UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`PARALLEL NETWORKS LICENSING, LLC,
`Patent Owner
`________________________
`
`Case IPR2015-00483
`Patent No. 5,894,554
`
`Case IPR2015-00485
`Patent No. 6,415,335
`________________________
`
`
`Declaration of Keith Lowery
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`1. My name is Keith Lowery. I am a citizen of the United States and
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`reside Garland, Texas. The following declaration is based on my personal
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`knowledge and is true and correct to the best of my knowledge.
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`2.
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`I am an inventor of the inventions claimed in U.S. Patent Nos.
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`5,894,554 (the “‘554 patent”) and 6,415,335 (the “‘335 patent”). My co-inventors
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`are Ronald Howell and Andrew Levine. The inventions claimed in the Patents-in-
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`Suit relate to the management of dynamic Web page generation requests.
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`3.
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`I conceived of many of the inventions described in the claims of the
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`‘554 and ‘335 patent at least as early as August 1995, and I (along with my co-
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`inventors) reduced to practice all of the claims of the ‘554 and ‘335 patent at least
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`as early as November 1995.
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`4.
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`The idea that sparked the inventions occurred during my trip to
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`Australia where I was speaking at a technology conference. In particular, the
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`genesis of the idea resulted from hearing about Netscape’s successful IPO on
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`August 9, 1995. On the plane ride home, I read an article by George Gilder as part
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`of his “telecosm” series that further sparked my idea, and when I returned home I
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`read the HTTP specification and began writing a Web server.
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`5.
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`As I coded the Web server, I recognized the possibility of a scaling
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`issue in the situation in which dynamic requests grew at a significant rate and the
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`need for some form of dynamically driven selection model.
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`6.
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`Shortly thereafter, I began the process of forming a business around
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`my idea. This business ultimately became infoSpinner.
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`7.
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`Originally, I conducted infoSpinner work out of my home using my
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`own equipment and time. At least initially, I was also working as an engineer for
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`Gupta Technologies. My work at Gupta Technologies focused on front-end
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`Windows based application software for query processing and reporting against
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`SQL databases. Gupta was not involved in anything Internet-related at that time.
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`8.
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`The earliest document supporting my conception and reduction to
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`practice of inventions claimed in my patents prior to April 1996 is likely an e-mail,
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`dated September 1, 1995, sent by me to both the Vice President Engineering and
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`CEO of Gupta Corporation. See Ex. 2017.
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`9.
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`The e-mail, reproduced in its entirety below, outlines a solution I
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`proposed for integrating relational databases with dynamically created web pages.
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`Ex. 2017. As can be seen from this e-mail, at least as early as September 1, 1995, I
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`had conceived of an idea for a system that could provide “dynamic access to live
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`relational data” via a web server.
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`10.
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`In response to my e-mail, Umang Gupta told me that “there was no
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`future in the World Wide Web” and decided not to pursue a web implementation.
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`This prompted me to found my own company.
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`11.
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`I named my new company infoSpinner. After starting infoSpinner, I
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`continued working out of my home, working on developing my idea and doing
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`modelling using the equipment that I could afford. I built software components that
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`communicated with each other on a single machine to model the partitioned
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`architecture that I felt would be useful in a full implementation. I also wrote code
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`for an HTML extension template based model for dynamic content.
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`12.
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`InfoSpinner was officially incorporated in November 1995. See Ex.
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`2021.
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`13. The next document in the timeline is Ex. 2018. On or about
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`September 15, 1995, (Ex. 2066 at 172), I sent this document, a draft of a
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`conceptual description of a product related to my patents, to Bob West—my uncle.
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`I described the product in this way:
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`Ex. 2018. This document is conceptually descriptive of the product and shows that
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`my company infoSpinner was in September 1995 actively working on a product
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`“to provide web browser accessibility to live information.” Ex. 2018 at 5. The
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`product is described as using “HTML template technology to produce web pages
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`dynamically.” Id. The problems the product was trying to solve are described by
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`me below:
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`Id.
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`
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`14. The document further
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`includes a high-level depiction of
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`the
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`architecture of the product that includes a (NetScape) web server sitting in between
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`the client (the world-wide web) and a downstream server for the generation of
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`dynamic content. Id. That diagram is reproduced below:
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`15.
