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 2014-00086
`Patent No. 7,010,536
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE, INC.
`Petitioner,
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner
`
`Case IPR 2014-00086
`Patent No. 7,010,536
`
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`Pursuant to 37 C.F.R. § 42.64(c), Patent Owner Evolutionary Intelligence
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`hereby moves to exclude new evidence that Petitioner Apple, Inc. has attempted to
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`introduce in its Reply Brief (Paper 28) and Supplemental Declaration of Henry,
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`Houh, Ph.D.
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`In particular, Apple has introduced testimonial evidence in the Supplemental
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`Declaration of Dr. Henry Houh stating:
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`A person of ordinary skill in the art would understand
`that a “logically defined data enclosure” (or a data
`enclosure defined by a “software mechanism”) covers
`more than just a “logical description” of a container. For
`example, a logical data enclosure would include a system
`process, an execution stack (the memory allocated to a
`running software application), contiguous blocks of
`physical memory, a file structure or file header, various
`instances of object-oriented programming design
`concepts (e.g., a class interface, polymorphic object, or
`object with inheritance), amongst others.
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`Ex. 1009, ¶ 29. Apple relies on this evidence to argue that Gibbs contains an
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`inherent disclosure of multiple ways of placing multiple objects into a single
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`object, such that the single object would be a “container,” as that term is used by
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`the ‘536 patent, with all the registers required by claims 2 and 16 of the ’536
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`patent. See Pet. Rep. Br. at 6.
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`Apple’s submission of new evidence on reply violates 37 C.F.R. 42.123,
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`which requires supplemental information be submitted within one month of
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`institution of an IPR. There was no discussion of execution stack (the memory
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`allocated to a running software application), contiguous blocks of physical
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`memory, a file structure or file header, [or] various instances of object-oriented
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`programming design concepts (e.g., a class interface, polymorphic object, or object
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`with inheritance)” in Petitioners’ Petitions or Dr. Houh’ s original declaration. As
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`such, Patent Owner has been deprived of any opportunity to submit evidence
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`regarding whether these things would constitute “a logical data enclosure as
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`asserted by Dr. Houh.
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`Additionally, this evidence is inadmissible because it lacks foundation. Dr.
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`Houh provides no definitions of these terms, nor does he provide any reasons why
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`these things are “logical data enclosures.” Moreover, on cross-examination, Dr.
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`Houh was unable to explain in a clear, concise, and consistent manner why he
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`believed the above constituted “logical data enclosures.” See Observations on
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`Cross-Examination, ¶¶ 7, 12, 14, 16-17; Ex. 1010 at 244:19-245:22 (Dr. Houh
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`testifying that he was uncertain whether execution stacks were logical data
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`enclosures, then changing his testimony after it was pointed out that he had already
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`said so in his report); 249:4-249:16 (unable to identify the construction of “logical
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`data enclosure” he had applied); 249:17-251:1 (testifying that execution stacks
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`with “out of bounds” memory errors were an example of stacks that were not
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`“logical data enclosures”, but then testifying that he did not know whether properly
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`functioning execution stacks (i.e., ones without errors) would be a “logical data
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`3
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`enclosure”); 253:18-23 (reversing course, and testifying that execution stacks were
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`logical data enclosures if they used allocated (i.e., defined) blocks of memory);
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`254:13-255:1 (testifying that any running program would be a “logical data
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`enclosure”). Dr. Houh also admitted that he did not reference or submit any
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`materials on object-oriented programming in support of his testimony regarding
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`the above items, which means that his analysis of their relevance can be no
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`stronger than the explanations he provided in his cross-examination. Ex. 1010 at
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`201:7-203:6; 302:9-306:24.
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`The evidence is also inadmissible because Dr. Houh applied an incorrect
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`standard of claim construction when applying the phrase “logically defined data
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`enclosure.” Dr. Houh admitted in deposition that he was simply using a
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`layperson’s understanding of nesting or encapsulation as “things within things.”
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`Ex. 1010 at 240:5-243:5 (“ . . . generally people understand [nesting] as things
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`within things”). Dr. Houh should have construed those terms as they would be
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`applied by persons of ordinary skill in the art. Because he did not, his testimony is
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`not relevant.
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`Finally, the evidence regarding execution stacks is inadmissible because Dr.
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`Houh admitted that Gibbs did not necessarily require or disclose an execution stack
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`that operated in the manner he described. See Ex. 1010 at 258:22-259:3 (“It’s very
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`hard to make a statement that says everything in the world . . . has this [i.e., an
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`4
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`execution stack functioning as described by Dr. Houh] because, you know, there
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`probably could be someone who could come up with a system for supporting
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`function calls without this type of execution stack . . . .”). Because Gibbs does
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`not discuss execution stacks, they can only be relevant to the extent he asserts they
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`are “inherent” within Gibbs’ disclosure. They are only inherent if they are
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`necessarily contained within Gibbs. See Transclean Corp. v. Bridgewood Servs.,
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`Inc., 290 F.3d 1364, 1373 (Fed. Cir. 2002). Because Dr. Houh admitted that they
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`were not, there can be no inherent disclosure, and the execution stacks have no
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`relevance to the legal issues before the Board.
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`Dated: December 5, 2014
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`5
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`Respectfully Submitted,
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`
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` /s/Anthony J. Patek/
`Anthony J. Patek. No. 66,463
`Attorney for Evolutionary Intelligence
`
`Gutride Safier LLP
`835 Douglass Street
`San Francisco, CA 94114
`Tel: (415) 639-9090
`Dir: (415) 505-6226
`Fax: (415) 449-6469
`anthony@gutridesafier.com
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`CERTIFICATE OF SERVICE
`I hereby certify, pursuant to 37 CFR § 42.6, that on December 5, 2014, a
`true and correct copy of the foregoing Request for Oral Hearing was served via
`email, by agreement between the parties, on the following:
`
`
`Counsel for Petitioner Apple Inc.
`Jeffrey P. Kushan & Douglas I. Lewis
`Sidley Austin LLP
`1501 K Street, N.W.,
`Washington, D.C. 20005
`jkushan@sidley.com
`dilewis@sidley.com
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`Counsel for Petitioner/Joining Parties Twitter Inc. and Yelp Inc.
`Vaibhav P. Kadaba& Robert Artuz
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta , GA 30309-4528 USA
`Telephone: (404) 532-6959
`Fax: (404) 541-3258
`wkadaba@kilpatricktownsend.com
`rartuz@kilpatricktownsend.com
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`
` /s/Anthony J. Patek/
`Anthony J. Patek. No. 66,463
`Attorney for Patent Owner
`
`Gutride Safier LLP
`835 Douglass Street
`San Francisco, CA 94114
`Tel: (415) 639-9090
`Dir: (415) 505-6226
`Fax: (415) 449-6469
`anthony@gutridesafier.com
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` 6
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