Tapper
`
`IPR2013-00478 POR at 40-49.
`
`EXHIBIT 2117
`Facebook, Inc. et al. v. Software Rights Archive, LLC
`CASES IPR2013-00478
`IPR2013-00479
`IPR2013-00480
`IPR2013-00481
`
`1
`
`
`
`IPR2013-00478 POR at 40-49.
`
`EXHIBIT 2117
`Facebook, Inc. et al. v. Software Rights Archive, LLC
`CASES IPR2013-00478
`IPR2013-00479
`IPR2013-00480
`IPR2013-00481
`
`1
`
`
`
`Claim 26 of the ‘352 Patent Requires Analyzing “For
`Indirect Relationships Existing Between or Among Objects
`in the Database”
`Claim 26 of the ‘352 patent reads:
`“A non-semantical method for numerically representing objects in a computer database and for computerized searching of the
`numerically represented objects in the database, wherein direct and indirect relationships exist between objects in the database,
`comprising:
`marking objects in the database so that each marked object may be individually identified by a computerized search;
`creating a first numerical representation for each identified object in the database based upon the object's direct relationship with other objects in the
`database;
`storing the first numerical representations for use in computerized searching;
`
`analyzing the first numerical representations for indirect
`relationships existing between or among objects in the database;
`
`generating a second numerical representation of each object based on the analysis of the first numerical representation;
`storing the second numerical representation for use in computerized searching; and
`searching the objects in the database using a computer and the stored second numerical representations, wherein the search identified one or more of the
`objects in the database.”
`‘352 patent at 35:28-53 (emphasis added); see also IPR2013-00478 POR at 44.
`
`2
`
`
`
`Petitioners Set Forth this Construction in Their Petition
`In the previous Google litigation, the District Court
`construed “analyzing the first numerical representation
`for indirect relationships” as “using the first numerical
`representation to at least locate and identify the indirect
`relationships.”
`The basis of this construction is set forth in the record
`cited below.
`Claim Construction Order, IPR2013-00478 Exhibit 2022, Pet. at 7; IPR2013-00478 POR at 12
`(citing ‘352 Jacobs Dec. at ¶ 81).
`
`3
`
`
`
`The Board Must Apply the Same Phillips Standard to
`Claim Construction as the District Court
`Broadest reasonable interpretation does not apply:
`Since the Patents at Issue are expired, the Board must, in applying the
`Phillips standard to expired claims, construe the claims so as to sustain
`their validity, if possible.”
`Ex Parte Katz, Appeal 2008-005127, Reexamination Control Nos. 90/006,978 and 90/007,074 (merged)
`(Mar. 15, 2010).
`As the Board held in Ex Parte Papst-Motoren, when it has the interpretation of claims
`of an expired patent before it:
`“[A] policy of liberal construction may properly and should be applied.
`Such a policy favors a construction of a patent claim that will render it
`valid, i.e., a narrow construction, over a broad construction that would
`render it invalid.”
`Ex parte Papst-Motoren, 1 USPQ2d 1655, 1986 WL 83328 (BPAI 1986) (emphasis added). This standard is also
`reflected in the MPEP. See MPEP § 2258; IPR2013-00478 POR at 8-9.
`
`4
`
`
`
`Dr. Jacobs testified that a “hit” is “not analyzed for indirect
`relationships”:
`“To the extent that “hits” could be based on the
`references in a citation vector, this possibility is
`irrelevant with respect to the claims because[]
`“hits” can be direct as citation vectors and
`invariably include self-reference.”
`Jacobs ‘352 Decl., IPR 2013-00478 Exhibit 2113 at ¶ 407, 409; see also IPR2013-00478 POR at 44.
`
`5
`
`
`
`“Tapper 1976 teaches, as a precursor to the above quote, that each case is
`“represented by a vector expressing both the citation it makes, its own
`reference and the citations made of it.” The above-referenced portion of
`Tapper 1976 further theorizes that this same citation vector for a case could
`include “second generation citations” (i.e., the cases cited by cited cases).…
`This quotation is merely a description of the contents of citation vectors. It
`would not be possible given the teachings of the Tapper Papers to “analyze” a
`citation vector for first generation or second generation citations, as the
`Petition states, given that the Tapper papers describe a citation vector as
`merely a string of case references that would not distinguish self-
`reference, first generation, and second generation citations.”
