APPLE INC.
`Petitioner,
`
`v.
`
`CONTENTGUARD HOLDINGS, INC.,
`Patent Owner
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`
`
`
`
`
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`
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`Paper No. 10
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`Patent No. 7,774,280
`Issued: August 10, 2010
`Filed: October 4, 2004
`Inventors: Nguyen, et al.
`Title: System and Method for Managing Transfer of Rights Using Shared State
`Variables
`
`Inter Partes Review No. IPR2015-00352
`__________________________________________________________________
`
`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. 42.71
`
`
`Petitioner,
`
`v.
`
`CONTENTGUARD HOLDINGS, INC.,
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`Paper No. 10
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`Patent No. 7,774,280
`Issued: August 10, 2010
`Filed: October 4, 2004
`Inventors: Nguyen, et al.
`Title: System and Method for Managing Transfer of Rights Using Shared State
`Variables
`
`Inter Partes Review No. IPR2015-00352
`__________________________________________________________________
`
`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. 42.71
`
`
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`I.
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`
`INTRODUCTION
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`Apple Inc. (“Petitioner”) requests rehearing of the Board’s decision denying
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`institution of IPR2015-00352 concerning claim 1 of U.S. 7,774,280 (“the ’280
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`patent”) (Ex. 1001). Rehearing is warranted because the Board misapprehended
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`and/or overlooked arguments and evidence clearly presented in the Petition
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`establishing that it would have been obvious to modify the Gruse DRM system to
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`employ an admittedly old and well-known type of “trusted system”: a “repository”
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`having behavioral integrity as described in prior art patents to Stefik et al. See Pet.
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`at 53-56. The Board appeared to have overlooked and/or misapprehended this
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`argument and evidence, as neither is referenced or discussed anywhere in the
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`Decision. Because the “repository” limitation was the sole basis identified by the
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`Board as to why it did not institute trial on the grounds based on Gruse, rehearing
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`is warranted, as is withdrawal and institution of trial on these grounds.
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`II. RELIEF REQUESTED
`Apple requests the Board to withdraw the Decision and institute inter partes
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`review of claim 1 of the ’280 patent as obvious under 35 U.S.C. §103(a) over
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`Gruse and the knowledge of one skilled in the art. This claim is the only one still
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`being asserted against Apple in the district court litigation. The grounds presented
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`in the Petition based on Gruse in view of Wiggins do not concern this claim.
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`Petitioner’s decision to not seek review of these grounds and/or other claims does
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`not imply a belief that the denial of those grounds was proper.
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`III. STANDARD OF REVIEW
` “When rehearing a decision on petition, a panel will review the decision for
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`an abuse of discretion.” (emphasis added) 37 C.F.R. § 42.71(c). An abuse of
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`discretion exists “when [the] decision is based on clearly erroneous findings of
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`fact, is based on erroneous interpretations of the law, or is clearly unreasonable,
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`arbitrary or fanciful.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1460 (Fed.
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`Cir. 1998) (en banc); see Advanced Software Design Corp. v. Fiserv, Inc., 641
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`F.3d 1368, 1380 (Fed. Cir. 2011).
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`IV. MATTERS MISAPPREHENDED OR OVERLOOKED
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`In accordance with 37 C.F.R. §42.71(d), Apple identifies the matters which
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`it believes the Board misapprehended and/or overlooked in its Decision and the
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`place where each matter was previously addressed.
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`A. The Board Overlooked the Explanations in the Petition that Using
`a Stefik Trusted “Repository” as the Clearinghouse in the Gruse
`Scheme Would Have Been Obvious
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`The Petition explained that Gruse (Ex. 1008) describes a DRM rights
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`scheme that is designed to facilitate the distribution of usage rights to consumers
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`through intermediaries. Pet. at 24. It also explained the Gruse scheme employs
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`“meta rights” and “state variables” to create “usage rights” to enable consumers to
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`use particular items of digital content, consistent with prior determinations by the
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`Board. The Petition also explained that Gruse teaches use of a “Clearinghouse”
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`device as the intermediary that plays the same role in the Gruse scheme as the
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`“repository” plays in the contested claims. Pet. at 36-38. The Petition also
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`explained many of these facts had been established, noting the Board had found (in
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`a decision not appealed by Patent Owner) the scheme described in Gruse to
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`anticipate claims to a “meta-rights” distribution scheme in a related application.
