U.S. Patent No. 6,771,290
`Inter Partes Review
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE, INC.
`Petitioner
`v.
`
`B.E. TECHNOLOGY, LLC
`Patent Owner
`
`IPR Case No.: To be Assigned
`
`DECLARATION OF STEPHEN GRAY
`IN SUPPORT OF PETITIONER GOOGLE, INC.
`IN THE INTER PARTES REVIEW OF U.S. PATENT NO. 6,771,290
`
`
`
`
`
`
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
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`Google Ex. 1004, pg 1
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`

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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`INTRODUCTION .......................................................................................... 1
`BASIS FOR OPINIONS ................................................................................ 3
`(a) Qualifications ....................................................................................... 3
`(b)
`Preparation for this Declaration ........................................................... 7
`(c) Level of Ordinary Skill in the Art ........................................................ 7
`III. LEGAL UNDERSTANDINGS ...................................................................... 8
`(a) A Person of Ordinary Skill in the Art .................................................. 8
`(b) Legal Standard for Prior Art ................................................................. 9
`(c) Legal Standard for Anticipation ......................................................... 10
`(d) Legal Standard for Obviousness ........................................................ 11
`(e) Claim Construction ............................................................................ 15
`IV. TECHNOLOGY BACKGROUND .............................................................. 16
`(a) The Internet and the World Wide Web .............................................. 16
`(b) Webpage Design, Function, and Operation ....................................... 18
`(c)
`Server Technology ............................................................................. 21
`(d) Cookies ............................................................................................... 24
`THE ‘290 PATENT ...................................................................................... 26
`(a) The ‘290 Patent Overview .................................................................. 26
`VI. PRIOR ART CONSIDERED ....................................................................... 33
`(a)
`Identification of the Primary Prior Art References ............................ 34
`(b) General Summary of the Primary Prior Art References .................... 35
`(c) WO 6709682 (Kikinis) ....................................................................... 35
`(d) U.S. Patent No. U.S. 5,732,214 (Subrahmanyam) ............................. 40
`VII. ANALYSIS OF THE CHALLENGED CLAIMS AGAINST THE
`PRIOR ART .................................................................................................. 43
`(a) Claim Construction ............................................................................ 43
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`V.
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`i
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`U.S. Patent No. 6,771,290
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`Page
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`(b) Application of the Prior Art to the Claims ......................................... 45
`(c) Kikinis ................................................................................................ 46
`(d)
`Subrahmanyam ................................................................................... 60
`VIII. SECONDARY CONSIDERATIONS .......................................................... 85
`IX. RIGHT TO SUPPLEMENT ......................................................................... 86
`X.
`CONCLUSION ............................................................................................. 87
`
`
`
`TABLE OF CONTENTS
`(continued)
`
`
`
`
`ii
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`Google Ex. 1004, pg 3
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`

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`
`I.
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`INTRODUCTION
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`U.S. Patent No. 6,771,290
`Inter Partes Review
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`1.
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`I, Stephen Gray, have been retained by Mayer Brown, LLP on behalf
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`of Petitioner Google Inc. (“Google”) as an independent expert in this Inter Partes
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`review by the U.S. Patent and Trademark Office. As part of my engagement I
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`have been asked to provide analysis and expert opinions on the following topics:
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`(a) the disclosure of U.S. Patent No. 6,771,290 (“the ‘290 Patent”); and (b) the
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`validity of claims 2 and 3 of the ‘290 Patent. I understand that Claims 2 and 3
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`have been asserted by Patent Owner B.E. Technology, LLC (“B.E. Technology”)
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`against Google in co-pending litigation styled B.E. Technology, L.L.C. v. Google
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`Inc., Civil Action No. 12-cv-02830-JMP-TMP pending in the United States
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`District Court for the Western District of Tennessee.
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`2.
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`It is my opinion that Claims 2 and 3 (the “Challenged Claims”) are
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`invalid in view of the prior art discussed later in this Declaration. Specifically, it is
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`my opinion that the prior art constitutes, discloses, teaches, or suggests the
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`inventions claimed in the Challenged Claims, and thus the Challenged Claims are
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`anticipated and/or rendered obvious by the prior art, including the knowledge of
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`those skilled in the art. The particular references that invalidate the Challenged
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`Claims, as well as the reasons for my opinion, are set forth in detail below.
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`3.
