UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE, INC.
`Petitioner,
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`v.
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`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner
`
`Case IPR 2014-0086
`Patent No. 7,010,536
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`
`
`TWITTER, INC. and YELP INC.
`Joining Petitioners,
`
`v.
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`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner,
`
`Case IPR 2014-00812
`Patent No. 7,010,536
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`DECLARATION OF MATTHEW GREEN, PH.D.
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`REGARDING U.S. PATENT NO. 7,010,536 (CORRECTED)
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`I, Matthew Green, do hereby declare and state, that all statements made herein
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`of my own knowledge are true and that all statements made on information and
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`belief are believed to be true; and further that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`or imprisonment, or both, under Section 100 I of Title 18 of the United States Code.
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`Date: July 18, 2014
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`Matthew D. Green, Ph.D.
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`TABLE OF CONTENTS
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`I. INTRODUCTION ................................................................................................ 1
`A. Engagement...................................................................................................... 1
`B. Background and Qualifications ....................................................................... 1
`II. LEGAL STANDARDS FOR PATENTABILITY ......................................... 4
`5
`A. Anticipation...................................................................................................... 5
`III. THE ’536 PATENT ........................................................................................... 6
`A.
`Prosecution History Of The ’536 Patent and Effective Filing Date of the ’536
`Patent ......................................................................................................................... 6
`IV. GENERAL ISSUES RELATED TO MY PATENTABILITY ANALYSIS 7
`A. The Claims of the ‘536 Patent I Am Addressing in this Report ...................... 7
`B. Construction of Certain Claim Terms.............................................................. 9
`1. Container ........................................................................................................ 12
`2. Register .......................................................................................................... 14
`3. Gateway ......................................................................................................... 16
`4. Register .......................................................................................................... 18
`5. First Register Having a Unique Container Identification Value ................... 18
`6. Active/Passive/Neutral Space Register ......................................................... 21
`7. Acquire Register ............................................................................................ 23
`V. OVERVIEW OF U.S. PATENT NO. 5,836,529 (GIBBS) ........................... 23
`VI. COMPARISON OF GIBBS TO CLAIMS 2-12, 14 AND 16 OF THE ’536
`PATENT .................................................................................................................... 60
`A. Gibbs does not describe a “[p]lurality of containers, each container being a
`logically defined data enclosure and comprising . . . a plurality of registers, the
`plurality of registers forming part of the container and including . . .” .................. 61
`B.
`“Transport Object/Map Object/Report Object Subsystem” .......................... 69
`C.
`“First Register Having a Unique Container Identification Value” ................ 73
`D.
`“Active Space Register” ................................................................................ 74
`E.
`“Passive Space Register” ............................................................................... 80
`F.
`“Neutral Space Register” ............................................................................... 82
`G.
`“Acquire Register” ......................................................................................... 85
`VII. CONCLUSION ............................................................................................ 87
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`I.
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`INTRODUCTION
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`A. Engagement
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`1.
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`I have been retained by counsel for Evolutionary Intelligence
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`(“Evolutionary”) as an expert witness in the above-captioned proceeding. I have
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`been asked to provide my opinion about the state of the art of the technology
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`described in claims 2-12, 14, and 16 of U.S. Patent No. 7,010,536 (“the ’536
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`patent”) and on the patentability of these claims of this patent. The following is my
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`written declaration on these topics.
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`B.
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`2.
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`Background and Qualifications
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`Attached as Exhibit 2007 to this report is my up-to-date curriculum
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`vitae, which includes a complete list of my publications and past testimony as an
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`expert. The following paragraphs briefly summarize my relevant expertise.
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`3.
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`I hold a Ph. D. in Computer Science from Johns Hopkins University, a
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`Master of Science degree in Computer Science from Johns Hopkins University and
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`a Bachelor of Arts in Computer Science from Oberlin College. I have authored a
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`number of research papers in top Computer Science journals and conferences,
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`including journals and conferences of the Institute of Electrical and Electronics
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`Engineers (IEEE) and the Association for Computing Machinery (ACM).
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`4.
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`I hold an Assistant Research Professorship at Johns Hopkins
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`University in Baltimore, MD. My professional responsibilities in this position
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`include: advising graduate students, teaching, conducting research, and preparing
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`papers. As an Assistant Research Professor, I gained expertise in several fields
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`related to the design and implementation of large-scale distributed storage systems.
