Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 15
`Entered: December 30, 2013
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SAS INSTITUTE, INC.
`Petitioner
`
`v.
`
`COMPLEMENTSOFT, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00581
`Patent 7,110,936 B2
`_______________
`
`
`Before KEVIN F. TURNER, JUSTIN T. ARBES, and JENNIFER S. BISK,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`Dismissing Motion for Joinder
`37 C.F.R. §§ 42.108, 42.122
`
`
`
`
`
`
`
`
`
`
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`Case IPR2013-00581
`Patent 7,110,936 B2
`
`
`I. INTRODUCTION
`
`A. Background
`
`SAS Institute, Inc. (“SAS”) filed a corrected petition (Paper 7, “Pet.”) to
`
`institute an inter partes review of claims 1–16 of Patent 7,110,936 B2 (“the ’936
`
`patent”) pursuant to 35 U.S.C. § 311 et seq. and a motion for joinder with Case
`
`IPR2013-002261 (Paper 1, “Mot.”). ComplementSoft, LLC (“ComplementSoft”)
`
`filed a preliminary response (Paper 14, “Prelim. Resp.”) and an opposition to
`
`SAS’s motion (Paper 8, “Opp.”). We have jurisdiction under 35 U.S.C. § 314.
`
`In IPR2013-00226, the Board instituted a trial for claims 1 and 3–10 of the
`
`’936 patent on the following grounds:
`1) obviousness of claim 1 over Coad, Oracle Primer, and Oracle8
`
`Primer;
`2) obviousness of claims 1, 3, 5, 6, 8, and 10 over Antis and Coad;
`3) obviousness of claim 4 obvious over Antis, Coad, and Burkwald;
`4) obviousness of claim 7 over Antis, Coad, and Eick; and
`5) obviousness of claim 9 over Antis, Coad, and “Building Applications.
`
`Decision to Institute, Paper 9 IPR2013-00226 (“Prior Decision”) at page 3. In the
`
`current petition, SAS contends that the challenged claims are unpatentable under
`
`35 U.S.C. § 103 based on the following specific grounds (Pet. 22, 41, 43–48, 51–
`
`58):
`
`
`1 The decision to institute an inter partes review in Case IPR2013-00226 was
`entered August 12, 2013, based on a petition for inter partes review filed March
`29, 2013.
`
` 2
`
`
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`Case IPR2013-00581
`Patent 7,110,936 B2
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`
`References 2
`
`Claims challenged
`
`Grounds Based on Polo
`
`
`
`Polo, Coad, Oracle Primer, and Oracle8 Primer
`
`1–3, 6, 8, 10–12, 15, and 16
`
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`Burkwald
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`Antis
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`Eick
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`“Building Applications”
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`Corda
`Polo, Coad, Oracle Primer, Oracle8 Primer, and
`Access 97 Visual Basic
`Grounds Primarily Based on Coad
`
`2 and 4
`
`5
`
`7
`
`9, 11, and 12
`
`13
`
`14
`
`
`
`Coad, Oracle Primer, and Oracle8 Primer
`
`2, 3, 6, 8, 10–12, 15, and 16
`
`Coad, Oracle Primer, Oracle8 Primer, and
`Burkwald
`Coad, Oracle Primer, Oracle8 Primer, and Antis 5
`
`2 and 4
`
`Coad, Oracle Primer, Oracle8 Primer, and Eick
`
`7
`
`Coad, Oracle Primer, Oracle8 Primer, and
`“Building Applications”
`Coad, Oracle Primer, Oracle8 Primer, and Corda 13
`
`9, 11, and 12
`
`
`2 U.S. Patent 5,572,650 (Ex. 1005) (“Antis”); U.S. Patent 6,851,107 (Ex. 1006)
`(“Coad”); U.S. Patent 6,356,285 (Ex. 1007) (“Burkwald”); U.S. Patent 5,937,064
`(Ex. 1008) (“Eick”); Evan Callahan, MICROSOFT ACCESS 97 VISUAL BASIC STEP BY
`STEP (1997) (Ex. 1009) (“Access 97 Visual Basic”); U.S. Patent 5,782,122 (Ex.
