UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`Case IPR2015-01432
`Patent No. 7,139,794 B2
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`PETITIONER’S RESPONSE TO PATENT OWNER’S
`MOTION FOR OBSERVATIONS ON CROSS EXAMINATION
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`Paper No. 44
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`MICROSOFT CORPORATION,
`
`Petitioner,
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2015-01432
`Patent No. 7,139,794 B2
`
`
`
`
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`
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`PETITIONER’S RESPONSE TO PATENT OWNER’S
`MOTION FOR OBSERVATIONS ON CROSS EXAMINATION
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`Paper No. 44
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`Petitioner Microsoft timely files this response to Patent Owner’s Motion for
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`
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`Observations on Cross-Examination of Dr. William Michalson (Paper 40).
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`RESPONSE TO OBSERVATION 1
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`I.
`Patent Owner’s (“PO”) Observation 1 is incomplete, and therefore
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`misleading, because the cited exchange merely refers to Dr. Michalson reading the
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`text of an inadmissible document presented for the first time at his deposition. Dr.
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`Michalson had not seen this document before this deposition, he was not familiar
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`with it (Ex. 2011, 9:17-10:8), and the exhibit was not previously cited by any
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`party or expert. The cited testimony is further not relevant to any issue raised by
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`Dr. Michalson’s direct testimony in his rebuttal declaration Ex. 1015 or to Dr.
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`Bajaj’s failure to consider relevant GIS art in his Declaration (Ex. 2001), because
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`there is no evidence in the record that Dr. Bajaj considered the cited exhibit. The
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`Observation further mischaracterizes the cited portion of Petitioner’s Reply (Paper
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`27 at 2) which actually states that “there is no suggestion in the record that Dr.
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`Bajaj personally has any GIS experience.”
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`RESPONSE TO OBSERVATION 2
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`II.
`PO’s Observation 2 is incomplete and does not properly reflect Dr.
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`Michalson's testimony because the cited exchange merely refers to Dr. Michalson
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`reading the contents of an inadmissible document presented for the first time at his
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`20
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`deposition. Dr. Michalson had not seen this document before this deposition, he
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`was not familiar with it (Ex. 2011, 9:17-10:8), and the exhibit was not previously
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`cited by any party or expert. The cited testimony is further misleading and
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`irrelevant for the reasons discussed regarding Observation No. 1.
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`RESPONSE TO OBSERVATION 3
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`III.
`PO’s Observation 3 is misleading and incomplete because the cited
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`exchange merely refers to Dr. Michalson reading the contents of an inadmissible
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`document presented for the first time at his deposition. Dr. Michalson had not seen
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`this document before this deposition, he was not familiar with it, (Ex. 2011,13:18-
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`14:8) and the exhibit was not previously cited by any party or expert. The cited
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`testimony is further misleading and irrelevant for the reasons discussed regarding
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`Observation No. 1.
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`RESPONSE TO OBSERVATION 4
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`IV.
`PO’s Observation 4 is misleading and incomplete. The cited testimony
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`simply consists of a paraphrase of an inadmissible exhibit (Ex. 2005) first
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`introduced at Dr. Michalson’s deposition. (Ex. 2011, 25:1-27:17.) Dr. Michalson
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`further testified, in response to the question “would computer science be a
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`technical field related to GIS, or the transmission of data over a computer
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`network?” that “Computer science is a very broad topic and it encompasses a lot of
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`things, so there certainly would likely be a subset of people with computer science
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`degrees that would have some of the requisite knowledge, but not necessarily all.”
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`Ex. 2011, 9:6-16.
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`RESPONSE TO OBSERVATION 5
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`V.
`PO’s Observation 5 is misleading and incomplete for the reasons discussed
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`in regarding Observation No. 4, and further misleading and irrelevant for the
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`reasons discussed regarding Observation No. 1.
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`RESPONSE TO OBSERVATION 6
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`VI.
`PO’s Observation 6 is misleading and incomplete for the reasons discussed
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`in regarding Observation No. 4, and further misleading and irrelevant for the
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`reasons discussed regarding Observation No. 1.
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`RESPONSE TO OBSERVATION 7
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`VII.
`PO’s Observation No. 7 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015 or to any other
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`issue, nor is any such relevance articulated by the Observation.