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`I describe the operation of part of the proposed product to include the
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`use of extensions to Web server to “trap the appropriate moment in the server’s
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`functionality to generate the web page being requested” and “identify the
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`appropriate template and data source and produce the page ‘on-the-fly’ during the
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`actual request.” The full text of this description including the description of these
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`and other elements is set forth below.
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`Ex. 2018 includes a “Development Costs and Schedule,” that outlines the work
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`infoSpinner planned, as of September 1995, to undertake in order to create our
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`
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`product.
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`16. WebSpinner was envisioned with three main components and a
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`potential fourth component to be added later: (1) “a design tool”; (2) “extensions to
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`an existing HTTP server”; (3) a “data source”; and (4) a “secure HTTP server.” Ex.
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`2018 at 3.
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`17. The first component, the “WebSpinner Design Tool,” was designed to
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`allow server based control of data presentation.” Ex. 2018 at 3. “The design tool
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`would interact with data sources to allow for specification of the data to be
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`retrieved (a process controlled by the data source) and the placement and format, in
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`an HTML template. of the data items supplied by the data source.” Ex. 2018 at 3.
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`18. The second component,
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`the “WebSpinner Server Extensions,”
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`involved “extensions to an existing HTTP server (probably Netscape) that includes
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`an HTML generation engine that utilizes the data sourcing layer.” Ex. 2018 at 3.
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`This second component is described in more detail below:
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`The extensions would be required in older to trap the
`appropriate moment in the server's functionality to
`generate the web page being requested. When a browser
`requested a page, the extensions to the server would
`identify the appropriate template and data source and
`produce the page "on-the-fly" during the actual request.
`The
`server extensions would have a graphical
`configuration
`component
`allowing
`the
`server
`administrator to specify various kinds of functionality
`that would be provided by the extensions. In particular, it
`might be desirable to establish "expiration dates" on
`dynamically produced pages, such
`that subsequent
`browsers might not need to actually re-query the data
`source but could use the results returned by a previous
`user. Additional configuration elements might specify
`maximum size of pages, maximum number of pages to
`cache, or any other data that would give the system
`administrator control over the behavior of the server.
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`Ex. 2018 at 2.
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`19. The third component, the “Data Source,” was designed to “suppl[y]
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`data from the leading relational databases.” Ex. 2018 at 3. “This data source is an
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`object-based supplier of data.” Ex. 2018 at 3. “It will provide a common interface
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`to the presentation design-tool and the HTML generation engine that allows these
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`two tools to retrieve data and generate HTML without understanding the semantics
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`of the data retrieval process.” Ex. 2018 at 3. “Abstracting the data sourcing layer
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`allows the product to support web publication of data from a wide variety of
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`sources.” Ex. 2018 at 3. “This would include such things as realtime manufacturing
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`process data, ‘snap shots’ of live data such as video frames from security systems,
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`or financial market ticker information.” Ex. 2018 at 3.
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`20. The fourth component, “the WebSpinner Templates for Dynamic
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`HTML,” would be “a secure HTTP server that is optimized for the dynamic
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`publication of HTML documents.” Ex. 2018 at 3. “This would include technology
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`to cache and refresh dynamically published documents and be constructed as an
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`OLE Control to simplify the ability to extend the server using development tools
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`that require a lower level of technical expertise than that required to extend the
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`current HTTP servers on the market.” Ex. 2018 at 3. “By constructing the server as
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`an OLE control, customers could use tools like Visual Basic, PowerBuilder,
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`Delphi, or SQL Windows to extend the server in order to implement custom
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`solutions for dynamic web publication.” Ex. 2018 at 3. “The business effect would
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`be to increase gross margins since there would no longer be a need to OEM a
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`server from another company.” Ex. 2018 at 3.
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`21. The next document in the timeline is Ex. 2016. The document, which
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`I understand to be a status update regarding the infoSpinner project, is dated
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`November 15, 1995.
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`22. The document shows that, at least as early as November 15, 1995, I
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`had conceived of an idea—and was actively working to reduce to practice a
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`system—that provided for web server adapters (for intercepting incoming web
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`requests), the generation of dynamic content from web servers, template engine
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`technology, and HTML extension capability. See, e.g., Ex. 2016 (“the HTML
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`engine can manage the process of retrieving data for dynamic HTML content….An
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`additional piece of internet technology currently owned by the company is a multi-
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`threaded NT-based web server.”); Ex. 2016 at 2 (showing web server adapters as
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`the “integration between our HTML engine and dynamic content capabilities).