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`For example, my research projects on distributed file systems involved the
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`technology involved in creating, replicating and transferring information. I have
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`taught several courses at Johns Hopkins University, including security
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`technologies which cover database and storage technology.
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`5.
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`A complete list of my research publications, conference papers,
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`patents, and grant support is included in my curriculum vitae. Several of the
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`publications and conference papers listed are related to the technology underlying
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`distributed systems and content distribution systems.
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`6.
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`Prior to accepting a university position, I worked for a number of
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`years as a software developer and technology consultant. As a software developer
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`and technology consultant, I gained expertise in several fields, including computer
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`security, telecommunications, and content distribution technology.
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`7.
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`From 1999-2003 I held the position of Senior Technical Staff Member
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`at AT&T Laboratories in Florham Park, NJ, where my responsibilities included
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`developing software for audiovisual content distribution systems, desktop and
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`mobile devices, secure text messaging systems for mobile devices, AT&T’s
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`Interactive Voice Response (IVR) system, researching technology transfer for
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`audio coding, and secure content delivery. Development of these projects included
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`computer security, telecommunications, and content distribution technology.
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`Specifically, in developing the content distribution system, which transferred data
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`to geographically distant sites, I developed systems for managing large amounts of
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`data in a distributed object store. The system implemented processes for
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`replicating, copying, and distributing files across networks. I also routinely worked
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`technology designed to develop applications, and deploy operating systems on
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`different computer systems.
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`8.
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`I also worked for a number of years as a consultant for firms to
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`provide my experience and expertise in system architecture and design.
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`Specifically, from 2005-2011, I served as Principal Analyst and CTO of
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`Independent Security Evaluators, a custom security evaluation and design
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`consultancy. I currently work as Chief Scientist for Barr Group, continuing to
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`provide my expertise and experience in various technologies.
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`9.
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`Beyond these specific tasks I have gained general experience in
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`software development through my years designing and developing software, in
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`languages including C, C++, Java, Python PL/1 and various machine assembly
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`languages.
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`10.
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`I have used my education and my years of experience working in the
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`field of software design, and my understanding of the knowledge, creativity, and
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`experience of a person of ordinary skill in the art in forming the opinions expressed
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`in this report.
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`3
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`II. LEGAL STANDARDS FOR PATENTABILITY
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`11.
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`In expressing my opinions and considering the subject matter of the
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`claims 2-12, 14, and 16 of the ’536 patent, I am relying upon certain basic legal
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`principles that counsel has explained to me.
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`12. First, I understand that for an invention claimed in a patent to be
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`found patentable, it must be, among other things, new and not obvious from what
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`was known before the invention was made.
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`13.
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`I understand the information that is used to evaluate whether an
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`invention is new and not obvious is generally referred to as “prior art” and
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`generally includes patents and printed publications (e.g., books, journal
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`publications, articles on websites, product manuals, etc.).
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`14.
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`I understand that in this proceeding Apple has the burden of proving
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`that the claims of the ’536 patent are anticipated by or obvious from the prior art
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`by a preponderance of the evidence. I understand that “a preponderance of the
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`evidence” is evidence sufficient to show that a fact is more likely true than it is not.
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`15.
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`I understand that in this proceeding, the claims are given their
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`broadest reasonable interpretation consistent with the specification and how it
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`would be understood by a person of ordinary skill in the art. The claims after being
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`construed in this manner are then to be compared to the information in the prior
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`art.
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`16.
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`I understand that in this proceeding, the information that may be
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`evaluated is limited to claims 1-12, 14, and 16 of U.S. patent No. 5,836,529
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`(“Gibbs”).
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`17.
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`I understand that there are two ways in which prior art may render a
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`patent claim unpatentable. First, the prior art can be shown to “anticipate” the
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`claim. Second, the prior art can be shown to have made the claim “obvious” to a
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`person of ordinary skill in the art. My understanding of the two legal standards is
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`set forth below. I understand that this inter partes review was instituted solely on
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`the issue of whether Gibbs anticipates the ’536 patent. I have reviewed the
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`Decision to Institute Trial in this case, the Apple’s Petition for Inter Partes Review,
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`and the Declaration of Henry Houh in support of that petition. I saw no evidence
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`or discussion of obviousness in any of those documents. Accordingly, in this
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`declaration, I am only opining as to whether Gibbs anticipates the ’536 patent.
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`A. Anticipation
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`18.
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`I understand that the following standards govern the determination of
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`whether a patent claim is “anticipated” by the prior art.
