IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`Petition for Inter Partes Review
`
`Attorney Docket No.: 47015.132
`
`Customer No.:
`
`Real Parties
`in Interest: Rackspace US, Inc. and
`Rackspace Hosting, Inc.
`
`116298
`
`§§§§§§§§§§§§§§
`
`
`In re patent of: Farber et al.
`
`U.S. Patent No. 5,978,791
`
`Issued: November 2, 1999
`
`Title: DATA PROCESSING
`SYSTEM USING
`SUBSTANTIALLY UNIQUE
`IDENTIFIERS TO IDENTIFY
`DATA ITEMS, WHEREBY
`IDENTICAL DATA ITEMS
`HAVE THE SAME
`IDENTIFIERS
`
`
`
`
`
`DECLARATION OF DR. MELVIN RAY MERCER
`
`
`
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 1 of 74
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`
`
`
`
`Petition for Inter Partes Review
`
`Attorney Docket No.: 47015.132
`
`Customer No.:
`
`Real Parties
`in Interest: Rackspace US, Inc. and
`Rackspace Hosting, Inc.
`
`116298
`
`§§§§§§§§§§§§§§
`
`
`In re patent of: Farber et al.
`
`U.S. Patent No. 5,978,791
`
`Issued: November 2, 1999
`
`Title: DATA PROCESSING
`SYSTEM USING
`SUBSTANTIALLY UNIQUE
`IDENTIFIERS TO IDENTIFY
`DATA ITEMS, WHEREBY
`IDENTICAL DATA ITEMS
`HAVE THE SAME
`IDENTIFIERS
`
`
`
`
`
`DECLARATION OF DR. MELVIN RAY MERCER
`
`
`
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 1 of 74
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`
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`DECLARATION OF DR. MELVIN RAY MERCER
`
`I, Melvin Ray Mercer, do hereby declare as follows:
`
`1.
`
`I am making this Declaration at the request of Petitioner, Rackspace
`
`US, Inc., in connection with a Petition for Inter Partes Review of U.S. Patent No.
`
`5,978,791 to Farber and Lachman, entitled “DATA PROCESSING SYSTEM
`
`USING SUBSTANTIALLY UNIQUE IDENTIFIERS TO IDENTIFY DATA
`
`ITEMS, WHEREBY IDENTICAL DATA ITEMS HAVE THE SAME
`
`IDENTIFIERS” (“the ‘791 patent”).
`
`2.
`
`I am being compensated at my normal consulting rate for my work.
`
`My compensation is not dependent on and in no way affects the substance of my
`
`statements in this Declaration.
`
`3.
`
`I have no financial interest in Petitioner. I have been informed that
`
`PersonalWeb Technologies, LLC (“PersonalWeb”) and Level 3 Communications,
`
`LLC (“Level 3”) each purport to own 50% of the ‘791 patent. I have no financial
`
`interest in PersonalWeb or Level 3, and I have had no contact with either company.
`
`I similarly have no financial interest in the ‘791 patent, and have had no contact
`
`with the named inventors of the ‘791 patent: David A. Farber and Ronald D.
`
`Lachman.
`
`4.
`
`In the preparation of this Declaration, I have studied:
`
`2
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`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 2 of 74
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`a. the ‘791 patent (RACK-1001);
`
`b. the prosecution history of the ‘791 patent (RACK-1002), which
`
`includes U.S. Application No.: 08/425,160, filed April 11, 1995
`
`and file wrapper continuation thereof, 08/960,079;
`
`c. U.S. Patent No. 5,649,196, entitled “System and Method for
`
`Distributed Storage Management on Networked Computer
`
`Systems Using Binary Object Identifiers,” granted on U.S.
`
`Application No.: 08/555,376, filed Nov. 9, 1995 as a continuation
`
`of application 08/085,596, filed July 1, 1993 (“Woodhill,” RACK-
`
`1003);
`
`d. Albert Langer, “Re: dl/describe (File descriptions),” article
`
`<1991Aug7.225159.786@newshost.anu.edu.au> in Usenet
`
`newsgroups “alt.sources.d” and “comp.archives.admin” (August 7,
`
`1991) (“Langer,” RACK-1004);
`
`e. Decision to Institute Inter Partes Review, IPR2013-00082
`
`(RACK-1005); and
`
`f. Response filed Aug. 22, 2001 in prosecution of U.S. Application
`
`No.: 09/283,160, a divisional of 08/960,079 (RACK-1006).