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`The Netscape adapter is described as “up and running.” Ex. 2016.
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`23. The next document in the timeline is Ex. 2022. This document
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`contains a statement that “infoSpinner will provide Gupta with the Virtuoso Pager
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`server by January 15, 1996.” This document was likely created some time before
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`January 15, 1996.
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`24. Ex. 2022 states that “the page server will provide page caching,
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`logging, connection caching, and utilize either web server security or database
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`security.” In my opinion, this document corroborates the fact that we had
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`conceived of both the page server and other described aspects of the ‘554 patent
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`and ‘335 patent before January 15, 1996.
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`25. The next document in the timeline, Ex. 2100, is a presentation created
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`by infoSpinner that spans several documents bearing the numbers Ex. 2100. The
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`document does not list a date of creation on its face, but I believe it was created on
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`or about January 1996.
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`26. The presentation states: “Market size for Windows NT World-Wide
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`Web Servers estimated in 1996 to be $2 billion. (Windows NT Magazine).” Ex.
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`2100 at 1. Based on the internal citation and my own research, I understand that
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`this statement was very likely taken from a Windows NT Magazine article, dated
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`August 31, 1995, and titled Put Your Office on the Internet.1 (“Almost every
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`business in America will soon have its own World Wide Web site. Web sites will
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`be as standard as business cards. Industry analysts predict 160,000 Windows NT-
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`based Web servers will be sold in 1996. If you combine the hardware and software
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`represented by this figure, you're talking about an emerging $2 billion market
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`opportunity.”) I referenced this same quote at least one other time at infoSpinner,
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`stating in a letter, “Windows NT magazine sights [sic] market studies anticipating
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`the sale of 160,000 Windows NT-based web servers in 1996 alone. This is a
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`software/hardware combination market size of $2 billion.” Ex. 2022.
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`27. The
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`infoSpinner presentation further states: “Nielsen research
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`estimates that in the final three months of 1996, 24 million individuals in the U.S.
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`and Canada accessed the internet.” Ex. 2100 at 4. The document uses 1996 in the
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`past tense, however, the 1996 date is very likely a typo as the presentation’s
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`statement very likely relates to an Internet access study performed by Nielsen and
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`CommerceNet, which was released in October 1995.2 That study “calculated that
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`37 million Americans and Canadians, ages 16 and older, had ‘access to the
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`1
`https://web.archive.org/web/20140829202247/http://windowsitpro.com/networking
`/put-your-office-internet
`2 http://articles.courant.com/1995-10-31/news/9510310147_1_fall-internet-world-
`nielsen-media-research-internet-users
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`Internet’ and that 24 million of them had used the Internet in the last three
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`months.”3
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`28. The infoSpinner presentation provides more evidence as to its date of
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`authorship. For example, it references a “Product Plan” that has due dates which
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`include January 31, 1996, February, 1996, and February 28, 1996, shown below:
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`
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`3 http://www.nytimes.com/1996/08/14/business/follow-up-survey-reports-growth-
`in-internet-users.html; see also Public Access to Government Information in the
`21st Century, Hearings Before the Committee on Rules and Administration, United
`States Senate, One Hundred Fourth Congress, Second Session, June 18-19 and July
`16, 25, 1996, ISBN 0-16-054258-8 at pg. 94 (“The CommerceNet/Nielsen study
`released in October, 1995 … reports that there are 37 million adult users (16 and
`over) users [sic] in the U.S. and Canada who have any access at all to the Internet .
`. . and that 24 million of them used the Internet in the 90-day period prior to the
`August survey contact.”).
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`Ex. 2100 at 18. The presentation further includes a “Schedule & Availability”
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`slide that lists dates for things like “Feature Complete” and “Documentation
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`Complete” in early 1996:
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`Ex. 2100 at 19.
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`29.
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`It is not reasonable for us to have created a plan slide in late-1996 or
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`1997 that included “demo[] by” and “feature complete” dates of early 1996 unless
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`that slide also discussed actual dates of product demonstration and completion.
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`But there is no such discussion. As such, I believe the “Plan” and “Schedule”
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`slides are forward-looking, meaning that those dates would be occurring at some
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`point in the future. For all the reasons listed above, the infoSpinner presentation
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`found at Ex. 2100 was likely created some time after October 31, 1995 but before
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`January 31, 1996.