`1010) (“Corda”); Microsoft Corporation, BUILDING APPLICATIONS WITH
`MICROSOFT ACCESS 97 (1996) (Ex. 1011) (“Building Applications”); Rajshekhar
`Sunderraman, ORACLE PROGRAMMING: A PRIMER (1999) (Ex. 1012) (“Oracle
`Primer”); and Rajshekhar Sunderraman, ORACLE8 PROGRAMMING: A PRIMER
`(2000) (Ex. 1013) (“Oracle8 Primer”).
`
` 3
`
`
`
`
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`Case IPR2013-00581
`Patent 7,110,936 B2
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`
`References 3
`
`Claims challenged
`
`Coad, Oracle Primer, Oracle8 Primer, and
`Access 97 Visual Basic
`Grounds Primarily Based on Antis
`
`14
`
`
`
`Antis and Coad
`
`Antis, Coad, and Corda
`
`Antis, Coad, and Access 97 Visual Basic
`
`2, 11, 12, 15, and 16
`
`13
`
`14
`
`Antis, Coad, and “Building Applications”
`
`11 and 12
`
`We conclude that SAS has not shown, under 35 U.S.C. § 314(a), that there is
`
`a reasonable likelihood that it would prevail on: (1) any of the grounds based on
`
`Polo; (2) any of the grounds primarily based on Antis; or (3) obviousness of claims
`
`2 and 11–16 primarily based on Coad.
`
`Further, based on the record before us and exercising our discretion under
`
`35 U.S.C. § 325(d) we deny the petition as to the grounds listed below because
`
`these grounds are based upon substantially the same prior art and arguments as set
`
`forth in IPR2013-00226:
`1) obviousness of claims 3, 6, 8, and 10 over Coad, Oracle Primer, and
`
`Oracle8 Primer;
`2) obviousness of claim 4 over Coad, Oracle Primer, Oracle8 Primer, and
`
`
`3 U.S. Patent 5,572,650 (Ex. 1005) (“Antis”); U.S. Patent 6,851,107 (Ex. 1006)
`(“Coad”); U.S. Patent 6,356,285 (Ex. 1007) (“Burkwald”); U.S. Patent 5,937,064
`(Ex. 1008) (“Eick”); Evan Callahan, MICROSOFT ACCESS 97 VISUAL BASIC STEP BY
`STEP (1997) (Ex. 1009) (“Access 97 Visual Basic”); U.S. Patent 5,782,122 (Ex.
`1010) (“Corda”); Microsoft Corporation, BUILDING APPLICATIONS WITH
`MICROSOFT ACCESS 97 (1996) (Ex. 1011) (“Building Applications”); Rajshekhar
`Sunderraman, ORACLE PROGRAMMING: A PRIMER (1999) (Ex. 1012) (“Oracle
`Primer”); and Rajshekhar Sunderraman, ORACLE8 PROGRAMMING: A PRIMER
`(2000) (Ex. 1013) (“Oracle8 Primer”).
`
` 4
`
`
`
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`Patent 7,110,936 B2
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`
`Burkwald;
`3) obviousness of claim 5 over Coad, Oracle Primer, Oracle8 Primer, and
`
`Antis;
`4) obviousness of claim 7 over Coad, Oracle Primer, Oracle8 Primer, and
`
`Eick; and
`5) obviousness of claim 9 over Coad, Oracle Primer, Oracle8 Primer, and
`
`“Building Applications.”
`
`Therefore, the Board has determined not to institute an inter partes review.
`
`As a result of this determination, the petition is denied and SAS’s motion for
`
`joinder is dismissed as moot.
`
`B. The ’936 Patent
`
`The technology of the ’936 patent is described in the Prior Decision at page
`
`4. For the purposes of this decision, we adopt that prior description.
`
`Claim 1, reproduced below, is the ’936 patent’s only independent claim:
`
`1. An integrated development environment, comprising:
`
`a document manager for retrieving source code programmed
`using one of a plurality of types of data manipulation languages;
`
`an editor for displaying the retrieved source code and providing
`a means for a user to edit the retrieved source code;
`
`a parser layer which detects the one of the plurality of types of
`data manipulation languages in which the retrieved source code is
`programmed and which activates rules and logic applicable to the
`detected one of the plurality of types of data manipulation languages;
`and
`
`a visualizer dynamically linked to the editor for displaying
`graphical representations of flows within the retrieved source code
`using the rules and logic applicable to the detected one of the plurality
`of types of data manipulation languages and activated by the parser,
`
` 5
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`
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`wherein the editor, parser layer and visualizer cooperate such
`that edits made to the source code using the editor are automatically
`reflected in the graphical representations of flows displayed by the
`visualizer and edits made to the graphical representations of flows in
`the visualizer are automatically reflected in the source code displayed
`by the editor.