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`I am being compensated for my work on this case at my standard
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`consulting rate of $405 per hour. I am also being reimbursed for expenses that I
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`Google Ex. 1004, pg 4
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`incur. My compensation is not contingent upon the results of my study, the
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`substance of my testimony, or the outcome of this case.
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`4.
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`This declaration explains, based on facts and information available to
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`me to date, the subject matter and opinions related to this Inter Partes review. As
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`such, I am prepared to provide expert testimony regarding opinions formed
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`resulting from my analysis of the issues considered in this declaration if asked
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`about those issues by the Board or by the private parties’ attorneys.
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`5.
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`Additionally, I may discuss my own work, teachings, and knowledge
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`of the state of the art in the relevant time period. I may rely on handbooks,
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`textbooks, technical literature, and the like to demonstrate the state of the art in the
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`relevant period and the evolution of relevant technologies.
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`6.
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`This declaration describes my opinions in the matter named above.
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`However, I respectfully reserve my right to alter or supplement my analysis in
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`response to any criticisms or alternative opinions offered by B.E. Technology or
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`any other matter that might cause me to alter my opinion.
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`7.
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`It is my understanding that discovery may occur in this proceeding. I
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`reserve the right to modify or supplement my opinions, as well as the basis for my
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`opinions, in light of any documents, testimony, or other evidence that may emerge
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`during the course of this matter, including depositions that have yet to be taken.
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`2
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`Google Ex. 1004, pg 5
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`8.
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`Throughout this declaration, I refer to specific pages of patents and
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`other technical documents. The citations are intended to be exemplary and are not
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`intended to convey that the citations are the only source of evidence to support the
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`propositions for which they are cited.
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`II. BASIS FOR OPINIONS
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`(a) Qualifications
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`9.
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`I am an independent consultant. All of my opinions stated in this
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`declaration are based on my own personal knowledge and professional judgment.
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`In forming my opinions, I have relied on my knowledge and experience in
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`designing, developing, and deploying distributed client/server systems, graphical
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`user interfaces, website platforms, e-commerce systems, and digital image
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`processing systems, and on the documents and information referenced in this
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`declaration. I am over 18 years of age and, if I am called upon to do so, I would be
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`competent to testify as to the matters set forth herein. My current curriculum vitae
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`(Ex. 1014) details my education and experience, and a list of all other cases in
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`which, during the previous four years, I testified as an expert at trial or by
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`deposition. The following thus provides only a brief overview of some of my
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`experience that is relevant to the matters set forth in this declaration.
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`10. Since the mid-1970s, I have designed, developed, and deployed
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`computing systems and products that operate in server, client, and graphical
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`environments. As such, I have acquired expertise and am an expert in the areas of
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`distributed computing architecture and design, graphical user interfaces, website
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`platforms, eCommerce systems, image processing systems, operating systems,
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`local area and wide area networks, and various programming languages used in the
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`development of those systems and products. I have been employed by or retained
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`as a consultant, including acting as a litigation consultant, for numerous companies
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`such as Burroughs, Filenet, Fujitsu, Marriott Corporation, MCI, Northern Telecom,
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`Olivetti, TRW, and Xerox, as well as other companies.
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`11.
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`I have several relevant professional experiences that demonstrate my
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`expertise in the field of graphical user interfaces, website platforms, and
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`eCommerce systems. In 2001 to 2002, as Chief Technology Officer for Networld
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`Exchange Inc., I was responsible for the design, development and deployment of a
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`suite of products that delivered eCommerce functions. These functions were
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`provided over the Internet and included product catalog information display,
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`purchase and/or purchase order creation, order delivery to fulfillment systems, and
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`order status reporting. The products that I had responsibility for provided an
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`electronic shopping graphical user interface for business-to-business and business-
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`to-consumer transactions. The systems were designed to support both vendors of
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`products as well as customers. Each of these user interfaces were an optimization
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`based on the specific user class.
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`4
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`Google Ex. 1004, pg 7
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`12.
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`In the mid 1990s I was a consultant for Xerox. One of my
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`assignments there was to develop a graphical interface for distributed systems, in
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`this case network attached office products. For example, one of the graphical user
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`interfaces I designed provided end user visibility into printer queues supporting
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`distributed network printers. Another graphical user interface I designed provided
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`network operations distributed job management control.
