UNITED STATES PATENT AND TRADEMARK OFFICE
`
`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
`
`
`
`
`OBSERVATIONS ON CROSS-EXAMINATION OF
`HENRY HOUH
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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
`
`
`
`
`OBSERVATIONS ON CROSS-EXAMINATION OF
`HENRY HOUH
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`As set forth by 77 Fed. Reg. 48756, 48762-3, Patent Owner Evolutionary
`
`Intelligence, LLC, hereby files these observations on the deposition testimony of
`
`Henry Houh, Ph.D., held on December 2, 2014 at 11:00 a.m. EST in the offices of
`
`Sidley Austin LLP, 1501 K Street NW #600, Washington, D.C. 20005 regarding
`
`his supplemental declaration (Ex. 1009).
`
`
`
`(1) Reliance on Inherent Disclosure to Establish Anticipation: When asked
`
`whether there was something in Gibbs’ disclosure that made its alleged “execution
`
`stack” an example of a logically defined data enclosure, Dr. Gibbs admitted that
`
`his interpretation of Gibbs is based on reading “necessary components” into Gibb’s
`
`actual disclosure. See Ex. 1010 at 257:15-258:12 (“[O]ne of skill in the art would
`
`have understood Gibbs to disclose all the necessary components . . . to support
`
`execution of the program.”) and 258:22-259:3 (referring to execution stack as
`
`something that “people would commonly understand to be there.”). His testimony
`
`confirms that Dr. Houh is relying on inherent anticipation to supply elements
`
`required of claim 2 of U.S. Patent 7,010,536, yet did not address all elements of
`
`that theory in his declaration in support of the petition for IPR. See P.O. Resp. at
`
`37-41.
`
`
`
`
`
`(2) Inability to Establish Inherent Disclosure of All Elements of Claim 2: Dr.
`
`Houh admitted that the execution stack that he was reading into Gibbs in ¶ 29 of
`
`his Supplement Declaration did not necessarily function in the manner he relied on
`
`in his anticipation analysis (i.e., did not necessarily nest all the elements of the
`
`system of Gibbs within one “logically defined data enclosure”). See Ex. 1010 at
`
`258:22-259:3 (“It’s very hard to make a statement that says everything in the world
`
`. . . has this [i.e., an execution stack functioning as described by Dr. Houh]
`
`because, you know, there probably could be someone who could come up with a
`
`system for supporting function calls without this type of execution stack . . . .”).
`
`This rebuts any attempt by Apple to argue that Gibbs necessarily discloses an
`
`execution stack that nests all the objects disclosed as discrete parts of its system
`
`into one “container.”
`
`(3) Lack of Active Space Register – Dr. Houh admitted that the text in Gibbs he
`
`cites as support for use of latitude and longitude as active space registers as
`
`required by claim 2 actually discloses the latitude and longitude being retrieved
`
`after the system of Gibbs does a time comparison to determine whether the trains
`
`are late. (Rough at 85:8-85:24.) This admission contradicts Dr. Houh’s
`
`declaration testimony that the latitude and longitude values “trigger” identification
`
`of those trains as late. See Ex. 1003 at ¶ 127; Ex. 1009 at ¶¶ 49-53.
`
`3
`
`
`
`
`
`(4) First Register Having a Unique Container Identification Value– Dr. Houh
`
`testified that a “content key register” was a register containing a “keyword” such as
`
`“automobiles.” Ex. 1010 at 277:3-6 (Q. . . . [C]an you think of an example of what
`
`a content key register would be? A. It might be a work like “automobiles,” for
`
`example.”). Dr. Houh further testified that a single “content key register” could
`
`identify multiple containers. Ex. 1010 at 278:22-23 (“that key refers to the same set
`
`of containers in either case.”); 279:4-7 (“That [i.e., the keyword] would refer to
`
`the same set of objects, each of which, you know, had the word “automobiles” in –
`
`in the proper field.”) As such, the “content key register” cannot be an example of a
`
`“first register having a unique container identification value.”
