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`Paper No. 37
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
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`APPLE INC.,
`TWITTER, INC., AND YELP INC.,
`Petitioners,
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`v.
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`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner
`___________________
`
`Inter Partes Review No. IPR2014-00086
`Inter Partes Review No. IPR2014-008121
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`__________________________________________________________________
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`PETITIONERS’ RESPONSES TO PATENT OWNER’S
`OBSERVATIONS ON CROSS-EXAMINATION OF HENRY HOUH
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`1 Per the Board’s Order (Paper 16 at 4), Petitioner Apple identifies this as a
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`consolidated filing on behalf of Petitioners.
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`As authorized by the Board’s Scheduling Order on April 25, 2014 (Paper 9)
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`and the Trial Practice Guide, 77 Fed. Reg. 48756, 48768 (Aug. 14, 2012),
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`Petitioners submit the following responses to Patent Owner’s observations on
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`cross-examination of Dr. Henry Houh (Paper 33).
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`I.
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`Response to Observation (1)
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`Patent Owner asserts that Dr. Houh’s testimony shows that he “is relying on
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`inherent anticipation to supply elements required of claim 2” because he used the
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`word “necessary” in one answer when he was discussing Gibbs disclosure of an
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`“execution stack.” Dr. Houh identified an “execution stack” is just one of several
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`examples of “logically defined data enclosures” (or data enclosures defined by a
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`“software mechanism”) that can comprise a container, (Ex. 1009 at ¶ 29), and he
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`explained in response to questions from Patent Owner’s counsel that “one of
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`ordinary skill in the art would understand that [] Gibbs disclosure . . . would have
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`[] something like this execution stack, which would be used to support function
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`calling.” Ex. 1010 at 257:6-12, 259:20-24, 266:12-17. Throughout his testimony
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`Dr. Houh cited numerous portions of Gibbs supporting his conclusion that Gibbs
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`discloses a container comprising the instantiated transport, map, and report objects.
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`E.g., Ex. 1009 at ¶¶ 32-48; Ex. 1010 at 308:25-312:8.
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`II. Response to Observation (2)
`Patent Owner asserts that Dr. Houh’s testimony shows that he admitted any
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`execution stack in Gibbs “did not necessarily function in the manner he relied on in
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`his anticipation analysis.” In the testimony cited by Patent Owner, Dr. Houh was
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`responding to Patent Owner’s incomplete hypothetical, and Dr. Houh was
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`explaining that it theoretically would be possible to create a new type of execution
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`stack that was not a “logically defined data enclosure.” Ex. 1010 (Houh Suppl.
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`Dep. Tr.) at 257:15-259:4 (emphasis added). Dr. Houh explained that in
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`conventional systems under ordinary operation, an execution stack is a logically
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`defined data enclosure. Ex. 1010 at 236:12-237:2, 254:18-255:1. He also testified
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`that Gibbs disclosed a conventional system. Ex. 1010 at 257:22-258:12, 266:12-
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`17, 266:22-267:22.
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`III. Response to Observation (3)
`Patent Owner asserts that Dr. Houh admits that Gibbs only “discloses the
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`latitude and longitude being retrieved after the system of Gibbs does a time
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`comparison to determine whether the trains are late.” But in the cited passage, Dr.
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`Houh was simply reading of the text of Gibbs which is not an “admission” that
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`Patent Owner’s interpretation of that text is correct. Compare Ex. 1010 at 284:22-
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`285:17 (Patent Owner’s counsel reading text from Gibbs) with 286:1-172 (Dr.
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`Houh reading the same text); Ex. 1009 at ¶¶ 51-52 (“Gibbs shows that the system
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`will retrieve each object’s location and use it to determine whether the train is on
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`time or late.” citing Ex. 1006 at 13:46-57). Additionally, Patent Owner’s argument
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`is irrelevant because Dr. Houh explained that “Gibbs clearly shows that a train’s
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`physical location is a data item on a map, and that Gibbs explains that any data
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`item (i.e., including the physical location of the train) can be monitored using
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`warning criteria.” Ex. 1009 at ¶¶ 52-53 (citing Ex. 1006 at 9:60-62, 9:67-10:4,
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`12:36-41).
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`IV. Response to Observation (4)
`Patent Owner asserts that Dr. Houh admits that the “content key register”
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`cannot be an example of a “first register having a unique container identification
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`value.” But the cited testimony both is irrelevant and does not support Patent
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`Owner’s conclusion. First, Patent Owner misstates the relevance of the testimony
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`because the issue is not whether the “content key register” must, forever and
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`always, be unique, but rather whether the ’536 patent’s disclosure of a variety of
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`Patent Owner cites to the court reporter’s “[r]ough” transcript at 85:8-24,
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`Paper 33 at 3, which corresponds to Ex. 1010 at 286:1-17.