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`Pet. at 24, 28-29.
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`
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`Importantly, the Petition explained that Gruse expressly teaches that “trusted
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`systems” were a well-known solution to the challenge of “preventing unauthorized
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`use and distribution” of protected content. Pet. at 55. The Petition further
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`explained that Gruse expressly teaches that its disclosed DRM system can be
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`deployed using a “trusted system” model and was specifically designed to include
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`flexibility regarding the security technologies that are used within its components.
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`See Pet. at 55 (“Moreover, Gruse itself points out that its system can be
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`implemented in one of two general models; trusted or not trusted.”)[citing Ex.
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`1008 at 10:17-19]; id. at 55-56 (“And Gruse indicates that its system is designed
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`specifically to include flexibility regarding future-arising security technologies that
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`may be incorporated into it.”). The Petition also identified several examples in
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`Gruse where Clearinghouses use “digital certificates” to maintain the overall
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`integrity of the Gruse DRM scheme. See Pet. at 37 (“[A] Clearinghouse
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`(‘repository’) will provide to the Store the authorization to sell or distribute digital
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`content in the form of a digital certificate along with encryption keys needed to
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`extract information from secure containers.”); id. (“the Clearinghouse sends a
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`digital certificate providing authorization to a Store ‘in a secure fashion’”); see
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`also id. at 34.
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`The Petition then explained that the ’280 patent itself admits that use of
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`“trusted systems”/“repositories” in DRM schemes was old and known in the prior
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`art. See Pet. at 54 (citing Ex. 1001 at 1:57-2:8; see also id. at 1:25-2:62; Ex. 1003
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`at ¶¶ 85-88). In particular, the Petition explained that the ’280 patent itself states
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`that “repositories” having “physical, communications and behavioral integrity”
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`were well known and had been used in DRM schemes, identifying a passage in the
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`’280 patent where it admits such “repository” schemes had been so used in U.S.
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`Patent No. 5,634,012 (“the Stefik ’012 patent”) (Ex. 1012). Pet. at 18, 19, 54, 55.
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`As the Petition stated, “these prior art schemes use the same repositories that are
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`used in the ’280 patent claims.” See Pet. at 54 (citing Ex. 1001 at 2:9-15; Ex. 1003
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`at ¶¶ 83-84, 90). Indeed, Patent Owner relied on this prior art Stefik repository
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`scheme as the basis for its position on the proper construction of “repositories” and
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`“behavioral integrity.” Prelim. Resp. at 15-16 (referring to the Stefik ’012 patent).
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`The Petition then expressly stated that Gruse could be read as not disclosing
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`certain aspects of the ’280 Patent claims (Pet. at 50-51) including “(iii) system
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`components with varying security capabilities, including those capable of
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`functioning as ‘trusted systems.’” Id. at 51. The Petition thus expressly stated that
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`the Gruse “trusted system” Clearinghouse could be read as not having all of the
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`features of the “repository” element of the claims. Pet. at 53-56.
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`The Petition then explained, with extensive citations directly to Gruse and
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`the ’280 patent (which admits that “repositories” were known and useful for
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`securely distributing digital content and rights), why a person of ordinary skill
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`would have found it obvious to adapt the Gruse scheme to use a Stefik repository
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`having physical, communications and behavioral integrity as the Gruse
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`Clearinghouse. Id. This explanation is set out in detail in the Petition at pages 53-
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`56, and concludes with the following summary:
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`Consequently, the person of ordinary skill would have considered
`implementing the Gruse scheme using devices or system components
`with greater amounts of security capabilities to have been an obvious
`implementation choice based on the guidance within Gruse and the
`knowledge which the ’280 patent admits was known in the prior art.
