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`IPR2015-00196 Paper No. 55
`IPR2015-00198 Paper No. 56
`IPR2015-00209 Paper No. 53
`April 18, 2016
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`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`LG ELECTRONICS, INC.,
`Petitioner,
`vs.
`STRAIGHT PATH IP GROUP, INC.,
`Patent Owner.
`- - - - - -
`Case IPR2015-00196 (Patent No. 6,131,121 C1)
`Case IPR2015-00198 (Patent No. 6,009,469 C1)
`Case IPR2015-00209 (Patent No. 6,108,704 C1)
`Technology Center 2600
`Oral Hearing Held: Tuesday, February 9, 2016
`
`
`Before: KALYAN K. DESHPANDE; TRENTON A. WARD
`(via video link); and BART A. GERSTENBLITH, Administrative Patent
`Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`February 9, 2016, at 1:03 p.m., Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`571-272-7822
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`IPR2015-00196 Paper No. 55
`IPR2015-00198 Paper No. 56
`IPR2015-00209 Paper No. 53
`April 18, 2016
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`LG ELECTRONICS, INC.,
`Petitioner,
`vs.
`STRAIGHT PATH IP GROUP, INC.,
`Patent Owner.
`- - - - - -
`Case IPR2015-00196 (Patent No. 6,131,121 C1)
`Case IPR2015-00198 (Patent No. 6,009,469 C1)
`Case IPR2015-00209 (Patent No. 6,108,704 C1)
`Technology Center 2600
`Oral Hearing Held: Tuesday, February 9, 2016
`
`
`Before: KALYAN K. DESHPANDE; TRENTON A. WARD
`(via video link); and BART A. GERSTENBLITH, Administrative Patent
`Judges.
`
`The above-entitled matter came on for hearing on Tuesday,
`February 9, 2016, at 1:03 p.m., Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ASHOK RAMANI, ESQ.
`SHARIF E.A. JACOB, ESQ.
`LEO LAM, ESQ.
`Keker & Van Nest LLP
`633 Battery Street
`San Francisco, California 94111-1809
`415-391-5400
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
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`
`
`WILLIAM A. MEUNIER, ESQ.
`MICHAEL C. NEWMAN, ESQ.
`NICHOLAS W. ARMINGTON, ESQ.
`Mintz Levin Cohn Ferris Glovsky and Popeo PC
`One Financial Center
`Boston, Massachusetts 02111
`617-542-6000
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`
`P R O C E E D I N G S
`
`(1:03 p.m.)
`JUDGE DESHPANDE: You may be seated. Good
`afternoon, everyone. This afternoon we have oral arguments
`for IPR2015- 00196, 198, 209. LG, Toshiba, Vizio and Hulu
`versus Straight Path IP Group.
`IPR2015- 1397, 1398, 1400, 1406, 1407, have been
`joined in joining in Cisco, Avaya and Verizon.
`I'm Judge Deshpande. On our monitor today is
`Judge Ward. To my right is Judge Gerstenblith. Since Judge
`Ward is with us remotely, I want to remind everyone to step in
`front of the microphone, to speak in front of the microphone.
`He can't hear you if you are not talking into the microphone.
`Why don't we have our appearances. Who do we
`have from Petitioner?
`MR. RAMANI: Good afternoon, Your Honor.
`Ashok Ramani from Keker & Van Nest. I'm joined by my
`colleagues Sharif Jacob and Leo Lam.
`MR. LAM: Good afternoon.
`JUDGE DESHPANDE: And for Patent Owner?
`MR. MEUNIER: Bill Meunier from Mintz Levin,
`and with me are Michael Newman and Nick Armington.
`JUDGE DESHPANDE: All right. As we set forth in
`our trial hearing order, each party will have 60 minutes.
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`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`Petitioner bears the burden of proof so Petitioner will go first.
`Petitioner may reserve time for rebuttal.
`After Petitioner has presented their arguments,
`Patent Owner will have a chance to respond.
`Does anyone have any questions on procedure for
`today? Okay. With that, Petitioner, you may begin when you
`are ready.
`
`MR. RAMANI: Thank you, Your Honor. I would
`like to reserve 10 minutes for rebuttal, if I may.
`JUDGE DESHPANDE: Okay.
