Case No. IPR2015-00209
`Patent No. 6,108,704
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`Paper No. ___________
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
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`LG ELECTRONICS, INC., TOSHIBA CORP.,
`VIZIO, INC, HULU, LLC,
`CISCO SYSTEMS, INC., AND AVAYA INC.,
`Petitioner
`v.
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`STRAIGHT PATH IP GROUP, INC.
`Patent Owner
`
`________________
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`Case No. IPR2015-002091
`Patent No. 7,108,704
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`REPLY DECLARATION OF BRUCE M. MAGGS, PH.D.
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`1 IPR2015-01398 has been joined with this proceeding.
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`Page 1 of 26
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`LG Electronics Exhibit 1035
`LGE, et al. v. Straight Path IP
`IPR2015-00209
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`Patent No. 6,108,704
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`Paper No. ___________
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`LG ELECTRONICS, INC., TOSHIBA CORP.,
`VIZIO, INC, HULU, LLC,
`CISCO SYSTEMS, INC., AND AVAYA INC.,
`Petitioner
`v.
`
`STRAIGHT PATH IP GROUP, INC.
`Patent Owner
`
`________________
`
`Case No. IPR2015-002091
`Patent No. 7,108,704
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`REPLY DECLARATION OF BRUCE M. MAGGS, PH.D.
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`1 IPR2015-01398 has been joined with this proceeding.
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`I, Bruce M. Maggs, Ph.D., declare:
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`1.
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`I have been retained by counsel for the Petitioner to submit this reply
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`declaration in connection with Petitioner’s Petition for Inter Partes Review of
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`Claims 1, 11–12, 14, 16, 19, 22–23, 27, and 30–31 of U.S. Patent No. 6,108,704
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`(“the ’704 patent”) (Exhibit 1001). I am being compensated for my time at a rate
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`of $700 per hour, plus actual expenses. My compensation is not dependent in any
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`way upon the outcome of this Petition.
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`I. MATERIALS REVIEWED AND CONSIDERED
`2.
`In connection with my work in this matter, I have reviewed the ’704
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`patent (Exhibit 1001), Patent Owner’s Response, and the following other
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`documents:
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`Exhibit
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`Description
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`1033
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`IETF RFC 903, June 1984 (“A Reverse Address Resolution Protocol”)
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`(“RARP”)
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`1034
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`1001
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`1003
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`1004
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`IETF RFC 951, September 1985 (“Bootstrap Protocol”) (“BOOTP”)
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`U.S. Patent No. 6,108,704 (“’704 patent”)
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`Microsoft Windows NT Server Version 3.5 (“WINS”)
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`Technical Standard: Protocols for X/Open PC Interworking: SMB,
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`Version 2 (“NetBIOS”)
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`1020
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`U.S. Patent No. 5,533,110 (“Pinard”)
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`1
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`Exhibit
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`Description
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`2038
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`August 15, 2015 Declaration of Stuart Stubblebine
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`I also have relied on my academic and professional experience in reaching the
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`opinions expressed in this declaration.
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`II. RESPONSES TO DR. STUART STUBBLEBINE’S DESCRIPTION OF
`THE STATE OF THE PRIOR ART OF THE ’704 PATENT.
`3.
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`Dr. Stubblebine contends that “[t]he ’704 Patent solved the problems
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`caused by dynamic allocation of IP addresses to computers continually connecting
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`and disconnecting from the internet . . . .” (Exhibit 2038 ¶ 16.) But dynamic
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`addressing was already in the prior art, even before the publication of NetBIOS
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`and WINS. One prior art example is the Reverse Address Resolution Protocol
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`(RARP), which provided a method for workstations to find their protocol address
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`given only their hardware address. (Exhibit 1033.) RARP specified that a server
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`maintained a database of mappings from hardware address to protocol address, and
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`responded to requests from client hosts to provide such mappings. (Exhibit 1033 at
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`1.) A second prior art example is the Bootstrap Protocol (BOOTP), which—like
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`RARP—allowed a workstation to discover its IP address using its hardware
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`address. (Exhibit 1034.) Also like RARP, BOOTP specified that a server would
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`maintain a database relating IP address to hardware addresses. (Exhibit 1034 at 2.)