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`13. Finally, I have been retained by attorneys for plaintiffs and defendants
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`in several matters where the concepts and practice of graphical user interface,
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`website platform, and/or eCommerce technology was a central issue. The matters
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`include contract disputes: GTE v. Videotron; Eyefinity, Inc. v. Entigo; HealthFirst
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`v. HealthTrio; Waltrip Associates v. Kevin Kimperlin & Spencer Trask Ventures,
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`as well as patent infringement: WebSide Story v. NetRatings; ICR v. Harpo;
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`Leader v. Facebook; Fotomedia v. Yahoo!; Cisco v. Telcordia; Ampex v. Kodak,
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`et al and ICI v. Red Hat and Novell.
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`14. As my curriculum vitae shows, much of my career has been spent as a
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`software development professional. As a software development professional, I
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`have had numerous occasions to write, modify, analyze, and otherwise review
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`bodies of source code. I have analyzed source code written in several variants of
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`C, SQL, COBOL, RPG, variants of Basic, Java, Perl, several Assembler languages,
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`and others. For example, as an individual contributor at Xerox during the mid-
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`
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`5
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`1980s to 1990, I evaluated the quality of source code from third party software
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`providers for possible inclusion in the Xerox product line. Also, as another
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`example, I evaluated the source code of several application software packages for
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`completeness and maintainability for possible inclusion into the NTN product line
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`in 2000-2001. During my early career, I spent time maintaining source code
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`written by others. In each of these assignments, I analyzed the source code to
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`identify the data structures, logical flow, algorithms and other aspects.
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`15.
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`In addition, on several occasions, I have served as an expert witness
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`where source code analysis was required to render an opinion. These matters
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`include Autobytel v. Dealix; NetRatings v. Coremetrics, et al.; Ampex v. Kodak, et
`
`al.; AB Cellular v. City of Los Angeles; Oracle v. Mangosoft; Harrah’s Casino v.
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`Station’s Casino; Autobytel v. Dealix; MediaTek v. Sanyo; MathWorks v. Comsol;
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`and other matters still pending.
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`16.
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`I have developed and presented numerous public and in-house courses
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`in computer system technology, including relating to applications for IBM MVS,
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`UNIX, Linux, IBM OS/2, Microsoft Windows, and related networking
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`technologies.
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`17.
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`In addition, on several occasions, I have served as an expert witness
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`where computing system technology was an issue in the matter. These matters
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`include SuperSpeed v. IBM; FedEx v. U.S.; MathWorks v. Comsol; Ametron-
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`
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`6
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`Google Ex. 1004, pg 9
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`American Electronic Supply v. Entin, et al; BMC Software v. Peregrine Systems,
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`U.S. Patent No. 6,771,290
`Inter Partes Review
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`Inc.; and ADV Freeman v. Boole & Babbage.
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`18.
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`19.
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`I have authored no publications in the last ten years.
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`I have testified as an expert at trial or by deposition within the
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`preceding four years, as set forth in Ex. 1014.
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`(b) Preparation for this Declaration
`20. All of the opinions stated in this declaration are based on my own
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`personal knowledge and professional judgment; if called as a witness during any
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`proceeding in this matter I am prepared to testify competently about them.
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`21.
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`In forming my opinions, I have considered, in addition to my own
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`knowledge and experience, (a) my review of U.S. Patent No. 6,771,290, its file
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`history, (b) the prior art references cited herein, and (c) any other references or
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`documents referred to or cited herein.
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`(c) Level of Ordinary Skill in the Art
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`22.
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`I believe that a person of ordinary skill in the art relating to the ‘290
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`Patent would have a Bachelor’s degree in Computer Science, Computer
`
`Engineering, Electrical Engineering, an equivalent discipline, or two or more years
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`of work experience in computer networking, networking architecture, client-server
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`systems, and information delivery systems.
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`7
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`Google Ex. 1004, pg 10
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`23.
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`I meet these criteria and consider myself a person with at least
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`ordinary skill in the art pertaining to the ‘290 Patent. I would have been such a
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`person by at least the time of the filing of the earliest application on which the ‘290
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`Patent is based (July 17, 1998).
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`III. LEGAL UNDERSTANDINGS
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`24.
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`In this section I describe my understanding of certain legal standards
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`that I have relied upon in forming my opinions set forth in this declaration. I have
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`been informed of these legal standards by Google’s attorneys. I am not an attorney
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`and I have not researched the law on patent invalidity. I am relying only on
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`instructions from Google’s attorneys for these legal standards.
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`(a) A Person of Ordinary Skill in the Art
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`25.