`
`3
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`I. My Qualifications and Professional Experience
`5. My qualifications are set forth in my curriculum vitae, a copy of
`
`which is attached as Appendix A to this Report. A short synopsis of that material
`
`follows.
`
`6.
`
`I have more than 45 years of dual industrial and academic experience
`
`in Electrical Engineering and Computer Engineering. I received a B.S. in
`
`Electrical Engineering from Texas Tech University in 1968. From 1968 to 1973, I
`
`was a Research/Development Engineer at General Telephone and Electronics
`
`Sylvania in Mountain View, California, and I received an M.S. in Electrical
`
`Engineering from Stanford University in 1971. During this period, I programmed
`
`minicomputer systems (predecessors to personal computers, smartphones, and
`
`modern servers) in machine language, assembly language and various higher-level
`
`languages. I wrote simple Operating Systems, and most of the applications
`
`involved real-time processing as a significant aspect of the systems design.
`
`7.
`
`From 1973 to 1977, I was a Member of Technical Staff at Hewlett-
`
`Packard's Santa Clara Division and subsequently at Hewlett-Packard Laboratories
`
`in Palo Alto, California. During this time, I continued to develop application
`
`programs - mostly in the area of real-time data acquisition and control of systems.
`
`In addition to designing the software associated with these systems, I also designed
`
`interface hardware to interact with the software of the computers and accomplish
`
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`various tasks. Some of the applications I developed involved a significant number
`
`of data files associated with (to my knowledge) the first full scale study of the
`
`impact of environmental factors on the degradation of liquid crystal materials –
`
`such as those used in electronic clocks and watches.
`
`8.
`
`From 1977 to 1980, I was a Lecturer in the Division of Mathematics,
`
`Statistics, and Computer Science at the University of Texas at San Antonio. As the
`
`director of a laboratory for teaching students to program and build hardware
`
`interfaces with computers, I purchased, built, and operated some of the earliest
`
`personal computers. I received a Ph.D. in Electrical Engineering from the
`
`University of Texas at Austin in 1980.
`
`9.
`
`From 1980 to 1983, I was a Member of Technical Staff at Bell
`
`Laboratories in Murray Hill, New Jersey. My work involved the programming of
`
`computers and the hardware design of components for communication systems.
`
`Among other things, I was part of a three-person team that designed, tested, and
`
`directed the manufacture of an integrated circuit that was a key component in a
`
`digital telephone modem. This work involved significant amounts of data – mostly
`
`produced on a Cray machine with issues of version control, data access etc. I also
`
`was involved with telephone switching system engineers, who at that time were
`
`developing the 5ESS Telephone Switch. Such telephone systems have very
`
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`sophisticated data handling constraints with, for example the classes of service and
`
`charges to customers for those services.
`
`10.
`
`In 1983, I was appointed Assistant Professor of Electrical and
`
`Computer Engineering at the University of Texas at Austin. In 1987, I was
`
`promoted to Associate Professor and Professor in 1991. During this period I
`
`taught Computer Engineering courses at the undergraduate and graduate level, and
`
`I directed the research of graduate students. I consulted with (and my research was
`
`funded by) numerous industrial organizations (including AT&T).
`
`11.
`
`In 1995, I was appointed Professor of Electrical and Computer
`
`Engineering, Leader of the Computer Engineering Group, and Holder of the
`
`Computer Engineering Chair at Texas A&M University in College Station, Texas.
`
`My teaching, my research, my technical publications, and my supervision of
`
`graduate students during this period included the areas of the design and
`
`implementation of digital hardware and software systems, and my administrative
`
`duties - including the growth and enhancement of the Computer Engineering
`
`Group - directly involved Internet-based communication and control issues. As
`
`with my work at The University of Texas at Austin during this period, I taught
`
`courses at the undergraduate and graduate level, I directed the research of graduate
`
`students, and I consulted and did research with numerous organizations on topics
`
`related to the issues in this case. For example I oversaw the collection of data in an
`
`6
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`experiment to compare the relative efficient of testing methods for integrated
`
`circuits. Multiple companies were involved, and significant data protection was
`
`required to properly manage information proprietary to the various manufacturers.
`
`12.
`
`In September 2005, I retired from my teaching position, and the
`
`Regents of the Texas A&M University System appointed me as Professor Emeritus
`
`of Electrical and Computer Engineering at Texas A&M University.
