as Mr. Weadock urges, the fact that Mr. Wibbels nonetheless recognizes
`
`14
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`Case No. IPR2013-00309
`Patent No. 6,771,381
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`the standard nature of these Windows features means that a POSA certainly would
`
`recognize those features as standard.
`
`XI. Conclusion
`MPHJ urges interpretations so narrow that they appear to be an attempt to
`
`change the claims’ scope without any actual amendment. MPHJ has urged broader
`
`constructions elsewhere, but now, faced with anticipating art, MPHJ reverses its
`
`stance. In so doing, MPHJ misconstrues applicable standards, argues imagined
`
`differences and features admitted as conventional, denies the existence of
`
`alternative limitations, and denigrates an expert with decades of experience.
`
`MPHJ goes so far as to call the Board’s constructions “dangerous” and
`
`reflecting “a failure to understand the technology at issue” (Paper 20 pp.18, 26),
`
`but it is MPHJ that is being extreme. MPHJ presents no legitimate challenge to the
`
`Board’s reasoning.
`
`
`Respectfully submitted,
`
`FENWICK & WEST, LLP
`
`
`
`
`
`/Stuart P. Meyer/
`Stuart P. Meyer (Reg. No. 33,426)
`Attorneys for Petitioner
`
`
`
`
`/Jennifer R. Bush/
`
`
`Jennifer R. Bush (Reg. No. 50,784)
`
`Date: May 28, 2014
`
`801 California Street, Mountain View, CA 94041, Tel: (650) 988-8500
`
`15
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`
`
`Case No. IPR2013-00309
`Patent No. 6,771,381
`
`
`CERTIFICATE OF SERVICE
`
`I, Jennifer R. Bush, hereby certify that on May 28, 2014, I caused the
`
`foregoing PETITIONER HEWLETT-PACKARD COMPANY’S REPLY TO
`
`PATENT OWNER’S RESPONSE and associated Exhibits 1017-1024 to be
`
`served by email and express mail on the following parties:
`
`Scott A. Horstemeyer (scott.horstemeyer@thomashorstemeyer.com)
`N. Andrew Crain (andrew.crain@thomashorstemeyer.com)
`THOMAS HORSTEMEYER, LLP
`400 Interstate North Parkway, SW
`Suite 1500
`Atlanta, Georgia 30339
`Tel: (770) 933-9500
`Fax: (770) 951-0933
`
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`jbush-ptab@fenwick.com
`Telephone: 650-988-8500
`Facsimile: 650-938-5200
`
`By: /Jennifer R. Bush/
`Jennifer R. Bush (Reg. No. 50,784)
`
`
`Attorneys for Petitioner
`HEWLETT-PACKARD COMPANY
`
`
`
`16
`
`
`
`Dated: May 28, 2014
`
`
`
`
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