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`container identification values would inform a person having ordinary skill in the
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`art of the broadest reasonable interpretation of the claimed “first register.” Second,
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`the testimony is not relevant because Patent Owner was not asking Dr. Houh about
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`how the ’536 patent described the content key register, but rather he was asking
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`about Dr. Houh’s recollection of what the “content key register” was, without
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`reference to either his declaration or the ’536 patent. E.g., Ex. 1010 at 275:23-
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`276:3 (“Q . . . what is your memory of of what your testimony was with respect to
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`content key registers? A That I did -- I did talk about them. And if you'll let me
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`look in my report, I'll tell you what I said.”), 276:13-18 (“Q Okay. But I want to
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`know what you remember without looking at your report. So can you tell me what
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`you remember about your testimony with respect to content key registers? MR.
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`BROUGHAN: Objection, relevance, form.”). Finally, the testimony does not
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`support Patent Owner’s argument because Dr. Houh explained that if “multiple
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`objects [had] content key registers with [the] same value,” then they “would be the
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`same container,” such as “a copy of the same item.” Ex. 1010 at 278:1-12.
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`V. Response to Observation (5)
`Patent Owner asserts that Dr. Houh’s testimony lacks foundation because
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`“he has provided no corroborating evidence for his testimony,” but Dr. Houh relied
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`on the ’536 patent’s own disclosure to corroborate his view that a “container”
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`could include more than just “the logical description of another container.” Ex.
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`1009 at ¶¶ 20-29. Dr. Houh also explained that his opinion was supplemented by
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`his “background in object-oriented programming” and his role as architect of large
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`object-oriented programming systems. Ex. 1010 at 202:12-18, 222:16-224:9.
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`VI. Response to Observation (6)
`Patent Owner asserts that Dr. Houh’s testimony shows that he failed to
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`construe the claims from the perspective of one of ordinary skill in the art, but in
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`the cited passages, Patent Owner’s counsel was asking Dr. Houh about general
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`programming concepts, and not about the ’536 patent, Gibbs, or either of Dr.
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`Houh’s declarations. Ex. 1010 at 245:14-22 (“Q So then, yes, an execution stack is
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`a logical data enclosure? MR. BROUGHAN: Objection, form. THE WITNESS:
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`We're talking about general object-oriented programming. If you want to talk about
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`the -- the -- the contents of my report, we could turn to the contents of my report
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`now, and I could talk specifically about that.”); see also Ex. 1010 at 237:4-5,
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`238:18-20, 239:21-22, 240:5-243:43 (asking about software generically); see
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`generally Ex. 1010 at 230:22-245:22.
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`VII. Response to Observation (7)
`Patent Owner asserts that Dr. Houh’s testimony shows that in Gibbs, objects
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`cannot be “nested” inside of other objects (e.g., a transport object cannot be nested
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`inside of a map object) but the cited testimony does not support Patent Owner’s
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`argument. First, the cited testimony is discussing how a programmer would write
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`code, but Dr. Houh explained that he distinguished the code itself from the
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`instantiations of the objects, and that instances of objects could be contained inside
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`other instances of objects. E.g., Ex. 1010 at 214:15-20 (“A . . .And when it's
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`instantiated and when the -- it would create another class member inside this
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`particular instantiation and create, you know, that class inside as a -- as a member
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`variable of sorts.”), 228:9-13 (“But, generally speaking, if you wanted to create an
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`object in an object-oriented system, you'd define a class, and then you'd instantiate
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`that class.”). Second, Patent Owner appears to be asserting that because Gibbs
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`describes classes as “non-overlapping,” that they cannot contain instances of other
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`classes, but that argument ignores the passages of Gibbs that show the map and
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`report objects collecting references to transport objects. E.g., Ex. 1009 at ¶¶ 42-46
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`(Ex. 1006 at Figs. 9a & 9b, 21:49-65, 22:2-12, 22:23-53); Ex. 1003 at ¶¶ 102-06,
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`159-61.
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`VIII. Response to Observation (8)
`Patent Owner asserts that Dr. Houh’s testimony “corroborates Patent
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`Owner’s position that ‘container’ would be understood by a person of skill in the
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`art as requiring ‘encapsulation,’ which is a term of art” because Dr. Houh stated
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`that “nesting” could be a type of “encapsulation.” Dr. Houh never testified that
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`“encapsulation” was a term of art, and Patent Owner’s expert Dr. Green testified
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`that “encapsulation” was not a term of art. Ex. 2009 (Green Dep Tr.) at 163:8-12
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`(“My understanding, the term ‘encapsulation,’ by the way, is a bit specific to '536.