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`19.
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`I have applied these standards in my evaluation of whether claims 2-
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`12, 14, and 16 of the ‘536 patent would have been anticipated by the prior art.
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`20.
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`I understand that the “prior art” includes patents and printed
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`publications that existed before the earliest filing date (the “effective filing date”)
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`of the claim in the patent. I also understand that a patent will be prior art if it was
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`filed before the effective filing date of the claimed invention, while a printed
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`publication will be prior art if it was publicly available before that date.
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`21.
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`I understand that, for a patent claim to be “anticipated” by the prior
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`art, each and every requirement of the claim must be found, expressly or
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`inherently, in a single prior art reference as recited in the claim. I understand that
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`claim limitations that are not expressly described in a prior art reference may be
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`there if they are “inherent” to the thing or process being described in the prior art,
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`but only if they are necessarily present. I understand that the mere possibility or
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`probability that a method or structure disclosed in prior art could contain an
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`element described in the claim is not enough to establish inherent anticipation.
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`III. THE ’536 PATENT
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`A.
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`Prosecution History Of The ’536 Patent and Effective Filing Date
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`of the ’536 Patent
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`22.
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`I understand that the ’536 patent issued from U.S. Application No.
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`09/284,113, filed January 28, 1999.
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`23.
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`I understand that the ’113 application claims priority to Provisional
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`Application No. 60/073,209, filed January 30, 1998.
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`24.
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`I have therefore used January 30, 1998, as the earliest effective filing
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`date of the ’536 patent claims in my analysis.
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`B.
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`The Person Of Ordinary Skill In The Art
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`25. A person of ordinary skill in the art in the field of the ’536 patent
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`would have been someone with a good working knowledge of computer
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`programming, data structures, and object oriented programming. The person would
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`have gained this knowledge either through an undergraduate education in computer
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`science or comparable field, in combination with training or one to two years of
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`practical working experience.
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`IV. General Issues Related to My Patentability Analysis
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`26. As I explain in more detail below, I believe claims 2-12, 14, and 16 of
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`the ’536 patent are not anticipated by Gibbs. Although Dr. Houh’s declaration
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`stated that he believed the ’536 patent was obvious based on “a number of prior art
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`references,” his declaration contained no evidence of obviousness, nor any
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`discussion of prior art references other than Gibbs. Likewise, Apple’s petition
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`does not contain a single occurrence of the word “obvious.” Accordingly, I
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`understand the issue of obviousness to be outside the scope of this proceeding, at
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`least with respect to claims 2-12, 14, and 16 as they are currently written.
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`A. The Claims of the ‘536 Patent I Am Addressing in this Report
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`27. The claims of the ‘536 patent that I am addressing in this report (i.e.,
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`2-12, 14 and 16) are reproduced below.
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`Claim 2 of the ‘536 patent reads:
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`2. An apparatus for transmitting, receiving and manipulating information on
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`a computer system, the apparatus including a plurality of containers, each container
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`being a logically defined data enclosure and comprising:
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`an information element having information;
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`a plurality of registers, the plurality of registers forming part of the container
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`and including
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`a first register for storing a unique container identification value,
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`a second register having a representation designating space and governing
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`interactions of the container with other containers, systems or processes
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`according to utility of information in the information element relative to
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`an external-to-the-apparatus three-dimensional space,
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`an active space register for identifying space in which the container will act
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`upon other containers, processes, systems or gateways,
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`a passive register for identifying space in which the container can be acted
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`upon by other containers, processes, systems or gateways,
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`a neutral space register for identifying space in which the container may
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`interact with other containers, processes, systems, or gateways; and
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`a gateway attached to and forming part of the container, the gateway
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`controlling the interaction of the container with other containers, systems
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`or processes.
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`Claim 3 of the ‘536 patent reads:
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`3. The apparatus of claim 1 or 2, wherein the plurality of registers includes
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`at least one container history register for storing information regarding past
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`interaction of the container with other containers, systems or processes, the
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`container history register being modifiable.
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`Claim 4 of the ‘536 patent reads:
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`4. The apparatus of claim 1 or 2, wherein the plurality of registers includes
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`at least one system history register for storing information regarding past
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`interaction of the container with different operating system and network processes.
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`Claim 5 of the ‘536 patent reads:
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`5. The apparatus of claim 1 or 2, wherein the plurality of registers includes
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`at least one predefined register, the predefined register being a register associated
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`with an editor for user selection and being appendable to any container.