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`BOOTP further specified how a server would record such a mapping, and provided
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`2
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`an example database in which a server mapped IP addresses to generic names as
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`well as hardware addresses. (Exhibit 1034 at 11.)
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`III. RESPONSES TO DR. STUBBLEBINE’S NON-OBVIOUSNESS
`ARGUMENTS
`A. Claim Construction
`1.
`Process
`Claims 1, 11, 14, 16, 19, 22, 27 and 31 of the ’704 patent recite the
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`4.
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`element “process.” Dr. Stubblebine has opined that the claim limitation “process”
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`means “a running instance of a computer program or application.” (Exhibit 2038 ¶
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`25.) Dr. Stubblebine contends that I have “agreed to” the construction “in this
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`proceeding.” (Id.) Dr. Stubblebine’s contention is imprecise.
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`5.
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`During International Trade Commission Investigation No. 337-TA-
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`892, I agreed with the joint construction of the parties2 that “process” should be
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`construed as a “running instance of a computer program or application.”
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`2 Straight Path IP Group, Inc. was the Complainant in that Investigation. At the
`time I issued my report, Respondents were AmTran Logistics, Inc.; AmTran
`Technology Co., Ltd.; LG Electronics Inc.; LG Electronics U.S.A., Inc.; LG
`Electronics MobileComm U.S.A, Inc.; Panasonic Corporation; Panasonic
`Corporation of North America; Sony Computer Entertainment, Inc.; Sony
`Computer Entertainment America LLC; Sony Corporation; Sony Corporation of
`America; Sony Electronics Inc.; Sony Mobile Communications AB; Sony Mobile
`Communications (USA) Inc.; Toshiba Corporation; Toshiba America Inc.; Toshiba
`America Information Systems, Inc., and Vizio, Inc. Hulu, a Petitioner in this
`proceeding, was not a party to the ITC investigation.
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`3
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`6.
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`Dr. Stubblebine opines that “[t]he definition of process in the context
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`of the ’704 patent does not include . . . operating systems.” (Exhibit 2038 ¶ 26.) I
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`disagree. As I pointed out in my original declaration, an operating system is a
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`“process” as that term is used in the ’704 patent and under Dr. Stubblebine’s
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`proposed construction. Dr. Stubblebine has defined “process” to include “a
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`running instance of a computer program.” A person of ordinary skill in the art of
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`the ’704 patent understood that an operating system is a type of a computer
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`program.
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`7.
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`Dr. Stubblebine states that the specification of the ’704 patent
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`supports his special definition of “computer program,” which, in his view,
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`excludes operating systems. However, none of the examples he cites to the
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`specification support his definition. The first citation simply sets forth non-
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`limiting examples of computer programs. (Exhibit 2038 ¶ 26 (citing Exhibit 1001
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`at 3:40–55).) The second citation—which provides that “processing unit[s] . . .
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`may be implemented in a personal digital assistant”—is entirely consistent with the
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`plain and ordinary meaning. A person of ordinary skill in the art would have
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`understood that personal digital assistants of the time had resident operating
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`systems.
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`8.
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`Dr. Stubblebine also opines that the ‘704 patent “distinguish[es]
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`between processes and operating systems.” (Exhibit 2038 ¶ 26.) Here too I
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`disagree. While the patent describes programs running on an operating system, it
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`does not follow that an operating system is not a computer program.
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`Connected to the computer network / on-line status
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`2.
`Claims 1, 11, and 22 of the ’704 patent recite either the element
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`9.
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`“connected to the computer network.” or the element “on-line status.” Dr.
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`Stubblebine opines that the terms “connected to the computer network” and “on-
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`line” mean “available for communication.” Dr. Stubblebine has also opined that
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`those same elements do not include “registered with a server.”
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`10. Dr. Stubblebine’s interpretation of the ’704 patent excludes every
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`single examples of the claimed technology described in the patent. Indeed, every
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`the embodiments of the claimed technology in the ’704 patent teaches that the
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`online status of a process or processing unit is determined by consulting the
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`connection server.
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`11.