`
`13. Since 1984, I have been an independent consultant and provided
`
`private consultation and advice in Electrical and Computer Engineering to
`
`numerous entities including IBM Corp., Rockwell International, Motorola
`
`Semiconductor, AT&T, Inc. and SigmaTel. Part of my consulting work at
`
`Rockwell International was directly related to the design of telephone modems.
`
`14.
`
`In 1994, my wife and I formed a company called Conference
`
`Management Services. It organizes technical conferences around the world, and it
`
`was one of the earliest companies to utilize on line databases as the basis for all
`
`organizing activities (including paper submission, review, and scheduling,
`
`conference registration, event scheduling and planning, support for exhibits, and
`
`hotel registration). I, with the help of undergraduate and graduate students in
`
`Computer Engineering, designed and implemented the early versions of this
`
`system. Numerous entities (technical contributors, submission reviewers,
`
`administrative personnel, hotels, conference centers, etc., provided and acquired
`
`7
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`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 7 of 74
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`information specific to their part of the conference activities. This information was
`
`carefully controlled and compartmentalized as required by our system. The
`
`interval of time when I was involved in these activities included the priority date
`
`for the patents at issue in this case. Today, Conference Management Services
`
`continues to provide such database / electronic file system enabled activities.
`
`15.
`
`I first served as an expert witness at the request of the Office of the
`
`State Attorney General of Texas in 1984. The case was about long distance
`
`telephone service. Since that time, I have been hired by numerous law firms to
`
`provide them and their clients with expert consultation and expert testimony - often
`
`in the areas of patent infringement litigation related to Electrical and Computer
`
`Engineering.
`
`16.
`
`I was actively involved in numerous professional organizations
`
`including the Institute of Electrical and Electronics Engineers ("IEEE"), and I was
`
`recognized as an IEEE Fellow in 1994. I was the Program Chairman for the 1989
`
`International Test Conference, which is an IEEE-sponsored annual conference with
`
`(at that time) more than one thousand attendees and over one hundred presented
`
`papers. I won the Best Paper Award at the 1982 International Test Conference.
`
`17.
`
`I also won a Best Paper Award at the 1991 Design Automation
`
`Conference, an annual conference with (at that time) more than ten thousand
`
`attendees and five hundred submitted papers, many of which related to the design
`
`8
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`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 8 of 74
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`of integrated circuit based systems. The subject of that award-winning paper
`
`involved trade-offs between power consumption and processing speed in integrated
`
`circuits.
`
`18.
`
`I also won a Best Paper Award at the 1999 VLSI Test Symposium. I
`
`am the inventor of two United States patents that relate to the design of integrated
`
`circuits. I was selected as a National Science Foundation Presidential Young
`
`Investigator in 1986. That award included $ 500,000 in research funding and the
`
`document commemorating that award was signed by the President of the United
`
`States.
`
`19. Based upon these and other technical activities, I am familiar with the
`
`knowledge and capabilities of one of ordinary skill in the areas of distributed
`
`information systems and associated access controls. Specifically, my work with
`
`students -- undergraduates as well as Masters and Ph.D. candidates, with
`
`colleagues in academia, with engineers practicing in industry, with customers of
`
`Conference Management Services, and with lawyers and technical experts in the
`
`Computer Engineering area allowed me to become personally familiar with the
`
`level of skill of individuals and the general state of this art. Specifically, my
`
`experience (1) in the industry, (2) with undergraduate and post-graduate students,
`
`(3) with colleagues from academia, and (4) with engineers practicing in the
`
`industry allowed me to become personally familiar with the level of skill of
`
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`individuals and the general state of the art. Unless otherwise stated, my testimony
`
`below refers to the knowledge of one of ordinary skill in the computer network and
`
`software fields during the time period around the priority date for the patents-in-
`
`suit.
`
`20.
`
`I am familiar with the knowledge and capabilities of one of ordinary
`
`skill in the fields of electrical and computer engineering in the 1990-2006
`
`timeframe. Specifically, my experience (1) in the industry, (2) with undergraduate
`
`and post-graduate students, (3) with colleagues from academia, and (4) with
`
`engineers practicing in the industry allowed me to become personally familiar with
`
`the level of skill of individuals and the general state of the art. Unless otherwise
`
`stated, my testimony below refers to the knowledge of one of ordinary skill in the
`
`computer network and software fields during the 1990-1995 time period.