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`I wouldn't say it's a general way that we refer to data structures in computer
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`science. But I understand the meaning from '536.”). Patent Owner’s point also is
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`irrelevant to the merits, as the Board’s Decision to Institute rejected the argument
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`that “‘encapsulated’ require[s] anything more than ‘contained within.’” Dec. at 9.
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`IX. Response to Observation (9)
`Patent Owner asserts that Dr. Houh’s testimony “demonstrates that some of
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`the forms of ‘nesting’ referenced by Dr. Houh are not examples of ‘logically
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`defined data enclosures.’” Patent Owner’s observation is irrelevant because Dr.
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`Houh provided examples of “logically defined data enclosures,” not examples of
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`nesting:
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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.
`Ex. 1009 at ¶ 29 (emphasis added).
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`X. Response to Observation (10)
`Patent Owner asserts that Dr. Houh’s testimony shows that Gibbs does not
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`disclose the various examples of logically defined data enclosures, but the cited
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`testimony is irrelevant because Patent Owner’s counsel was asking about Dr.
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`Houh’s memory of Gibbs and counsel refused to let Dr. Houh refresh his memory
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`by consulting Gibbs:
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`Q Okay. Do you recall whether or not Gibbs discussed the
`transport objects being polymorphic objects?
`MR. BROUGHAN: Objection, foundation, relevance.
`THE WITNESS: Without looking at the patent, I can't -- you
`know, without refreshing my memory, I -- I can't recall that right now.
`Whether that word was used or not, I think it may have been used, but
`I -- I don't recall in what context. Or I -- I actually -- I can't say for
`sure. If you let me look at it, I'll -- I can
`BY MR. PATEK:
`Q Okay. Do you remember -- do you remember whether or
`not Gibbs discussed transport objects being a type of class interface?
`MR. BROUGHAN: Objection, foundation, relevance.
`THE WITNESS: I -- I can't re- -- no, I -- I can't recall what --
`what words Gibbs used. I can't recall all the words that Gibbs used to
`describe transport object at the moment. Would you like to point me
`to a specific section in the Gibbs?
`BY MR. PATEK:
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` Q Not at the moment. But when I do, I'll be sure to let you
`know. . . .
`Ex. 1010 at 229:3-230:4.
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`XI. Response to Observation (11)
`Patent Owner asserts that Dr. Houh’s testimony shows that an “execution
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`stack” is not a “logically defined data enclosure,” but in support only argues that
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`“Dr. Houh’s supplemental declaration does not provide any evidence that Gibbs
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`discloses” elements of an execution stack. Dr. Houh explained that a “computer []
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`knows that there’s a stack, where it is, and it knows how to manipulate things on
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`it,” and that “one of ordinary skill in the art would understand that [] Gibbs
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`disclosure . . . would have [] something like this execution stack, which would be
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`used to support function calling.” Ex. 1010 at 246:25-247:4, 257:6-12. Dr. Houh
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`also explained that an “execution stack” is just one of several example of “logically
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`defined data enclosures” (or data enclosures defined by a “software mechanism”)
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`that can be considered “containers.” Ex. 1009 at ¶ 29; Ex. 1010 at 259:20-24.
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`XII. Response to Observation (12)
`Patent Owner asserts that Dr. Houh’s testimony shows that he “fail[ed] to
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`address the existence of [a ‘logical definition’ and an ‘enclosure’] in any object in
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`Gibbs,” but Dr. Houh relied on Patent Owner’s own expert’s understanding of
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`“’logically defined’ to mean ‘defined through a software mechanism’.” Ex. 2006 at
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`¶ 35; Ex. 1009 at ¶¶ 28-29 (“a ‘logically defined data enclosure’ (or a data
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`enclosure defined by a ‘software mechanism’)”). Dr. Houh also explained that he
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`disagreed with Patent Owner’s counsel’s attempt to slice “logically defined data
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`enclosure” into “four words in isolation.” Ex. 1010 at 273:10-20. As repeatedly
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`explained by Dr. Houh, Gibbs discloses a “logically defined data enclosure.” Ex.
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`1009 at ¶¶ 32-46; Ex. 1003 at ¶¶ 109, 122, 126, 138, 141-43.