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`Claim 6 of the ’536 patent reads:
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`6. The apparatus of claim 1 or 2, wherein the plurality of registers includes a
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`user-created register, the user-created register being generated by the user, and
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`being appendable to any container.
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`Claim 7 of the ’536 patent reads:
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`7. The apparatus of claim 1 or 2, wherein the plurality of registers includes a
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`system-defined register, the system-defined register being set, controlled and used
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`by the system, and being appendable to any container.
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`Claim 8 of the ’536 patent reads:
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`8. The apparatus of claim 1 or 2, wherein the plurality of registers includes
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`at least one acquire register for controlling whether the container adds a register
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`from other containers or adds a container from other containers when interacting
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`with them.
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`Claim 9 of the ’536 patent reads:
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`9. The apparatus of claim 1 or 2, wherein the gateway includes means for
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`acting upon another container, the means for acting upon another container using
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`the plurality of registers to determine whether and how the container acts upon
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`other containers.
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`Claim 10 of the ’536 patent reads:
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`10. The apparatus of claim 1 or 2, wherein the gateway includes means for
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`allowing interaction, the means for allowing interaction using the plurality of
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`registers to determine whether and how another container can act upon the
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`container.
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`Claim 11 of the ’536 patent reads:
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`11. The apparatus of claim 1 or 2, wherein the gateway includes means for
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`gathering information, the means for gathering information recording register
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`information from other containers, systems or processes that interact with the
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`container.
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`Claim 12 of the ’536 patent reads:
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`12. The apparatus of claim 1 or 2, wherein the gateway includes means for
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`reporting information, the means for reporting information providing register
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`information to other containers, systems or processes that interact with the
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`container.
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`Claim 14 of the ’536 patent reads:
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`14. The apparatus of claim 1 or 2, wherein the information element is one
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`from the group of text, graphic images, video, audio, a digital pattern, a process, a
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`nested container, bit, natural number and a system.
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`Claim 16 of the ’536 patent reads:
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`16. An apparatus for transmitting, receiving and manipulating information
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`on a computer system, the apparatus including a plurality of containers, each
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`container being a logically defined data enclosure and comprising:
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`an information element having information;
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`a plurality of registers, the plurality of registers forming part of the container
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`and including
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`a first register for storing a unique container identification value,
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`a second register having a representation designating time and governing
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`interactions of the container with other containers, systems or processes according
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`to utility of information in the information element relative to an external-to-the-
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`apparatus event time, and
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`at least one acquire register for controlling whether the container adds a
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`register from other containers or adds a container from other containers when
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`interacting with them; and
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`a gateway attached to and forming part of the container, the gateway
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`controlling the interaction of the container with other containers, systems or
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`processes.
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`11
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`B.
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`28.
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`B. Interpretation of Certain Claim Terms
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`I understand that in an inter partes review proceedings, claims are to
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`be given their broadest reasonable interpretation in view of the specification.
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`29.
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`I also understand that, where a patent applicant explicitly defines a
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`term to mean something in the patent disclosure, that definition should be used
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`when evaluating the claims. An explicit definition will be something like “a ‘foo
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`means ‘a widget that is 4 inches wide by 6 inches long.’”
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`30.
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`I understand that if no explicit definition is provided for a term in the
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`patent specification, the claim terms must be given their plain meaning unless that
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`would be plainly inconsistent with how the term is being used in the claim or the
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`patent specification.
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`1.
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`Container
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`31. The ‘536 patent does not expressly define the term “container.” The
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`’536 patent introduces the concept of “containers” by stating “[t]he present
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`invention advantageously provides a container editor for creating containers,
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`containerizing stored information in containers, and altering container registers. A
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`container is an interactive nestable logical domain configurable as both subset and
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`superset, including a minimum set of attributes coded into dynamic interactive
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`evolving registers, containing any information component, digital code, file, search
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`string, set, database, network, event or process, and maintaining a unique network-
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`wide lifelong identity.” Ex. 1001, 3:25-35. Although this statement does not
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`appear to be an explicit attempt by the patentee to act as their own lexicographer, it
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`is the first description of “container” within the patent.
