Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CONTENTGUARD HOLDINGS, INC.,
`Patent Owner
`
`
`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
`__________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
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`Paper No. 1
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`TABLE OF CONTENTS
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`I. Compliance with Requirements of an Inter Partes Review Petition ............. 1
`A. Certification the ’280 Patent May Be Contested by Petitioner ............. 1
`B. Fee for Inter Partes Review (§ 42.15(a)) .................................................. 1
`C. Mandatory Notices (37 CFR § 42.8(b)) .................................................... 1
`1. Real Party in Interest (§ 42.8(b)(1)) ................................................. 1
`2. Other Proceedings (§ 42.8(b)(2)) ...................................................... 2
`3. Lead and Backup Lead Counsel (§ 42.8(b)(3)) ............................... 2
`4. Service Information (§ 42.8(b)(4)) .................................................... 2
`D. Proof of Service (§§ 42.6(e) and 42.105(a)) .............................................. 2
`II. Identification of Claims Being Challenged (§ 42.104(b)) ............................... 2
`III. Relevant Information Concerning the Contested Patent ............................... 3
`A. Effective Filing Date of the ’280 Patent ................................................... 3
`B. Person of Ordinary Skill in the Art ......................................................... 3
`B. Construction of Terms Used in the Claims ............................................. 5
`IV. Precise Reasons for Relief Requested ............................................................ 24
`A. Claims 1-5, 8, 11-16, 19, 22, 24-28, 31 and 34 Are Unpatentable as
`Obvious Based on U.S. Patent No. 6,389,538 (“Gruse”)(Ex. 1008) ..... 24
`1. Overview of the Gruse Schemes ..................................................... 25
`2. The Board Found Similar Claims Anticipated by the Disclosure
`of the Parent of Gruse ...................................................................... 28
`3. Gruse Discloses Highly Analogous Systems and Processes to the
`Contested Claims .............................................................................. 31
`a) The Preamble of Independent Claims 1, 12 and 24 .................... 31
`b) “… obtaining a set of rights associated with an item, … including
`right is exercised …” ................................................................... 32
`c) “…wherein the meta-right is provided in digital form and is
`enforceable by a repository…” .................................................... 36
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`a meta-right specifying a right that can be created when the meta-
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`meta-right if the rights consumer is entitled to the right specified
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`based on the of rights and used for determining a state of the
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`d) “…determining, by a repository, whether the rights consumer is
`entitled to the right specified by the meta-right…” ..................... 38
`e) “…exercising the meta-right to create the right specified by the
`by the meta-right…” .................................................................... 39
`f) “…wherein the created right includes at least one state variable
`created right.” .............................................................................. 40
`4. Comparison of Gruse to Dependent Claims .................................. 42
`a) Claims 2, 3, 4, 13, 14, 15, 25, 26, 27 ........................................... 42
`b) Claims 5, 16, 28 ........................................................................... 47
`c) Claims 8, 19, 31 ........................................................................... 48
`d) Claims 11, 22, 34 ......................................................................... 48
`5. 1-5, 8, 11-16, 19, 22, 24-28, 31 and 34 Would Have Been Obvious
` ............................................................................................................ 50
`a) Gruse Makes Obvious a Range of Implementations of its Scheme
` ..................................................................................................... 51
`b) Gruse Suggests Use of System Components Having Varying
`Levels of Security ........................................................................ 53
`c) Wiggins (Ex. 1011) Teaches Techniques for Sharing Licenses
`Among a Pool of Networked Computers .................................... 56
`B. No Secondary Considerations Exist ....................................................... 60
`V. Conclusion ......................................................................................................... 60
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`Based on Gruse (Ex. 1008) Alone or In View Wiggins (Ex. 1011)
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`Attachment A. Proof of Service of the Petition
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`Attachment B. List of Evidence and Exhibits Relied Upon in Petition
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`I.
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`
`
`Compliance with Requirements of an Inter Partes Review Petition
`A. Certification the ’280 Patent May Be Contested by Petitioner
`Petitioner certifies that U.S. Patent No. 7,774,280 (Ex. 1001) (the ’280
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`patent) is available for inter partes review. Petitioner also certifies it is not barred
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`or estopped from requesting inter partes review of the claims of the ’280 patent.