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`In the ’704 patent, processes register themselves with the server so
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`that the server can facilitate direct communication between processes. It is the
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`registration with the server that establishes a process as being active and on-line:
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`“[A] second user operating the second processing unit 22, upon connection to the
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`Internet 24 through an internet service provider, is processed by the connection
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`server 26 to be established in the database 34 as an active on-line party.” ’704 at
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`5:34–38; ’469 at 7:9–13; ’121 at 7:3–7.
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`12. The ’704 patent goes on to describe a way of keeping the online status
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`information concerning client processes, in the server’s database, “relatively
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`current.” In particular, the server may associate with each entry in its database a
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`timestamp, and may be configured to assume that after a predetermined period of
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`time, the client process listed in that database entry is no longer online: “The
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`connection server 26 may use the time stamps to update the status of each
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`processing unit; for example, after 2 hours, so that the on-line status information
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`stored in the database 34 is relatively current. Other predetermined time periods,
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`such as a default value of 24 hours, may be configured by a systems operator.”
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`’704 at 5:39–44; ’469 at 7:14–19; ’121 at 7:8–13.
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`13.
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`[RESERVED]
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`14. The timestamp method is a crude system for tracking whether a client
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`process is online. If a client process shuts down before two hours (or 24 hours)
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`have expired, it will nevertheless still be considered “active on-line” (even though
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`it in fact is not online) until that time period has expired. Thus, the server will still
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`provide the network protocol address previously associated with that client process
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`to a calling party, even though the client process is no longer, in fact, connected to
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`the computer network.
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`15. The converse is also true. After 2 hours (or 24 hours) the client
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`process may still be connected to the computer network, but the server will still
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`automatically “update its status” to offline, and will not provide its network
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`protocol address to a calling party, even though it in fact remains connected to the
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`computer network.
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`16. The ’704 patent offers one refinement to the timestamp method of
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`tracking online and offline client processes—a message sent by a client process to
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`the server when a client process shuts down in an orderly fashion. According to
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`the ’704 patent, in response to such a message, the server de-registers the client
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`process to indicate that it is no longer connected to the computer network. “The
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`connection server 26 may be instructed to update the user’s information in the
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`database 34 by an off-line message . . . sent automatically from the processing unit
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`of the user prior to being disconnected from the connection server 26.” ’704 at 6:9–
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`14; ’469 at 7:52–57; ’121 at 7:46–51.
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`17. Dr. Stubblebine contends that a user being in the database is
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`synonymous with being ‘registered’ suggesting that de-registration does not occur
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`during an orderly shutdown. (Exhibit 2038 ¶ 33.) He is mistaken. The de-
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`registration need not necessarily take the form of removing the user’s entry from
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`the database; instead it can take the form of “flagging the user as being off-line.”
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`’704 at 6:9–14; ’469 at 7:52–57; ’121 at 7:46–51.
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`18. This refinement still does not change the underlying imperfection of
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`the data in the server database. If a client process shuts down in a not-orderly
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`fashion (e.g., if it “crashes”), no off-line message will be sent. In that scenario, the
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`server will still regard the client process as being connected to the computer
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`network when it is not. Likewise, as discussed earlier, if the client process remains
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`connected to the computer network after the expiration of the two hour (or 24 hour,
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`or other) time period referred to in the patent specifications, the server will regard
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`that client process as not being connected to the computer network even though it
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`is connected.
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`19. The ’704 patent teaches that the server provides, to a first process, the
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`network protocol address of a second process if that second process is registered in
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`(logged into) the server’s database:
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`20.
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`21.
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`22.
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`[RESERVED]
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`[RESERVED]
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`[RESERVED]
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`23. The ’704 patent considers “logged-in” to the server’s database as a
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`proxy (and indeed the only proxy) for a client process being “logged-in” to the
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`computer network. ’704 at 10:22–37; ’469 at 12:13–28; ’121 at 12:6–21. The
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`patent describes no way, other than checking the server’s database, for determining
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`whether a particular client process is “connected to the computer network.” As
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`noted in paragraphs 36, 37, and 45, the ’704 patent suggests that it is enough for
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`the database to provide “relatively current” information about whether client
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`processes are connected to the computer network. ’704 at 5:42; ’469 at 7:17; ’121
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`at 7:11.