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`32. The ’536 patent also states that an “information container 100 is a
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`logically defined data enclosure which encapsulates any element or digital segment
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`(text, graphic, photograph, audio, video, or other), or set of digital segments, or
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`referring now to FIG. 3C, any system component or process, or other containers or
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`sets of containers.” Ex. 1001, 8:64-9:2 (emphasis added). The ’536 patent also
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`states that Figure 4 is a block diagram of an “information container 100,” which it
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`again describes as is “a logically defined data enclosure which encapsulates any
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`element, digital segment (text, graphic, photograph, audio, video, or other), set of
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`digital segments as described above with reference to FIG. 3(C), any system
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`component or process, or other containers or sets of containers.” Ex. 1001, 12:59-
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`67. This statement does not appear to be an explicit attempt by the patentee to act
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`as their own lexicographer. Whereas the first description of “container” in the
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`patent appears to be a general description of a container, these passages describe
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`the “information container 100” that is depicted in Figure 4.
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`33. The patent also states that the “container 100 at minimum includes in
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`its construction a logically encapsulated portion of cyberspace, a register and a
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`gateway” and that it “at minimum encapsulates a single digital bit, a single natural
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`number or the logical description of another container, and at maximum all defined
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`cyberspace, existing, growing and to be discovered, including but not limited to all
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`containers, defined and to be defined in cyberspace.” Ex. 1001, 9:2-9 (emphasis
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`added). The patent also states the “container 100 contains the code to enable it to
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`interact with the components enumerated in 2A, and to reconstruct itself internally
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`and manage itself on the network 201.” Ex. 1001, 9:9-12. I understand this to be a
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`description of one embodiment of a container: the information container 100
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`depicted in Figure 4.
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`34.
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`I understand that the Board has construed “container” to mean “a
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`logically defined data enclosure which encapsulates any element or digital segment
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`(text, graphic, photograph, audio, video, or other), or set of digital elements.”
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`35.
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`I understand “logically defined” to mean “defined through a software
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`mechanism”.
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`36.
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`I agree with the Board that the broadest reasonable construction of
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`“container” means “a logically defined data enclosure which encapsulates any
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`element or digital segment (text, graphic, photograph, audio, video, or other), or set
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`of digital elements.” In reaching that conclusion I interpret that phrase as it would
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`be understood by a computer scientist or programmer.
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`2.
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`Register
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`37. The ‘536 patent does not expressly define the term “register.” I
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`recognize “register” as being a common computer term in computer science that
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`refers to computer memory, often programmed with a specific value. The 1996
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`Oxford Dictionary of Computing defines “register” as “a group of (usually)
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`bistable devices that are used to store information within a computer system for
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`high speed access.” Ex. 2002. Similarly, Webster’s New World Dictionary of
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`Computer Terms defines “register” as “a memory location within a
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`microprocessor, used to store values and external memory addresses while the
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`microprocessor performs logical and arithmetic operations on them.” Ex. 2003.
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`The plain meaning of the term “register” is thus “a memory location within a
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`computer that stores data.”
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`38. The ‘536 patent states:
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`Registers 120 are user or user-base created or system-created values
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`or ranges made available by the system 10 to attach to a unique
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`container, and hold system-set, user-set, or system-evolved values.
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`Values may be numeric, may describe domains of time or space, or
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`may provide information about the container 100, the user, or the
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`system 10. Registers 120 may be active, passive or interactive and
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`may evolve with system use. Ex. 1001 at 14:23-30.
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`39. The ’536 patent states that “[c]ontainer registers 120 are interactive
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`dynamic values appended to the logical enclosure of an information container 100
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`and serve to govern the interaction of that container 100 with other containers 100,
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`container gateways 200 and the system 10, and to record the historical interaction
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`of that container 100 on the system 10.” Ex. 1001 at 9:14-19. The ‘536 patent
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`observes that “Container registers 120 may be values alone or contain code to
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`establish certain parameters in interaction with other containers 100 or gateways
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`200.” Ex. 1001, 9:19-23.
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`40. The ’536 patent’s specification is entirely consistent with the plain
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`meaning of “register” to one of ordinary skill in the art. The specification of the
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`’536 patent describes “dynamic registers” as memory locations that are searched
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`and updated with data according to interactions among various containers. Ex.
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`1101 at 2:66-3:5 (“The present invention is a system and methods for
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`manufacturing information on, upgrading the utility of, and developing intelligence
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`in, a computer . . . by offering the means to create and manipulate information
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`containers with dynamic registers.”); 3:14-15 (“The memory unit advantageously
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`includes an information container made interactive with dynamic registers”); 3:29-
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`32 (“A container . . . include[es] a minimum set of attributes coded into dynamic
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`interactive evolving registers . . .”).