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`RESPONSE TO OBSERVATION 8
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`VIII.
`PO’s Observation No. 8 is not relevant. Whether Dr. Michalson received a
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`document from counsel or obtained it from some other source is not relevant to any
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`issue in this proceeding, especially where the source of the document has no
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`relationship to the statement in the Petitioner’s Reply (Paper 27 at 2) that “there is
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`no suggestion in the record that Dr. Bajaj personally has any GIS experience.” Nor
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`is this Observation relevant to any issue raised by Dr. Michalson’s direct testimony
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`in his rebuttal declaration Ex. 1015. The cited testimony is also misleading and
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`incomplete. Dr. Michalson testified in his declaration in Ex. 1008, ¶ 33 that “I use
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`certain references (including both patents and non-patent literature) as examples to
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`illustrate the background knowledge of a person of ordinary skill in the art, but the
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`knowledge of a person of ordinary skill in the art at the time regarding the claimed
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`features would not have been limited to these specific references.”
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`RESPONSE TO OBSERVATION 9
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`IX.
`PO’s Observation No. 9 lacks relevance to this proceeding because the level
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`of ordinary skill in the art in a patent not challenged in this proceeding is irrelevant
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`to any issue in this proceeding. Further, there was no inconsistency between the
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`general description of a person of ordinary skill in the art offered by Dr. Michalson
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`in an unrelated matter and Dr. Michalson’s direct testimony in his rebuttal
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`declaration Ex. 1015.
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`RESPONSE TO OBSERVATION 10
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`X.
`PO’s Observation No. 10 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015 or any other
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`issue. PO cites no reason why the proffered evidence is relevant to this
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`proceeding.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`RESPONSE TO OBSERVATION 11
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`XI.
`PO’s Observation No. 11 is not relevant for the proffered purpose because
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`there is no relationship between the length of time that computer-based GIS have
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`been used and the cited paragraphs of Dr. Michalson’s declaration in Ex. 1008, ¶¶
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`104-05 (discussing motivations to combine Potmesil, Hornbacker, and Lindstrom),
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`nor is this Observation relevant to any issue raised by Dr. Michalson’s reply direct
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`testimony in his rebuttal declaration Ex. 1015.
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`RESPONSE TO OBSERVATION 12
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`XII.
`PO’s Observation No. 12 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015. PO cites no
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`reason why the proffered evidence is relevant to this proceeding.
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`RESPONSE TO OBSERVATION 13
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`XIII.
`PO’s Observation No. 13 is not relevant for the proffered purpose because
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`there is no relationship between the paraphrased portions of Ex. 2004 and the cited
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`paragraphs of Dr. Michalson’s declaration in Ex. 1008, ¶¶ 104-05 (discussing
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`motivations to combine Potmesil, Hornbacker, and Lindstrom), nor is this
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`Observation relevant to any issue raised by Dr. Michalson’s direct testimony in his
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`rebuttal declaration in Ex. 1015.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`RESPONSE TO OBSERVATION 14
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`XIV.
`PO’s Observation No. 14 is not relevant for the cited purpose because there
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`is no relationship between whether Ex. 2005 “states that GIS had become widely
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`accepted as of the late 1980’s in North America” and the cited testimony in Dr.
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`Michalson’s declaration in Ex. 1008, ¶¶ 104-05 (discussing motivations to
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`combine Potmesil, Hornbacker, and Lindstrom), nor is this Observation relevant to
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`any issue raised by Dr. Michalson’s direct testimony in his rebuttal declaration Ex.
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`1015.
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`RESPONSE TO OBSERVATION 15
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`XV.
`PO’s Observation No. 15 is not relevant for the cited purpose because there
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`is no relationship between whether Ex. 2005 “states that specialist GIS conferences
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`took place from 1974 onwards” and the cited testimony in Dr. Michalson’s
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`declaration in Ex. 1008, ¶¶ 104-05 (discussing motivations to combine Potmesil,
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`Hornbacker, and Lindstrom), nor is this Observation relevant to any issue raised by
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`Dr. Michalson’s direct testimony in his rebuttal declaration in Ex. 1015.
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`RESPONSE TO OBSERVATION 16
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`XVI.