`
`Jacobs ‘352 Decl., IPR 2013-00478 Exhibit 2113 at ¶ 419 (internal citations omitted); see also IPR2013-
`00478 POR at 40-49.
`
`6
`
`
`
`Jacobs Testifies:
`“Tapper indicates that the citation vector for a case should include
`cited cases, citing cases, and the case itself, as well as possibly
`additional vector elements:
`But the subsequent history of that case may be of more interest to
`lawyers than its antecedent history. Indeed the success of Shepard’s
`suggest that this is so. The obvious reaction is to complete the
`vector by including subsequent citation. Each case would then be
`represented by a vector expressing both the citation it makes, its
`own reference and the citations made of it.” Tapper 1976 at 266.
`‘352 Jacobs Dec., IPR2013-00478 at ¶ 403 (citing Tapper 1976 at 266 (emphasis added)) see also
`IPR2013-00478 POR at 40-49.
`
`7
`
`
`
`Tapper States:
`“A special problem is presented by the citation of the subject case itself. This
`arises when the researcher is looking for cases like case A, and some of the
`other cases cite case A. It is then necessary to have ascribed some value to
`case A in the citation string representing case A, since there is clearly some
`affinity between the two cases and unless a value has been ascribed the affinity
`will be discounted. The value could not realistically be anything but a high
`value, and it was decided that it should be represented by a value close to the
`highest for any case in terms of hierarchical level and frequency of
`occurrence, bearing in mind that there could in this case be no question of
`incrementation by reference to the factors operating in any other situation.
`Thirty-five was accordingly chosen as an arbitrary experimental figure.”
`Tapper 1982 at 142 (emphasis added); see also ‘352 Jacobs Dec., IPR2013-00478 at ¶ 403;
`IPR2013-00478 POR at 40-49.
`
`8
`
`
`
`Jacobs Testifies:
`“The self references in Tapper’s citation vectors preclude them from
`being a first numerical representation of an object’s direct
`relationship with other objects in a database that can be analyzed for
`indirect relationships:
`If a case cites no authority and is itself never cited it will be
`represented in the data base only by its own reference. This
`must appear since it can never be predicated in advance that the
`case will not at some time in the future be cited. All that can be
`hoped is that this problem will not be severe.” Tapper 1976 at 268.
`‘352 Jacobs Dec., IPR2013-00478 at ¶¶ 403, 404 (citing Tapper 1976 at 268 (emphasis added));
`see also IPR2013-00478 POR at 40-49.
`
`9
`
`
`
`Tapper States:
`“An alternative approach to this problem, but it should be stressed by
`no means an exclusive alternative, would be to refashion the vector in
`another way. This would be to include second generation citations.
`Thus if a case cites cases ,A’, ,B’ and ,C’, and case ,A’ cites ,a1’, ,a2’
`and ,a3;, case ,B’ ,b1’, ,b2’ and ,b3’ and case ,C’ ,c1’ ,c2’ and ,c3’ the
`original case would be represented by a combination of its own
`vector, and those of cases ,A’, ,B’ and ,C’, or at least that portion of
`their vectors which represented first generation citations.”
`Tapper 1976 at 266; see also ‘352 Jacobs Dec., IPR2013-00478 at ¶¶ 403, 404; IPR2013-00478
`POR at 40-49.
`
`10
`
`
`
`Petitioners Argue That There is an Alternative Embodiment
`That Does Not Contain a Self Reference
`“Tapper 1982 does not state that it is always mandatory to include the
`case itself. To the contrary, Tapper 1982 teaches and motivations citation
`vectors whose elements consist solely of “cited” references. Tapper 1982
`teaches that one option design choice (which Tapper describes as
`implemented in a data set under consideration) was to use citation vectors
`consisting solely of cited cases as the only vector elements: “The data
`was taken from a volume of the English Criminal Appeal Reports, and
`included as vector elements only cited cases without any weighting.”
