Trials@uspto.gov
`571-272-7822
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` Paper 21
` Entered: April 2, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`TWITTER, INC., AND YELP, INC.
`Petitioners,
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00086
`Case IPR2014-00812
`Patent No. 7,010,536
`____________
`
`RECORD OF ORAL HEARING
` Held: Tuesday, January 6, 2015
`
`Before BRIAN McNAMARA, GREGG ANDERSON (via video
`link),andKALYAN K. DESHPANDE, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`January 6, 2015, at 1:00 p.m., in Hearing Room A, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`571-272-7822
`
` Paper 21
` Entered: April 2, 2015
`
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`TWITTER, INC., AND YELP, INC.
`Petitioners,
`
`v.
`
`EVOLUTIONARY INTELLIGENCE, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00086
`Case IPR2014-00812
`Patent No. 7,010,536
`____________
`
`RECORD OF ORAL HEARING
` Held: Tuesday, January 6, 2015
`
`Before BRIAN McNAMARA, GREGG ANDERSON (via video
`link),andKALYAN K. DESHPANDE, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`January 6, 2015, at 1:00 p.m., in Hearing Room A, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`ON BEHALF OF PETITIONER APPLE, INC.:
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`JEFFREY P. KUSHAN, ESQ.
`SAM DILLON, ESQ.
`THOMAS A. BROUGHAN, III, ESQ.
`Sidley Austin LLP
`1501 K Street, N.W.
`Washington, D.C. 20005
`202-736-8000
`
`Jennifer Yokoyama
`Apple, Inc. Representative
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`APPEARANCES:
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`ON BEHALF OF PETITIONERS TWITTER, INC.
`AND YELP, INC.:
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`WAB KADABA, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street, NE
`Suite 2800
`Atlanta, Georgia 30309
`404-532-6959
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`ROBERT J. ARTUZ, ESQ.
`Kilpatrick Townsend & Stockton LLP
`1080 Marsh Road
`Menlo Park, California 94025
`650-462-5336
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`WENDY RIGGS
`Twitter, Inc. Representative
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`ON BEHALF OF PETITIONERS TWITTER, INC.
`AND YELP, INC.:
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`ON BEHALF OF THE PATENT OWNER:
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`ANTHONY J. PATEK, ESQ.
`TODD KENNEDY, ESQ.
`Gutride Safier LLP
`100 Pine Street
`Suite 1250
`San Francisco, California 94111
`415-639-9090
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`Patent No. 7,010,536
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`P R O C E E D I N G S
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`(1:00 p.m.)
`JUDGE McNAMARA: Please be seated. Good
`afternoon. This is the oral hearing in two IPR cases,
`IPR2014-00086 and IPR2014-00812. Petitioners are Apple,
`Inc., Twitter, Inc. and Yelp, In c. Patent Owner is
`Evolutionary Intelligence, LLC.
`Beginning with Petitioner, could counsel please
`introduce themselves.
`MR. KUSHAN: Yes, Your Honor. Jeff Kushan
`with Sidley Austin for Apple. With me is Sam Dillon and
`Tom Broughan of my firm. And also with me is Jen
`Yokoyama from our client Apple.
`JUDGE McNAMARA: Thank you.
`MR. KADABA: Your Honor, Wab Kadaba with
`Kilpatrick Townsend for Yelp, Inc. and Twitter, Inc., all in
`the '812 proceeding.
`Also with me is my colleague Rob Artuz, and we
`have our client representative, Wendy Riggs, from Twitter,
`Inc.
`
`JUDGE McNAMARA: Thank you. Patent Owner?
`MR. PATEK: Good afternoon. I'm Anthony Patek
`from Gutride Safier on behalf of Evolutionary Intelligence.
`And with me is backup counsel, Todd Kenned y, also from
`Gutride Safier on behalf of Evolutionary.
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`JUDGE McNAMARA: Great. Well, welcome to
`the Patent Trial and Appeal Board. Today each party will
`have 60 minutes of total argument time. The Petitioner bears
`the ultimate burden of proof on the c laims at issue and so
`Petitioner will go first, present its case, and may reserve some
`time for rebuttal.