`PO’s Observation No. 16 is not relevant for the cited purpose because there
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`is no relationship between whether Ex. 2005 “states that specialist GIS conferences
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`took place from 1974 onwards” and the cited testimony in Dr. Michalson’s
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`declaration in Ex. 1008, ¶¶ 104-05 (discussing motivations to combine Potmesil,
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`Hornbacker, and Lindstrom), nor is this Observation relevant to any issue raised by
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`Dr. Michalson’s direct testimony in his rebuttal declaration Ex. 1015.
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`RESPONSE TO OBSERVATION 17
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`XVII.
`PO’s Observation No. 17 is not relevant for the cited purpose because there
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`is no relationship between whether Ex. 2005 “states that the number of failures in
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`the field of GIS have been numerous” and the cited testimony in Dr. Michalson’s
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`declaration in Ex. 1008, ¶¶ 104-05 (discussing motivations to combine Potmesil,
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`Hornbacker, and Lindstrom), nor is this Observation relevant to any issue raised by
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`Dr. Michalson’s direct testimony in his rebuttal declaration Ex. 1015.
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`RESPONSE TO OBSERVATION 18
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`XVIII.
`PO’s Observation No. 18 is not relevant for the cited purpose because there
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`is no logical relationship between whether Ex. 2005 “states that desire for greater
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`speed or efficiency was a known motivation for development of GIS as of 1991”
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`and the cited testimony in Dr. Michalson’s declaration in Ex. 1008, ¶¶ 120
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`(discussing caching in Potmesil, Hornbacker, and Lindstrom references), 195
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`(discussing use of bandwidth and storage space), nor is this Observation relevant to
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`any issue raised by Dr. Michalson’s direct testimony in his rebuttal declaration Ex.
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`1015.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`RESPONSE TO OBSERVATION 19
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`XIX.
`PO’s Observation No. 19 is misleading and incomplete. Dr. Michalson
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`testified repeatedly during his deposition that the cited example was “a way to do
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`this” (Ex. 2011, 38:18-21), “not the only way a person of ordinary skill in the art
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`would know you could get that effect” (id., 39:4-9), that “the overall concept is
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`being able to get data in stages with progressively more detail” and “[t]here are
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`other ways that you could accomplish that effect” (id., 40:6-23), and further
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`testified in his rebuttal declaration in Ex. 1015, ¶ 183 that “the combination of
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`Cooper’s priority function with the requests for image parcels at specified
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`resolutions of Rutledge and Ligtenberg would result in requests for image tiles at
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`progressively increasing resolutions within a given region.”
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`RESPONSE TO OBSERVATION 20
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`XX.
`PO’s Observation No. 20 is not relevant for the cited purpose because there
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`is no relationship between the cited portions of the Hoppe reference and the cited
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`testimony Dr. Michalson’s rebuttal declaration in Ex. 1015, ¶¶ 183-84 regarding
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`data updates in the combination of Rutledge, Ligtenberg, Cooper, and Migdal. The
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`testimony is also misleading and incomplete for the reasons discussed in regard to
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`Observation No. 19.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`RESPONSE TO OBSERVATION 21
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`XXI.
`PO’s Observation No. 21 is not relevant for the cited purpose because there
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`is no relationship between the cited portions of the Hoppe reference and the cited
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`testimony in Dr. Michalson’s rebuttal declaration in Ex. 1015, ¶¶ 183-84 regarding
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`data updates in the combination of Rutledge, Ligtenberg, Cooper, and Migdal. The
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`testimony is also misleading and incomplete for the reasons discussed in regard to
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`Observation No. 19.
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`RESPONSE TO OBSERVATION 22
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`XXII.
`PO’s Observation No. 22 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015. PO cites no
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`reason why the proffered evidence is relevant to this proceeding
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`RESPONSE TO OBSERVATION 23
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`XXIII.
`PO’s Observation No. 23 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015. PO cites no
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`reason why the proffered evidence is relevant to this proceeding.
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`RESPONSE TO OBSERVATION 24
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`XXIV.
