UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`GOOGLE INC.,
`SAMSUNG ELECTRONICS AMERICA, INC. AND SAMSUNG
`ELECTRONICS CO., LTD.
`Petitioners
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`v.
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`MICROGRAFX, LLC
`Patent Owner
`
`__________________
`
`
`Case IPR2014-00532
`Patent 5,959,633
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`______________________________________________________
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`PETITIONER’S REPLY TO PATENT OWNER’S MOTION FOR
`OBSERVATIONS REGARDING CROSS EXAMINATION
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`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`GOOGLE INC.,
`SAMSUNG ELECTRONICS AMERICA, INC. AND SAMSUNG
`ELECTRONICS CO., LTD.
`Petitioners
`
`v.
`
`MICROGRAFX, LLC
`Patent Owner
`
`__________________
`
`
`Case IPR2014-00532
`Patent 5,959,633
`
`______________________________________________________
`
`
`
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S MOTION FOR
`OBSERVATIONS REGARDING CROSS EXAMINATION
`
`
`
`
`
`
`
`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
`
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`The purpose of observations is to “draw the Board’s attention to relevant cross-
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`examination testimony of a reply witness, because no further substantive paper is permitted
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`after the reply.” See Scheduling Order, Paper 12 at 4. By contrast, Micrografx improperly
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`uses its observations as a vehicle to supplement its Patent Owner Response. Petitioner
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`objects to this misuse. See PTAB Trial Practice Guide, 77 Fed. Reg. 48756, 48768 (“An
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`observation (or response) is not an opportunity to raise new issues, re-argue issues, or
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`pursue objections.”). Patent Owner’s observations also include unsupported attorney
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`argument, mischaracterize Dr. Lastra’s testimony, and omit other relevant portions of Dr.
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`Lastra’s testimony.
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`Response to Observation #1
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`In the last sentence of Observation #1, Micrografx mischaracterizes Dr. Lastra’s
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`testimony regarding this point by asserting that Dr. Lastra’s testimony indicates that
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`“communications between user code and graphical objects in Walton must be handled by
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`the VSE system.” PO Mtn for Obs. at p.1; but see Ex. 2008 at p. 10, lns. 17-25(“user
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`software may be used to access the graphical object, and by providing the behavior function
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`name and the desired behavior state, the graphical object may be manipulated on the
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`display screen from the user application code); p. 81, ln. 23 to p. 82, ln. 19 (indicating that
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`communications during the “run mode” are not necessarily the same as “communication
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`operations that are performed during the edit mode” and that he “wouldn’t expect them to be
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`1
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`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
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`the same, because at run time, the user code is generating events; whereas in edit mode, it
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`might be the actual designer.”). These additional portions of Dr. Lastra’s testimony—when
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`understood in the full context—are relevant because (1) they indicate Walton emphasizes
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`the communication between the user software and the graphical objects, not the means of
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`communication, and (2) they note differences between the edit and run modes of Walton.
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`Response to Observation #2
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`Micrografx mischaracterizes Dr. Lastra’s testimony in Observation #2. The majority
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`of the quoted portion of the deposition transcript is taken from statements made by
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`Micrografx’s attorney rather than Dr. Lastra. See Ex. 2008 at p. 44, lns. 11-19.
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`Furthermore, Micrografx ignored the full context of Dr. Lastra’s testimony and failed to cite
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`to other portions of the testimony in which Dr. Lastra clarified that “communications during
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`the run mode” are not necessarily the same as “communication operations that are
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`performed during the edit mode” and that he “wouldn’t expect them to be the same,
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`because at run time, the user code is generating events; whereas in edit mode, it might be
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`the actual designer.” Id. at p. 81, ln. 23 to p. 82, ln. 19. These additional portions of Dr.
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`Lastra’s testimony—when understood in the full context—are relevant because they indicate
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`the communication routines described for Walton’s “edit mode” do not necessarily limit or
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`apply to Walton’s “run mode.” Furthermore, in the last sentence of Observation #2,
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`Micrografx mischaracterizes Dr. Lastra’s testimony regarding this point by arguing that Dr.
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`2
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`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
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`Lastra’s testimony indicates “communications between user code and graphical objects in
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`Walton must be handled by the VSE system”—an attorney argument that is inconsistent
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`with the full context of Dr. Lastra’s testimony. PO Mtn for Obs. at p.2; but see Ex. 2008 at p.
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`10, lns. 17-25; p. 81, ln. 23 to p. 82, ln. 19.