`The Patent Owner will then argue its opposition to
`the Petitioner's case. And I believe there is a motion to
`exclude that we might be hearing today , and so the Patent
`Owner can present its case on the motion to exclude.
`Petitioner will then have an opportunity to rebut
`the Patent Owner's opposition and oppose the motion to
`exclude. And the Patent Owner may then use any time it
`reserved solely to rebut the Petitioner's opposition to the
`Patent Owner's motion to exclude.
`I also would like to mention we have Judge
`Anderson who is participating remotely today. So please keep
`that in mind as you are making your arguments.
`Is everyone ready to proceed?
`MR. KUSHAN: Yes, Your Honor.
`JUDGE McNAMARA: We will begin with the
`Petitioner. Is there some time you would like for me to
`reserve?
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`MR. KUSHAN: Yes, Your Honor. I would like to
`reserve 25 minutes for rebuttal or the balance of my time,
`depending on how much time I consume in the opening.
`JUDGE McNAMARA: Okay.
`MR. KUSHAN: I also have one administrative
`issue. The other Petitioner, Yelp and Twitter, is not speaking.
`I would ask if possible to take a maybe two to five -minute
`break after the Patent Owner has spoken so that if they have
`any observations they would wish to convey to me I can hear
`that before I proceed, if that is acceptable to the Panel.
`JUDGE McNAMARA: I think that would be fine.
`MR. KUSHAN: So the claims at issue that you
`found anticipated were claims 2 to 12, 14 and 16. And we
`believe you got that right when you instituted the decision.
`We believe that -- excuse me. May I give you
`paper copies of the demonstratives?
`JUDGE McNAMARA: Sure. Please feel free to
`approach.
`JUDGE ANDERSON: Counsel, make sure you
`give me the slide number, please.
`MR. KUSHAN: Of course. So, as I said, we
`believe the evidence that has been adduced in the proceeding
`supports your determination that these claims are anticipated.
`If you go to slide 6, this is claim 2. And just
`summarizing the elements of it, you see that there is a
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`requirement for a plurality of containers and then there are a
`number of attributes of the container that are specified in the
`claim.
`
`Claim 16 also has the same structure but it omits
`the requirement for these particular sets of registers, the
`active, neutral and passive registers.
`Go to slide 10, please. In describing what their
`system is you found that the claims were anticipated by the
`Gibbs patent. And the Gibbs patent describes an automated
`train management system.
`Gibbs explains that its scheme is an
`object-oriented computer system, and it is depicted in figure
`1. It has a central computer which communicates with various
`components of the Gibbs scheme.
`Notably, one of the components are the
`transportation workstations which are computers that talk to
`the central computer and run instances of management
`software.
`
`Go to slide 11 for a second. This is just a
`breakout of the transportation worksta tion network. And what
`you see is that at any one point in time there will be some
`number of workstations that are connected through this
`gateway to the system.
`Go back to slide 10. Now, when Gibbs describes
`its transportation workstation system, what you have in it is a
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`very dynamic scheme. What Gibbs points out is that when the
`transportation workstations are executing the software that
`they run, it allows an end user to access database information
`that provides real-time insights into the operation of this train
`system. So it is modeling a real world train system.
`As it points out, it generates multiply nested maps,
`tables, charts and alerts for providing varying levels of
`real-time perspective on an operating railroad system.
`It also points out that the software automatically
`generates alert signals according to customizable alert
`criteria. These are warning criteria it explains. And that will
`signal a variance from a set condition for an attribute of the
`train system.
`The software also automatically
`generates graphical status and performance indicators for both
`historical and real-time data it is collecting about the trains
`and the objects in the real world system.
`So the system is really designed to be a dynamic
`system which allows a user to track in real-time the behavior
`of these objects within the train system.
`Go to slide 13. To be able to perform these
`functions and these operations the train management software
`which runs on these workstations logically connects a variety
`of different kinds of objects. And as I said before, Gibbs
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`explains that its system is designed as an object -oriented
`system.