`
`II. My Understanding of the Relevant Legal Standards
`21.
` I have been asked to provide my opinions regarding whether the
`
`claims of the ‘791 Patent are anticipated or would have been obvious to a person
`
`having ordinary skill in the art at the time of the alleged invention, in light of the
`
`prior art.
`
`A. Anticipation
`22.
`It is my understanding that, to anticipate a claim under 35 U.S.C.
`
`§ 102, a reference must teach every element of the claim.
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`B. Obviousness
`23. Further, it is my understanding that a claimed invention is
`
`unpatentable under 35 U.S.C. § 103 if the differences between the invention and
`
`the prior art are such that the subject matter as a whole would have been obvious at
`
`the time the invention was made to a person having ordinary skill in the art to
`
`which the subject matter pertains. I also understand that the obviousness analysis
`
`takes into account factual inquiries including the level of ordinary skill in the art,
`
`the scope and content of the prior art, and the differences between the prior art and
`
`the claimed subject matter.
`
`24.
`
`It is my understanding that the Supreme Court has recognized several
`
`rationales for combining references or modifying a reference to show obviousness
`
`of claimed subject matter. Some of these rationales include the following:
`
`combining prior art elements according to known methods to yield predictable
`
`results; simple substitution of one known element for another to obtain predictable
`
`results; use of a known technique to improve a similar device (method, or product)
`
`in the same way; applying a known technique to a known device (method, or
`
`product) ready for improvement to yield predictable results; choosing from a finite
`
`number of identified, predictable solutions, with a reasonable expectation of
`
`success; and some teaching, suggestion, or motivation in the prior art that would
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`have led one of ordinary skill to modify the prior art reference or to combine prior
`
`art reference teachings to arrive at the claimed invention.
`
`C. Means-plus-Function
`25.
`It is my understanding that some claims can be interpreted as “means
`
`plus function” claims under 35 U.S.C. § 112, paragraph 6. I understand that
`
`determining the broadest reasonable interpretation of “means plus function”
`
`claims requires first, defining the particular function of the limitation and second,
`
`identifying the corresponding structure for that function in the specification. I also
`
`understand that structure disclosed in the specification is corresponding structure
`
`only if the specification or prosecution history clearly links or associates that
`
`structure to the function recited in the claim.
`
`III. Subject Matter of the ‘791 Patent
`26.
`I have reviewed and understand the specification, claims, and
`
`drawings (RACK-1001) and the file history (RACK-1002) of U.S. Patent
`
`5,978,791 (“the ‘791 patent”).
`
`27. The ‘791 patent is directed to data storage systems that use
`
`“substantially unique identifiers” to identify data items. The “substantially unique
`
`identifiers” are based on all the data in a data item and only the data in the data
`
`item, and identical data items have the same substantially unique identifier.
`
`(RACK-1001, Title, Abstract, 1:13-18.)
`
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`28. According to the ‘791 patent, prior art systems identified data items
`
`based on their location or address within the data processing system. (RACK-
`
`1001, 1:23-28.) For example, files were often identified by their context or
`
`“pathname,” i.e., information specifying a path through the computer directories to
`
`the particular file (e.g., C:\MyDocuments\classes\EE350\lecture1.ppt). (See
`
`RACK-1001, 1:35-42.) The ‘791 patent contends that all prior art systems
`
`operated in this manner, stating that “[i]n all of the prior data processing systems[,]
`
`the names or identifiers provided to identify data items … are always defined
`
`relative to a specific context,” and “there is no direct relationship between the data
`
`names and the data item.” (RACK-1001, 1:65–2:3, 2:12-13 (emphasis added).)
`
`29. According to the ‘791 patent, this prior art practice of identifying a
`
`data item by its context or pathname had certain shortcomings. For example, with
`
`pathname identification, the same data name may refer to different data items, or
`
`conversely, two different data names may refer to the same data item. (RACK-
`
`1001, 2:12-16.) Moreover, because there is no correlation between the contents of
`
`a data item and its pathname, there is no a priori way to confirm that the data item
`
`is in fact the one named by the pathname. (RACK-1001, 2:18- 21.) Furthermore,
`
`context or pathname identification may more easily result in the creation of
`
`unwanted duplicate data items, e.g., multiple copies of a file on a file server.
`
`(RACK-1001, 2:47-58.)