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`Response to Observation #3
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`Micrografx mischaracterizes Dr. Lastra’s testimony in Observation #3 by arguing that
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`Dr. Lastra’s testimony indicates that “Petitioners are now relying on the ‘Example Graphics
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`Program’ of Eick as an ‘external shape stored outside the computer program’ when they
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`originally relied on the ‘Example Graphics Program’ of Eick as the ‘computer program.’” PO
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`Mtn for Obs. at p.3. However, Micrografx ignored the full context of Dr. Lastra’s testimony
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`and failed to cite to other portions of Dr. Lastra’s Deposition in which Micrografx’s attorney
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`asked “[t]his example graphics program is FloatDraw. Correct?” and Dr. Lastra replied
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`“[w]ell, that’s not exactly correct. That sample program uses FloatDraw . . . [t]he program
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`includes more than FloatDraw.” Ex. 2008 at p. 50, ln. 23 to p. 51, ln. 5. Dr. Lastra then
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`stated that “a person of ordinary skill in the art would know that you can take FloatDraw, put
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`it in a library – the library is just a container for functions or classes – and make it a library
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`class” and that “a person of ordinary skill in the art would know that FloatDraw can – is a
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`class, and can be made into its own library, and that library can be linked as a DLL.” Id. at p.
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`54, lns. 4-8; p. 58, lns. 10-13. In the full context, these additional portions of Dr. Lastra’s
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`3
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`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
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`testimony are relevant in that they show that Dr. Lastra did not rely on the “example
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`graphics program” of Eick as equating to both the “external shape stored outside the
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`computer program” and the “computer program” of claim 1.
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`Response to Observation #4
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`Micrografx mischaracterizes Dr. Lastra’s testimony in Observation #4 by ignoring the
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`full context of Dr. Lastra’s testimony and failing to cite to portions of the deposition transcript
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`in which Dr. Lastra indicated that his second declaration did not “seek to identify every
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`single instance in which [he] disagreed with something that Mr. Kitchen said in his
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`declaration.” Ex. 2008 at p. 80, lns, 7-16. Dr. Lastra then clarified that “[j]ust the fact that I
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`didn’t write about it doesn’t mean that I agreed with it” and that in his second declaration he
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`“stuck to the main points.” Id. at p. 81, lns. 8-14. Micrografx therefore misrepresents the
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`record with inaccurate attorney argument that “Petitioners’ expert does not dispute Patent
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`Owner’s assertion that Eick’s library classes do not contain drawing capability.” PO Mtn for
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`Obs. at p.4. Dr. Lastra did in fact dispute this contention by Mr. Kitchen, stating that
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`“looking at VzDrawer which does contain a bunch of drawing routines – draw point, draw
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`line – they’re all in-line functions.” Ex. 2008 at p. 64, lns. 1-3. These additional portions of
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`Dr. Lastra’s testimony are relevant because they indicate that Dr. Lastra does not agree
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`with every statement by Mr. Kitchen which was not specifically addressed in Dr. Lastra’s
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`4
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`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
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`second declaration, and because they indicate that Dr. Lastra disputed Patent Owner’s
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`assertion that Eick’s library classes do not contain drawing capability.
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`Dated: April 17, 2015
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`(Trial No. IPR2014-00532)
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`Respectfully submitted,
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`
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`
` /Michael T. Hawkins/
`Michael T. Hawkins, Reg. No. 57,867
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`
`
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`Attorney for Petitioners
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`5
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`CERTIFICATE OF SERVICE
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`Case IPR2014-00532
`U.S. Patent No. 5,959,633
`Our Ref. 19473-0309IP1
`
`
`
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`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.205(b), the undersigned certifies that on
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`April 17, 2015, a complete and entire copy of this Petitioner’s Reply to Patent Owner’s
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`Motion for Observations Regarding Cross Examination was provided via email to the Patent
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`Owner by serving the correspondence email addresses of record as follows:
`
`Douglas R. Wilson
`Heim, Payne & Chorush, L.L.P
`9442 Capital of Texas Hwy.
`Plaza I, Suite 500-146
`Austin, TX 78759
`
`Nathan J. Davis
`Michael F. Heim
`Heim, Payne & Chorush, L.L.P
`600 Travis Street, Suite 6710
`Houston, Texas 77002
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`Email: dwilson@hpcllp.com
`ndavis@hpcllp.com
`mheim@hpcllp.com
`micrografxIPR@hpcllp.com
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`
` /Diana Bradley/
`Diana Bradley
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(858) 678-5667
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