`
`Some of the objects that are being manipulated by
`the software represent real world objects like trains or train
`stations. These are called transport objects. And other types
`of objects perform analyses and support some of the
`operations of the workstation as it is being used by a user.
`These are called service objects. These are things like the
`map object or the report object or the context menu object.
`And what you can appreciate about this is that the
`objects, all these different kinds of objects in Gibbs are
`interacting through the software with each other. And
`because they are software objects, they include both data and
`they include the capability or processes to act and interact
`with other objects. And they do that, for example, to
`exchange data with each other.
`So go to slide 9. So when any particular
`workstation has an instance of software running on it, what it
`will do is create a set of objects that the software needs to
`carry out the operations of this transportation management
`software.
`
`Now, this instantiated collection of
`software-linked objects is a container, according to the '536
`patent, and the reason that is so is that the '536 patent defines
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`a container very broadly. It defines a container to be a
`logically-defined data enclosure.
`And in the course of doing that it explains -- and
`this is a quote from the '536 patent on slide 9 -- it explains
`that the objects or the things that are in the container can vary
`significantly. They can be a single value. They can be any
`digital segment. They can be other containers. They can be
`code. They can be objects that interact with the system.
`And so with that very broad definition the objects
`that are instantiated when the software executes on the
`transportation workstations will satisfy that requirement for a
`container.
`If you go to slide 12. This is a depiction of the
`interface that the Gibbs software uses. An d you can see the
`various objects interacting with each other. There is a map
`object displaying data from the map object, these individual
`maps. You can see that there is a zoom panel which allows
`interactions with the system, as well as a context menu o bject.
`Now, go to slide 13, again, for a minute. I'm
`sorry, slide 19, please. One of the things we tried to point out
`was that when the definition of the container that was
`provided in the '536 patent met the requirements of the
`claims, it was very clear that the instantiated set of objects
`that the Gibbs system uses will meet the requirement for a
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`container because the software can create logical relationships
`between the items that are made up in the Gibbs system.
`We asked their witness, Dr. Green, you know, in
`terms of defining and understanding what the meaning of the
`container to be and what logically -defined data enclosure to
`mean, could you create that with a software mechanism?
`And he confirmed that that is one way that you can
`create a logically-defined data enclosure according to the
`Gibbs patent, so when you think about the Gibbs scheme with
`its executing software connecting all these different objects
`together via the software itself into satisfying the definition
`of container.
`And if you could go to slide 12 again just for a
`moment. One of the points that we want to flag is that in the
`Patent Owner's response they have contended that the map
`that you see displayed here is the map object. Now, I'm not
`sure we appreciate, I mean, that's not actually true.
`The map object is a construct that the software is
`using. It is an object that the software manipulates in order to
`create an instance of a map, which is what is being depicted in
`here.
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`What is also noticeable is that you can see al l of
`the different objects that are interacting through the map
`interface. Those circles and the other icons on the screen are
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`depicting things like trains and train stations which are
`represented, for example, in the transport objects.
`If you go to slide 31. Now, one of the types of
`objects is the transport object. This is something which will
`model either a train station or a train or a locomotive. These
`are the various real world things that make up the real world
`train system.
`And each transport object has a set of attributes,
`data items, that are associated with each object. One of the
`items is a unique ID, a system ID, that recognizes and
`uniquely identifies that particular real world object, so, for
`example, a particular train.
`Slide 32, please. You found in your institution
`decision that one of those items, that unique ID, satisfies the
`requirements of the claim for a unique identifier. And this
`was an element that is stored within one of the transport
`objects and also used by the map obj ect when it is in
`operation.
`Go to slide 31. Now, the transport objects also
`include positional data, where the train is in real space. And
`that's an attribute of both transport objects that are moving or
`fixed. So, for example, a moving transport obj ect would be a
`train that is moving, and its location and its status or its
`location data will change over time depending on where the
`train is.
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`Fixed objects don't vary their positional data but
`that data is still part of the information stored for that object.