`MR. RAMANI: And to explain how we're
`intending to present argument today, I'm going to provide
`some introductory remarks and then address the import of the
`Federal Circuit's decision in Sipnet to the proceedings before
`this Panel.
`At that point, absent further questions, my
`colleague, Mr. Jacob, will address any remaining issues that
`the Board may have.
`The parties' dispute appears to have crystalized on
`a single issue. And that issue is application of the Federal
`Circuit's construction of is connected to the network in the
`Sipnet matter.
`Windows NT 3.5 Server and NetBIOS, joined with
`Pinard, as appropriate, have rendered the instituted claims
`obvious.
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`
`That was true upon institution, and that remains
`true now for reasons that I will explain.
`When Windows NT 3.5 Server, which I will
`describe as WINS, and NetBIOS, focus on determining
`whether a process is connected to the network in a specific
`fashion. Both of those systems are intended and designed and,
`in fact, do host tens of thousands of processes at a time.
`And so fundamentally they need to be able to
`provide the right IP address for a name when one process
`requests that name to communicate with another process. We
`see this amply in the record.
`Just to give you two examples. One is Exhibit
`1003 at page 67, which is in the WINS manual, where there is
`an express disclosure about when one, as we term it, process
`wishes to communicate with another process, it queries the
`server. Similarly, there is a near identical disclosure in
`NetBIOS, which is Exhibit 1004 at page 395. There is
`mention of an express name query function.
`In that description, there is discussion of
`resolution, which as I think we will probably get to later
`today, is actually a complete red- herring that Patent Owner is
`putting forth, but there is discussion of resolution or -- and the
`"or" is important -- discovery, which is what we're really
`talking about here, which is the process by which one process
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`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`seeks to determine whether another process is connected to the
`network at the time of the query.
`In contrast to this, one must go far out of one's
`way to avoid invalidity. And Patent Owner has tried a bunch
`of different arguments over the course of this proceeding and,
`in fact, over the lengthy history of these patents, which are
`now expired.
`But what they are focusing on now is what we
`would describe as edge corner cases that don't disrupt or
`change the fundamental fact that WINS and NetBIOS in
`tandem with Pinard render the instituted claims obvious.
`Unless there are any preliminary questions I would
`be happy to turn to the specifics of the decision. Why don't
`we start with slide 34 from our deck. Your Honors, if you
`require, if you would like a copy, if I may approach, I would
`be happy to hand you some printed copies that we have.
`JUDGE DESHPANDE: Sure.
`MR. RAMANI: Judge Ward, I'm approaching now.
`Slide 24. So why don't we start with the Federal Circuit's
`construction from Sipnet, which is "is connected to the
`computer network at the time that the query is transmitted to
`the server."
`What the Federal Circuit was focused on in coming
`to this construction was a temporal difference. They found
`that the Board's construction had focused on registration. But
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`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`the Federal Circuit concluded that the claim language required
`a focus on connection to the network at the time the query was
`submitted.
`Now, it is important to consider the relevant
`context behind the Federal Circuit's decision. The Federal
`Circuit recognized that whether a process is connected to the
`network at the time of the query is carried out by checking a
`database.
`
`And the patent discloses, as the Federal Circuit
`pointed out, a description of how a connection server, the
`queried server, might work so as to shrink, if not completely
`eliminate, any gap between recorded status and true status.
`Putting it another way, the Federal Circuit
`recognized and instructed that you have got to determine
`whether the process, the second process is connected to the
`network at the time of the query. But the way that you do that
`is by checking a database. And the patent itself acknowledges
`that there are ways to shrink this gap between recorded status,
`what is in the database, and true status.
`JUDGE DESHPANDE: Counsel, is there only one
`way to determine whether something is connected to the
`computer network at the time of the query?
`MR. RAMANI: No, Your Honor, I don't think
`there is. I think there are multiple ways it can be done but, as
`the Federal Circuit pointed out, this was, no matter what you
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`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`do to make that determination, this is the fundamental
`objective, which is to try and shrink this gap between recorded
`status and true status.
`JUDGE WARD: Let me ask a question. Are you
`indicating to the Panel that we should interpret this language
`in the Federal Circuit's decision to mean that there could be an
`inaccurate response to the query, i.e., if there is any gap -- the
`Federal Circuit tells us that a gap may be shrunk -- but if there
`is any gap, presumably that would mean in certain instances
`the answer to the query would be inaccurate. Is that correct?