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`30. Regarding the content of Ex. 2100, the presentation includes content
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`that describes the “Internet Market,” the product (Virtuoso) technology, and an
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`infoSpinner company profile. Ex. 2100 at 3 (Overview slide).
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`31. The presentation lists the components of the Virtuoso Technology as
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`including “Virtuoso Page Server” and “Virtuoso Developer.” The design goals of
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`the Virtuoso Page Server included “performance, security, extensibility,” and,
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`notably, “scalability.” Ex. 2100 at 25. These same four design goals are discussed
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`in Ex. 2015, titled Virtuoso Product Overview, which is discussed in more detail
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`below. The primary scalability benefit of the Virtuoso system identified in this
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`document related to its ability to incorporate (“plug and play”) “multiple page
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`servers to service any website” and “load-balance across multiple page servers to
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`assign client requests to be serviced by the page server with the most available
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`cycles.” See, e.g., Ex. 2015.
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`32.
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`“Virtuoso Developer” and the “Virtuoso Page Server” were “two
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`prongs of a three prong strategy currently being pursued by infoSpinner in an effort
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`to provide a set of comprehensive web site creation and management tools that
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`integrate content from heterogeneous data sources and allow user-provided
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`extensibility via OLE automation.” Ex. 2015 at 2. InfoSpinner described these
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`tools, below:
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`Ex. 2015 at 2.
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`Ex. 2015 at 3.
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`33. These documents corroborate our invention at least as early as January
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`1996 of a system that included a single web server in front of multiple page servers
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`that could load-balance based on dynamic information related to the load of the
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`page servers and that could be used for the dynamic generation of content in
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`response to web requests. The infoSpinner presentation at Ex. 2100 supports a
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`conception date prior to January 31, 1996.
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`34. The next document in the timeline is Ex. 2096. The document, a
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`distributorship agreement between Software AG and InfoSpinner, was signed and
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`dated on February 28, 1996. Exhibit B to the contract, titled the “Products Feature
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`Set” was created on or very likely sometime before that date. Exhibit B includes a
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`list of the features of the Virtuoso Page Server product, reproduced below:
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`Ex. 2096 at 21-22.
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`35. The Virtuoso feature set in Exhibit B, which was created at least
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`before February 28, 1996, describes the material elements of claim 12 of the ‘554
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`patent and claim 30 of the ‘335 patent. Notably, the document describes both the
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`“ability for single web server to utilize multiple page servers” and “load balancing
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`between page servers.” This documents shows that these aspects of the ‘554 patent
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`and ‘335 patent must have been conceived at the very latest by February 28, 1996.
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`36. The next document in the timeline is Ex. 2015. Documents bearing
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`the infoSpinner address of “1702 Drake Dr. Richardson, TX 78051” would have
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`been created before the end of February 1996 and in advance of March 1, 1996
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`because “1702 Drake Dr. Richardson, TX 78051” was my home address at the
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`time and I stopped using my home address after we moved out of it into actual
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`offices following the Software AG agreement.
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`37. Ex. 2015 is titled Virtuoso Product Overview. Ex. 2015 describes
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`Virtuoso as providing “Security, Performance, Extensibility, and Scalability,” as
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`described below:
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`Ex. 2015 at 4.
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`Ex. 2015 at 4.
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`Ex. 2015 at 4-5.
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`Ex. 2015 at 5. Scalability is achieved with multiple page servers and load
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`balancing based on dynamic information related to the load of the downstream
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`
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`servers.
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`38. The presentation also contains an “interaction flow” chart, reproduced
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`below:
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`Ex. 2015 at 6.
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`39. The flow chart depicts the material elements of Claim 12 of the ‘554
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`patent, including (i) intercepting a Web request at a Web server (“Virtuoso
`
`intercepts handling of request”), (ii) routing said request from said Web server to a
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`dispatcher (“send request to Dispatcher”), (iii) examining said request to make a
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`selection of which page server should process said request from among a plurality
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`of page servers that can each generate said Web page requested by said request
`
`(“dispatcher determines which page servers can handle request”), (iv) selecting one
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`of said plurality of page servers to dynamically generate said Web page wherein
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`said selection is based on examining dynamic information regarding a load
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`associated with each of said plurality of page servers (“dispatcher determines
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`which page server is processing fewest requests”), (v) dispatching, by said
`
`dispatcher, said request to said selected page server (“Dispatcher sends request to
`
`appropriate page server”), and (vi) processing said request, said processing being
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`performed by said selected page server and dynamically generating a Web page
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`(“page server produces HTML document”).