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`I understand that a person having ordinary skill in the art is a
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`hypothetical person who is used to analyze the prior art without the benefit of
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`hindsight. A person of ordinary skill in the art is presumed to be one who thinks
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`along the lines of conventional wisdom in the art and is not one who undertakes to
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`innovate, whether by extraordinary insights or by patient and often expensive
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`systematic research.
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`26.
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`I understand that the hypothetical person of ordinary skill is presumed
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`to have knowledge of all references that are sufficiently related to one another and
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`to the pertinent art, and to have knowledge of all arts reasonably pertinent to the
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`particular problem that the claimed invention addresses.
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`(b) Legal Standard for Prior Art
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`27.
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`I understand that a patent or other publication, must first qualify as
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`prior art before it can be used to invalidate a patent claim.
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`28.
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`I understand that a U.S. or foreign patent qualifies as prior art to a
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`patent claim if the date of application and/or issuance of the prior art patent is prior
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`to the purported date of invention of the patent claim.
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`29.
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`I further understand that a printed publication, such as an article
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`published in a magazine or trade publication, qualifies as prior art to a patent claim
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`if the date of publication is prior to the purported date of invention of the patent
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`claim.
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`30.
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`I understand that a U.S. or foreign patent or patent application
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`qualifies as prior art to a patent claim if the date of issuance or publication of the
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`prior art patent or application is more than one year before the earliest asserted
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`priority date of the patent claim.
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`31.
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`I further understand that a printed publication, such as an article
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`published in a magazine or trade publication, qualifies as prior art to a patent claim
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`if the date of publication occurs more than one year before the filing date of the
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`patent claim.
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`9
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`Google Ex. 1004, pg 12
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`32.
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`I understand that a U.S. patent qualifies as prior art to a patent claim if
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`the application for the prior art patent was filed in the United Stated before the
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`purported date of invention of the patent claim.
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`(c) Legal Standard for Anticipation
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`33.
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`I understand that, once the claims of a patent have been properly
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`construed, the second step in determining anticipation of a patent claim requires a
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`comparison of the properly construed claim language to the prior art on a
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`limitation-by-limitation basis.
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`34.
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`I understand that a prior art reference “anticipates” a claim, and thus
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`renders the claim invalid, if all elements of the claim are disclosed in that prior art
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`reference, either explicitly or inherently (i.e., necessarily present or implied).
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`35. Under Section 102 of the Patent Act, claims may be invalidated for
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`lack of novelty or loss of rights. I have been informed by counsel that a claimed
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`invention is invalid for anticipation or lack of novelty when all of the limitations of
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`the claim as construed by the Court are present in a single prior art reference. I
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`understand, however, that all limitations of the claim need not be shown directly so
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`long as all limitations are necessarily present in the single prior art reference and
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`thus are inherent.
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`10
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`(d) Legal Standard for Obviousness
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`36.
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`I have been instructed by counsel on the law regarding obviousness,
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`and understand that even if a patent is not anticipated, it is still invalid if the
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`differences between the claimed subject matter and the prior art are such that the
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`subject matter as a whole would have been obvious at the time the invention was
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`made to a person of ordinary skill in the pertinent art.
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`37.
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`I understand that a person of ordinary skill in the art provides a
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`reference point from which the prior art and claimed invention should be viewed.
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`This reference point prevents one from using his or her own insight or hindsight in
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`deciding whether a claim is obvious.
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`38.
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`I also understand that an obviousness determination includes the
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`consideration of various factors such as (1) the scope and content of the prior art,
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`(2) the differences between the prior art and the Challenged Claims, (3) the level of
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`ordinary skill in the pertinent art, and (4) the existence of secondary indicia of non-
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`obviousness.
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`39.
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`I am informed that secondary indicia of non-obviousness may include
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`(1) a long felt but unmet need in the prior art that was satisfied by the invention of
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`the patent; (2) commercial success or lack of commercial success of processes
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`covered by the patent; (3) unexpected results achieved by the invention and praise
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`of the invention by others skilled in the art; (4) taking of licenses under the patent
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`by others; and (5) deliberate copying of the invention. I also understand that there
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`must be a relationship between any such secondary indicia and the invention. I
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`further understand that contemporaneous and independent invention by others is a
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`secondary consideration supporting an obviousness determination.
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`40.