`Ex. 1003 at ¶ 509; see also id. at ¶¶ 501-508; Ex. 1001 at 1:57-2:8. In
`particular, such a person would have recognized it would have been
`obvious to implement the Gruse scheme using “trusted system”
`components which maintain physical, communications and
`behavioral integrity. Ex. 1003 at ¶¶ 501-509; Ex. 1008 at 10:17-19.
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`Pet. at 56.
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`In other words, the Petition specifically explained why a person of skill
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`would have found it obvious to modify the Gruse Clearinghouse devices to employ
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`the admitted prior art Stefik repositories. See Pet. at 54-55. Those admittedly
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`known Stefik repositories have every feature and capability of the claimed
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`repositories—including, critically that digital certificates are used when installing
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`software in these repositories—and therefore the repositories necessarily possess
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`behavioral integrity. This is because they are the same repositories.
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`
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`The Petition further provided evidence in the form of expert testimony from
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`Dr. Atul Prakash to support its explanation in the Petition why a person of ordinary
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`skill would have considered it obvious to modify the Gruse scheme by configuring
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`its devices to have additional, known security features, such as the admittedly old
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`repositories described in the prior art Stefik ’012 patent. This testimony, found at
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`¶¶ 504-509 of Ex. 1003, consists of approximately two pages of 14 point, double
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`spaced text. There, Dr. Prakash explained why a person of ordinary skill would
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`have found incorporating admittedly old and well known security techniques into
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`the Gruse devices to have been obvious. He explains that, based on that person’s
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`skills and training, and in view of the specific guidance in Gruse indicating the
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`Gruse DRM scheme (including its devices) is highly customizable and envisioned
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`modifying or replacing these modules as needed, the person would find it obvious
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`to alter the devices used in the Gruse scheme to have varying levels of flexibility
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`and security. See Ex. 1003 at ¶¶ 504-509; see also Pet. at 53-56 (discussing, inter
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`alia, ¶¶ 504-509 of Ex. 1003).
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`
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`Despite these explanations in the Petition, supported by citations to specific
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`portions of Gruse, the ’280 patent and Dr. Prakash’s declaration, the Board held:
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`Apple does not direct us to, nor can we find, a disclosure in Gruse that
`contemplates using the digital certificates assigned by clearinghouse
`105 in the same manner required to exhibit “behavioral integrity”—
`namely, to authenticate the source of the software being installed in
`the clearinghouse, itself. In other words, Gruse is silent as to installing
`software in clearinghouse 105, much less authenticating the source of
`software using a digital certificate. Instead, Gruse discloses that end-
`user device 109 uses the digital certificate revocation list maintained
`by clearinghouse 105 to ensure that electronic digital content stores
`103 are valid distributors of content 113 prior to purchasing content
`therefrom. See, e.g., 1008, 45:21–45 (disclosing that clearinghouse
`105 maintains the digital certificate revocation list that end-user
`device 109 checks to ensure that the electronic digital content store it
`is purchasing content 113 from is, in fact, a valid distributer of the
`content).
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`Dec. at 16 (emphasis added). Likewise, the Board held:
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`In summary, we are not persuaded that Apple has presented sufficient
`evidence to support a finding that Gruse’s clearinghouse 105
`constitutes the claimed “repository” that exhibits “behavioral integrity”
`because the digital certificates assigned by the clearinghouse do not
`function to ensure that software is authentic prior to being installed in
`the clearinghouse, itself.
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`Dec. at 17 (emphasis added).