`MR. RAMANI: That's not what I'm advocating,
`Your Honor. So I think it is actually Patent Owner that has
`advocated that there has to be a guarantee as is pointed out in
`footnote 2 of the dissent.
`We don't actually contend that that is a question
`that you need to answer in order to do what is before you here,
`which is just to compare the prior art to the claims as
`interpreted. There is no mention of guarantee or perfect
`accuracy in the actual construction by the Federal Circuit.
`And if you turn back to the claim language, there
`is no mention or hint of either of those two concepts there as
`well.
`
`JUDGE WARD: So could we, using the claim
`construction given to us by the Federal Circuit, could that
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`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`apply to prior art in which there is an inaccurate response to
`the query?
`MR. RAMANI: I think it could, but with the prior
`art presented to the Panel, that's a very, very unlikely scenario
`in that the prior art that we've presented, WINS and NetBIOS
`in tandem, when they operate in normal fashion, pretty much
`every time, as you will see, as we'll talk about, there will be
`an accurate disclosure of whether or not the second process is
`connected to the network at the time of the query.
`JUDGE DESHPANDE: I'm a little confused.
`JUDGE WARD: I want to ask you about -- I'm
`glad you brought it up, and sorry to interrupt, Judge
`Deshpande -- but I want to follow up on this particular citation
`that you have given us here. This particular quote was of
`interest to me in reading the decision and also another one in
`the same paragraph.
`I'm going to ask you what your interpretation of
`that statement is. It's at page 11 of the slip opinion, the same
`paragraph that you are citing here.
`The paragraph concludes with this statement: The
`specification's indication of how a particular server process
`can provide accurate information undermines the notion that
`the specification generally redefines "is connected" to include
`active and online registration even if not at the time of the
`query.
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`How should we interpret that statement by the
`Federal Circuit?
`MR. RAMANI: Give me just one moment, Your
`Honor, if I could, to review it in context.
`JUDGE WARD: Certainly.
`(Pause)
`MR. RAMANI: There is mention of accuracy,
`Your Honor, and we're not contending that the patent or the
`prior art should be inaccurate. So I think my point really is
`that you don't have to go so far as to find a requirement of
`perfect accuracy or of a guarantee that under every single
`possible circumstance the -- what is returned will be, in fact,
`accurate.
`
`I think what our point is, is that to harmonize this
`language from the Federal Circuit, the prior art that we've put
`before you will, in fact, accurately convey whether or not the
`second process is connected to the network at the time of the
`query.
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`And we think that that's as far as you need to go in
`your determination here. We don't think you need to go
`further than that.
`JUDGE WARD: Is Petitioner recommending to the
`Panel that, as long as the prior art is close to accurate, it is
`sufficient?
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`MR. RAMANI: I wouldn't say -- I wouldn't quite
`put it that way, Your Honor. What I'm saying is that the Panel
`doesn't have --
`JUDGE WARD: Didn't you just agree, counsel,
`that in some instances the prior art would return an inaccurate
`response to the query? You agreed with that, correct?
`MR. RAMANI: It could, Your Honor. It could in
`some instances. I think the point is that you don't need to go
`that far. I don't think you need to make that finding.
`I think that the finding that would suffice to render
`these patents obvious is that the prior art will in its normal
`operation return -- the server will return an NPA, a Network
`Protocol Address, to the first process, if the second process is
`connected to the network at the time of the query.
`JUDGE WARD: Okay. Thank you.
`MR. RAMANI: Now, focusing on this notion of
`eliminating this gap between recorded status and true status,
`that is consistent with what the Patent Owner has said the
`claim term requires.
`This is from the opposition that Patent Owner
`filed: "To determine whether a process is currently connected
`to the computer network at the time of the query, the
`specification describes that the connection server performs at
`least a two-step protocol, to track, one, when the process
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
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`connects to the computer, and, two, when the process
`disconnects from the computer network."