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`Neither Petitioner, nor any party in privity with Petitioner, has filed a civil action
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`challenging the validity of any claim of the ’280 patent. The ’280 patent has not
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`been the subject of a prior inter partes review by Petitioner or a privy of Petitioner.
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`
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`Petitioner certifies this petition for inter partes review is timely filed.
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`Specifically, this petition is filed within one year of December 23, 2013, which is
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`the date Apple was served with a complaint for patent infringement of the ’280
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`patent in civil action No. 2:2013cv01112. That action is now pending in the
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`Eastern District of Texas. Because the date of this petition is less than one year
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`from December 23, 2013, this petition complies with 35 U.S.C. § 315(b).
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`B. Fee for Inter Partes Review (§ 42.15(a))
`The Director is authorized to charge the fee specified by 37 CFR § 42.15(a)
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`
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`to Deposit Account No. 50-1597.
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`C. Mandatory Notices (37 CFR § 42.8(b))
`1.
`Real Party in Interest (§ 42.8(b)(1))
`The real party of interest of this petition pursuant to § 42.8(b)(1) is Apple
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`
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`Inc. (“Apple”) located at One Infinite Loop, Cupertino, CA 95014.
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`Other Proceedings (§ 42.8(b)(2))
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`2.
`In addition to the action pending in the Eastern District of Texas, the ’280
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`
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`patent is the subject of three other petitions for inter partes review filed by
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`Petitioner; namely, IPR2015-00351, 353, 354. A related patent (U.S. 8,001,053) is
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`subject to four petitions for inter partes review filed by Petitioner; namely,
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`IPR2015-00355, 356, 357, and 358.
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`3.
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`Lead and Backup Lead Counsel (§ 42.8(b)(3))
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`Lead Counsel
`Jeffrey P. Kushan
`Reg. No. 43,401
`jkushan@sidley.com
`(202) 736-8914
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`Backup Lead Counsel
`Michael Franzinger
`Reg. No. 46,335
`iprnotices@sidley.com
`(202) 736-8583
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`4.
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`Service Information (§ 42.8(b)(4))
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`Service on Petitioner may be made by e-mail (iprnotices@sidley.com), mail
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`or hand delivery to: Sidley Austin LLP, 1501 K Street, N.W., Washington, D.C.
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`20005. The fax number for lead and backup lead counsel is (202) 736-8711.
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`
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`II.
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`D. Proof of Service (§§ 42.6(e) and 42.105(a))
`Proof of service of this petition is provided in Attachment A.
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`Identification of Claims Being Challenged (§ 42.104(b))
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`Claims 1-5, 8, 11-16, 19, 22, 24-28, 31 and 34 of the ’280 patent are
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`unpatentable for at least the reason that they are obvious under 35 U.S.C. § 103
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`based on U.S. Patent No. 6,389,538 to Gruse et al. (“Gruse”) (Ex. 1008), either
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`considered alone, or in view of U.S. Patent No. 5,717,604 to Wiggins (Ex. 1011).
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`Gruse was filed on October 22, 1998, as a C-I-P of U.S. Application No.
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`09/133,519, filed August 13, 1998. See § IV.A.2, below. Gruse is thus prior art
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`under §102(e). Wiggins issued on February 10, 1998, and is prior art under §
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`102(b). A complete list of the evidence relied upon in support of this petition is
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`provided in Attachment B.
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`III. Relevant Information Concerning the Contested Patent
`A. Effective Filing Date of the ’280 Patent
`The ’280 patent issued from U.S. Application No. 10/956,121 (the ’121
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`
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`application), filed October 4, 2004, which is a continuation-in-part of Application
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`No. 10/162,701, filed June 6, 2002. The ’280 patent shares a substantial portion of
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`its disclosure with U.S. Patent No. 8,001,053 (the ’053 patent). The ’280 patent
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`claims priority to several provisional applications, including provisional
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`application No. 60/296,118, filed on June 7, 2001. Solely for the purposes of this
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`proceeding, Petitioner is treating the effective filing date of the ’280 patent claims
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`as being June 7, 2001.