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`40. The flow chart depicts the material elements of Claim 30 of the ‘335
`
`patent, including (i) intercepting a Web request at a Web server (“Virtuoso
`
`intercepts handling of request”), (ii) examining said request to make a selection of
`
`which page server should process said request from among a plurality of page
`
`servers that can each generate said Web page requested by said request
`
`(“dispatcher determines which page servers can handle request”), (iii) selecting one
`
`of said plurality of page servers to dynamically generate said Web page wherein
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`said selection is based on examining dynamic information maintained for each of
`
`said plurality of page servers (“dispatcher determines which page server is
`
`processing fewest requests”), (iv) routing said request to said selected page server
`
`(“Dispatcher sends request to appropriate page server”), and (vi) processing said
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`request, said processing being performed by said selected page server and
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`dynamically generating a Web page (“page server produces HTML document”).
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`41. Ex. 2015 corroborates the conception of inventions claimed in the
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`‘554 patent and ‘335 patent at least by the end of February 1996. We diligently
`
`continued working on our software to make sure we met our commitments under
`
`the Software AG agreement.
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`42. The next document in the timeline is Ex. 2099. Many of the sections
`
`include a comment that they were “last edited by Ronnie (Howell) 4/2/96.” Those
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`sections include, among other things, ones that describe the Virtuoso Web Server,
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`Dispatcher, and Page Server in great detail. See, e.g., Ex. 2099 at 6, excerpted
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`below:
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`Accordingly, this document again suggests that the above-described aspects of the
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`Patents-in-Suit must have been conceived—and, in fact, reduced to practice—by
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`April 2, 1996.
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`43. The documentary support discussed above corroborates the timing of
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`our conception and reduction to practice of the inventions claimed in the ‘554
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`patent and ‘335 patent. I conceived of the elements of claims of the ‘554 patent
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`and ‘335 patent between August-October 1995. During this time, I developed
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`software to test and model my ideas. I developed an initial prototype no later than
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`October 1995, before Levine and Howell began to working with me.
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`44. Our first product—ForeSite Version 1.0—commercially and publicly
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`launched in August 1996. The ForeSite product (and its precursor Virtuoso)
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`practiced the claims of the ‘554 and ‘335 patents. ForeSite served as the
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`middleman between browser-based front-ends and back-end databases and legacy
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`systems, encompassing the core application server technology intended to make
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`infoSpinner the leading supplier of Web-commerce load-balancing products. See
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`Ex. 2069.
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`Ex. 2069 at 7.
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`45. The primary components of ForeSite consisted of (1) an Adaptor, (2)
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`a Dispatcher, and (3) a Page Server. Ex. 2063 at 2-3. In a 1998 magazine article
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`about the ForeSite product, those components were described, as below:
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`Id.
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`46. We publicly stated that our product solutions were based on the ‘554
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`
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`patent:
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`Ex. 2069 at 5.
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`47. We publicly stated that ForeSite, infoSpinner’s “flagship product,”
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`embodied the “patented application serving technology primarily implemented in
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`deployment modules Dispatcher and PageServerTM (“PageServer”). Ex. 2069 at 5,
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`35.
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`48. The success of our ForeSite product is reflected in how quickly
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`market competitors licensed ForeSite, including large, sophisticated OEM partners
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`like Software AG of North America, Inc. (“Software AG”), Beacon Information
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`Technology (“Beacon”), and International Business Corporation (“IBM”).
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`49.
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`In February 1996, only five months after our founding, infoSpinner
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`entered into an agreement with Software AG of North America, Inc. (“Software
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`AG”) under which Software AG received the nonexclusive worldwide rights to sell
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`infoSpinner’s products under its private label for two years. Ex. 2096; Ex. 2032 at
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`9; Ex. 2031 at 23; Ex. 2094; Ex. 2095.
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`50. After entering into the Software AG agreement, infoSpinner hired
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`Howell and Lowery as its first employees – previously Howell and Lowery had
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`been working for infoSpinner as contract developers. For the next five months or
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`so, infoSpinner continued to develop, test, and debug ForeSite to have it ready to
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`ship to Software AG in summer 1996.
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`51. By late March or early April, infoSpinner had begun work on early
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`documentation of the functionality of ForeSite. See, e.g., Ex. 2015 at 6.