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`The Board, thus, did not appreciate that the Petition had contended it would
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`have been obvious to modify the scheme described in Gruse to use the Stefik
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`repositories in the place of the Gruse Clearinghouse, and by doing so, the modified
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`Gruse scheme would use Clearinghouse devices that possess behavioral integrity
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`(i.e., because the Clearinghouse device would be a Stefik repository which uses
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`digital certificates when installing software and therefore possess behavioral
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`integrity). See, e.g., Pet. at 53-54 (“Gruse provides extensive guidance as to how
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`elements and functions of its scheme can be varied during implementation. Ex.
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`1003 at ¶¶ 501-503. A person of ordinary skill would have been able, based on
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`this guidance and their own skills and experience, to implement a wide variety of
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`implementations of the Gruse systems and processes using only routine effort.
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`Id.”). The Petition supported this ground with both detailed reasoning and
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`evidence—including specific citations to Gruse and identification of admitted
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`facts (i.e., that both repositories and the technique of providing “behavioral
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`integrity” were old and conventional, and had been used in DRM schemes). The
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`analysis also was supported by focused, competent and credible expert testimony
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`(i.e., 2 pages of the Prakash report). The Decision, notably, makes no reference to
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`pages 53-56 of the Petition, or the analysis and reasoning presented therein. Thus,
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`contrary to the Board’s conclusion, the Petition did not simply contend that Gruse
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`in its unmodified form met the “behavioral integrity” feature of “repositories.” See
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`Dec. at 16-17.
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`
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`Moreover, in its preliminary response, the Patent Owner presented nothing
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`to suggest the arguments or evidence presented by Petitioner were in any way
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`inaccurate. Instead, Patent Owner presented a series of baseless or irrelevant
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`assertions about the Petition and evidence presented. For example, Patent Owner
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`argued “Apple had not identified any passage of Gruse that even remotely suggests
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`providing the security technique of repository behavioral integrity disclosed[1] and
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`claimed in the ’280 patent.” See Prelim. Resp. at 54-55. This point could not
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`legitimately support the Board’s Decision to not institute as it presumes that
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`
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`1 By suggesting that “behavioral integrity” was originally “disclosed” in the ’280
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`patent, Patent Owner’s misstatement may have led the Board to believe this was a
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`new feature of repositories being used in the ’280 Patent scheme. Prelim. Resp. at
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`54-55. It plainly is not – the ’280 Patent admits repositories (including those with
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`behavioral integrity) were old and known for years before its filing date. In fact,
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`the word “behavioral” appears nowhere in the ’280 disclosure, which instead relies
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`on the prior art ’012 Stefik Patent as teaching the concept of “repositories.” Ex.
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`1001 at 2:9-21.
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`Apple’s position was exclusively that Gruse anticipated the claims. The Petition,
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`however, presented grounds based on obviousness, and it is thus legally irrelevant
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`that Gruse alone does not expressly teach the “behavioral integrity” feature.
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`
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`Patent Owner also sought to defend the non-obviousness of its claims by
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`relying on the legally rejected premise that the prior art must provide a specific
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`“motivation” to modify the prior art teachings to arrive at the claimed embodiment.
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`See Prelim. Resp. at 55 (“The Petition has provided no clearly articulated rationale
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`as to why a person of ordinary skill in the art would have been motivated to
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`modify Gruse to provide a clearinghouse possessing behavioral integrity.”)
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`(emphasis added). This, likewise, could not have justified the Board’s Decision as
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`it employs a legal standard for proving obviousness that has been expressly
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`rejected by the Supreme Court in KSR Int. Co. v. Teleflex Inc., 550 U.S. 398
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`(2007). As that Court held, where there are a finite number of known and accepted
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`techniques in the prior art that address identified needs in the field (e.g., use of
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`trusted repositories in secure DRM schemes taught in Gruse), use of those known
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`solutions is usually obvious. Id., 550 U.S. at 421 (“a person of ordinary skill in the
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`art has good reason to pursue the known options within his or her technical grasp”)
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`(emphasis added).