`
`We note that the ’936 patent is asserted currently in ComplementSoft, LLC v.
`
`SAS Institute, Inc., Docket No. 1:12-cv-07372 (N.D. Ill. Sept. 14, 2012). See Pet.
`
`1; Paper 10 at 2.
`
`C. Claim Construction
`
`As a step in our analysis for determining whether to institute a trial, we
`
`determine the meaning of the claims. Consistent with the statute and the
`
`legislative history of the America Invents Act (AIA), the Board will interpret
`
`claims using the broadest reasonable construction. See Office Patent Trial Practice
`
`Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012); 37 C.F.R. § 42.100(b). The
`
`parties do not dispute that for purposes of this decision, the Board should use the
`
`construction of “data manipulation language” adopted in the Prior Decision—“a
`
`programming language used to access data in a database, such as to retrieve, insert,
`
`delete, or modify data in the database.” Pet. 9 (citing Prior Decision 6–8); Prelim.
`
`Resp. 16. The parties appear to agree that for this decision, the Board should use
`
`the construction of “graphical representation of flows” adopted in the Prior
`
`Decision—“a diagram that depicts a map of the progression (or path) through the
`
`source code.” See, e.g., Pet. 31-32; Prelim. Resp. 32.
`
`Several of the challenged claims include the language “means” or “means
`
`for” and, therefore, are presumed to invoke 35 U.S.C. § 112 ¶ 6.4 Personalized
`
`
`4 Section 4(c) of the AIA re-designated 35 U.S.C. § 112 ¶ 6, as 35 U.S.C. § 112(f).
`Because the ’936 patent has a filing date before September 16, 2012 (effective
`
` 6
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`Media Commc’ns LLC v. Int’l Trade Comm’n, 161 F.3d 696, 702–04 (Fed. Cir.
`
`1998). This presumption is not conclusive. Sage Prods., Inc. v. Devon Indus.,
`
`Inc., 126 F.3d 1420, 1427–28 (Fed. Cir. 1997). For example, section 112 is not
`
`implicated when a claim uses the word “means” but does not specify a
`
`corresponding function. Id. Section 112 also is not implicated when a claim
`
`recites a corresponding function, but the claim also recites sufficient structure,
`
`material, or acts to perform entirely the recited function. Id.
`
`In the Prior Decision, we determined that the phrase “means for a user to
`
`edit” in claim 1 did not implicate section 112. Prior Decision 9–10. As to claim
`
`11, however, because the claim uses the words “means for” modified by functional
`
`language and the limitation is not modified by any structure recited in the claim to
`
`perform the claimed function—“allowing source code to be executed both locally
`
`and remotely”—we interpreted this limitation to be a means-plus-function
`
`limitation. Id. Moreover, in the Prior Decision, because SAS did not identify what
`
`structure in the Specification it believed corresponded to the means-plus-function
`
`limitation of claim 11, we declined to institute inter partes review on any proposed
`
`ground for claim 11 and claims 12–16, which depend from claim 11. Id. at 11.
`
`In this petition, SAS proposes a structure corresponding to the means-plus-
`
`function limitation of claim 11: “one or more general purpose local computers and
`
`one or more general purpose remote computers (see ’936 patent at col. 4, lines 46–
`
`53), with the local and remote computers programmed to perform an algorithm for
`
`allowing source code to be executed both locally and remotely, and equivalents of
`
`the foregoing.” Pet. 10–11. The corresponding structure of a means-plus-function
`
`limitation, however, must be more than simply a general-purpose computer or
`
`
`date), we will refer to the pre-AIA version of 35 U.S.C. § 112.
`
` 7
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`microprocessor to avoid pure functional claiming. Aristocrat Techs. Austl. Pty Ltd.
`
`v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). That is, the
`
`specification must disclose to a person of ordinary skill in the art “enough of an
`
`algorithm to provide the necessary structure under § 112, ¶ 6,” or a disclosure that
`
`can be expressed in any understandable terms (e.g., a mathematical formula, in
`
`prose, or as a flowchart). Finisar Corp. v. The DirectTV Group, 523 F.3d 1323,
`
`1340 (Fed. Cir. 2008).