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`I understand that a proper obviousness analysis generally requires a
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`reason that would have prompted a person of ordinary skill in the relevant field to
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`combine the elements of multiple items of prior art in the way the claimed
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`invention does. I understand that the items of prior art themselves may provide a
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`suggestion, motivation, or reason to combine, but other times the nexus linking two
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`or more prior art references is simple common sense. I further understand that an
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`obviousness analysis recognizes that market demand, rather than scientific
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`literature, often drives innovation, and that a motivation to combine references may
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`be supplied by the direction of the marketplace.
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`41.
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`I understand that if a technique has been used to improve one device,
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`and a person of ordinary skill in the art would recognize that it would improve
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`similar devices in the same way, using such a technique is obvious unless its actual
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`application is beyond the practitioner’s skill.
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`42.
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`I also understand that practical and common sense considerations
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`should guide a proper obviousness analysis, because familiar items may have
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`obvious uses beyond their primary purposes. I further understand that a person of
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`ordinary skill in the art looking to overcome a problem will often be able to fit the
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`teachings of multiple prior art publications and/or the components or processes
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`carried out by or included in various prior art systems together like pieces of a
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`puzzle. I understand that an obviousness analysis therefore takes into account the
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`inferences and creative steps that a person of ordinary skill in the art would employ
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`under the circumstances.
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`43.
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`I understand that a particular combination may be proven obvious
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`merely by showing that it was obvious to try the combination. For example, when
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`there is a design need or market pressure to solve a problem and there are a finite
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`number of identified, predictable solutions, a person of ordinary skill has good
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`reason to pursue the known options within his or her technical grasp because the
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`result is likely the product not of innovation but of ordinary skill and common
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`sense.
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`44.
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`I understand that the combination of familiar elements according to
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`known methods is likely to be obvious when it does no more than yield predictable
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`results. When a work is available in one field of endeavor, design incentives and
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`other market forces can prompt variations of it, either in the same field or a
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`different one. I understand that if a person of ordinary skill can implement a
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`predictable variation, 35 U.S.C. §103 likely bars its patentability.
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`45.
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`It is further my understanding that a proper obviousness analysis
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`focuses on what was known or obvious to a person of ordinary skill in the art, not
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`just the patentee. Accordingly, I understand that any need or problem known in
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`the field of endeavor at the time of invention and addressed by the patent can
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`provide a reason for combining the elements in the manner claimed.
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`46.
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`I understand that a patent claim can be obvious in light of a single
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`item of prior art, without the need to combine multiple items of prior art, even if
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`one or more of the elements of that claim that are not found explicitly or inherently
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`in the item of prior art, but could have been supplied by the common sense of one
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`of skill in the art at the time of the purported invention.
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`47.
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`I understand that even if a claimed invention involves more than
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`substitution of one known element for another or the application of a known
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`technique to a piece of prior art ready for improvement, the invention may still be
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`obvious. I also understand that in such circumstances courts may need to look to
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`interrelated teachings of multiple patents, the effects of demands known to the
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`design community or present in the marketplace, and the background knowledge
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`possessed by a person having ordinary skill in the art to determine if the claimed
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`invention is obvious.
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`48.
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`In sum, my understanding is that items of prior art and the teachings
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`therein are properly combined where a person of ordinary skill in the art having the
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`understanding and knowledge reflected in the prior art and motivated by the
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`general problem facing the inventor, would have been led to make the combination
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`of elements recited in the claims. Under this analysis, the items of prior art
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`themselves, or any need or problem known in the field of endeavor at the time of
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`the invention, can provide a reason for combining the elements of multiple items of
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`prior art in the claimed manner.
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`49.
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`I have been informed and understand that the obviousness analysis
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`requires a comparison of the properly construed claim language to the prior art on
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`a limitation-by-limitation basis.
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`(e) Claim Construction
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`50.
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`I have been instructed by counsel on the law regarding claim
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`construction and patent claims, and understand that a patent may include two types
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`of claims, independent claims and dependent claims. An independent claim stands
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`alone and includes only the limitations it recites. A dependent claim can depend
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`from an independent claim or another dependent claim. I understand that a
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`dependent claim includes all the limitations that it recites in addition to all of the
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`limitations recited in the claim from which it depends.
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`51.
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`I have been instructed by counsel that claim construction is a matter of
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`law for the arbiter of law to decide. Further, I have been instructed by counsel that
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`for the purposes of an Inter Partes review, claim terms should be given their
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`broadest reasonable construction consistent with the patent in which the terms are
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`used.