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`B. Obviousness
`1. Motivation to Combine WINS, NetBIOS and Pinard
`24. Dr. Stubblebine contends that “a person of ordinary skill in the art
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`would not be motivated to combine NetBIOS with WINS as asserted.” (Exhibit
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`2038 ¶ 53.)
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`25.
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`In my opinion, WINS contains an explicit teaching and suggestion to
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`combine with NetBIOS that would have led one of ordinary skill to modify the
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`prior art reference or to combine prior art reference teachings to arrive at the
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`claimed invention. WINS is part of the Windows NT operating system process
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`that runs on a Window NT computer:
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`When WINS servers are in place on the network,
`NetBIOS over TCP/IP resolves names on a client
`computer by communicating with the WINS server. … In
`Windows NT 3.5, the NETBT.SYS module provides the
`NetBIOS over TCP/IP functionality that supports name
`registration and resolution modes.
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`(Exhibit 1003 at 66.) The NETBT.SYS software module is part of the WINS
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`service which is part of the Windows NT operating system:
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`The Windows Internet Name Service is a Windows NT
`service running on a Windows NT computer. The
`supporting WINS client software is automatically
`installed for Windows NT Server and for Windows NT
`computers when the basic operating system is installed.
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`(Id. at 123.) WINS explains directly that one of ordinary skill in the art may
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`modify the WINS protocol to embody any implementation disclosed in NetBIOS:
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`“WINS protocol is based on and is compatible with the protocols defined for
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`NBNS in RFCs 1001/1002, so it is interoperable with any other implementations of
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`these RFCs.” (Id. at 69.)
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`26. Moreover, querying the on-line status of a process—instead of the
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`online status of a processing unit—is nothing more than the simple substitution of
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`one known element for another to obtain predictable results. Dr. Stubblebine
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`concedes that that WINS discloses “‘registering and querying computer names on
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`an internetwork.’” (Exhibit 2038 ¶ 38 (quoting Exhibit 1003 at 121).) One of
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`ordinary skill in the art would have been motivated to substitute registration of an
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`operating system or computer in WINS with registration of an application, an
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`implementation in NetBIOS. The results of the substitution would have been
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`predictable in light of the explicit disclosure of their functionality.
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`27. Patent Owner argues that “the record includes no reason to substitute
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`the Pinard interface for the WINS interface.” Resp. at 57. To the contrary, the
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`’704 patent recognizes that the user interface solutions therein were already present
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`in the prior art. In fact, the ’704 patent recognizes that the user interface
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`technology utilized therein may use “the graphical user interfaces (GUI) such as
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`WINDOWSTM available form [sic] MICROSOFT Corporation, Redmond, Was.
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`[sic].” (’704 at 4:13–15.) The applicants expressly disclosed that “other graphic
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`user interface environments such as those compatible with the Macintosh, X-
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`Windows or OS/2 operating systems, may be substituted via the Plug and Play
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`protocol, as would be understood by those reasonably skilled in the arts.” (’469 at
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`15:35–39.) And Pinard expressly discloses that it is compatible with “the
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`Windows 3.1 program sold by Microsoft Corporation.” (Exhibit 1020, 4:1–6.)
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`Therefore, modifying the user interface of the WINS/NetBIOS system to include
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`the graphical user interface as disclosed in Pinard would have been a simple
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`substitution of one known element for another known element to obtain a
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`predictable result, making the combination obvious.
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`2.
`Process
`28. As noted above, claims 1, 11, 14, 16, 19, 22, 27 and 31 of the ’704
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`patent recite the element “process.” Dr. Stubblebine contends that neither WINS
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`nor NetBIOS “disclose the ability to register a specific program or application
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`running on a computer.” (Exhibit 2038 ¶¶ 55.) To the contrary, WINS and
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`NetBIOS disclose the “process” limitation under both its plain and ordinary
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`meaning and Dr. Stubblebine’s proposed construction.
