Trials@USPTO.GOV
`571-272-7822
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`Paper No. 31
`Entered: February 5, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`APPLE, INC.,
`Petitioner,
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`v.
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`PERSONAL WEB TECHNOLOGIES, LLC,
`LEVEL 3 COMMUNICATIONS, LLC,
`Patent Owners.
`____________
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`Cases IPR2013-00596
`Patent 7,802,310 B2
`____________
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`Held: November 17, 2014
`____________
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday, November
`17, 2014, commencing at 1:01 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`Paper No. 31
`Entered: February 5, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`APPLE, INC.,
`Petitioner,
`
`v.
`
`PERSONAL WEB TECHNOLOGIES, LLC,
`LEVEL 3 COMMUNICATIONS, LLC,
`Patent Owners.
`____________
`
`Cases IPR2013-00596
`Patent 7,802,310 B2
`____________
`
`Held: November 17, 2014
`____________
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Monday, November
`17, 2014, commencing at 1:01 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
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`
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`Case IPR2013-00596
`Patent 7,802,310
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`MICHAEL D. JAY, ESQUIRE
`Boies, Schiller & Flexner LLP
`401 Wilshire Boulevard
`Suite 850
`Santa Monica, California 90401
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`JOSEPH A. RHOA, ESQUIRE
`Nixon & Vanderhye P.C.
`901 N. Glebe Road
`11th Floor
`Arlington, Virginia 22203
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` P R O C E E D I N G S
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`JUDGE CHANG: Good afternoon. At this time I would
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`like counsel to introduce yourselves and also your colleagues.
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`MR. JAY: Good afternoon, Your Honors. My name is
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`Michael Jay of Boies, Schiller & Flexner on behalf of Petitioner
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`Apple. Along with me is Salvador Bezos of Sterne Kessler Goldstein
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`& Fox and David Cornwell of the same firm, and behind me here is
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`Cyndi Wheeler of Apple.
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`MR. RHOA: Good afternoon, Your Honors. Joe Rhoa on
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`behalf of the Patent Owner and with me is Mickey Gill, also on behalf
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`of Patent Owner.
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`JUDGE CHANG: Welcome. Thank you.
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`Judge Turner, are you okay there?
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`JUDGE TURNER: I can hear everybody.
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`JUDGE CHANG: Okay. Good. I think your voice is a
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`little low. I just want to make sure that if you have any questions --
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`JUDGE TURNER: I can always speak up.
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`JUDGE CHANG: Okay. That sounds great. Thank you.
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`JUDGE TURNER: Can you hear me better now?
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`JUDGE CHANG: Yes. Thank you.
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`JUDGE TURNER: I'll try to remember to speak up when
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`JUDGE CHANG: Okay. This is an oral hearing for the
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`case IPR2013-00596 involving Patent 7,802,310. The Board
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`instituted this Inter Partes Review on March 26, 2014 as to the Claims
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`24, 32, 70, 81, 82 and 86 of the patent.
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`Consistent with the Board's previous order in this case, each
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`party has one hour to present their arguments. The Petitioner will
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`proceed first to present its case as to the challenged claims and then
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`Petitioner may reserve rebuttal time.
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`Since the Patent Owner did not file any motion to amend, it
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`will respond to the Petitioner's case and you don't have any reserve
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`time, okay, of the rebuttal time.
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`So is there any demonstratives and please give a copy to the
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`court reporter.
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`MR. JAY: Yes, Your Honor. We provided slides last
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`week. We have given a copy to the court reporter. We also have hard
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`copies, if that would be helpful for Your Honors.
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`JUDGE CHANG: Sure. That would be great. Thank you.
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`MR. JAY: May I approach?
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`JUDGE CHANG: Yes. Thank you.
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`And just please note that demonstratives are not evidence
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`themselves. They are merely visual aids and if -- please identify the
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`specific slide number when doing the presentation so that the court
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`reporter can capture that and also for Judge Turner, who is sitting
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`remotely.
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`So at this time -- oh, sure. Go ahead.
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`MR. RHOA: Sorry, Your Honor. I just request permission
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`to ask counsel for a copy of the demonstratives.
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`JUDGE CHANG: Do you have a copy?