`
`
`
`SAS’s proposed structure is composed entirely of general purpose computers
`
`“programmed to perform an algorithm” for the claimed function. SAS, however,
`
`does not identify what the algorithm is, or where it is disclosed in the
`
`Specification. The language proposed by SAS does not provide enough of an
`
`algorithm to provide the necessary structure, and, therefore, does not qualify as the
`
`corresponding structure for performing the claimed function.
`
`ComplementSoft proposes a different structure from the Specification as
`
`corresponding to the means-plus-function limitation of claim 11, “a means for
`
`allowing the source code to be executed both locally and remotely,” pointing to the
`
`following language:
`
`In addition, the user has the option of executing edited code on a remote
`computer 22a, by employing the server module 160, in connection with the
`site manager 70, to connect the local computer 22b to the remote computer
`22a, as will be described in more detail below. Once a session is opened, a
`terminal tab for the respective session can be created and displayed to the
`user by the server module 160, as illustrated in FIG. 10. It should be
`understood by those with skill in the art that the server module 160, the site
`manager 70 and the document manager 60 all preferably interact with one
`another to effectuate the transfer of code between the remote server
`computers 22a and the local computer 22b. It should also be understood that
`each of these modules could be combined or further divided to form one
`single module or 50 additional modules.
`
`
` 8
`
`
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`Ex. 1001, col. 8, ll. 35–50
`
`Thus, the site manager 70 creates a virtual computing environment by
`expanding the computing boundary of the local computer 22b to include
`remote computers 22a and making various computing resources across the
`LAN/WAN seamlessly available for use by the local computer 22b.
`
`Ex. 1001, col. 8, ll. 62–67.
`
`For purposes of this decision, we agree with ComplementSoft, and identify
`
`the corresponding structure for performing the function of the “means for
`
`allowing” in claim 11—namely, allowing source code to be executed both locally
`
`and remotely—to be server module 160 in connection with site manager 70 and
`
`document manager 60, which are programs being run on a specially programmed
`
`general computing device.
`
`II. ANALYSIS
`
`A. Grounds Based on Polo
`
`1. Overview of Polo
`
`Polo discloses a computer-implemented method for analyzing the data flow
`
`of a database query. Ex. 1045, Abstract, col. 1, ll. 56–58. Polo discloses a
`
`Structured Query Language (SQL) Query Tool implemented as a software
`
`program, preferably including query input module 14, graphical interface module
`
`16, and data flow analysis module 18. Id. at col. 3, ll. 13–30. Data flow analysis
`
`module 18 analyzes the sections of a database query to determine what role each
`
`section has in the overall query. Id. at col. 4, ll. 33–35. Module 18 detects
`
`blocking conditions and other query-related cases of interest to users using a
`
`generate-and-execute approach. Id. at ll. 47–51.
`
`Graphical interface module 16 converts the complex logic of an SQL query
`
`into a graphical paradigm based on the concept of water passing through a
`
` 9
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`plumbing system. Id. at col. 5, ll. 10–19. Figure 2 of Polo is reproduced below.
`
`Figure 2, above, illustrates the plumbing paradigm that graphically depicts
`
`complex data filter 38 as a network of filter nodes 44 that are linked by pipes 48
`
`and 50, and which includes originating node 42 and one or more terminating nodes
`
`46. Id. at col. 5, ll. 19–26. Each filter node 44 represents a condition of expression
`
`
`
`of the SQL clause. Id.
`
`2. Overview of Coad
`
`Coad discloses a software development tool that allows a developer to view
`
`and modify simultaneously textual and graphical displays of source code,
`
`regardless of the programming language in which the code is written. Ex. 1006,
`
`Abstract, col. 4, ll. 38–41. The details of Coad are described in the Prior Decision
`
`at pages 11–12. For the purposes of this decision, we adopt that prior description.
`
`
`
`10
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`3. Obviousness Grounds Based on Polo Combined with Coad, Oracle
`Primer, and Oracle8 Primer
`
`SAS asserts that claims 1–3, 6, 8, 10–12, 15, and 16 would have been
`
`obvious over Polo combined with Coad, Oracle Primer, and Oracle8 Primer (Pet.