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`29. As noted above, Dr. Stubblebine has proposed that the claim
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`limitation “process” means “a running instance of a computer program or
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`application.” (Exhibit 2038 ¶ 25.) The Microsoft Manual in combination with
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`NetBIOS teaches program code (e.g., Windows NT software running on the
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`WINS/NetBIOS server) configured to receive the current network protocol address
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`(e.g., IP address assigned by the DHCP server) of one of the processes (e.g., the
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`Windows NT 3.5 or Windows for Workgroups 3.11 operating system running on
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`the first computer) coupled to the network. An operating system is a computer
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`program, and therefore a “process” for the reasons describe above. See ¶¶ 4–8,
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`supra.
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`30. Moreover, NetBIOS explicitly discloses registration of applications:
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`“An application, representing a resource, registers one or more names that it
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`wishes to use.” (Exhibit 1004 at 378.). Indeed, NetBIOS also discloses a first and
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`second process: “Registration is a bid for use of a name. The bid may be for
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`exclusive (unique) or shared (group) ownership. Each application contends with
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`the other applications in real time.” (Id.) NetBIOS explains that the application
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`may request a unique name. (Id.) “A unique name should be held by only one
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`station at a time.” (Id.) NetBIOS further describes how applications stay
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`registered with the name server:
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`The Name Service primitives are:
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`1) Add Name
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`The requesting application wants exclusive use of the
`name.
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`(Id.) Thus the registered name identifies the NetBIOS application that is using that
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`name.
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`31. NetBIOS expressly discloses a “name deletion function” that allows
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`“applications [to] remove a name:”
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`3)
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`Delete Name
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`The application no longer requires use of the name. It is
`important to note that typical use of NetBIOS is among
`independently-operated personal computers. A common
`way to stop using a PC is to turn it off; in this case, the
`graceful give-back mechanism, provided by the Delete
`Name function, is not used. Because this occurs
`frequently, the network service must support this
`behavior.
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`(Id.)
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`32.
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`In addition, a NetBIOS application uses the name it registers to
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`establish a session with another NetBIOS application that has also registered a
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`name:
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`A session is a reliable message exchange, conducted
`between a pair of NetBIOS applications . . . Multiple
`sessions may exist between any pair of calling and called
`names. The parties to a connection have access to the
`calling and called names.
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`…
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`Session Service primitives are:
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`1) Call
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`Initiate a session with a process that is listening under the
`specified name. The calling entity must indicate both a
`calling name (properly registered to the caller) and a
`called name.
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`2)
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`Listen
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`Accept a session from a caller. The listen primitive may
`be constrained to accept an incoming call from a named
`caller. Alternatively, a call may be accepted from any
`caller.
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`3) Hang Up
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`Gracefully terminate a session. All pending data is
`transferred before the session is terminated.
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`(Id. at 379.) Once an application has a name, a name query may be issued to
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`obtain its IP address. (Id. at 395.)
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`33. This disclosure teaches that a first NetBIOS application connected to
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`the computer network receives a unique, registered name from the server, queries
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`the server to determine whether other NetBIOS applications are connected to the
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`computer network, and uses the received network protocol address of a second
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`NetBIOS application to establish a point-to-point communication link.
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`3.
`Connected to the computer network / on-line status
`34. As noted above, claims 1, 11, and 22 of the ’704 patent recite either
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`the element “connected to the computer network” or the element “on-line status.”
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`Dr. Stubblebine contends that WINS and NetBIOS do not “provide a mechanism
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`for determining whether a computer [or process] is online and available for
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`communication.” (Exhibit 2038, ¶ 40.) To the contrary, WINS and NetBIOS both
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`satisfy the “on-line” and “connected to the network” limitations as those terms
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`have been construed both by the Board and by Dr. Stubblebine.
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`35. The Board has previously construed these claim limitations as “on-
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`line, e.g., registered with a server.” Petitioners named in ITC Investigation No.
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`337-TA-892 proposed the following construction under the Phillips standard:
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`“registered with the server and not subsequently un-registered.” Dr. Stubblebine
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`does not appear to dispute that these limitations are satisfied under the Board’s
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`construction or Petitioner’s proposed construction. Nor could he, as I have already
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`explained above and in my opening declaration.
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`36. WINS and NetBIOS also disclose a mechanism for determining
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`whether a process is “on-line” or “connected to the computer network” pursuant to
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`Dr. Stubblebine’s construction. Dr. Stubblebine opines that the terms “connected
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`to the computer network” and “on-line” mean “available for communication.”