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`B. Person of Ordinary Skill in the Art
`A person of ordinary skill would have had at least a Masters degree in
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`
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`computer science, computer engineering, or an equivalent degree, or a Bachelor’s
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`degree in computer science, computer engineering, or equivalent degree and at
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`least two years of relevant work experience, along with experience gained through
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`coursework, research, or experience in the fields of computer or information
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`security and distributed systems. See Ex. 1003 at ¶ 78.
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`A. General Overview of the ’280 Patent
`The ’280 Patent is generally directed to systems and methods for transferring
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`
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`rights associated with digital content in a distribution chain—i.e., a digital rights
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`management (DRM) scheme. See, e.g., Ex. 1001 at Abstract. The ’280 patent
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`acknowledges that DRM systems were “well known” in the art. Ex. 1001 (’280
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`patent) at 1:24-43, 3:55-61, 5:22-24 (“The interpretation and enforcement of usage
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`rights are well known generally and described in the patents referenced above, for
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`example.”), 5:39-41. The ’280 patent purports to advance the art in the field of
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`DRM schemes by introducing the concepts of “meta-rights” and “state variables.”
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`See Ex. 1001 at 5:43-51 (“The preferred embodiment extends the known concept
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`of usage rights, such as the usage rights and related systems disclosed in [various
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`patents], to incorporate the concept of ‘meta-rights’.”) (emphasis added); 1:18-20
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`(“The present invention generally relates to rights transfer and more particularly to
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`a method, system and device for managing transfer of rights using shared state
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`variables.”) (emphasis added). Each of the contested claims of the ’280 patent
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`recite “meta rights” while some of these claims also specify “sharing” of rights.
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`B. Construction of Terms Used in the Claims
`In this proceeding, claims must be given their broadest reasonable scope in
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`
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`light of the specification. 37 CFR § 42.100(b). If Patent Owner contends a claim
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`should have a meaning other than that conveyed by the ordinary meaning of the
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`terms of the claim, that contention should be disregarded if no amendment to the
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`claims compliant with 35 U.S.C. § 112 is made conforming the claim language to
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`Patent Owner’s proposed meaning. See 77 Fed. Reg. 48764 (August 14, 2012).
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`Cf., In re Youman, 679 F.3d 1335, 1343 (Fed. Cir. 2012).
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`1. General Observations
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`
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`The ’280 patent incorporates by reference several other patents and
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`applications. Ex. 1001 at 1:6-13, 1:37-43, 2:9-10. Material incorporated by
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`reference can be considered as intrinsic evidence in construing the claims with
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`certain limits. See Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1376–77 (Fed.
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`Cir. 2006); Envirotech Corp. v. Al George, Inc., 730 F.2d 753, 760 (Fed. Cir.
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`1984). The ’280 patent uses many of the same terms as the ’053 patent; the terms
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`in these related patents should be construed consistently. In re Katz Interactive
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`Call Processing Patent Litig., 639 F.3d 1303, 1325 (Fed. Cir. 2011) (“we
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`ordinarily interpret claims consistently across patents having the same
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`specification”).
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`2. Meta-right
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`In its broadest reasonable construction, a “meta-right” is an ordered data
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`construct associated with a digital work, which is distinct from “usage rights,”
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`“state variables” or conditions associated with the digital work, and is interpreted
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`and processed by a repository to create, manipulate, modify, dispose of, or
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`otherwise derive usage rights or other meta-rights that are associated with the
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`digital work, but which is not directly a “usage right” with regard to the digital
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`work. In addition, a “meta right” is distinct from “state variables,” “conditions,”
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`and data constructs used by repositories to enforce meta-rights or usage rights (e.g.,
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`encryption keys, digital certificates, digital signatures). Ex. 1003 at ¶¶ 258-264.
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`
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`The ’280 patent explains that a “meta-right” exists as data construct
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`associated with a particular digital work, and is used (enforced) by a repository.
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`Ex. 1001 at 4:24-28; 7:36-38 (“the mechanism for exercising and enforcing a meta-
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`right can be the same as that for a usage right.”); 15:13-14 (“the meta-right is
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`provided in digital form and is enforceable by a repository…”).