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`MR. JAY: We have another copy that's under the projector.
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`MR. RHOA: If you just want to confirm -- just confirm
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`orally that it's identical to what you served on us last week or so, that's
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`fine, too.
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`MR. JAY: Yeah, I believe that we had served slides on you
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`and then last week when we provided the slides, we switched around
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`the order of the last two slides, but they didn't change substantively.
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`MR. RHOA: If they're the same, if your representation is
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`they are the same --
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`MR. JAY: They are the same, absolutely.
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`MR. RHOA: That's fine. Thank you. Sorry.
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`JUDGE CHANG: No problem.
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`Patent Owner, do you have any demonstratives?
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`MR. RHOA: No, Your Honors.
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`JUDGE CHANG: Okay. Thank you. You may proceed.
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`MR. JAY: Good afternoon, Your Honors. I would like to
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`reserve 30 minutes for rebuttal, if I may. And as far as the slides that I
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`had handed you, I may not go through every slide that I've included,
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`but I think some of the slides may still be helpful for some
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`background information.
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`So starting from slide 2, we're here to talk about today is the
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`'310 patent, which is part of a large family of patents that Your
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`Honors have dealt with in other proceedings before. These patents we
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`can see in the summary of the invention describes that these patents
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`related to unique data identifiers that are based on the contents of data
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`in a data item. These identifiers are used throughout the '310 patent
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`and the other patents in the families for a number of basic file
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`management functions.
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`Moving on to slide 3, you see that the specification goes on
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`in the '310 patent, column 31, and just for ease of reference, the
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`portions that are up on the screen are also denoted in the bottom
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`left-hand corner of the slides, if Your Honors want to refer to the
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`source material.
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`So here we see that the specification for the '310 patent
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`refers to the identifiers by a couple different names. One is
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`substantially unique identifier. The other is true name and the
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`specification makes clear a number of places that these terms are
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`synonymous.
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`Moving on to slide 6, I want to just briefly before we get
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`into the substance of the references, just briefly discuss what appears
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`to be the only claim construction issue in dispute here.
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`Now, two of the six claims at issue here refer to the
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`identifier as a content-dependent name and, Your Honors, in the
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`decision instituting proceedings I construed that term to be an
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`identifier for a data item being based at least in part on a given
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`function of at least some bits in a particular sequence of bits of the
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`particular data item.
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`Now, Personal Web takes issue with this construction,
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`because the construction defines the content-dependent name as an
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`identifier. In Personal Web's view, something is not a name simply
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`because it is an identifier, so they contend that the term should be
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`construed differently. But, however, this disposition is directly
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`contradicted by Personal Web's own expert.
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`Turning to slide 8, what we have here is testimony from Dr.
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`Dewar. This is Personal Web's expert and this is Apple Exhibit 1035.
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`As we can see here, Dr. Dewar has testified that in the '310 patent
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`name and identifier are used interchangeably.
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`Looking at slide 9, we have an additional excerpt from Dr.
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`Dewar in which he goes on to admit that the whole thrust of the
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`patent, indeed, is that an identifier is a name.
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`So moving on from claim construction to the particular
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`references at issue here --
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`JUDGE CHANG: Counsel, I have a question.
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`MR. JAY: Yes.
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`JUDGE CHANG: So could it be overlapping in certain
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`situations that an identifier could be a name or a name could be an
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`identifier?
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`MR. JAY: Absolutely. That's certainly our position that in
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`the '310 patent and the entire patent family, there is no distinction
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`whatsoever between a name and an identifier, that they're regularly
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`referred to as the same thing throughout.
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`JUDGE CHANG: Okay.
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`MR. JAY: So moving on to slide 10 or just moving on to
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`the references at issue here, first starting with Woodhill, I just wanted
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`to back up for a moment and talk briefly about the claims of the '310
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`patent that we're talking about here.
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`The challenged claims generally relate to, first, a request
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`from one computer to a second computer for a data item using a
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`content-based identifier for that data item. Second, a determination by
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`the second computer of whether the identifier corresponds to an entry
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`in a database. And then, third, the second computer then permitting
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`access or not permitting access to the data item based on that
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`determination. This is precisely what Woodhill describes.