`
`22–41); claims 2 and 4 would have been obvious over Polo combined with Coad,
`
`Oracle Primer, Oracle8 Primer, and Burkwald (Pet. 41–43); claim 5 would have
`
`been obvious over Polo combined with Coad, Oracle Primer, Oracle8 Primer, and
`
`Antis (Pet. 43–44); claim 7 would have been obvious over Polo combined with
`
`Coad, Oracle Primer, Oracle8 Primer, and Eick (Pet. 44–45); claims 9, 11, and 12
`
`would have been obvious over Polo combined with Coad, Oracle Primer, Oracle8
`
`Primer, and “Building Applications” (Pet. 45–46, 57–58); claim 13 would have
`
`been obvious over Polo combined with Coad, Oracle Primer, Oracle8 Primer, and
`
`Corda (Pet. 46–47); and claim 14 would have been obvious over Polo combined
`
`with Coad, Oracle Primer, Oracle8 Primer, and Access 97 Visual Basic (Pet. 47–
`
`48).
`
`We are not persuaded that a person of ordinary skill in the art would have
`
`combined Polo with Coad, Oracle Primer, and Oracle8 Primer as asserted by SAS.
`
`Pet. 16–17. SAS explains that all four references are directed to software
`
`development tools, generally, and to programming languages used to access data in
`
`a database, specifically, and, therefore, the similar purposes and overlapping
`
`teachings would have motivated a person of ordinary skill in the art to combine the
`
`teachings of the references. Pet. 17. Further, SAS asserts that a person of ordinary
`
`skill “would have been motivated to supplement Polo’s software development tool
`
`with Coad’s teaching of a parser layer used to detect one of a plurality of types of
`
`programming languages, and to apply rules and logic specific to the detected
`
`language, because this would increase the functionality of the system of Polo by
`
`
`
`11
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`enabling analysis of multiple programming languages.” Id. (citing Ex. 1046
`
`¶ 306).
`
`We are not persuaded by this reasoning. It is not evident, nor does SAS
`
`explain sufficiently, why a person of ordinary skill in the art would combine a
`
`general software development tool used for viewing and modifying source code,
`
`independent of programming language, with a significantly more specialized tool
`
`for analyzing the internal data flow of a database query. Petitioner must set forth
`
`sufficient articulated reasoning with rational underpinning to support its proposed
`
`obviousness ground. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007).
`
`This SAS has not done. Moreover, the expert testimony relied upon by SAS
`
`similarly is lacking in sufficient rationale, is conclusory, and lacks sufficient
`
`factual support. Ex. 1046, ¶ 306.
`
`On this record, we are not persuaded that SAS has shown a reasonable
`
`likelihood of prevailing on its asserted grounds of obviousness over Polo combined
`
`with Coad, Oracle Primer, and Oracle8 Primer by themselves or combined with the
`
`other asserted references.
`
`B. Grounds Primarily Based on Coad
`
`1. Obviousness Over Coad, Oracle Primer, and Oracle8 Primer
`
`SAS asserts that claims 2, 3, 6, 8, 10–12, 15, and 16 would have been
`
`obvious over Coad combined with Oracle Primer and Oracle8 Primer. Pet. 48–51.
`
`In the Prior Decision, the Board determined that SAS had shown, in its petition, a
`
`reasonable likelihood of prevailing in its assertion that claim 1 would have been
`
`obvious over this same combination of references. Prior Decision 13–15. Here,
`
`SAS relies on that determination to support the assertion that this combination of
`
`references shows all the limitations of claim 1. Pet. at 48 (“As explained in the
`
`Petition for Inter Partes Review for IPR2013-00226, and as recognized by the
`
`
`
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`12
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`Board in its IPR2013-00226 Institution Decision, claim 1 is obvious over Coad,
`
`Oracle Primer, and Oracle 8 Primer.”). SAS relies on Coad as disclosing each of
`
`the additional limitations recited by claims 2, 3, 6, 8, 10–12, 15, and 16, all of
`
`which depend from claim 1 either directly or indirectly. Id. at 48–51.
`
`a. Claim 2
`
`Claim 2 depends directly from claim 1 and recites the additional limitation
`
`“wherein the graphical representations of flows depicts data flows.” In the Prior
`
`Decision, we determined that it was “unclear exactly which view [of Coad] SAS
`
`equates to the claimed ‘graphical representation’ of a ‘data flow,’” and also that it
`
`was not clear on its face that Coad disclosed this limitation as claimed. Prior
`
`Decision 19.