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`As the ’280 patent explains, “meta-rights” are “rights that one has to
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`generate, manipulate, modify, dispose of or otherwise derive other rights. Meta-
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`rights can be thought of as usage rights to usage rights (or other meta-rights).” Ex.
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`1001 at 5:47-50. The ’280 patent repeatedly differentiates “meta-rights” from
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`“usage rights,” indicating the former are used to create the latter or other meta-
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`rights.
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`When exercising usage rights, actions to content result. For example
`usage rights can be for viewing, printing, or copying digital content.
`When meta-rights are exercised, new rights are created from the
`meta-rights or existing rights are disposed as the result of exercising
`the meta-rights.
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`Id. at 7:26-31 (emphasis added). Thus, as described in the ’280 patent, a “meta-
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`right” cannot be used directly with respect to a digital work because exercising a
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`meta-right does not result in actions to “content” – a meta-right can only create or
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`revoke another meta-right or a usage right. See, e.g., id. at 5:52-60.
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`
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`The ’280 patent explains that information within a meta-right is used to
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`define a new meta-right or a usage right (the “derived” right) for the associated
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`digital work. See, e.g., Ex. 1001 at 2:52-60 (explaining “meta-rights” are used in
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`schemes “for transferring rights adapted to be associated with items from a rights
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`supplier to a rights consumer”) (emphasis added); see also id. at 10:8-19, Abstract,
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`Claim 1. For example, Figure 9 of the ’280 patent depicts use of a “meta-right” to
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`create “usage rights.”
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`See also Ex. 1001 at 11:52-12:2. In this illustration, the “meta-right” is a data
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`construct (901), which yields “usage rights” data constructs designated 902 and
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`903. Values within the “meta-right” (e.g., “play”) are transferred into the usage
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`rights. See also Ex. 1001 at 2:52-60 (“‘meta-rights’ specifying derivable rights
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`that can be derived from the meta-[rights]”) (emphasis added).
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`
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`The ’280 patent explains that information distinct from a “meta-right” or a
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`“usage right” is used to determine if a “meta-right” can be exercised, and in
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`creating attributes of a derived meta-right or usage right. See, e.g., id. at 7:55-58
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`(“Like usage rights, access and exercise of the granted meta-rights are controlled
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`by any related conditions 306 and state variables 308.”) (emphasis added); id. at
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`8:36-43 (“The current value and history of the state variables together with the
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`conditions controls the permission to exercise given meta-rights for a given
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`authenticated principal.”).
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`3.
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`Usage Rights
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`In its broadest reasonable construction, a “usage right” is a data construct
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`that is persistently attached to protected digital content and that defines the
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`manner(s) in which the content may be used or distributed, as well as any
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`conditions on which use or distribution is premised. A “usage right” is distinct
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`from the other data constructs used in the ’280 patent systems and methods, such
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`as “meta rights,” “conditions,” “state variables” and data constructs which
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`repositories use for regulating access to content in digital works (e.g., encryption
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`keys, digital signatures, digital certificates). Ex. 1003 at ¶¶ 241-253.
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`The ’280 patent describes “usage rights” as follows:
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`Usage rights define one or more manners of use of the associated
`document content and persist with the document content. The usage
`rights can permit various manners of use such as, viewing only, use
`once, distribution, and the like. Usage rights can be contingent on
`payment or other conditions.
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`Ex. 1001 at 2:14-21 (emphasis added). In other words, a “usage right” is a data
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`construct that specifies one or more “manners of use” (actions such as “play” or
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`“print”) that can be taken with the content in a digital work.
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`In explaining what “usage rights” are, the ’280 patent refers to the
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`explanation of this term in U.S. Patent No. 5,634,012 (Ex. 1012, ’012 patent),
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`incorporated by reference into the ’280 patent. Ex. 1001 at 1:40-42, 2:9-16; Ex.