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`So moving on to slide 11, what we have here is the abstract
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`of Woodhill and this explains that Woodhill discloses a distributed
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`storage manager -- storage system that makes use of binary object
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`identifiers to perform basic file management functions, such as
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`identifying and accessing files and managing file backups.
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`If we move on to the next slide, this is slide 12. What we
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`have up on the screen here is Woodhill Figure 1 and this is a
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`simplified representation of a network computer system on which the
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`described invention may be employed.
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`What we have here is a network and communication with a
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`plurality of local area networks with multiple user workstations and
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`local computers. You can see that over here and all of these local
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`computers and user workstations are connected by a network to a
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`remote backup file server 12.
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`Now, looking at slide 13, now this is where Woodhill
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`begins to describe the invention contained in the reference, and we see
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`here that on slide 13 that Woodhill describes the system of the
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`invention is operating through what's called a distributed storage
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`manager system. This is the program that embodies the various
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`inventions of Woodhill.
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`And we see in slide 14, which is a further description of the
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`system, that this distributed storage manager program views a file as a
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`collection of data streams. And from there, it then divides these data
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`streams into one or more binary objects.
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`Now, going on to slide 15, what we have here is Figure 3
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`from the Woodhill reference and the Woodhill reference describes
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`that the distributed storage manager program creates a file database on
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`each of the local computers containing information on all of the files
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`that are backed up, and what we see here is an example of what that
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`database looks like and what information is contained in that database.
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`So what we can see here is that for each binary object of
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`each file that's backed up, the distributed storage manager creates a
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`binary object identification record 58, and we can see that towards the
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`bottom of the slide here, this information here.
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`Now, a portion of this record, as Woodhill describes, is a
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`binary object identifier 74. We can see that here, these aspects right
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`there. So this binary object identifier 74 is made up of four fields,
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`three of which are a CRC value, an LRC value and a hash value, and
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`these are each strings of numbers generated by applying functions to
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`the contents of the binary object. Woodhill describes that in column
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`7, line 64, to column 8, line 33.
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`Now, moving on to slide 16 we see a description of the
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`binary object identifier in the specification of Woodhill and we see
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`here that Woodhill emphasizes that the binary object identifier 74 is
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`based on the contents of the binary object, such that the binary object
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`identifier changes when the contents of the binary object changes.
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`So as we see here, duplicate binary objects have identical
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`binary object identifiers, even when on heterogeneous networks, and
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`the chance of two binary objects being assigned the same identifier is
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`indeed very small. You see that description here.
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`So this is precisely the same concept we see with respect to
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`the identifiers in the '310 patent claims. As the Board recognized,
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`these binary object identifiers of Woodhill are content-based
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`identifiers, content-based names and digital identifiers as described in
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`the '310 patent.
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`Now, moving on to slide 17, Woodhill goes on after
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`discussing the binary objects and the binary object identifiers to
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`explain that it also functions at a granule level. We see here Woodhill
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`mentions that binary objects can be divided into smaller portions
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`referred to as granules.
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`Now, looking at slide 18, this is a further discussion of a
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`granularized file and talks about when the distributed storage manager
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`program processes a binary object that has been broken into granules,
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`the program calculates a contents identifier for each granule. This is
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`based on a CRC value and a hash value of the contents of the granule.
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`And the reason I had mentioned the granules is that the
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`granule procedure is the mechanism by which the file transfer takes
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`place in the backup restore procedure that we rely on for the
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`disclosure of the claims of the '310 patent.
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`Now, I'd like to walk through the claims of the '310 patent
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`and discussing Woodhill and for ease of reference I'm going to discuss
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`Claim 70 of the '310 patent, as the remainder are essentially just
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`permutations of that one claim, but I'm certainly happy to answer
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`questions about any of the other claims, if Your Honors have them.
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`So I'm turning now to slide 19, and what we have here in
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`the left-hand column is the preamble to the '310 patent Claim 70,
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`which describes a system and method for the distributed management
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`of data on a network computer system of at least two computers.
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`And in the right-hand column we have the abstract of
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`Woodhill and as we saw in both Figure 1 that I had put up earlier of
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`Woodhill as well as in the abstract here, we can see that Woodhill,
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`indeed, discloses this system for distributed management of data on a
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`network computer system.