`
`(5) Lack of Foundation for Opinions – Dr. Houh admitted that he did not review
`
`any material relating to object-oriented programming (i.e., textbooks, research
`
`papers, or other “corroborating evidence”) in preparation for his deposition
`
`testimony, nor in preparing his declarations. (Ex. 1010 at 201:7-203:6; 302:9-
`
`306:24.) As such, Dr. Houh has admitted that he has provided no corroborating
`
`evidence for his testimony.
`
`(6) Failure to Apply Claim Construction from Perspective of One of Ordinary
`
`Skill in the Art – Dr. Houh admitted that he applied a “plain language” definition
`
`of “nesting” as “things within things” as his construction for the phrase “logically
`
`defined data enclosure.” Id. at 240:5-243:5 (“ . . . generally people understand
`
`4
`
`
`
`
`
`[nesting] as things within things”). As such, Dr. Houh applied the wrong legal
`
`standard for claim construction, and he applied an incorrect construction of
`
`“logically defined data enclosure.”
`
`(7) Failure to Establish that Each Object in Gibbs is a “Logically Defined
`
`Data Enclosure” that Includes All the Other Objects in Gibbs – When asked
`
`for concrete examples of how programmers would “nest” objects within a class
`
`interface, polymorphic object, class with inheritance, or “contiguous blocks of
`
`memory,” Dr. Houh supplied examples which involved a written declaration
`
`within the program placing one object within another object. See e.g., Ex. 1010 at
`
`208:7-109:4 (Q. “And how would you create a class interface?” A. “. . . there are
`
`generally ways of declaring and defining classes and . . . declaring and defining the
`
`public methods of a class. . . . But, you know, if you just want to declare a class
`
`and define it . . . then you could just start typing.”); 209:6-210:2 (Q. “And is it
`
`your understanding that in creating a class interface, you could nest containers
`
`within that class interface?” . . . A. “Well, in . . . object oriented programming
`
`methods, one can declare a class and . . . declare members of the class.”); 210:4-
`
`17 (Q. “So when you talk about declaring things within a class, what do you
`
`mean?” . . . . A. “. . . You can create classes that have state, and states are
`
`contained in – in a description of the class.”); 213:15-214:20 (Q. “Okay. So if as
`
`an object-oriented programmer you wanted to nest one container within another
`
`5
`
`
`
`
`
`within a class interface, how would you do it? . . . . A. . . . So if you wanted to
`
`create a member variable that was another object, you’d just say new object name
`
`and assign it to some . . . new class name.”); 307:19-308:8 (“Well, contiguous
`
`block of memory often come in the form of . . . paging table entries or heap stack
`
`memory allocation. . .”). This corroborates Patent Owner’s position that the
`
`objects of Gibbs, which are disclosed as distinct, non-overlapping classes treated as
`
`discrete entities, are not each a “logically defined data enclosure” that include all
`
`the other objects as part of those first objects (i.e., service objects do not include
`
`transport objects nested within them, nor do transport objects include service
`
`objects nested within them).
`
` (8) Person of Ordinary Skill in the Art Would Understand “Logically Defined
`
`Data Enclosure” to Involve “Encapsulating” – When asked how programmers
`
`would “nest” objects within a class interface, Dr. Houh offered “encapsulation” of
`
`objects as an example. Id. at 213:15-24 (Q. “Okay. So if as an object-oriented
`
`programmer you wanted to nest one container within another within a class
`
`interface, how would you do it?” A “Well I . . . let me generally talk about object
`
`oriented programming used encapsuling [sic] within another instance of a class or
`
`another object inside a [sic] object-oriented instantiation.”) This corroborates
`
`Patent Owner’s position that “container” would be understood by a person of skill
`
`in the art as requiring “encapsulation,” which is a term of art. See P.O. Prelim.
`
`6
`
`
`
`
`
`Resp. at 32. This further demonstrates that Gibbs, which does not disclose
`
`encapsulating or otherwise defining all of its various objects within each other as a
`
`single, conglomerate container, does not disclose a “plurality of containers” each
`
`comprising all the other elements of claims 2-12, 14, and 16.