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`1012 at 53:48-52; see also Ex. 1001 at 5:43-47 (“The preferred embodiment [of
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`meta-rights] extends the known concepts of usage rights, such as the usage rights
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`and related systems disclosed in U.S. Pat. Nos. 5,629,980, 5,634,012, 5,638,443,
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`5,715,403 and 5,630,235…”) (emphasis added).1 The ’012 patent, in turn, explains
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`that:
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`The term “usage rights” or “rights” is a term which refers to rights
`granted to a recipient of a digital work. Generally, these rights define
`how a digital work can be used and if it can be further distributed.
`Each usage right may have one or more specified conditions which
`must be satisfied before the right may be exercised.
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`Ex. 1012 at 6:42-48 (emphasis added). Thus, per the ’280 and ’012 patents,
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`“manners of use” are actions performed on a digital work. See Ex. 1001 at 7:26-27
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`(“When exercising usage rights, actions to content result. For example usage rights
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`can be for viewing, printing, or copying digital content.”); see also Ex. 1012 at
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`18:56-63.
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`The ’280 and ’012 patents also each explain that “usage rights” are a
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`“language” of possible “manners of use” of a digital work. In the ’012 patent, this
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`explanation is definitional: “USAGE RIGHTS: A language for defining the
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`manner in which a digital work may be used or distributed, as well as any
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`conditions on which use or distribution is premised.” Ex. 1012 at 53:48-52.
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`1
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`Patent Owner has represented that U.S. Patent Nos. 5,629,980, 5,638,443,
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`5,715,403 and 5,630,235 have the same disclosure as the ’012 patent by
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`designating these applications as “continuations” of each other.
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`The ’280 patent also explains that “usage rights” take the form of a data
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`construct persistently stored or associated with the digital work. Ex. 1001 at 2:14-
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`16 (“Usage rights … persist with the document content”) (emphasis added); see
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`also Ex. 1012 at 9:8 (“Usage rights are attached directly to digital works.”); id. at
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`6:50-55 (“A key feature of the present invention is that usage rights are
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`permanently “attached” to the digital work. Copies made of a digital work will
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`also have usage rights attached. Thus, the usage rights and any associated fees
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`assigned by a creator and subsequent distributor will always remain with a digital
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`work.”) (emphasis added). Consistent with this, the ’280 patent provides examples
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`of implementation of usage rights in the form of a “rights label” or a “license”
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`associated with a copy of the digital work. See Ex. 1001 at 4:3-5 (“Rights label 40
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`is associated with content 42 and specifies usage rights and possibly corresponding
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`conditions that can be selected by a content recipient.”); id. at 4:7-12 (“…licenses
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`embody the actual granting of usage rights to an end user.”) (emphasis added).
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`The ’280 and ’012 patents explain that “usage rights” are enforced by
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`repositories. Ex. 1001 at 4:12-14; Ex. 1012 6:56-57 (“The enforcement elements
`
`of the present invention are embodied in repositories.”). The ’280 and ’012
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`patents also indicate that information within the “usage right” determines which
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`actions a repository may take with that instance of the digital work. Ex. 1001 at
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`4:12-14 (“Client component 60 interprets and enforces the rights that have been
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`specified in license 52.”) (emphasis added); Ex. 1012 at 18:56-60 (“Usage rights
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`statements are interpreted by repositories and are used to determine what
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`transactions can be successfully carried out for a digital work and also to
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`determine parameters for those transactions.”) (emphasis added).
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`
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`By contrast, the ’280 patent explains that other types of data constructs are
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`used by repositories for “enforcing” usage rights and meta-rights. Specifically, the
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`’280 patent differentiates “usage rights” from information and data constructs used
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`by a repository to enforce usage rights or otherwise protect digital works, such as
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`encryption keys, digital certificates and digital signatures. For example, the ’280
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`patent distinguishes the use of “usage rights” in regulating the manners of using
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`digital content (a “DRM” system) from prior art techniques that simply regulate
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`when and how an encrypted digital work may be decrypted to provide access to the
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`protected (encrypted) content. As the ’280 patent explains:
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`A “secure container” (or simply an encrypted document) offers a way
`to keep document contents encrypted until a set of authorization
`conditions are met and some copyright terms are honored (e.g.,
`payment for use). After the various conditions and terms are verified
`with the document provider, the document is released to the user in
`clear form. … Clearly, the secure container approach provides a
`solution to protecting the document during delivery over insecure
`channels, but does not provide any mechanism to prevent legitimate
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`users from obtaining the clear document and then using and
`redistributing it in violation of content owners' intellectual property.