`
`Here, SAS explains that Figure 14’s sequence diagram discloses this
`
`limitation. Pet. 30. According to SAS, the horizontal dimension of Figure 14
`
`represents different objects, and to transition between those objects, various
`
`functions are invoked with data being passed to those objects by parameters of the
`
`function calls. Id. at 30–31. SAS asserts that “because it shows which pieces of
`
`data . . . are accessed by which pieces of source code . . . [f]igure 14 of Coad thus
`
`depicts a data flow, i.e., a diagram that depicts a map of the progression of data
`
`through the source code.” Id. at 31. We are not persuaded by this argument. As
`
`explained by Coad, Figure 14 depicts the movement of parameters through objects,
`
`not data moving between steps of executing source code, as required by the claims.
`
`SAS does not explain sufficiently why a set of messages exchanged among objects
`
`is equivalent to the flow of data moving through the steps of executing source
`
`code.
`
`SAS also asserts that Figure 16’s statechart diagram discloses a graphical
`
`representation of data flows. Pet. 31. According to SAS, a person of ordinary skill
`
`
`
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`would understand that the statechart diagram of Figure 16 discloses this limitation,
`
`asserting that “information of a statechart diagram can be translated into a data
`
`flow diagram.” Pet. 31 (quoting Ex. 1030 at 1). We also are not persuaded by this
`
`argument. Coad describes the statechart diagram as depicting the sequences of
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`states that “an object or interaction goes through during its life in response to
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`stimuli.” Ex. 1006, col. 17, ll. 16–20. This is not the same as a path of data
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`through source code. As pointed out by ComplementSoft (Prelim. Resp. 33–34),
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`SAS’s reliance on reference material stating that “a statechart diagram can be
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`translated into a data flow diagram” is evidence that a statechart diagram does not
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`support SAS’s position. This statement is, in fact, evidence that Figure 16 is not a
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`data flow diagram.
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`Finally, SAS asserts that Figure 17’s activity diagram discloses a graphical
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`representation of data flows. Pet. 32. According to SAS, because Figure 17 is a
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`special case of a statechart diagram, a person of ordinary skill would understand
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`this diagram to include graphical representations of data flows for the same reasons
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`as SAS relied upon for Figure 16. Id. We are not persuaded that Figure 17
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`discloses a graphical representation of data flows for the same reasons we are not
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`persuaded that Figure 16 discloses a graphical representation of data flows.
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`On this record, we are not persuaded that SAS has shown a reasonable
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`likelihood of prevailing on its asserted ground of obviousness of claim 2 over Coad
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`combined with Oracle Primer and Oracle8 Primer.
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`b. Claims 3, 6, 8, 10
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`Claims 3, 6, 8, and 10 depend directly from claim 1. SAS asserts that Coad
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`discloses the additional limitations recited by these claims. Pet. 49–50. We
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`discuss these challenges in Section II.D below.
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`14
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`c. Claims 11, 12, 15, and 16
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`Claim 11 depends directly from claim 1, claim 12 depends from claim 11,
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`and claims 15 and 16 depend indirectly from claim 11. All of these claims include
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`the means-plus-function limitation construed above—“means for allowing the
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`source code to be executed both locally and remotely.” SAS asserts that Coad
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`discloses this limitation because “the ICE editor includes functionality for allowing
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`retrieved source code to be executed locally (i.e., from a local memory) or
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`remotely (i.e., from a remote computer accessible via a network such as the
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`Internet).” Pet. 37 (citing Ex. 1006, col. 5, ll. 31–49).
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`ComplementSoft argues that the language of Coad relied upon by SAS for
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`this limitation does not disclose the ability to execute source code either locally or
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`remotely, but instead only describes storing of files locally or remotely. Prelim.
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`Resp. 46. We agree with ComplementSoft. The portion of Coad relied upon by
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`SAS is reproduced below:
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`FIG. 6 depicts a data processing system 600 suitable for practicing
`methods and systems consistent with the present invention. Data processing
`system 600 comprises a memory 602, a secondary storage device 604, an
`I/O device 606, and a processor 608. Memory 602 includes the improved
`software development tool 610. The software development tool 610 is used
`to develop a software project 612, and create the TMM 200 in the memory
`602. The project 612 is stored in the secondary storage device 604 of the
`data processing system 600. One skilled in the art will recognize that data
`processing system 600 may contain additional or different components.
`Although aspects of the present invention are described as being
`stored in memory, one skilled in the art will appreciate that these aspects can
`also be stored on or read from other types of computer-readable media, such
`as secondary storage devices, like hard disks, floppy disks or CD-ROM; a
`carrier wave from a network, such as Internet; or other forms of RAM or
`ROM either currently known or later developed.