`
`(9) Person of Ordinary Skill in the Art Would Understand That Not all
`
`Nesting is “Logically Defined Data Enclosure” in the Sense of
`
`“Encapsulating” – When asked whether “nesting” and “encapsulating” were
`
`distinct, Dr. Houh testified that they were, and that “nesting” as he was using it
`
`included “lots of ways” which a person of ordinary skill in the art would not
`
`consider to be “encapsulating.” See id. at 219:7-220:2. This demonstrates that
`
`some of the forms of “nesting” referenced by Dr. Houh are not examples of
`
`“logically defined data enclosures” as that term is used within the ’536 patent.
`
`(10) Gibbs Does Not Disclose the Examples of “Nesting” Alleged by Dr. Houh
`
`as Alternate Forms of “Logical Data Enclosures” – When asked whether Gibbs
`
`disclosed the forms of “nesting” (i.e., class interfaces, polymorphic objects, objects
`
`with inheritance) alleged by Dr. Houh as “alternate” forms of logical data
`
`enclosures, Ex. 1009 at ¶ 29, Dr. Houh could not remember whether Gibbs did so.
`
`Ex. 1010 at 228:15-229:1 (“I don’t recall offhand how Gibbs talked about it when
`
`it disclosed . . . the transport objects themselves whether they talked about a
`
`corresponding class or not.”); 229:3-229:14 (stating he could not recall whether
`
`7
`
`
`
`
`
`Gibbs discussed polymorphic objects); 229:16-230:1 (stating he could not recall
`
`whether Gibbs disclosed any transport objects as a “class interface”). His
`
`declaration does not identify any discussion of those mechanisms within Gibbs.
`
`Ex. 1009 at ¶ 29. Nor can Patent Owner locate any such disclosures within Gibbs.
`
`As such, these “alternate” mechanisms are irrelevant to what Gibbs discloses, and
`
`cannot establish anticipation by Gibbs.
`
`(11) An “Execution Stack” is Not a Logically Defined Data Enclosure – When
`
`asked how an execution stack “nests” things, Dr. Houh testified it was by the
`
`stack’s use of recursive function calls. Ex. 1010 at 237:4-240:3. Dr. Houh’s
`
`supplemental declaration does not provide any evidence that Gibbs discloses such
`
`recursive function calls. Ex. 1009 at ¶¶ 27-31. Dr. Houh also admitted that the
`
`computer, when running the execution stack, has “no idea of the actual structure”
`
`of the data, Ex. 1010 at 244:19-245:1, which contradicts his testimony that the
`
`execution stack is “logically defined.”
`
`(12) “Logically Defined Data Enclosure” – Dr. Houh admitted that a “logically
`
`defined data enclosure” requires a “logical definition” and an “enclosure.” Id. at
`
`273:10-20 (“If the requirement is to be a logically defined data enclosure, it ought
`
`to have a data enclosure, and it ought to be logically defined.”). Dr. Houh’s
`
`declaration and supplemental declaration fail to address the existence of either of
`
`these elements in any object of Gibbs.
`
`8
`
`
`
`
`
`(13) Introduction of New Theories – When questioned regarding the basis for his
`
`assertion that his original declaration discussed the “TMR subsystem” Dr. Houh
`
`attempted to introduce in deposition as an alternate theory of infringement, Dr.
`
`Houh read back into the record portions of his declaration. Ex. 1010 at 308:25-
`
`312:8. A review of those portions of his declaration shows none discuss the
`
`putative TMR subsystem, instantiated objects, nesting, or any of the other new
`
`theories that Dr. Houh has attempted to introduce belatedly.