`Go to slide 14. Now, as I mentioned before, the
`objects in the Gibbs software scheme have the capacity to
`interact with other objects or other things. And one thing that
`the transport objects can do is communicate with that central
`server to get updated information about the location of the
`trains.
`
`And that's why it is important to appreciate the
`Gibbs scheme is a very dynamic system. It is monitoring
`things in real-time. This is one way those transport objects
`get updated.
`If you go to slide 13 for a minute. And what I
`want to describe here is our petition and the expert report
`from our expert, Dr. Houh, pointed out the portions of the
`Gibbs patent which show some of these capabilities.
`Here it is citing to Exhibit 1006 at 853 to 63,
`describing the capacity of these objects to obtain or retain
`data from the transport objects. Now, this is important. This
`is a map object which is one of the service objects I
`mentioned.
`The service object is going to interact, this
`particular map object or report object will interact with the
`transport objects to get data from it using the capacity to
`interact with other objects.
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`If you go to slide 15. Now, map and report objects
`as I mentioned don't model real world things. They are more
`of an operational support for the software that is executing on
`the computer. And they do things like create instances of
`maps or create reports.
`Another element that I mentioned, a service
`object, was the context menu object. And that is helping to
`present the interface and allow manipulations of the scheme.
`And slide 15 has reproduced figures 9a and 9b
`from the Gibbs patent. What you see here is a process that the
`software is going to go through to create and populate the map
`objects or the report objects.
`So in step 600, it starts with a definition of a
`boundary, of an area of space which the user may set.
`Then in step 602 the management software is
`going to determine the part of the transportation network
`layout that is defined by those boundaries.
`Then in step 604 you see the system, the software
`collecting the fixed transports' identities. And this again is
`going to collect information like the location, the unique
`identifier and other attributes of these fixed objects within the
`boundary.
`The next step is 606. You want to flag that. This
`is a step where the attributes that might be of interest to a
`user could be set either by the system or by the user.
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`Then in step 606 you see the same exercise going
`through with the collection of the mobile transports that are
`within this geographic area that has been defined. And, again,
`it is collecting, the map object is collecting data from the
`train objects to get the information into it.
`And so at this point, at step 608, by this point you
`have essentially a populated object. The map object has got a
`set of transport objects that have been loaded into it and with
`that a number of data values that it has access to from those
`transport objects, including their geographic location.
`Now, go back to 13 for a minute. This is, again,
`going back to the quotation from paragraph 90 of Dr. Houh's
`report, this is that exercise of going through and collecting
`the data elements for the various objects, the map object
`getting it from the transport objects.
`What is important to appreciate is that these
`different objects are interacting together. That's made
`possible by the software which has instantiated all of these
`objects when it starts up. And it will populate the various
`objects with data dynamically as th e system is being used over
`time. So those values may vary in the objects but you have a
`set of the objects already there ready to be populated with the
`data.
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`Now, I want to talk a bit about the alarm
`capabilities. If you go to slide 15 again. Now, at step 610
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`one of the capabilities of the Gibbs system is that it allows a
`user to set criteria for the mobile transport objects to monitor
`them. And so what you see happening in step 610 and 612 are
`the capacity to set attributes or features of the object s that
`you are tracking, and then also to attach warning criteria
`relating to those attributes.
`And then over in 9b you see a process, an iterative
`process that the software will go through where it will look at
`each transport object that's within the ge ographic area that has
`been collected.
`First it will retrieve the object and determine if,
`you know, the attributes -- it will get the defined attributes of
`the object into memory.
`Then it will test those properties to see if they
`trigger or meet the warning conditions that have been set by
`the user or the system, and, if there is a match, if it exceeds a
`value of the warning criteria, then it will activate an alarm or
`a signal to the user.
`So this is important to appreciate. This is the
`software instance. And, as you can see, it is clearly using the
`map or the report object to carry out these operations.
`JUDGE McNAMARA: Counsel, if I remember
`Patent Owner's argument, and I don't recall your mentioning
`this, a lot of this is based on space, and spa ce is an element of
`the claims here. Could you address that for us?