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`Ex. 1001 at 1:45-57 (emphasis added). Thus, according to the ’280 patent, data
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`constructs such as encryption keys and digital signatures, as well as information
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`used to authenticate a user or regulate decryption of encrypted files, cannot be
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`“usage rights” because they are used to enforce usage rights and do not themselves
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`specify manners of use of content in a digital work. See Ex. 1003 at ¶ 252.
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`4. Manner of Use
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`In its broadest reasonable construction, a “manner of use” is a defined way
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`of using or distributing a protected digital work (for example, PLAY, COPY, or
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`PRINT), but that does not unprotect the work, and is as distinct from conditions
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`which must be satisfied before using or distributing the protected digital work is
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`allowed or actions taken to gain access to the unprotected content within the digital
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`work (e.g., decryption, authentication). Ex. 1003 at ¶¶ 254-257.
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`The ’280 patent states that “usage rights define one or more manners of use
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`of the associated document content and persist with the document content. The
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`usage rights can permit various manners of use such as, viewing only, use once,
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`distribution, and the like. Usage rights can be contingent on payment or other
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`conditions.” Ex. 1001 at 2:14-18 (emphasis added). “Manners of use” are defined
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`in a “language” of possible actions that can be taken on the digital work. Ex. 1001
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`at 4:28-29, 2:14-16 (“Usage rights define one or more manners of use of the
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`Petition for Inter Partes Review of U.S. Patent No. 7,774,280
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`associated document content”); see also Ex. 1012 at 18:56-63 (“Usage rights
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`statements are interpreted by repositories and are used to determine what
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`transactions can be successfully carried out for a digital work and also to determine
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`parameters for those transactions. For example, sentences in the language
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`determine whether a given digital work can be copied, when and how it can be
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`used, and what fees (if any) are to be charged for that use.”)(emphasis added).
`
`The ’280 patent contrasts such manners of use with “authorization
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`conditions” that, after being met, permit the end-user to perform the specified
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`“manner of use” of the digital content. Ex. 1001 at FIG. 8 (item 808), 1:45-51; see
`
`also id. at 8:44-9:53 (contrasting authorization with exercise of meta-rights). Thus,
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`in the ’280 patent, authorization regulates access to the protected content in the
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`digital work, while usage rights define particular ways in which the content within
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`the digital work can be used.
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`5.
`
`Enforcing a Usage Right or a Meta-Right
`
`
`
`In its broadest reasonable construction, “enforcing” a “usage right” means
`
`having a repository allow or prohibit a manner of use of content in a digital work
`
`specified in the usage rights associated with the content. Ex. 1003 at ¶¶ 265-267;
`
`Ex. 1001 at 1:24-29, 3:55-56, 4:12-14, 5:18-25. The ’280 patent makes clear that
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`repositories enforce “usage rights.” See id. at 2:12-14 (“A predetermined set of
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`usage transaction steps define a protocol used by the repositories for enforcing
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`usage rights.”); 4:12-14 (“Client component 60 interprets and enforces the rights
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`that have been specified in license 52.”); see also id. at Claim 1 (“determining, by
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`a repository, whether the rights consumer is entitled to the right specified by the
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`meta-right”).
`
`In addition, the ’280 patent explains that information in a “license” – which
`
`includes “usage rights” and “conditions” – will dictate whether the repository will
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`permit or prohibit the use of the protected content that has been requested. As the
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`’280 patent explains:
`
`Client component 60 in client environment 30 will then proceed to
`interpret license 52 and allow use of content 42 based on the usage
`rights and conditions specified in license 52. The interpretation and
`enforcement of usage rights are well known generally and described
`in the patents referenced above, for example. The steps described
`above may take place sequentially or approximately simultaneously or
`in various orders.
`
`Ex. 1001 at 5:18-25.