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`Now, moving on to slide 20, what we have here is the first
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`limitation in the left-hand column of Claim 70, and essentially what
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`this is talking about is the claim requires a request from a first
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`computer to a second computer, that request comprising a
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`content-based identifier.
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`And this is clearly disclosed, as we can see, in these
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`portions of Woodhill on the right-hand column, both from column 17
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`as well as from column 7 of Woodhill. We can see that the Woodhill
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`system clearly discloses this request in its restoring -- in its process for
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`restoring previous versions of a binary object.
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`Now, under this process described in Woodhill, the
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`distributed storage manager program initiates an update request from
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`the local computer to the remote backup file server, as we see here,
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`and this update request includes the binary object identification record
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`58 for the version of the binary object that the local computer wants
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`restored.
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`Now, just going back for a moment to slide 15, as I show
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`here, the binary object identification record 58 includes the binary
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`object identifier 74, which is the unique identifier for the binary
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`object. It's down here.
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`Just going forward to slide 21, we see this is testimony
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`again from Dr. Dewar, Personal Web's expert, Apple Exhibit 1035, in
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`which Dr. Dewar has confirmed that the binary object identification
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`record always includes the binary object identifier.
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`Moving on to slide 22, what we see here is the next
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`limitation of Claim 70 of the '310 patent, and this requires that the
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`computer receiving the request make a determination whether the
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`content-based identifier for the particular data item corresponds to an
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`entry and a database made up of a plurality of content-based
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`identifiers.
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`And in the right-hand column here, what we have is a
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`portion of Dr. Goldberg's declaration, pages 34 and 35, in which Dr.
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`Goldberg states that to determine what needs to be restored by the
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`update request received from the local computer, the remote backup
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`file server must be able to reference the local files using the binary
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`object identifiers.
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`And we see further explanation of that in Dr. Goldberg's
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`deposition, which is Personal Web Exhibit 2015, and I don't have it up
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`on the screen, but that deposition Mr. Rhoa asked, in Woodhill's
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`granularization process, is there ever any comparison involving a
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`binary object identifier that is described? Answer: Oh, absolutely.
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`Question: Where, where does Woodhill describe ever making a
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`comparison with a binary object identifier in the granularization
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`procedure?
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`And this is -- sorry, I should have mentioned this. This is
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`on pages 42, starting at line 22, again, in Personal Web Exhibit 2015.
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`And Dr. Goldberg responds, the backup server has a database of
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`binary object identifiers and that's described -- and I'll find that if you
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`want. If I provide you a binary object identifier for an object that I
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`want, for you to find that in your database you need to perform a
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`comparison of the identifier with the identifiers in your database.
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`And Dr. Goldberg went on or Mr. Rhoa asked another
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`question. So your testimony is that in Woodhill, if you have record
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`58, your testimony is that there's no way the other fields in the binary
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`object identification record 58 would be used to locate that binary
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`object. Now I'm reading from page 44 of Dr. Goldberg's deposition.
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`And Dr. Goldberg says, that's my testimony and the reason
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`is that the other fields cannot tell you what object it is that you want.
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`What identifies the object is the binary object identifier 74. Nothing
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`about the rest of that information is specific to that object. And that
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`last portion was pages 44, lines 13, to page 45, line 3.
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`We also see in Woodhill itself, if we look to column 9 of
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`Woodhill, starting at line 14, there's a discussion of how the binary
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`object identifier 74 calculated in step 138 are compared against their
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`counterparts in file database 25. So we also see some disclosure in
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`Woodhill talking about a comparison of a binary object identifier to a
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`database, which is certainly what we're talking about here with this
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`limitation Claim 70.
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`So Personal Web in its papers says that Woodhill expressly
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`explains that in the backup restore process of column 17 that we rely
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`on the determination of whether the backup file server has the binary
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`object that is the subject of the request is done using other means, not
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`the binary object identifier. That's just wrong.
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`What Personal Web points to are portions of Woodhill that
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`discuss different processes, not the backup restore process of
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`Woodhill that discloses the claim of the '310 patent. They point to an
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`entirely different process and it makes sense that these other processes
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`operate differently.