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`In other words, none of Patent Owner’s assertions, if they were considered
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`by the Board, would have been factually or legally sufficient to justify a decision to
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`not institute trial on the basis of the grounds and evidence presented in and with the
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`Petition. Arguments that dispute admitted facts, mischaracterize the record, and
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`rest on legally rejected theories of non-obviousness cannot be given any weight in
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`a determination whether to institute trial or not. Doing so would be the epitome of
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`an abuse of discretion. Advanced Software Design Corp., 641 F.3d at 1380.
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`
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`The Petition thus satisfied the requirements of 35 U.S.C. § 311 and 37 CFR
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`§ 42.108 that there was a reasonable likelihood that the Petitioner would prevail
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`with respect to at least one of the claims challenged in the petition, and trial should
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`have been instituted on the basis of the grounds presented.
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`B.
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`The Board Misapprehended the Expert Testimony and Its
`Relevance to the Grounds Presented
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`As noted in § A, the Board overlooked the arguments and evidence in the
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`Petition explaining why a person of ordinary skill would have found it obvious to
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`modify the Gruse Clearinghouse to use the known Stefik repositories, which
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`necessarily possess behavioral integrity. The Board compounded its error by
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`placing improper reliance on Patent Owner’s contentions about the relevance and
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`probity of the opinions of Dr. Prakash. Here, the Board appeared to improperly
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`adopt Patent Owner’s misleading assertion that Dr. Prakash’s opinions rest on an
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`“incorrect” interpretation of “behavioral integrity” and, thus, his testimony about
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`the teachings of Gruse and his descriptions of known security techniques should,
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`for some reason, not be entitled to any weight. Dec. at 16 (“We also agree with
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`ContentGuard that, when attesting to the teachings of Gruse, Dr. Prakash applies a
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`new definition of ‘behavioral integrity’ that is different from the Board’s previous
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`definition, the definition adopted by the district court, and the definition adopted
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`for purposes of this proceeding.”).2
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`The construction of the term “repository”—which was adopted for the first
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`time in the ’280 patent with the Board’s Decision—is entirely irrelevant to the
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`relevance and probity of Dr. Prakash’s testimony. The portions of Dr. Prakash’s
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`2 The Board, at Patent Owner’s urging, criticized Dr. Prakash for supposedly
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`“deviating” from definitions of “behavioral integrity” adopted by it and the district
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`court in related litigation. Dec. at 17 (“Dr. Prakash does not explain why he
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`deviated from the Board’s previous definition of ‘behavioral integrity’ (see, e.g.,
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`Ex. 1041, 13), which eventually was adopted by the district court (Ex. 2001, 19–
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`21) and adopted for purposes of this proceeding (see supra Section A).”). The
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`Board did not appear to appreciate that the ’280 patent has never been involved in
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`any IPR proceeding, or that it only incorporates by reference the Stefik patent
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`disclosures. It also did not appear to appreciate that at the time Dr. Prakash
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`authored his declaration, there had been no decision by the Board or the district
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`court which adopted the Stefik repository definition in the later-filed ‘280 patent.
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`testimony at issue (i.e., ¶¶ 504-509) are simply describing what is being taught in
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`Gruse or is known in the art, how the skilled person would interpret those
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`teachings and known techniques, and whether that person would have found it
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`obvious to adapt the Gruse scheme to use known, alternative trusted systems. In
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`these paragraphs, Dr. Prakash explained why modifications to the Gruse scheme to
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`incorporate well-known security techniques would have been obvious based on the
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`guidance within Gruse itself. None of Dr. Prakash’s testimony turns on the later-
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`adopted constructions of the Board or the district court of “behavioral integrity.”