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`41. The broadest reasonable construction of “register” thus would be “a
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`memory location within a computer that stores value or code associated with a
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`container.”
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`3. Gateway
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`42. Without reading the ’536 Patent, a person of ordinary skill in the art
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`would conclude that a “gateway” is “a device that interconnects two networks . . .
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`.” Ex. 2002; see also Ex. 2004 (defining “gateway” as “A functional unit that
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`interconnects two computer networks with different network architectures.”); Ex.
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`2001 (“A device that connects networks using different communications protocols
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`so that information can be passed from one to the other.”).
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`43. The ’536 patent does not expressly define the term “gateway.” The
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`’536 patent states that “[G]ateways gather and store container register information
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`according to system-defined, system-generated, or user determined rules as
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`containers exit and enter one another, governing how containers system processes
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`or system components interact within the domain of that container, or after exiting
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`and entering that container, and governing how containers, system components and
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`system processes interact with that unique gateway, including how data collection
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`and reporting is managed at that gateway. Ex. 1001 at 4:58-66.
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`44. The ‘536 patent also states that “Container gateways 200 are logically
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`defined gateways residing both on containers 100 and independently in the system
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`10” and “Gateways 200 govern the interactions of containers 100 within their
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`domain, and alter the registers 120 of transiting containers 100 upon ingress and
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`egress.” Ex. 1001, 9:23-28. See also Ex. 1001, 15:44-49.
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`45.
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`I understand that the Board has construed “gateway” to mean
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`“hardware or software that facilitates the transfer of information between
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`containers, systems, and/or processes.” I have used this construction in my
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`analysis.
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`17
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`

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`
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`4.
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`Register
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`46.
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`I understand that the Board has construed “register” to mean “value or
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`code associated with a container.” I have applied this construction in my analysis.
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`
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`5.
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`First Register Having a Unique Container Identification
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`Value
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`47.
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`I understand that Apple’s expert witness, Henry Houh, has testified
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`that he interprets the “first register having a unique container identification value”
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`in claim 2 as referring to a unique identifier for any container. Ex. 1008 (Houh
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`Tr.) at 106:21-109:8.
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`48. The specification does not explicitly define “first register having a
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`unique container identification value.” However, the specification repeatedly and
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`consistently states that each container has a register with a “unique network-wide
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`lifelong identity” for the given container. Ex. 1001 at 3: 29-39; see also id. at
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`3:57-64 (system-defined registers may include “an identity register maintaining a
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`unique network wide identification and access location for a given container”);
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`14:43-55 (pre-defined registers comprise “an identity register 114000 maintaining
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`a unique lifelong identification and access location for a given container”); 17:15-
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`21 (“When input is received from the user choosing “finished,” the container is
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`created with a unique network identity . . . .”).
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`18
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`

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`
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`49.
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`I also understand that the original claims submitted as part of the
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`application for the ’536 patent are part of the written description.
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`50. Original claim 29 recited “[a] method for interacting between a first
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`interactive information container and a second interactive information container,
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`the method including the steps of: determining identification information for the
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`first container using a first gateway; determining identification information for the
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`second container using a second gateway; determining whether the first container
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`can act upon the second container using the first gateway and a register of the first
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`container; determining whether the second container can act upon the first
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`container using the second gateway and a register of the second container,
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`andperforming interaction between the first and second containers prescribed by
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`the first gateway and the register of the first container if both the first container can
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`act upon the second container and the second container can be acted upon by the
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`first container.”
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`51. Original claim 30 recited “[t]he method for interacting of claim 29,
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`wherein the steps of determining identification information are performed by
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`reading respective identification registers of the first container and the second
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`container.
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`52. The original claims included claims to methods in which a first and
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`second container exchanged their respective unique identification registers as a
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`first step in determining whether they would interact. For example, in original
`19
`
`

`
`
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`claim 30 above, “determining identification information” for a first and second
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`containers is done by “reading respective identification registers of the first and
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`second containers”). Those claims, which are part of the original disclosure, make
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`no sense if the “unique identification value” is construed as identifying containers
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`other than those interacting, because the entire point of the exchange was to
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`compare unique identifiers to see if interaction between the two containers would
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`be allowed.
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`53.
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`I understand that the use of “a” at the beginning of the phrase “a
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`unique container identification value” is re