`Fox Reply Decl. at ¶ 136 (internal citations omitted).
`
`11
`
`
`
`Petitioners also rely on the follow passage from Tapper 1976 as teaching the process
`specifically excluded self references:
`“An alternative approach to this problem, but it should be stressed by no
`means an exclusive alternative, would be to refashion the vector in another
`way. This would be to include second generation citations. Thus if a case
`cites cases ,A’, ,B’ and ,C’, and case ,A’ cites ,a1’, ,a2’ and ,a3;, case ,B’
`,b1’, ,b2’ and ,b3’ and case ,C’ ,c1’ ,c2’ and ,c3’ the original case would be
`represented by a combination of its own vector, and those of cases ,A’, ,B’
`and ,C’, or at least that portion of their vectors which represented first
`generation citations.”
`Tapper 1976 at 266; Fox Reply Decl. at ¶ 136.
`
`12
`
`
`
`“A special problem is presented by the citation of the
`subject case itself. This arises when the researcher is
`looking for cases like case A, and some of the other cases
`cite case A. It is then necessary to have ascribed some
`value to case A in the citation string representing case A…”
`Tapper 1982 at 142 (emphasis added); see also ‘352 Jacobs Dec., IPR2013-00478
`Exhibit 2113 at ¶ 403-404; IPR2013-00478 POR at 40-49.
`
`13
`
`
`
`Claim 26 states:
`marking objects in the database so that each marked object may be individually identified by a computerized search;
`creating a first numerical representation for each identified object in the database based upon the object's direct
`relationship with other objects in the database;
`storing the first numerical representations for use in computerized searching;
`analyzing the first numerical representations for indirect relationships
`existing between or among objects in the database;
`generating a second numerical representation of each object based on the
`analysis of the first numerical representation;
`storing the second numerical representation for use in computerized searching; and
`searching the objects in the database using a computer and the stored second numerical representations, wherein the
`search identifies one or more of the objects in the database.
`‘352 patent at 35:28-53 (emphasis added).
`
`14
`
`
`
`“An alternative approach to this problem, but it should be stressed by
`no means an exclusive alternative, would be to refashion the vector in
`another way. This would be to include second generation citations.
`Thus if a case cites cases ,A’, ,B’ and ,C’, and case ,A’ cites ,a1’, ,a2’
`and ,a3;, case ,B’ ,b1’, ,b2’ and ,b3’ and case ,C’ ,c1’ ,c2’ and ,c3’ the
`original case would be represented by a combination of its own
`vector, and those of cases ,A’, ,B’ and ,C’, or at least that portion of
`their vectors which represented first generation citations.”
`Tapper 1976 at 266; ‘352 Jacobs Dec., IPR2013-00478 Exhibit 2113 at ¶ 418-419; IPR2013-
`00478 POR at 45.
`
`15
`
`
`
`A First Numerical Representation of
`Direct Relationships
`
`16
`
`
`
`Because the system comprises only citation vectors, it follows
`that the search must be in terms of matching given vectors of
`citations.
`Tapper 1976 (Exhibit 1005) at 271.
`One of the advantages of the citation vector approach is that it
`provides the user with the facility of manipulating the database
`by differential weighting of the citations which constitute the
`vectors.
`Tapper 1976 (Exhibit 1005) at 273; see also ‘352 Jacobs Dec., IPR2013-00478 Exhibit 2113 at ¶ 400-405; IPR2013-
`00478 POR at 40-42.
`
`17
`
`
`
`Jacobs Testifies:
`“The Tapper Papers actually teach that a ‘citation’ as used in a citation
`vector is a string of coded references, such as ‘500 F.2d 411’: …
`It is necessary to say something of the sense in which ‘citation’
`is used in this context. It is taken to denote the coded
`reference, such as 1 U.S. 1 which characterizes the citation of
`legal document. Whenever a legal document is referred to in
`another some such coded reference is normally found. It may
`characterize a case, a statutory provision or some other source
`of law.”