`
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`30. The ‘791 patent purports to address these shortcomings. (RACK-
`
`1001, 3:6-20.) It suggests that “it is therefore desirable to have a mechanism … to
`
`determine a common and substantially unique identifier for a data item, using only
`
`the data in the data item and not relying on any sort of context.” (RACK-1001,
`
`3:6-11.) Moreover, “[i]t is further desirable to have a mechanism for reducing
`
`multiple copies of data items … and to have a mechanism which enables the
`
`identification of identical data items so as to reduce multiple copies.” (RACK-
`
`1001, 3:12-15.)
`
`31. To do so, the ‘791 patent provides substantially unique identifiers that
`
`“depend[] on all of the data in the data item and only on the data in the data item.”
`
`(RACK-1001, 1:13-18; see also 3:29-32.) The ‘791 patent uses the terms “True
`
`Name” and “data identifier” to refer to the substantially unique identifier for a
`
`particular data item (RACK-1001, 6:6-10) and explains that a True Name is
`
`computed using a message digest function (see RACK-1001, 12:55-13:14).
`
`Preferred embodiments use either of the MD5 or SHA message digest functions to
`
`calculate a substantially unique identifier from the contents of the data item.
`
`(RACK-1001, 12:55-13:17.)
`
`32. The ‘791 patent calls these context- or location-independent, content-
`
`based identifiers “True Names”–a phrase “coined by the inventors.” (See RACK-
`
`1006, U.S. Patent No. 6,415,280, Prosecution History, Response (Aug. 22, 2001) at
`
`14
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`22.) With these identifiers, the patent asserts, “data items can be accessed by ref-
`
`erence to their identities (True Names) independent of their present location.”
`
`(RACK-1001, 34:9-11; see also Id. 34: 30-32.) The actual data item corresponding
`
`to these location-independent identifiers may reside anywhere, e.g., locally,
`
`remotely, offline. (RACK-1001, 34:11-19.) “[T]he identity of a data item is
`
`independent of its name, origin, location, address, or other information not
`
`derivable directly from the data, and depends only on the data itself.” (RACK-
`
`1001, 3:33-35.)
`
`33.
`
`In the preferred embodiments, the substantially unique identifiers are
`
`used to “augment” standard file management functions of an existing operating
`
`system. (See RACK-1001, 6:11-19.) For example, a local directory extensions
`
`(LDE) table1 is indexed by a pathname or contextual name of a file and also in-
`
`cludes True Names for most files. (See RACK-1001, 8:19-26.) A True File
`
`registry (TFR) lists True Names, and stores “location, dependency, and migration
`
`information about True Files.” (See RACK-1001, 8:27-28, 33-35.) True Files are
`
`identified in the True File registry by their True Names, and can be looked up in
`
`
`1 The patent describes an LDE table as a data structure which provides
`
`information about files and directories in the system and includes information in
`
`addition to that provided by the native file system. (See RACK-1001, 8:19-26.)
`
`15
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`the registry by their True Names. (See RACK-1001, 8: 30-32, 23:61–62.) This
`
`look-up provides, for each True Name, a list of the locations, such as file servers,
`
`where the corresponding file is stored. (See RACK-1001, 34:17–19; see also
`
`16:11–13.)
`
`34. When a data item is to be “assimilated” into the data processing
`
`system, its substantially unique identifier (True Name) is calculated and compared
`
`to the True File Registry to see if the True Name already exists in the Registry.
`
`(See RACK-1001, 14:41-56.) If the True Name already exists, this means that the
`
`data item already exists in the system and the to-be-assimilated data item (i.e., the
`
`scratch file) need not be stored. (See RACK-1001, 14:56-60.) Conversely, if the
`
`True Name does not exist in the Registry, then a new entry is created in the
`
`Registry which is then set to the just-calculated True Name value, and the data
`
`items can be stored. (See RACK-1001, 14:61-67.)
`
`A.
`35.
`
`Priority Date for ‘791
`
`I have been informed that the ‘791 patent claims priority to U.S.
`
`Patent Application No. 08/425,160, filed on April 11, 1995. I understand this
`
`means the ‘791 patent is considered to have been filed on April 11, 1995 for the
`
`purposes of determining whether a reference will qualify as prior art.
`
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`IV. Claims of the ‘791 Patent
`36.