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`For example, Personal Web cites to a portion of Woodhill
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`discussing the use of a binary object identification record 58 in the
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`context of a compression routine. This compression routine makes
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`use of other aspects of the binary object identification record 58, such
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`as the binary object's location, but that makes perfect sense in the
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`context of file compression.
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`To compress a binary object on a local computer, you must
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`know things, such as where that file was located in memory, because
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`you need to locate the data to compress it. There's no need in that
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`process for a unique identifier for the binary object, but that's clearly
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`different than what we're talking about here for the backup restore
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`procedure when you're requesting a binary object from another
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`computer.
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`Of course, in that circumstance you would necessarily use
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`the unique content-based identifier for the data item you're requesting.
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`Indeed, this is the whole point of the unique content-based identifier
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`as described in both Woodhill and the '310 patent.
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`Now, moving on to slide 23, here we see the last limitation
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`of Claim 70 talking about based at least in part on the determination in
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`the previous step in selectively permitting the data item to be accessed
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`by one or more computers other than the computer that had received
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`the request.
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`So, here, we see on the right-hand side an explanation. If
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`the binary object of the request, the subject of the request matched a
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`binary object identifier in the database, the binary object is in access.
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`So what would happen is the backup file server would
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`permit the local computer to back up -- to access the binary object
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`using the restore process, and the way that happens, and we can see
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`here, discussion of granules, essentially the remote backup file server
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`would send granules back to the local computer so that the local
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`computer can assemble the binary object.
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`If the backup file server determines that the binary object
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`identifier in the request does not match the binary object identifier in
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`his database, access would not be provided to the local computer.
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`Now, Personal Web argues that Woodhill does not disclose
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`its limitation, because granules that are sent back to the local
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`computer in response to this update request are not data items
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`identified by the identifier in the request, but I believe that Personal
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`Web misunderstands Apple's invalidity argument.
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`What they ignore is that our challenge is based primarily on
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`Woodhill at the binary object level. Binary object identifier or the
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`binary object identifier included in the update request is the unique
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`identifier for the binary object that is restored at the local computer.
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`So Personal Web's argument about the granules is really irrelevant at
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`the binary object level.
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`Personal Web also argues that this limitation is not met,
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`because the restore procedure does not send a whole binary object
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`back to the local computer, but this is not a valid argument for a few
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`reasons.
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`First, the claims in the '310 patent that we're talking about
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`here do not require the second computer to send an entire binary
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`object back to the requesting computer. The claims require only that
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`the second computer permit or allow access to the data item. So
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`essentially what Personal Web is trying to do here is add a limitation
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`that the subject data item be sent back in its entirety to the requesting
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`computer.
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`Second, if every granule is changed, the backup file server
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`will in that instance actually provide the entire binary object to the
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`requesting computer, albeit in a piecemeal fashion, but that certainly
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`would take place and, you know, as I mentioned before the claims do
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`not specify how the binary object should be provided or how access
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`needs to be provided.
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`And then, third, and the last thing is that Woodhill does not
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`require that a binary object even be divided into multiple granules
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`where you have a smaller file. So in that case where a binary object is
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`changed, the entire binary object consisting of I guess a single granule
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`would be provided to the requesting computer.
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`So moving on to slide 24, as we put in our petition our
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`position is certainly that Woodhill either anticipates or renders
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`obvious the claims of the '310 patent, but as the Board recognized in
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`its decision Stefik provides an even stronger disclosure of this last
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`element of the claims of the '310 patent, the selectively allowing or
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`authorizing access to a data item.
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`Just going to slide 27, what we see here in the specification
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`of Stefik is that Stefik addresses the problem of preventing
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`unauthorized access to digital works. Actually, I'm sorry, I think I'm
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`looking at the wrong slide. Actually looking at slide 26 now, I
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`apologize.
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`So the solution that Stefik makes for -- the solution that
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`Stefik proposes for this problem is a system that allows only licensed
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`or authorized access by parties who have paid for or, otherwise,
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`entitled to access digital work. So this discloses receiving a request
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`for access to particular digital work using what it calls digital tickets,
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`and a ticket is merely the indicator that the ticket holder has the rights
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`to access digital works.