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`WINS and NetBIOS disclose methods for determining whether a process is
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`available for communication in precisely the same manner—and with the same
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`limitations—as the embodiments disclosed in the ’704 patent. The Microsoft
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`Manual teaches that the WINS/NetBIOS server keeps its mapping of names to IP
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`addresses relatively current by tracking which users are still connected to the
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`network. For example, it states that “when dynamic addressing through DHCP
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`results in new IP addresses for computers that move between subnets, the changes
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`are automatically updated in the WINS database.” (Exhibit 1003 at 69.) Similarly,
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`it notes that “[w]henever a computer is shut down properly, it releases its name to
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`the WINS server, which marks the related database entry as released … because it
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`knows that the old client is no longer using that name.” (Id. at 75.) In addition, the
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`Microsoft Manual describes that, if a network device fails to re-register its name
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`within the set renewal time, “the WINS server will mark the name as released and
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`available for use.” (Id.)
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`37. The fact that the Microsoft Manual does not disclose a system
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`featuring perfect knowledge of the status of all individual processes at any given
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`moment does not distinguish it from the ’704 patent. Rather, the ’704 patent
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`discloses no way to determine whether a process “is connected to the computer
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`network” other than by consulting the connection server database. (E.g., Exhibit
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`1001, at 5:57-60 (“The connection server 26 then searches the database 34 to
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`determine whether the callee is logged-in by finding any stored information
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`corresponding to the callee’s E-mail address indicating that the callee is active and
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`on-line.”).) As a result, the system disclosed in the ’704 patent can, at best,
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`determine whether a process “is connected to the network” on a “relatively
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`current” basis. (Exhibit 1001, 5:39-44 (“The connection server 26 may use the
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`timestamps to update the status of each processing unit; for example, after 2 hours,
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`so that the on-line status information stored in the database 34 is relatively current.
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`Other predetermined time periods, such as a default value of 24 hours, may be
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`configured by a systems operator.”).)
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`38. Further, even applying a construction of “connected to the computer
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`network” that does not acknowledge the role of the connection server—e.g.,
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`“available for communication”—the Microsoft Manual renders this limitation
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`obvious because the express purpose of the system it discloses is to provide for
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`“communication.” (E.g., Exhibit 1003 at 67 (“[W]hen NT_PC1 [e.g., a first
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`computer running the Windows NT operating system] wants to communicate with
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`NT_PC2 [e.g., a second computer running the Windows NT operating system], it
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`queries the WINS server for the address of NT_PC2 [e.g., of the first computer
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`running the Windows NT operating system] … [and] gets the appropriate address
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`[e.g., of the first computer running the Windows NT operating system] from the
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`WINS server …..”).).
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`39. Likewise, NetBIOS also discloses a system for determining online
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`status that is identical to the embodiments. “Name query (also known as
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`‘resolution’ or ‘discovery’) is the procedure by which the IP address(es) associated
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`with a NetBIOS name are discovered.” (Exhibit 1004 at 395.) The NetBIOS
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`server keeps its mapping of names to IP addresses relatively current by tracking
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`which users are still connected to the network through two mechanisms: explicit
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`and implicit release. “An explicit name deletion function is specified, so that
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`applications may remove a name.” (Id. at 378.)
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`40. Straight Path erroneously contends that “[s]hutting [a] computer off
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`. . . will not release [a] computer’s name.” Resp. at 50. This ignores NetBIOS’s
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`disclosure of implicit name release, which addresses precisely that scenario.
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`“[T]ypical use of NetBIOS is among independently-operated personal computers.
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`A common way to stop using a PC is to turn it off; in this case, the graceful give-
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`back mechanism, provided by the Delete Name function, is not used.” (Exhibit
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`1004 at 378.) Instead, in this circumstance, NetBIOS implements one type of
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`implicit name release, a “silent release.” “Silent release typically occurs when an
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`end-node fails or is turned off.” (Id. at 395.) Like the “time stamp” disclosed in
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`the specification of the ’704 patent, NetBIOS “Names held by an NBNS are given
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`a lifetime during name registration. The NBNS will consider a name to have been
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`silently released if the end-node fails to send a name refresh message to the NBNS
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`before the lifetime expires. A refresh restarts the lifetime clock.” (Id. at 396.)