`Tapper 1976 (Exhibit 1005) at 259; see also ‘352 Jacobs Dec., IPR2013-00478 Exhibit 2113 at ¶ 401-
`402; IPR2013-00478 POR at 40-42.
`
`18
`
`
`
`19
`
`
`
`Jacobs Testifies:
`
`“Table 1 of Tapper 1982 shows a
`total of 315 cases … that are
`correlated and clustered, but
`includes 5296 citing and cited cases.
`Clearly the additional cases are
`considered part of the citation
`vectors but are not part of the
`database.”
`‘352 Jacobs Decl., IPR2013-00478 Exhibit 2113,
`at ¶ 406 (citing Tapper 1982, Exhibit 1006 at 146);
`see also IPR2013-00478 POR at 40-49.
`
`20
`
`
`
`Systems such as those described in this paper are intended for application. If they are to
`be applied they must be viable in a commercial environment. In a sense, a citation vector
`system is parasitic upon retrieval systems which are already in place. … In a
`computerised age such an authority will typically be found by using a full-text retrieval
`system. Fortunately this presents few problems. The LEXIS system already incorporates
`AUTOCITE and Shepard. It is obviously convenient if the systems can be used
`interactively through the same terminal, since here the two systems address different
`aspects of the same legal function and are mutually complementary.
`Tapper 1982 at 159-160
`Jacobs testifies that "that one of ordinary skill would not have
`combined the teachings of the Tapper Papers with known full-text
`document retrieval systems such as LEXIS and Westlaw in a manner
`that would render the claims obvious” because “it would be difficult to
`apply and extend [Tapper’s] work.”
`‘494 Jacobs Decl., IPR2013-00479 Ex. 2113 at ¶ 348-349; ‘352 Jacobs Decl., IPR2013-00478 Exhibit 2113, at ¶ 226-244;
`IPR2013-00478 POR at 40-49.
`
`21
`
`
`
`“Systems such as those described in this paper are intended for application. If they are to be
`applied they must be viable in a commercial environment. In a sense, a citation vector system is
`necessarily parasitic upon retrieval systems which are already in place. It is obvious that a
`system such as this can do nothing in relation to a source which neither cites any other, nor is
`itself cited. This poses no problem for case-law, for the reasons explained earlier. It would
`however be a problem for statutory law. Few statutory sections cite any other source, and many
`operate for years without themselves ever being cited. If lawyers are to find such provisions
`efficiently in a computerised world, then full-text retrieval systems must be used to find them.
`The other reason is that efficient operation of a citation vector system depends on efficient entry
`to the system by way of at least one relevant authority.”
`
`Tapper 1982 at 159-160 (emphasis added); ‘494 Jacobs Decl., IPR2013-00479 Ex. 2113 at ¶ 348-349, 354; see also ‘352 Jacobs Decl.,
`IPR2013-00478 Exhibit 2113, at ¶ 226-244; IPR2013-00478 POR at 40-49.
`
`22
`
`
`
`Jacobs Testifies:
`
`“Table 1 of Tapper 1982 shows a
`total of 315 cases … that are
`correlated and clustered, but
`includes 5296 citing and cited cases.
`Clearly the additional cases are
`considered part of the citation
`vectors but are not part of the
`database.”
`‘352 Jacobs Decl., IPR2013-00478 Exhibit 2113,
`at ¶ 406 (citing Tapper 1982, Exhibit 1006 at 146);
`see also IPR2013-00478 POR at 40-49.
`
`23
`
`
`
`Jacobs Testifies:
`For example, two documents outside the collection may cite to
`an object in Tapper’s collection (or vice versa). In such a case,
`the analyzed indirect relationships would be outside the
`collection even if the collection was stored in a database. For
`example, all source articles for the ISI are outside the collection,
`thus there are no indirect relationships within the collection
`documents.
`‘352 Jacobs Decl. at ¶¶ 397, 406; see also ‘352 Jacobs Decl. at ¶ 132 (ISI source articles outside
`the collection); see also IPR2013-00478 POR at 40-49.
`
`24
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