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`MR. KUSHAN: Sure. I think most of this is
`actually addressing space because what you see from the very
`beginning of this, there is a geographical area that is depicted
`by that map interface.
`If you go to slide 12 for a minute. So this is this
`interface of the software. And what it is giving you is a
`region of the train system. That's the real world train system
`being depicted.
`And the user will use this interface to go into
`different geographic areas that have portions of the train
`network system in it. And within each area you can look and
`inspect the objects that are within that region.
`So those are certainly space attributes. The
`positional attributes and locational attrib utes of the objects
`are depicted and are used to manipulate and get information.
`And if you look, the next point I wanted to flag
`was the zoom capability, which was one of the issues we
`flagged. If you look up on this panel on slide 12, the top
`right corner, item 122, you have zoom controls. And this is
`an operation where you click that button and it will zoom in
`or zoom out of the depiction of the area that is shown on the
`map.
`
`And that may give you more objects. It will bring
`more into the area that's being evaluated or it may zoom in
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`and narrow that area. Again, both are geographic attributes of
`the train system.
`JUDGE McNAMARA: I think the question that
`maybe I didn't get to is, when you select the status and
`performance criteria, I think the a rgument was that none of
`those variables are based on space.
`MR. KUSHAN: So going back to slide 15 for a
`minute. The map object is a service object, as I mentioned.
`And the service object will interact with the transport objects
`which have one of their attributes being their position in
`space, their location, geographic location where they are
`located.
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`When the service objects, the map object, collects
`information from all of the transport objects within the area
`that has been selected by the user, th ey are bringing the data
`values of those geographic areas into the map object. So now
`you have a map object. It has got geographic or space data in
`it. And then that is being used to select the train objects that
`might be studied or the station objects that might be studied.
`So in those instances you have now accumulated in
`one object the attributes of the position of the thing that's
`being evaluated. And it is important to appreciate all of these
`criteria, the performance criteria are done on objects that have
`been selected based on their geographic location which comes
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`through that interface which is selecting it by its location in
`space.
`
`JUDGE ANDERSON: With respect to the use of
`objects, I assume that you are talking about objects in the
`context of object programming. But sometimes it seems like
`the object is actually a physical object of the train.
`Can you kind of clarify that, please?
`MR. KUSHAN: Sure. So you are correct that the
`system software that is executing on the workstation uses
`objects in the programming sense. These are constructs that it
`creates. The objects are integrated. When they are
`instantiated they are a set of objects that are interacting with
`each other.
`Some of the objects that are in that software
`system are going to model real world items. And that's why,
`for example, the transport objects will have information or
`attributes of the real world item stored in it. So, for example,
`the location data, the unique identifier of the particular real
`world item like the train.
`And those real world attributes are captured in the
`objects that are part of the software system which makes the
`functionality of the software capable or possible.
`If you can go to slide 39 for a minute. So one of
`the things to appreciate about the scheme that we just walked
`through is that when you set an alarm based on a warning
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`criteria Gibbs is very clear that you can pick any attribute of
`the object to set as your warning or your alarm. And on slide
`39 we have an excerpt from Gibbs. And what we have
`highlighted here is that Gibbs is pointing out that any selected
`map or report data item can be selected to be used as an alarm
`criteria.
`
`So you can set, for example, an alarm criteria on
`the location of a train, which is one of the items th at's in the
`data item, that the object, that is the transport object for a
`train. You can set warning criteria on other attributes
`certainly as well, but Gibbs is very clear in saying you can
`pick any attribute of the items that are part of the scheme to
`set warning criteria upon.
`If we can go back very briefly to slide 16. I
`mentioned the zoom capability. The zoom is another object.
`It is a functionality that allows you to act on the maps that are
`depicted. That's done by acting on the map object wh ich then
`will generate a new map based on the zoom criteria that you
`have specified.
`And when that happens it goes through that same
`process of selecting the items that are in the new area that has
`been defined by the software. So if you recall in slide 15, the
`sequence of events, you see at point D, this is an entry point
`coming back in after, for example, you change the geographic
`area that you are interested in looking at.