`Now, they, Patent Owner made the statement
`before the Sipnet decision issued, but that shouldn't make any
`difference. As Patent Owner represented repeatedly in the
`December 15th, 2015 call with this Panel as to whether or not
`supplemental briefing was appropriate, at pages 12, 13 and
`others, Patent Owner repeatedly represented that the Federal
`Circuit's Sipnet construction is identical to Patent Owner's.
`So this characterization that Patent Owner makes
`of "is connected to the network" still applies by Patent
`Owner's own acknowledgment.
`JUDGE DESHPANDE: Are you saying that's the
`Federal Circuit's construction or that's the Patent Owner's
`construction?
`MR. RAMANI: That's the Patent Owner's view of
`what would satisfy the Federal Circuit's construction.
`JUDGE DESHPANDE: We're bound by the Federal
`Circuit's construction, right?
`MR. RAMANI: Of course, Your Honor.
`JUDGE DESHPANDE: Okay.
`MR. RAMANI: Of course. You are not bound by
`how the Patent Owner interprets it. But I think it is
`instructive to see how the parties do interpret the Federal
`Circuit's construction.
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`And Patent Owner has interpreted that construction
`in this fashion, which is you can focus on two different pieces
`of tracking information. One is upon connection of a process
`to the network and the second is upon disconnection of the
`process to the network. And the prior art amply does both of
`those things.
`If we could go to slide 26, please. I don't think
`there is any controversy about registration.
`If we could go to the next slide, which is slide 27,
`and go ahead and click through, please, but it is apparent that
`WINS and NetBIOS both do register an IP address upon
`connection to the network, the first piece of this two-step
`tracking, if you will.
`If we could go to slide 28, please. Now, there are
`a number of specific ways that the prior art WINS and
`NetBIOS track disconnection from the network, which was the
`second piece that we observed.
`We're on slide 29 here. The patents themselves, of
`course, describe this and they talk about doing it in two
`different possible ways. One is a process that is signing off,
`sending a message to the connection server upon signoff, and
`the second way is by toggling a status flag to indicate offline
`on the status flag.
`The prior art does the same thing. WINS indicates
`that when a computer is shut down properly it releases its
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`name to the WINS server, which marks the related database
`entry as released. Now, that is on page 75 of Exhibit 1003,
`which is the WINS manual.
`On that same page, in the next paragraph, there is
`an express disclosure that if -- upon this release occurring, if
`another process desires that name, it is available. What that
`means is in the disclosure expressly once WINS marks a
`database entry as released, it is offline. And so it has been
`tracked and marked as offline similar to the patent.
`NetBIOS goes even further. NetBIOS discloses
`two different methods of tracking whether a process has gone
`offline. One of those --
`JUDGE WARD: Before you get to NetBIOS on
`this position, let me ask you just about the cited page of
`WINS.
`
`How do you respond to Patent Owner's argument
`that what is being disclosed in WINS merely relates to the
`name registration process and has nothing to do with querying
`as to whether or not a computer is active and online?
`MR. RAMANI: We actually don't -- we don't agree
`with that, Your Honor. The disclosure that I was referring to
`is -- let me just read it: If a name is marked released at a
`WINS server and a new registration arrives using that name,
`but a different address, the WINS server can immediately give
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`that name to the requesting client, because it knows that the
`old client is no longer using that name.
`Now, I understand what Patent Owner is trying to
`say is that, strictly speaking, what is described there is
`registration of a new process, of a third process, if you will.
`But the only way that that third new process could get the
`name is if it is marked released, because if the name were
`already registered in WINS in a fashion to indicate that
`another process was using it, it wouldn't be available. And
`subsequently in the paragraph there's explanation for this.
`JUDGE DESHPANDE: Counsel, each of these
`require the use of a database or a lookup table in order to
`determine whether a process is online, is that correct?
`MR. RAMANI: Yes, Your Honor.
`JUDGE DESHPANDE: My question comes down
`to the Federal Circuit said that the question asked by the query
`is whether the device is connected, not whether it was
`connected or whether it is still registered as being connected
`even if that registration information is no longer accurate.
`That sentence to me suggests that it was connected
`is not good enough, and anything that goes into a database
`must have been in the past, isn't that correct?
`MR. RAMANI: I wouldn't go so far as to say that
`anything that goes into the database must have been in the
`past, Your Honor, because there are a number of different
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`mechanisms by which the prior art actually goes above and
`beyond what is even disclosed in the patent to verify that the
`information that is recorded in the database, not was recorded,
`but is recorded in the database remains accurate.