`
`Ex. 1006, col. 5, ll. 31–49. We do not see, and SAS has not pointed to, anything in
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`
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`15
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`the quoted language that discusses where source code will be executed.
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`On this record, we are not persuaded that SAS has shown a reasonable
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`likelihood of prevailing on its asserted ground of obviousness of claims 11, 12, 15,
`
`and 16 over Coad combined with Oracle Primer and Oracle8 Primer.
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`2. Obviousness Over Coad, Oracle Primer, Oracle8 Primer, and
`Other References
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`a. Claims 2 and 4
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`SAS asserts that claims 2 and 4 would have been obvious over Coad
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`combined with Oracle Primer, Oracle8 Primer, and Burkwald. Pet. 51–52. SAS
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`asserts that Burkwald also discloses claim 2’s limitation of “graphical
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`representations of flows [that] depict data flows.” Pet. 14, 51. Specifically, SAS
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`points to the Prior Decision’s determination that there was a reasonable likelihood
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`that SAS would prevail in its challenge that claim 4 would have been obvious over
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`a combination of Antis, Coad, and Burkwald. Pet. 41 (citing Prior Decision 19–
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`20). SAS also cites several sections of Burkwald that refer to “data flow analysis.”
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`Id. at 41–42.
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`We are not persuaded that the language SAS relies upon in Burkwald
`
`discloses the limitation “graphical representations of flows [that] depict data
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`flows” recited in claim 2. SAS does not explain sufficiently how the subsystems
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`and complexity metrics displayed in the bar charts of Burkwald equate to the
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`claimed data flows. Pet. 41–42. Moreover, it is not clear on its face that Burkwald
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`discloses this limitation as claimed. SAS has failed to demonstrate a reasonable
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`likelihood that it would prevail on a challenge of claim 2 based on obviousness
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`over Coad combined with Oracle Primer, Oracle8 Primer, and Burkwald.
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`We discuss the challenge to claim 4 in Section II.D below.
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`
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`16
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`b. Claims 5, 7, and 9
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`Claims 5, 7, and 9 depend directly from claim 1. SAS asserts that claim 5
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`would have been obvious over Coad, Oracle Primer, Oracle 8 Primer, and Antis
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`(Pet. 52–53); claim 7 would have been obvious over Coad, Oracle Primer, Oracle 8
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`Primer, and Eick (Pet. 53); and claim 9 would have been obvious over Coad,
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`Oracle Primer, Oracle 8 Primer, and “Building Applications” (Pet. 53). SAS
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`asserts that the added reference in each ground discloses the additional limitation
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`recited by each dependent claim. Pet. 52–53. We discuss these challenges in
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`Section II.D below.
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`c. Claims 11–14
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`SAS asserts that claims 11 and 12 would have been obvious over Coad,
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`Oracle Primer, Oracle 8 Primer, and “Building Applications” (Pet. 57–59); claim
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`13 would have been obvious over Coad, Oracle Primer, Oracle 8 Primer, and
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`Corda (Pet. 53–54); and claim 14 would have been obvious over Coad, Oracle
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`Primer, Oracle 8 Primer, and Access 97 Visual Basic (Pet. 54). As discussed
`
`above, we are not persuaded that Coad discloses the limitation of claim 11—
`
`“means for allowing the source code to be executed both locally and remotely”—
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`included in all these claims. SAS does not assert that Corda or Access 97 Visual
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`Basic discloses this limitation.
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`SAS also asserts that this limitation is disclosed by “Building Applications.”
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`Pet. 57. Specifically, SAS asserts that “Building Applications” discloses a
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`distributed system in the form of a client/server environment and uses pass-through
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`queries that are communicated from a client to a server computer. Id. We are not
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`persuaded that the passages in “Building Applications” relied upon by SAS
`
`disclose the limitation at issue. We are not persuaded that the language in these
`
`passages discloses the structure “server module 160 in connection with site
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`manager 70 and document manager 60, which are programs being run on a
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`specially programmed general computing device” or its equivalent. SAS does not
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`explain sufficiently how the distributed system described by “Building
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`Applications” equates to the structure identified in the Specification. Pet. 57–58.
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`On this record, we are not persuaded that SAS has shown a reasonable
`
`likelihood of prevailing on its asserted grounds o