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`So looking at slide 27, this describes the process that we see
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`in Stefik where basically a server repository receives a request for
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`digital work and the server repository then decides whether or not to
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`allow access to the particular digital work, if it's based on a
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`determination of whether access to that work or whether that
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`particular requester has authorization to access that work.
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`So here in Stefik we have a clear disclosure of selective
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`access to digital works, which, of course, are data items and nowhere
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`in Personal Web's paper does it dispute that.
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`Now, instead, what Personal Web argues is that a person of
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`ordinary skill in the art would not have combined Woodhill and
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`Stefik, but as the Board found, a person of ordinary skill in the art
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`reading Stefik and Woodhill would most certainly have allowed for
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`the selective access features of Stefik to be used with Woodhill's
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`content-dependent identifiers' features and, indeed, this combination
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`makes perfect sense.
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`We have two references that are in the same field, file
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`management on a network system, two references that are addressing
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`the same problem, secure access to data, and then each of these two
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`references, Stefik and Woodhill, certainly take different approaches or
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`they approach this problem in different ways, but they do so in a way
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`that lends itself to a combination with the other in the way that the
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`Board described in the decision, again, using the unique
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`content-dependent identifiers of Woodhill with the selective access
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`concept of Stefik.
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`Now, Personal Web argues that Woodhill and Stefik should
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`not be combined because of alleged incompatibilities between details
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`of the two references and what this argument really amounts to is
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`them saying that the combination does not work where you take every
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`piece of Woodhill and combine it with every detail of Stefik, but that's
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`really not what we're doing here, and in combining two references the
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`law does not require that you take every aspect of one reference and
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`combine it with every aspect of another reference.
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`So what we're doing here is using Stefik only for disclosure
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`at a very high level of this selective access concept. The claims of the
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`'310 patent, indeed, are very high-level claims. They don't get into the
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`details of how the selective access piece takes place.
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`Stefik itself, though, is very detailed. Now, to render
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`obvious the claims of the '310 patent, we need not import all these
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`details into Woodhill. And even if we did import these details from
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`Stefik into Woodhill, they're certainly not actually incompatible with
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`Woodhill nor do they, as Personal Web suggests, teach away from this
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`combination.
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`Personal Web is essentially trying to argue that really
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`there's more to these '310 patent claims than there really are. But if
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`we look at the actual claim language, we see that Woodhill in
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`combination with Stefik discloses the claims and a person of ordinary
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`skill in the art would certainly have made this combination.
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`So I have nothing further at this moment, but I'm certainly
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`happy to answer questions if any of Your Honors have questions.
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`JUDGE ZECHER: Mr. Jay, I have a question for you.
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`How would you respond to Personal Web's argument that taking the
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`teaching of Woodhill of the binary object identifier and combining
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`that with this selective permitting access or authorization of Stefik,
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`how would -- their argument is basically that these elements would
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`not be used for their intended purpose, do not serve their intended
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`function?
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`So the way I read that is basically I think what they're
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`saying is that the Woodhill binary object identifier wouldn't serve its
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`intended purpose if combined with the aspects that your combination
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`puts together with Stefik. Can you address that in a little more detail
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`for us and why you think that argument may be incorrect?
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`MR. JAY: Sure. I mean, I think Personal Web is
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`completely wrong there. I don't think they actually explain why or
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`how the binary object identifiers, for instance if you make this
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`combination, wouldn't be used for their intended purpose.
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`I mean, Woodhill clearly explains that these binary object
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`identifiers are used to identify a binary object. We have a request.
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`That request includes the binary object identifier that the local
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`computer wants access to, and then the next limitation of the '310
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`claim talks about its determination using this binary object identifier.
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`That certainly takes place.
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`And then we're going on from there and we're saying that
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`taking this selective access concept from Stefik and all we're doing is
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`taking that procedure, which is a separate procedure from sort of the
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`first two parts, the request and the determination, and putting that with
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`this portion of Woodhill that is already in place. I don't see any
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`reason that you would need to change what takes place in Woodhill or
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`why that would in any way be incompatible with what we have in
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`Stefik.
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`I mean, I think they point to in Stefik we have a situation
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`where there's a mention of unique identifiers, but those unique
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`identifiers are not used for this same purpose, but I think what they're
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`confusing is that the unique identifiers in Stefik, for instance, are not
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`conten
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