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`And it goes through the same exercise of
`collecting any additional or omittin g items that are outside of
`the area. So you can imagine, for example, if you expand the
`zoom you might capture new objects that are in that enlarged
`geographic area. You also, because it is dynamic, new objects
`may come into that area. And these are ad ded into the map
`object to track.
`So go to slide 6 for a minute. So the first element
`of the claim is the preamble. And you found that there is a
`limiting preamble. It requires a plurality of containers with
`each container being a logically -defined data enclosure.
`Now, as I mentioned before, in the Gibbs system
`there are always going to be multiple workstations working
`concurrently and using the system. So each workstation will
`have one instance of software running on it with its set of
`containers, instantiated containers.
`The other objects, the other workstations will have
`those containers as well. So you have a plurality of objects
`being used in the Gibbs system.
`If you go to slide 8, I think you were correct in
`your institution decision by focusing on the overall system
`that is being depicted by Gibbs which has these multiple
`workstations in it. And that's perfectly consistent with the
`disclosure.
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`If you go to slide 11, as I mentioned at the outset,
`this is just an instance showing that in any one
`implementation of the Gibbs system you will have multiple
`workstations interacting with the central server being used
`concurrently.
`So we think you clearly demonstrated and the
`evidence shows that there is a plurality of containers as the
`claim requires.
`Now, if you go to slide 29. The next item I want
`to address is the first -- I'm sorry.
`JUDGE ANDERSON: So the workstations are the
`containers, the plurality of containers?
`MR. KUSHAN: So the software executing on the
`workstations creates an instantiated set of objects that make
`the software work on it. It is that instantiated set of objects
`that is the container on each workstation.
`JUDGE McNAMARA: I'm not sure I understood
`or caught what you said initially. Did you say that each
`system, each workstation is an instance of the software?
`MR. KUSHAN: So each workstation will run an
`instance of the software. And when it does that it creates this
`logical enclosure which is the, according to the claims and in
`the spec, something which can define through software
`different objects that interact with each other. And that's the
`point we have been trying to make throughout the proceeding.
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`When the software runs on the workstation it will
`instantiate all of the different types of objects ac cording to
`the software instructions. And those will be transport objects,
`map objects, other types of service objects.
`JUDGE McNAMARA: I think what has me is I'm
`confused a little, but I typically tend to think of instances as
`not instances of the software but instances of objects.
`Is there a distinction between instances of the
`software and instances of objects?
`MR. KUSHAN: It -- no. So the issue I think that
`is somewhat hard to appreciate is how broad the claim
`language is on container.
`What they say -- and this is the point that we
`raised with their expert -- the software can define, can be the
`mechanism that makes that logical connection between the
`different elements that make up a data enclosure.
`So you can have the software essentially m ap and
`organize the objects logically to create the container. And so
`when you think about it, what the claim and what the patent
`has defined in that sense, when the software is executing in
`the Gibbs system the software will create a set of objects. It
`is pulling those out of definitional libraries.
`Those various objects are interacting according to
`the software instructions. So they are logically defined and
`related to each other through the software. And that meets the
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`requirement of a container according to the patent because the
`software is the mechanism which connects those objects
`together to make the container.
`So when you run the software on the workstation,
`it will create in memory and in active use a set of these
`objects, these items in the Gibbs scheme which are interacting
`with each other according to the instructions of the software.
`And that set of objects is a container in the Gibbs system.
`So let me go back to slide 29, if I could. What I
`want to talk about now is the first registe r. This is another
`element of the claim. As it is set out in the claim, each
`container has to have an information element having
`information of a plurality of registers and a gateway. And in
`the set of plurality of registers there are a number of
`attributes defined for those registers.
`The first register is defined to be a register for
`storing a unique container identification value. And it is
`important to appreciate this says "a" unique container
`identification value. What is important about this is it doesn't
`say "the" unique container identification value.
`If you look at the rest of the claim you see
`registers referring to "the" container, which is logical that
`those other operations, those other registers are speaking
`of interactions of the container with other things.
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