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`41. Moreover, the NBNS server may determine whether—even after
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`registration—the second process remains available for communication through
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`another type of implicit name release, “name challenge.” “To detect whether a
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`node has silently released its claim to a name, it is necessary on occasion to
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`challenge that node’s current ownership. If the node defends the name then the
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`node is allowed to continue possession. Otherwise it is assumed that the node has
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`released the name.” (Exhibit 1004 at 396.)
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`42.
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`In addition, NetBIOS discloses another type of implicit name release:
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`periodic polling by the NBNS to verify that the applications remain available for
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`communication. “NBNS is free to poll nodes (by sending NAME QUERY
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`REQUEST or NODE STATUS REQUEST packets) to verify that their name status
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`is the same as that registered in the NBNS.” (Exhibit 1004 at 401.)
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`43. Dr. Stubblebine incorrectly contends that “each WINS server must be
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`configured with at least one other WINS server as its replication partner.” (Exhibit
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`2038 ¶ 48.) A WINS server must be configured in a special manner in order to
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`have a replication partner. (Exhibit 1003 at 132–135.) Moreover, NetBIOS
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`discloses a configuration that does not involve replication partners. (Exhibit 1004
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`at 385–386; 371.) “WINS protocol is based on and is compatible with the
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`protocols defined for NBNS in RFCs 1001/1002, so it is interoperable with any
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`other implementations of these RFCs.” (Exhibit 1003 at 69.) Dr. Stubblebine also
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`contends that “[t]he minimum replication interval, the frequency with which a
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`WINS server can replicate itself to other WINS servers on a network, is 40
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`minutes.” (Exhibit 2038 ¶ 48.) In fact, WINS explicitly discloses that “[y]ou can
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`also replicate the database between the partners immediately, rather than waiting
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`for the start time or replication interval specific in the Preference dialog box . . . .”
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`(Exhibit 1003 at 136.)
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`44. Regardless, configuring the WINS system to include replication with
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`a minimum replication interval would not change my opinion. As a preliminary
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`matter, the registration server I have described above and in my original
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`declaration is the WINS server not a replication partner. (Exhibit 1003 at 67 (“All
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`computers register themselves with the WINS server, which is a NetBIOS Name
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`Server (NBNS) . . . responsible for knowing computer names and addresses and for
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`ensuring no duplicate names exist on the network.”). And even the database
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`maintained on a replication partner would remain “relatively current” as that term
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`is used in the ’704 patent.
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`4.
`“Is” and “status”
`45. Claims 1, 11, 16, 22, and 27 of the ’704 patent recite either the word
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`“is” or “status.” Patent Owner argues that the words “is” and “status” “require a
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`determination of whether a process (a computer program) is connected to the
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`computer network at the time of the query.” When the ’704 patent speaks about
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`“on-line” status or the status of being “connected to the computer network,” it is
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`not speaking about actual, current status, but rather whatever the status of a process
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`(incorrect and out of date as it might be, though it is intended to be “relatively
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`current,” see ’704 at 5:52; ’469 at 7:17; ’121 at 7:11), that is reflected in the
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`server’s database. See Part III.A.2, supra. Regardless, WINS and NetBIOS satisfy
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`the “is” and “status” limitations under both their plain and ordinary meaning and
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`Patent Owner’s proposed construction. Both WINS and NetBIOS determine the
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`online status of a process by checking the registration database at the time the
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`query is sent to the WINS and NBNS servers. See, e.g., Exhibit 1003 at 67
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`(“[W]hen NT_PC1 wants to communicate with NT_PC2, it queries the WINS
`
`server for the address of NT_PC2. When NT_PC1 gets the appropriate address
`
`from the WINS server, it goes directly to NT_PC2 without broadcasting.”); id. at
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`73 (“If the name is found in the WINS database, the client can establish a session
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`based on the address mapping received from WINS.”); Exhibit 1004 at 406
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`(“Name query transactions are initiated by end-nodes to obtain the IP address(es)
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`and other attributes associated with a NetBIOS name.”); id. at 407 (“An NBNS
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`answers queries from a P node with a list of IP address and other information for
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`each owner
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