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`XIII. Response to Observation (13)
`Patent Owner asserts that during the deposition, Dr. Houh did not adequately
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`explain how his original report discussed a “TMR subsystem” because Dr. Houh
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`mentioned just several examples where he had discussed the interaction among the
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`transport, map, and report objects. But Dr. Houh explained that there were many
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`examples, and he was just naming a few. Ex. 1010 at 309:17-18, 310:16-17; see
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`id. at 308:25-312:8; see also Ex. 1009 at ¶¶ 14, 32-48.
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`XIV. Response to Observation (14)
`Patent Owner asserts that Dr. Houh’s testimony shows that he had no
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`foundation for stating that “the ’536 patent recites other ‘ways of encapsulating’
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`beyond a logically defined data structure.” But Dr. Houh explained that the ’536
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`patent describes containers including a wide variety of things that are “not
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`necessarily a logical description of another container,” such as “register[s]” and
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`“code.” Ex. 1010 at 297:16-300:4. Further, Dr. Houh explained that the ’536
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`patent describes containers including anything from “a single bit” or “a single
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`natural number” up to and including “all defined cyberspace, existing, growing and
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`to be discovered, including but not limited to all containers, defined and to be
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`defined in cyberspace.” Ex. 1003 at ¶ 54 (citing Ex. 1001 at 9:9-12).
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`XV. Response to Observation (15)
`Patent Owner asserts that Dr. Houh’s testimony shows that Dr. Green’s
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`concession that “Gibbs discloses interaction among the objects” was not an
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`admission that Gibbs discloses (1) a container or plurality of containers that are
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`interacting, or (2) a register designating whether the interaction may occur. Dr.
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`Green admitted that the individual objects were containers; that a “register” could
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`be “code”; and that Gibbs discloses that “the map object [] uses routines to obtain
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`and retain data items from the transport objects, and then respectively generate[s]
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`or modif[ies] an appropriate map in response to [a] user request received from the
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`CMO.” Ex. 2009 at 267:9-18, 225:13-229:11, 172:3-15; see also Ex. 1009 at
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`¶¶ 22, 31, 40.
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`XVI. Response to Observation (16)
`Patent Owner asserts that Dr. Houh’s testimony shows that Dr. Houh was
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`“unwilling or unable to identify the basis for his opinion that an execution stack
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`was a ‘logical data enclosure,’” but Dr. Houh explained that a “computer [] knows
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`that there’s a stack, where it is, and it knows how to manipulate things on it,” and
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`that “one of ordinary skill in the art would understand that [] Gibbs disclosure . . .
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`would have [] something like this execution stack, which would be used to support
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`function calling.” Ex. 1010 at 246:25-247:4, 257:6-12. Dr. Houh further
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`explained that “[w]hen instantiated (i.e., when running in an instance of the
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`software on a user's workstation), [the transport, map, and report objects] are
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`present and in memory, and perform the operations” as required by the claims. Ex.
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`1009 at ¶ 14, 32-48; Ex. 1010 at 308:25-312:8.
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`XVII. Response to Observation (17)
`Patent Owner asserts that “Dr. Houh testified that portions of the patent that
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`did not discuss nesting were, in fact, more relevant” than the “portions of the ’536
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`patent that discussed nesting explicitly.” But Dr. Houh explained that “you have to
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`look at the context of the specification and the words used to describe what’s being
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`performed in the specification” when interpreting what “nesting” would mean, and
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`explained that “there could be things that are more relevant to nesting, even though
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`they don’t talk about the word ‘nesting.’” Ex. 1010 at 301:17-302:7 (emphasis
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`added).
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`Dated: December 12, 2014
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`Respectfully Submitted,
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`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Registration No. 43,401
`Sidley Austin LLP
`1501 K Street NW
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`Washington, DC 20005
`jkushan@sidley.com
`Attorney for Petitioner Apple
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 12th day of December, 2014, a copy of this
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`Petitioners’ Response to Patent Owner’s Motion for Observations on Cross-
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`Examination has been served in its entirety by email on the following counsel of
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`record for Patent Owner and Petitioners Yelp and Twitter:
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`Patent Owner:
`Anthony Patek
`Gutride Safier LLP
`835 Douglass Street
`San Francisco, CA 94114
`anthony@gutridesafier.com
`pto@gutridesafier.com
`
`Todd Kennedy
`Gutride Safier LLP
`835 Douglass Street
`San Francisco, CA 94114
`todd@guttridesafier.com
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`
`Petitioners Yelp and Twitter
`Vaibhav P. Kadaba
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`wkadaba@kilpatricktownsend.com
`rartuz@kilpatricktownsend.com
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`Dated: December 12, 2014
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`
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`Respectfully submitted,
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`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`Attorney for Petitioner Apple
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