`
`
`
`As noted above (§ 2), the ’280 patent explains exercising a meta right results
`
`in actions to other meta-rights or usage rights. Thus, enforcing a “meta-right”
`
`means having a repository, based on information within the meta-right and,
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`optionally, specified in one or more “state variables” or conditions, perform actions
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`to create, manipulate, modify or revoke a derived meta-right or a usage right. Ex.
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`1003 at ¶¶ 265-267.
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`6.
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`State Variable
`
`
`
`In its broadest reasonable construction, a “state variable” is a data construct
`
`having a value that represents the status of usage rights, license, or other dynamic
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`conditions. Ex. 1003 at ¶¶ 275-281. The ’280 patent expressly defines “state
`
`variables” as “variables having values that represent status of rights, or other
`
`dynamic conditions. State variables can be tracked, by clearinghouse 90 or another
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`device, based on identification mechanisms in license 52.” Ex. 1001 at 7:67-8:3. A
`
`“variable” is “a named storage location capable of containing data that can be
`
`modified during program execution.” Ex. 1033 (MS Computer Dictionary – 5th
`
`Ed. 2002) at p. 547. Thus, a “state variable” is a data construct containing
`
`information that enables tracking of the state of a “meta-right” or “usage right”
`
`associated with a particular instance of a digital work (i.e., whether it has been
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`exercised and whether its use complies with conditions associated with the meta-
`
`right or usage rights). A “state variable” would not, for example, be a data
`
`construct that simply tracked the number of devices owned by or authorized for use
`
`by a user or generally identify a work being distributed (e.g., a particular movie or
`
`song). In the state variable is not tied to a particular set of usage or meta rights
`
`associated with a particular copy of the digital work, it is incapable of carrying out
`
`its primary function of tracking (e.g., counting) the uses of the rights associated
`
`that particular copy of digital work (e.g., to ensure they are authorized and do not
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`exceed the users' allocated number of uses).
`
`
`
`The ’280 patent also makes clear that a “state variable” is data distinct from
`
`the data defining the “manners of use” or “conditions” in the “meta-right” or
`
`“usage right.” The ’280 patent, for example, shows “state variables” being used to
`
`regulate exercise of a “meta-right” or of a “usage right” rather than to specify a
`
`manner of use of a work. Examples include a variable that counts each time a
`
`particular item of content is printed, or a variable that tracks the expiration of a
`
`thirty-day period for use of a digital work. Id. at 8:4-13; see also id. at 13:54 (state
`
`variable functioning as a counter).
`
`7.
`
`Share a Right, State, or State Variable
`
`In its broadest reasonable construction, to “share” a right, state, or state
`
`variable associated with an instance of a digital work means regulating, for a
`
`defined group of users or devices, the exercise of that “meta right” or “usage
`
`right,” the value of the “state variable” or the status of the “condition.” Ex. 1003 at
`
`¶¶ 282-283; Ex. 1001 at 11:17-43, 12:22-32, 12:57-67, 13:54-64, Fig. 10, Fig. 11,
`
`Fig. 12, Fig. 13. In other words, the concept of “sharing” in the ’280 patent
`
`requires a one-to-many relationship between exercising a right, altering a state
`
`variable or the status of a condition on the one hand, and a user or device on the
`
`other hand.
`
`The ’280 patent provides several illustrations of “sharing” a right, state or
`
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`state variable. For example, the ’280 patent shows a group of authorized users can
`
`share a right to print an e-book a total of 100 times by showing that each of the
`
`users can perform the specified action on the content (i.e., printing a copy of the e-
`
`book). Ex. 1001 at 11:17-21. The ’280 patent also illustrates “sharing” a “state”
`
`by showing a finite number of uses being originally authorized, which is reduced
`
`to a lesser number in a derived right created exercising a meta right. See id.
`
`(original right to print e-book 100 times reduced in derived right to print 75 more
`
`times). The ’280 patent also shows a shared state being tracked by a shared
`
`counter, and in some situations, showing that two devices can dynamically “share
`
`the same state variables” using a value maintained on a server. See, e.g., Ex. 1001
`
`at 12:27-30, 11:12-15, FIG. 10.
`
`8.
`
`Repository
`
`
`
`The broadest re