`I understand that claims 1-4, 29-33, 35 and 41 of the ‘791 patent are
`
`being challenged in the above-referenced inter partes review. For ease of
`
`reference, the notations introduced in the following chart will be used herein when
`
`referring to particular portions of claims 1–4, 29–33, 35 and 41 of the ‘791 patent:
`
`Claim
`Portion
`
`[1a]
`
`[1b]
`
`Claim 1
`
`In a data processing system, an apparatus comprising:
`
`identity means for determining, for any of a plurality of data items
`present in the system, a substantially unique identifier, the
`identifier being determined using and depending on all of the data
`in the data item and only the data in the data item, whereby two
`identical data items in the system will have the same identifier;
`and
`
`[1c]
`
`existence means for determining whether a particular data item is
`present in the system, by examining the identifiers of the plurality
`of data items.
`
`Claim
`Portion
`
`[2a]
`
`[2b]
`
`Claim
`Portion
`
`[3]
`
`Claim 2
`
`An apparatus as in claim 1, further comprising:
`
`local existence means for determining whether an instance of a
`particular data item is present at a particular location in the
`system, based on the identifier of the data item.
`
`Claim 3
`
`An apparatus as in claim 2, wherein each location contains a distinct
`plurality of data items, and wherein said local existence means
`determines whether a particular data item is present at a particular
`
`17
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`
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`Claim
`Portion
`
`[4a]
`
`[4b]
`
`[4c]
`
`Claim
`Portion
`
`[29]
`
`Claim
`Portion
`
`[30a]
`
`[30b]
`
`location in the system by examining the identifiers of the plurality of
`data items at said particular location in the system.
`
`Claim 4
`
`An apparatus as in claim 2, further comprising:
`
`data associating means for making and maintaining, for a data item
`in the system, an association between the data item and the identifier
`of the data item; and
`
`access means for accessing a particular data item using the identifier
`of the data item.
`
`Claim 29
`
`An apparatus as in any of claims 1-28, wherein a data item is at
`least one of a file, a database record, a message, a data segment, a
`data block, a directory, and an instance an object class.
`
`Claim 30
`
`A method of identifying a data item present in a data processing
`system for subsequent access to the data item, the method comprising:
`
`determining a substantially unique identifier for the data item, the
`identifier depending on and being determined using all of the data in
`the data item and only the data in the data item, whereby two
`identical data items in the system will have the same identifier; and
`
`[30c]
`
`accessing a data item in the system using the identifier of the
`data item.
`
`Claim
`Portion
`
`Claim 31
`
`[31a]
`
`A method as in claim 30, further comprising:
`
`[31b] making and maintaining, for a plurality of data items present in the
`system, an association between each of the data items and the
`
`18
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 18 of 74
`
`
`
`identifier of each of the data items, wherein said accessing a data
`item accesses a data item via the association.
`
`Claim 32
`
`A method as in claim 31, further comprising:
`
`assimilating a new data item into the system, by determining the
`identifier of the new data item and associating the new data item with
`its identifier.
`
`Claim 33
`
`Claim
`Portion
`
`[32a]
`
`[32b]
`
`Claim
`Portion
`
`[33a] A method for duplicating a given data item present at a source location
`to a destination location in a data processing system, the method
`comprising:
`
`[33b]
`
`[33c]
`
`[33d]
`
`Claim
`Portion
`
`[35a]
`
`[35b]
`
`determining a substantially unique identifier for the given data item,
`the identifier depending on and being determined using all of the
`data in the data item and only the data in the data item, whereby two
`identical data items in the system will have the same identifier;
`
`determining, using the data identifier, whether the data item is
`present at the destination location; and
`
`based on the determining whether the data item is present, providing
`the destination location with the data item only if the data item is
`not present at the destination.
`
`Claim 35
`
`A method for determining whether a particular data item is present in a
`data processing system, the method comprising:
`
`(A) for each data item of a plurality of data items present in the system,
`(i) determining a substantially unique identifier for the data item, the
`identifier depending on and being determined using all of the data in
`the data item and only the data in the data item, whereby two identical
`
`19
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 19 of 74
`
`
`
`data items in the system will have the same identifier; and
`(ii) making and maintaining a set of identifiers of the plurality of data
`items; and
`
`(B) for the particular data item,
`(i) determining a particular substantially unique identifier for the data
`item, the identifier depending on and being determined using all of the
`data in the data item and only the data in the data item, whereby two
`identical data items in the system will have the same identifier; and
`(ii) determining whether the particular identifier is in the set of data
`items.