`
`(14) Nesting and “Logically Defined Data Enclosures”– When questioned
`
`regarding the basis for his assertion that “[w]hile including a logical description of
`
`a container is one way of encapsulating other containers, it is not the only way the
`
`’536 patent says a container can encapsulate other containers,” (see Ex. 1009 at ¶
`
`27), Dr. Houh was unable to identify any other ways within the ’536 patent of
`
`“encapsulating other containers.” Instead, he recited back a number of random
`
`excerpts from the ’536 patent. Ex. 1010 at 295:1-304:24. One excerpt discussed
`
`different types of things that could be encapsulated within a container, not ways of
`
`accomplishing their encapsulation; Dr. Houh’s testimony regarding why that
`
`identified different ways of encapsulation was incomprehensible. Id. at 295:10-
`
`297:15. Other citations relied upon by Dr. Houh referenced components of
`
`containers such as code or registers, but again had no clear relevance to “ways of
`
`encapsulating.” Id. at 297:16-300:25. As such, it appears there is no foundation
`
`9
`
`
`
`
`
`for Dr. Houh’s testimony that the ’536 patent recites other “ways of encapsulating”
`
`beyond a logically defined data enclosure.
`
` (15) “Neutral Space Register”– When questioned regarding his assertion that Dr.
`
`Green had admitted that “Gibbs discloses interaction among the objects,” Dr. Houh
`
`testified that the “interaction” Dr. Green had referred to was between “some
`
`things” or “among the objects.” Ex. 1010 at 283:19-284:9. That is not an
`
`admission that a “neutral space register” exists, because it (a) does not identify “the
`
`container” or “plurality of containers” which are interacting, and (b) does not
`
`establish the existence of a register designating whether the interaction may occur.
`
`(16) Lack of Credibility/Foundation – Dr. Houh was generally unwilling or
`
`unable to identify the basis for his opinion that an execution stack was a “logical
`
`data enclosure,” which is essential to his opinion that the system of Gibbs discloses
`
`a plurality of containers that each have all the registers of the claims 2-12, 14, and
`
`16 of the ’536 patent.
`
`• Asked repeatedly what about Gibbs led him to the conclusion that it
`
`disclosed an “execution stack” that was a logical data enclosure,” Dr. Houh
`
`appeared to take the position that it was a logical data enclosure because it
`
`was all placed in one memory block. Id. at 253:18-23 (“Well, generally
`
`speaking, when using a computer system, you do have to allocate a block
`
`10
`
`
`
`
`
`of memory for things.”). That position contradicts the disclosure of Gibbs,
`
`which states explicitly that each object in its structure is a “discrete entity”
`
`that is “flushed” from memory after use. See P.O. Resp. at 10-11, 24-28,
`
`40; Ex. 1006 at 7:24-27; 8:20-23; 8:48-52; 9:27-31; Ex. 2007 at ¶¶ 105,
`
`154-159, 181.
`
`• When asked later whether there was something in Gibbs that distinguished
`
`its putative execution stack as an example of a “logical data enclosure,” Dr.
`
`Houh identified the fact that it was “a running program.” Id. at 254:13-
`
`255:1. Again, this contradicts Gibbs disclosure of its various objects as
`
`discrete entities, as discussed above.
`
`(17) Lack of Credibility/Nesting– When questioned whether it was reasonable to
`
`assume that portions of the ’536 patent that discussed nesting explicitly were most
`
`relevant to how the patent used that term, Dr. Houh testified that portions of the
`
`patent that did not discuss nesting were, in fact, more relevant to how to
`
`understand that concept. Ex. 1010 at 301:17-302:7 (Q. “Isn’t it reasonable to
`
`assume that portions of the patent that explicitly discuss nesting are the portions of
`
`the patent most relevant to what nesting is?” A. “I think there are . . . things that
`
`may be relevant that – that do not include the word ‘nesting.’ And in some cases,
`
`there could be things that are more relevant to nesting, even though they don’t talk
`
`11
`
`
`
`about “nesting”). This testimony suggests that Dr. Houh is not credible and/or did
`
`not properly analyze the ’536 patent.
`
`
`
`
`
`Respectfully Submitted,
`
`
`
` /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
`
`Dated: December 5, 2014
`
`
`
`
`
`
`
`12
`
`
`
`
`
`
`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 OBSERVATION ON CROSS-
`EXAMINATION OF HENRY HOUH 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
`
`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
`
`
` /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
`
`13
`
`
`
`
`
`
`
`
`
`
`
`14 14
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