`PO’s Observation No. 24 is not relevant for the cited purpose because there
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`is no relationship between the cited portions of the Hoppe reference and the cited
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`testimony in Dr. Michalson’s rebuttal declaration in Ex. 1015, ¶ 184 regarding data
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`updates in the combination of Rutledge, Ligtenberg, Cooper, and Migdal. The
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`testimony is also misleading and incomplete for the reasons discussed in regard to
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`Observation No. 19.
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`RESPONSE TO OBSERVATION 25
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`XXV.
`PO’s Observation No. 25 is not relevant for the cited purpose because there
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`5
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`is no logical relationship between the cited portions of the Hoppe reference and the
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`cited testimony in Dr. Michaelson’s rebuttal declaration Ex. 1015, ¶ 184 regarding
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`data updates in the combination of Rutledge, Ligtenberg, Cooper, and Migdal. The
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`testimony is also misleading and incomplete for the reasons discussed in regard to
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`Observation No. 19.
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`RESPONSE TO OBSERVATION 26
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`XXVI.
`PO’s Observation No. 26 does not articulate any relevance to Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015, and is not
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`relevant for the cited purpose because the cited testimony, which consists of a
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`verbatim recitation of an excerpt from an exhibit already of record, does not relate
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`to whether PO’s expert failed to cite a basis for certain statements in Ex. 2001
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`(Paper 27 at 17-18). The testimony is also misleading and incomplete. Dr.
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`Michalson testified in his rebuttal declaration Ex. 1015 that a person of ordinary
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`skill in the art would be capable of making appropriate tradeoffs between
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`processing power and performance specifications “to provide an acceptable
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`balance between performance and processing capability,” and that “Migdal
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`specifically points out that its techniques are not limited to an exemplary high-end
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`system described therein, and that a person of ordinary skill in the art could
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`implement the invention in alternative embodiments.” Ex. 1015, ¶¶ 104-110, 156,
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`citing Ex. 1007 (Migdal) at 7:22-30.
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`RESPONSE TO OBSERVATION 27
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`XXVII.
`PO’s Observation No. 27 is irrelevant because the cited testimony simply
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`consists of a recitation of an exhibit already of record, and there is no relationship
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`between the cited deposition testimony in Ex. 2011 and the cited paragraphs of Dr.
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`Michalson’s rebuttal declaration in Ex. 1015, ¶¶ 115-17 (discussing use of satellite
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`data or aerial photographs as textures for 3D perspective viewing). This
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`Observation is also misleading and incomplete. Dr. Michalson testified in his
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`declaration in Ex. 1008, ¶¶ 242-45 that Migdal teaches methods for reducing
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`“memory and processor requirements of a user device for rendering map and
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`image data” including applications such as “navigating through large images such
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`as satellite images of earth.”
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`XXVIII. RESPONSE TO OBSERVATION 28
`PO’s Observation No. 28 is misleading and incomplete. Dr. Michalson
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`testified that the background in Fig. 1B is “an artifact of the drawing” and not “a
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`separate polygon, as Migdal is using that term” (Ex. 2011, 64:10-20); that “this is a
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`rectangular area in the image, but that doesn’t necessarily mean that there is some
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`data structure in that image that is that rectangle… a common way to deal with a
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`system that works in perspective is, you’ll paint the background screen all one
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`color, and then you’ll overlay your image on top of that background. That doesn’t
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`mean I’ve created a rectangle that is my background and have that as a separate
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`data structure in my system. That just means that it’s there by default, and I lay
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`things on top of it,” (id., 64:21-65:17); “I don’t think that the comparison of the
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`rectangle, as you’re using that term, that’s annotated as background and polygon,
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`with what’s clearly a polygon as Migdal is using the term, I don’t think that there’s
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`a basis of comparing those things,” (id., 66:8-67:11); and “you’ve truncated my
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`answer, sir. But I do want to make sure that you don’t confuse that background
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`with the polygons that Migdal is referring to” (id., 69:17-20).
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`RESPONSE TO OBSERVATION 29
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`XXIX.
`PO’s Observation No. 29 is misleading and incomplete. Dr. Michalson
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`explained in the testimony cited above in response to PO’s Observation No. 27
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`how background regions of perspective systems are commonly formed.
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`RESPONSE TO OBSERVATION 30
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`XXX.