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`52. Under a broadest reasonable interpretation, the words of the claim
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`must be given their plain meaning, unless the inventor, acting as a lexicographer,
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`has set forth special meaning to certain terms.
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`IV. TECHNOLOGY BACKGROUND
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`53. Below I have included information that provides a technical
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`background and a state of the art around and before 1998 that can be helpful in
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`understanding technical matters of my analyses and provides an overview of the
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`technology at issue in this case. This overview also provides what I believe to
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`have been the general understanding of a person of ordinary skill in the art around
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`and before 1998, when the earliest application on which the ‘290 Patent is based
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`was filed.
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`54.
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`is
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`(a) The Internet and the World Wide Web
`The Internet
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`the name given
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`the worldwide network of
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`interconnected computer networks available for public access that provides, among
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`other things, email, FTP, and web page access. The terms Internet and World Wide
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`Web (or Web) are often used interchangeably in everyday speech but they are not
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`synonymous. The Internet is a particular global computer network connecting
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`millions of computing devices, while the World Wide Web is just one of many
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`
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`services running on the Internet. The World Wide Web is a global set of
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`documents, images and other web resources, logically interrelated by hyperlinks
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`and referenced with Uniform Resource Locators (URLs). URLs symbolically
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`identify services, servers, and other databases and the documents and resources
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`that they can provide. In addition to the Web, a multitude of other services are
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`implemented over the Internet, including e-mail, file transfer, remote computer
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`control, newsgroups, and online games. While the origins of the Internet reach
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`back to the 1960s, the World Wide Web was popularized in the early 1990s. See
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`Barry M. Leiner et al., Brief History of the Internet, INTERNET SOCIETY (Oct. 15,
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`2012) (Ex. 1006).
`
`55. World Wide Web browser software allows users to navigate from
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`one web page to another via hyperlinks embedded in the documents. These
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`documents may also contain any combination of computer data, including
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`graphics, sounds, text, video, multimedia and interactive content that runs while
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`the user is interacting with the page. The primary purpose of a web browser is to
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`retrieve information resources for the user, present the information to the user, and
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`allow the user to traverse the Web and access other information via navigation or
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`following links. One of the first graphical Web browsers was named MOSAIC
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`and was developed in the early 1990s. Other early graphical Web browsers
`
`include Microsoft’s Internet Explorer, Netscape Navigator, and Mozilla. Although
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`browsers are primarily intended to access the World Wide Web, they can also be
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`used to access information provided by web servers in private networks or files in
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`file systems.
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`(b) Webpage Design, Function, and Operation
`56. A website is a collection of web pages, which are digital files
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`commonly written using HyperText Markup Language (HTML). For a website to
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`be universally available it needs to be “hosted” on servers connected to the Internet
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`at all times. The host stores and serves or provides access to the web pages
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`comprising the website. The host server components (discussed above) store and
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`serve pages stored on persistent storage. The host server components also deliver
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`the web pages and their associated files like images, flash movies, etc. to clients
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`(browsers). A website host’s main purpose is serving web pages, which means it
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`waits for requests from a user through a web browser (also known as a client) and
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`responds by sending the requested data back. This client-server interaction is how
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`the Web works.
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`57.
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`There are several design disciplines required for effective design of
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`web pages. Among these are: user interface design; graphic design, navigation
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`design, text authoring and categorization (search engine optimization). Numerous
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`tools exist that assist the web page designer. Also web designers rely on standards
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`
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`that help ensure that a web page will be viewed in a manner consistent with the
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`web designer’s intent.
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`58. One of the important standards used in the design and deployment of
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`web pages is Hypertext Markup Language (HTML). HTML documents comprise
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`webpages making up websites. The HTML standard published in November of
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`1995 provides a definition of HTML:
`
`The Hypertext Markup Language (HTML) is a simple markup
`language used to create hypertext documents that are platform
`independent. HTML documents are SGML documents with generic
`semantics that are appropriate for representing information from a
`wide range of domains. HTML markup can represent hypertext news,
`mail, documentation, and hypermedia; menus of options; database
`query results; simple structured documents with in-lined graphics; and
`hypertext views of existing bodies of information.
`
`HTML has been in use by the World Wide Web (WWW) global
`information
`initiative since 1990. This specification
`roughly
`corresponds to the capabilities of HTML in common use prior to June
`1994. HTML
`is an application of ISO Standard 8879:1986
`Informa