`And I would be happy to turn to those if that would
`be helpful to Your Honor. Maybe we can jump to slide 34.
`And go ahead and click through, if you would.
`So beyond this notion of just tracking when a
`process departs the network, there is also, and we will get
`back to it, similar timestamping in both pieces of prior art to
`what is discussed in the patent embodiment.
`WINS and NetBIOS both go above and beyond in
`an effort to ensure current accuracy of the information that has
`been recorded in the database. What WINS describes, for
`example, is automatic updating of IP addresses.
`This is found on Exhibit 1003 at page 69. And let
`me go ahead and read the relevant sentence: Furthermore,
`when dynamic addressing through DHCP results in new IP
`addresses for computers that move between subnets, the
`changes are automatically updated in the WINS database.
`So there is an example of automatic subsequent
`updating of information in the database so as to ensure that it
`reflects current online status, if you will.
`NetBIOS has a number of different mechanisms
`that it discloses to ensure that the current -- that the
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`information that is contained in the database is current.
`Among the two that we've highlighted here are an express
`name challenge function and also periodic polling in which the
`server will periodically poll the processes to confirm that they
`are, in fact, on line.
`If we could jump back to slide 29, please. Turning
`back to NetBIOS and how it is that NetBIOS tracks departure
`of a process from the network, there are two different
`mechanisms that NetBIOS expressly discloses.
`One of those is a graceful give-back mechanism,
`which occurs in the course of an orderly shutdown. When a
`process that is connected to the network departs in orderly
`fashion, logs off, NetBIOS tracks that through this graceful
`give-back mechanism and promptly removes the process from
`the database. I don't think there is any dispute about that.
`The second way that NetBIOS tracks online status
`is described clearly here, and it is admittedly intended to
`account for a practical reality at the time in the early '90s.
`The authors understood that many times users
`wouldn't orderly log off but they would instead just leave their
`desktops, just turn it off, power it down. And so to account
`for that, because it occurs frequently, they explained that the
`network service must support that behavior, and it does
`through something called implicit release.
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`
`That's described in detail later in the disclosure,
`we've cited the relevant portions here, and it is throughout
`both our opening and reply petitions.
`Next slide, please. This brings us to timestamping.
`I'm not going to belabor this point. I don't think there is any
`dispute that both WINS and NetBIOS practice timestamping as
`a means to evaluate whether a process is connected.
`If you could click through to the next slide, please.
`We have some citations here. Why don't we go ahead and go
`to, back to slide 34, please.
`So I think I will wrap up the discussion of the
`Federal Circuit's Sipnet decision there by pointing out again
`that, Judge Deshpande, you are correct that the Federal Circuit
`has found that temporally it is not sufficient simply to look at
`what happened at registration. I think everyone can agree on
`that.
`
`What the Federal Circuit has instructed is that you
`have to make efforts to verify or confirm that the query
`process is connected at the time of the query, the second
`process, if you will, is connected at the time of the query.
`And we submit that the prior art in tandem does that and has
`further mechanisms beyond what is disclosed in the patent to
`ensure that.
`So unless the Panel has further questions --
`
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`
`JUDGE DESHPANDE: I do have one follow-up
`question. So just so I understand it, it is your position that the
`timestamping or polling or name challenges, you are
`suggesting that that is going to give us a more accurate
`response, is that what you are saying, and that will still fall
`within the guise of "is connected" because it is more accurate?
`MR. RAMANI: Correct. It is an effort after the
`fact of registration to ensure that the query process or the
`second process is connected at the time of the query.
`Thank you. I will turn over the podium to
`Mr. Jacob.
`MR. JACOB: Good afternoon, Your Honors.
`Sharif Jacob on behalf of Petitioner. And I'm going to address
`the process limitation, which is a limitation that is in dispute
`in all three proceedings.
`We've also prepared slides on, and I am prepared
`to discuss, any of the other disputed issues that remain in this
`proceeding, although likely I won't turn to those unless the
`Panel has questions, or perhaps will turn to them in reply as
`necessary.
`If we could please turn to slide 42 -- I'm sorry, 41.