`
`Claim 41
`
`The method of claim 30, wherein said accessing further comprises:
`
`for a given data identifier and for a given current location and a
`remote location in the system: determining whether the data item
`corresponding to the given data identifier is present at the current
`location, and
`
`based on said determining, if said data item is not present at the current
`location, fetching the data item from a remote location in the system to
`the current location.
`
`It is my understanding that in order to properly evaluate the ’791
`
`[35c]
`
`Claim
`Portion
`
`[41a]
`
`[41b]
`
`[41c]
`
`
`37.
`
`patent, the terms of the claims must be construed. It is my understanding that the
`
`claims are to be given their broadest reasonable interpretation in light of the
`
`specification. It is my further understanding that claim terms are given their
`
`ordinary and accustomed meaning as would be understood by one of ordinary skill
`
`in the art, unless the inventor, as a lexicographer, has set forth a special meaning
`
`20
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 20 of 74
`
`
`
`for a term. In order to construe the claims, I have reviewed the entirety of the ’791
`
`Patent, as well as its prosecution history.
`
`38. The “Subject Matter of the ‘791 Patent” section (paragraphs 26-35,
`
`above) details the ‘791 patent’s emphasis on data storage systems that use
`
`“substantially unique data identifiers”–based on all the data in a data item and only
`
`the data in the data item–to identify and access data items (the “all and only”
`
`requirement). I understand that claims 1-4, 29-33, 35, and 41 of the ‘791 patent are
`
`being challenged in the above-referenced inter partes review. I have reviewed
`
`these claims, and in view of the context provided by the patent ‘791 patent
`
`disclosure, its prosecution history and indeed, specific textual limitations recited in
`
`the claims themselves, it is my opinion that each of the challenged claims (claims
`
`1-4, 29-33, 35, and 41) would be understood by person of ordinary skill in the art
`
`to incorporate this “all and only” requirement.
`
`39.
`
`It is my understanding that a panel of the Patent Trial and Appeal
`
`Board (PTAB) has already construed certain claim terms in the ‘791 patent. Based
`
`on my review of the PTAB’s constructions (see Decision to Institute Inter Partes
`
`Review, IPR-2013-00082 (RACK-1005), I believe my aforementioned opinion is
`
`consistent with the views and constructions of the PTAB. Specifically, the
`
`PTAB’s constructions are as follows:
`
`21
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 21 of 74
`
`
`
`Claim Term
`“substantially
`unique identifier”
`
`PTAB Construction
`“an identity for a data item generated
`being determined using and
`depending on all of the data in the
`data item, and only the data in the
`data item”
`
`“True Name”
`
`“substantially unique data identifier
`for a particular item”
`
`22
`
`Appears in
`Challenged Claims
`1 (“a substantially
`unique identifier,”
`“the identifier,” “the
`same identifier,” and
`“the identifiers”);
`2 (“the identifier”);
`3 (“the identifiers”);
`4 (“the identifier”);
`30 (“a substantially
`unique identifier,”
`“the identifier,” “the
`same identifier,” and
`“the identifier”);
`31 (“the identifier”);
`32 (“the identifier”
`and “its identifier”);
`33 (“a substantially
`unique identifier,”
`“the identifier,” and
`“the same
`identifier”); and
`35 (“a substantially
`unique identifier,”
`“the identifier,” “the
`same identifier,” “a
`set of identifiers,” “a
`particular
`substantially unique
`identifier,” and “the
`particular identifier”)
`33 (“the data
`identifier”) and
`41 (“a given data
`identifier” and “the
`given data
`identifier”)
`
`UNIFIED V PERSONAL WEB; LEVEL 3 COMM - EXH 1007 -Page 22 of 74
`
`
`
`Claim Term
`“data item” and
`“data”
`
`“identity means for
`determining, for any
`of a plurality of data
`items present in the
`system, a
`substantially unique
`identifier, the
`identifier being
`determined using
`and depending on
`all of the data in the
`data item and only
`the data in the data
`item, whereby two
`identical data items
`in the system will
`have the same
`identifier”
`“existence means
`for determining
`
`Appears in
`Challenged Claims
`1 (“data item(s)” and
`“the data in the data
`item”); 2 (“data
`item”); 3 (“data
`item(s)”); 4 (“data
`item”); 29
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