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`Notably, Patent Owner levies no criticism of Dr. Prakash’s actual description of
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`Gruse’s teachings, the knowledge in the prior art or the views and expectations of
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`the skilled person in the art. See Prelim. Resp. at 54-55. Patent Owner logically
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`could not—the ’280 patent admits this particular technique was publicly known at
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`least by 1994. It was thus clear legal error for the Board to not give this probative
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`expert testimony about what Gruse teaches and suggests any weight based on its
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`supposed inconsistency between Dr. Prakash’s understanding of “behavioral
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`integrity” and a construction the Board later adopted.
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`C. The Petition Established More than a Reasonable Likelihood the
`Contested Claims Were Unpatentable
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`As explained in the Petition, the Board, in a final decision not appealed by
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`Patent Owner, found highly similar methods for distributing usage rights using
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`“meta-rights,” “repositories” and “state variables” claimed in the parent application
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`of the ’280 Patent (“the ’701 application”) to have been anticipated by the same
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`Clearinghouse-based distribution system that is described in Gruse. Specifically,
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`the Board affirmed a final rejection in the parent application of the ’280 patent,
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`finding these highly similar claims to be anticipated by Downs (U.S. Patent No.
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`6,226,618) (Ex. 1014). Pet. at 24, 28-29; Ex. 1047. Gruse incorporates by
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`reference the entirety of the Downs disclosure. Pet. at 28.
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`The Petition explained the prior claims at issue in the ’701 application (the
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`parent to the ’280 patent) appeal recited use of a “repository” to both enforce a
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`“meta-right” and “determine . . . whether the rights consumer is entitled” to a
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`particular right. See Pet. 28-30. The Board found Downs (and thus Gruse) to
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`describe a meta-rights scheme in which devices (including “repositories”) are used
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`in conjunction with “state variables” to “derive usage rights” from “meta-rights.”
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`See id.; Ex. 1047 at 5-7. On this basis, the Board held the analogous claims in the
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`’701 application unpatentable as anticipated by Downs. See Pet. 28-29; Ex. 1047
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`at 8. Patent Owner never appealed or otherwise contested this adverse judgment.
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`
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`The Board must give its prior determinations on the same patent disclosure,
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`the same prior art teachings and same claim elements controlling weight. See
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`Catawba Cnty., NC v. EPA, 571 F.3d 20, 51 (D.C. Cir. 2009) (finding that the
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`“hallmark of arbitrary agency action” is “inconsistent treatment” of similar entities,
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`including disparate nonattainment decisions). The issue presented by the Petition,
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`thus, is narrow: whether one of ordinary skill would have found it obvious to adapt
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`the Gruse (Downs) scheme to use the known “trusted repositories” taught in Stefik
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`as being used in analogous DRM schemes which Patent Owner has admitted in the
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`’280 Patent itself are known in the prior art. The explanations and evidence
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`presented with the Petition established that is undisputedly the case. For that
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`reason, the Petition presented more than a reasonable likelihood that claim 1of the
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`’280 Patent was unpatentable as obvious over Gruse in view of the admitted
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`knowledge in the prior art.
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`V. CONCLUSION
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`Because the Board overlooked or failed to appreciate the arguments and
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`evidence presented in the Petition, and employed a legally impermissible standard
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`for evaluating expert testimony in support of the Petition, the Decision denying
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`institution of trial represents an abuse of discretion. Petitioner thus respectfully
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`requests that the Decision be set aside, and trial instituted on claim 1 of the ’280
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`Patent.
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`Dated: July 24, 2015
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`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Registration No. 43,401
`Sidley Austin LLP
`1501 K Street NW
`Washington, DC 20005
`Attorney for Petitioner
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`IPR2015-00352 – Petitioner’s Request for Rehearing
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 24th day of July, 2015, a copy of the foregoing
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`has been served in its entirety by E-mail on the following addresses for Patent
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`Owner:
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`Timothy P. Maloney
`Email: tpmalo@fitcheven.com
`
`Nicholas T. Peters
`Email: ntpete@fitcheven.com
`
`Robert A. Cote
`Email: rcote@mckoolsmith.com
`
`
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`Attorney for Petitioner
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`1
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