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`52. Software AG marketed its own version of the Foresite product under
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`the name iXpress. Software AG’s iXpress product was kept synchronized with
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`ForeSite, which permitted customers to buy ForeSite directly from InfoSpinner or
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`buy ForeSite in its iXpress form from Software AG. Ex. 2073 at 4:
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`Everything essential to serving dynamic Web data-- and
`nothing else-- is rolled up in this compact, efficient
`product. . . . ForeSite technology is fundamentally sound,
`and Software AG's commitment to the iXpress version of
`the product provides a continuing revenue stream and a
`valuable measure of stability. Customers looking for
`closer integration with mainframe applications and data
`will find that Software AG is well equipped to help them.
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`53.
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`In October 1996, infoSpinner received an equity investment from
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`Beacon Information Technology (“Beacon”) which granted Beacon distribution
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`rights for ForeSite in Japan. Ex. 2032 at 9; Ex. 2031 at 23.
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`54. Following the Software AG and Beacon agreements, InfoSpinner
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`developed a strong customer base, including The California State License Board,
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`the FBI, NASA, Delta Airlines, the San Antonio Police Department, Seiko, Sony,
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`the US Navy, the University of Hawaii, the University of North Texas, the US
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`Army, and the Virginia DMV. Ex. 2073; Ex. 2097; Ex. 2098.
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`55.
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`IBM also loved our technology. In fact, IBM was such a fan of
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`InfoSpinner that in January 1998, IBM licensed the infoSpinner intellectual
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`property and ForeSite technology and re-labeled it Host Publisher. Ex. 2032 at 9.
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`56. Upon its release, ForeSite received widespread industry praise,
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`including recognition that ForeSite addressed “the scalability and load-balancing
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`problems that customers experience when deploying legacy applications on the
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`Web,” and “ForeSite’s scaling, load balancing and caching capabilities harness the
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`untamed nature of the Web.” Ex. 2072.
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`57.
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`In September 1997,
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`infoSpinner was
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`selected as one of
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`Computerworld’s 100 Hot Emerging Companies. Ex. 2031 at 52; Ex. 2032 at 24.
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`58. By the time the ’554 Patent issued in April 1999, “the ForeSite
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`technology [was] installed in more than 700 businesses, state and local
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`governments, and universities in 22 countries.” Ex. 2080; Ex. 2032 at 15.
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`Customers using the ForeSite technology “reported ten-fold increases in their
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`ability to handle customer connections,” “up to 50% reduction in request
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`transaction response times,” and “up to 55% percent reduction in network latency.”
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`Ex. 2075 at 7. Other customers provided similarly positive reviews:
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`• Dean Whitlock, Vice President and General Manger of e-Innovations at
`Fujitsu-ICL said, “epicRealm offers something we can't find anywhere else.
`From a user standpoint, it monitors our Internet site, manages and prioritizes
`traffic and keeps our site customers occupied and engaged while their
`transactions are completed. From an e-business services perspective, we will
`now be able to provide our e-commerce customers with a unique way to
`reduce their overall Web site costs, while increasing revenues and customer
`loyalty.” Ex. 2078 at 2.
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`• Industry analyst Joel Yaffe at Giga Information Group recognized that,
`while Akamai and Digital Island had more time to build their profiles, “both
`companies focused on static and streaming content distribution, while
`epicRealm's ability to distribute and control dynamic data is somewhat more
`advanced.” Ex. 2077 at 5. Yaffe explained that, at the time, epicRealm
`faced the problem that “the market is not yet fully educated about the value
`of this approach, and most companies are still concerned with performance
`and scalability for larger files [like graphics, streaming and others], rather
`than cutting costs for transactional systems." Ex. 2077 at 5.
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`• In September 2002, Forbes.com chose epicRealm to maximize its existing
`infrastructure. Ex. 2076. Forbes.com then-CTO Michael E. Smith explained
`that “[a]fter we placed the epicRealm solutions into production on our site,
`we immediately experienced dramatically increased performance. We
`cannot believe the results we are getting.” Ex. 2076. Then-CEO Jim
`Spanfeller went on to say that the “innovate epicRealm solution” “has
`eliminated the need for us to purchase additional server hardware and
`software licenses” and has allowed us to “find a way to reach more
`customers, provide predictable service, and give more value to our
`advertisers – all within tightly constrained cap-ex budgets.” Ex. 2076.
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`
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