`Here on slide 41 we put up Patent Owner's proposed
`construction, but I do just want to make Petitioner's position
`clear at the outset.
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`
`Petitioner's position is that construction of the
`term "process" is not required, and that's for two reasons. The
`first reason is that the parties agree that the plain and ordinary
`meaning suffices. That's not in dispute. The parties are not
`contending that there is some special definition, there is some
`disclaimer. The second reason is that we don't think it makes
`a difference.
`Next slide, please. Actually let's go back one
`slide. Let me just talk about this construction. Patent Owner
`has proposed that the term "process" refers to "a running
`instance of a computer program or application."
`Now, I think what is important to note at the outset
`is that in Patent Owner's own construction, computer program
`or application are two separate terms. I think what we will see
`by the end of this argument is that what Patent Owner intends
`to do is conflate the terms computer program or application.
`Patent Owner is going to make a representation that those two
`terms are redundant.
`So literally, if Patent Owner's argument were
`accepted, the construction would actually mean a running
`instance of a computer application or application, and we don't
`think that that is sensible.
`Next slide, please. I think we start out with the
`basic premise that a person of ordinary skill in the art of the
`'469 patent or either of the other two patents, the '704 or '121
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`patent, understood that an operating system is a type of
`computer program.
`I don't think it is disputed that an operating system
`is not hardware. I don't think it is disputed that an operating
`system is software. Indeed, Windows NT and Windows for
`Workgroups are software written in C and C++.
`So just as a basic sort of commonsense and
`preliminary matter, an operating system is an instance of a
`computer program, and our specific argument is that a running
`instance of Windows NT or a running instance of Windows for
`Workgroups satisfies that limitation. That's how WINS
`satisfies Patent Owner's construction of process.
`We have some guidance on the meaning of
`computer program from the Federal Circuit. The Federal
`Circuit in the Ancora decision held that "the ordinary meaning
`of the word 'program' in the computer context encompasses
`both operating systems and the applications that run on them,
`as well as other types of computer programs."
`And I think what is particularly notable about that
`decision is that the Federal Circuit rejected the same type of
`argument that is being made here.
`Patent Owner has pulled some excerpts from the
`specification which suggest that an application can run on top
`of an operating system, and Patent Owner claims that for that
`
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`reason, because of that distinction in the specification, an
`operating system cannot be a computer program.
`Well, that's what the District Court found in
`Ancora Technologies and the Federal Circuit reversed. The
`Federal Circuit found that that argument was erroneous and
`specifically rejected that argument.
`If we can skip ahead two slides to slide number 44.
`So let's say for a moment that we accept Patent Owner's
`proposed but we believe erroneous interpretation of its own
`construction, okay, and the construction requires an
`application, not just a computer program.
`Even in that circumstance NetBIOS plainly
`satisfies the proposed limitation. NetBIOS discloses: "An
`application, representing a resource, registers one or more
`names that it wishes to use."
`As my colleague Mr. Ramani explained,
`registration really isn't in dispute here, that registration takes
`place. And so NetBIOS discloses that it is, indeed, an
`application that registers.
`NetBIOS discloses that NetBIOS applications
`employ NetBIOS mechanisms to locate resources, establish
`connections, send and receive data with an application peer,
`and terminate connections.
`NetBIOS further discloses that a session -- and,
`again, a session in NetBIOS refers to a point-to- point
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`IPR2015-00196 (Patent No. 6,131,121 C1)
`IPR2015-00198 (Patent No. 6,009,469 C1)
`IPR2015-00209 (Patent No. 6,108,704 C1)
`
`communication, and point-to- point communication is, again,
`another limitation that is not disputed in these proceedings -- a
`session is a reliable message exchange, conducted between a
`pair of NetBIOS applications.
`So even under Patent Owner's erroneous but
`restrictive interpretation of its own construction, NetBIOS
`satisfies that construction.
`The next slide, please, two more. And, indeed, the
`Board has previously found that in its Sipnet decision. We're
`looking now at slide 47 and this is a quote from the Sipnet
`decision: "We find nothing, on this record, which limits the
`scope of the claims to application layer software."
`Petitioner agrees with that position. Even under
`Patent Owner's proposed construction, that proposed
`construction does not limit a process limitation to application
`layer software. It extends to computer p
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