`PO’s Observation No. 30 is misleading and incomplete. Dr. Michalson
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`explained in the testimony cited above in response to PO’s Observation No. 27
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`how background regions of perspective systems are commonly formed.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`RESPONSE TO OBSERVATION 31
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`XXXI.
`PO’s Observation No. 31 is misleading and incomplete. Dr. Michalson
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`testified that “the word tiles isn’t used, but it’s saying a polygonal image. So the
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`polygons would be -- a common way to refer to those would be tiles. The image is
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`a tiled image, and it’s a series of abutting polygons” (Ex. 2011, 61:13-62:17) and
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`“it uses an equivalent phrase. It does not have the word tile, but it’s describing an
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`equivalent construct.” (Id. at 62:18-63:2).
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`RESPONSE TO OBSERVATION 32
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`XXXII.
`PO’s Observation No. 32 is misleading and incomplete. The cited testimony
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`10
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`merely consisted of reading an exhibit already in evidence and does not identify
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`any contradiction between the cited portion of the exhibit and Dr. Michalson’s
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`rebuttal declaration testimony in Ex. 1015. Dr. Michalson further testified in
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`regard to Rutledge that “you may also be able to just hold a mouse, click on one of
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`those directions to move in that direction. That was a common way of doing
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`things at this point in time.” (Ex. 2011, 80:15-23.)
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`XXXIII. RESPONSE TO OBSERVATION 33
`PO’s Observation No. 33 is misleading and incomplete for the reasons
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`discussed in regard to PO’s Observation No. 32.
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`XXXIV. RESPONSE TO OBSERVATION 34
`PO’s Observation No. 34 is misleading and incomplete for the reasons
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`discussed in regard to PO’s Observation No. 32.
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`RESPONSE TO OBSERVATION 35
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`XXXV.
`PO’s Observation No. 35 is misleading and incomplete for the reasons
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`discussed in regard to PO’s Observation No. 32.
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`XXXVI. RESPONSE TO OBSERVATION 36
`PO’s Observation No. 36 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015 and appears to be
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`10
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`an effort to raise a new argument not made in the Patent Owner Response (Paper
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`24) in violation of the PTAB’s rules that observations are “not an opportunity to
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`raise new issues.” See Office Patent Trial Practice Guide, 77 Fed. Reg. 48768.
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`The cited testimony is irrelevant because it consists entirely of a recitation of an
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`exhibit already of record. PO’s Observation No. 36 is also misleading and
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`15
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`incomplete. Dr. Michalson testified that “the data structure [of Ligtenberg] allows
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`jumping into that hierarchy at any point. So you can access any particular subpart
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`of an image, and this is one of the important things about Ligtenberg, is you can
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`access a portion of the image without having to reconstruct the entirety of the
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`image.” (Ex. 2011, 93:5-20.)
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
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`XXXVII. RESPONSE TO OBSERVATION 37
`PO’s Observation No. 37 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015, and is improper,
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`incomplete, and misleading for the reasons discussed above in regard to PO’s
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`Observation No. 36.
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`XXXVIII. RESPONSE TO OBSERVATION 38
`PO’s Observation No. 38 is irrelevant because it consists entirely of a
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`recitation of the text of an exhibit already of record, and the only actual testimony
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`of Dr. Michalson quoted is “that’s what the text says” and “that’s what it says.”
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`XXXIX. RESPONSE TO OBSERVATION 39
`PO’s Observation No. 39 is not relevant to any issue raised by Dr.
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`Michalson’s direct testimony in his rebuttal declaration Ex. 1015, and is improper,
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`incomplete, and misleading for the reasons discussed above in regard to PO’s
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`Observation No. 36.
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`CONCLUSION
`
`XL.
`Dr. Michalson's testimony is consistent and should be given weight by the
`
`10
`
`15
`
`Board.
`
`
`
`15
`
`
`
`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
`
`
`Dated: August 29, 2016
`
`Respectfully submitted,
`
`
`
` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
`
`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
`Evan S. Day, Pro Hac Vice
`
`Attorneys for Microsoft Corporation
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`
`
`
`16
`
`
`
`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Response to Patent Owner's Motion for Observation
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`The undersigned hereby certifies that a true copy of the foregoing
`
`PETITIONER'S RESPONSE TO PATENT OWNER’S MOTION FOR
`
`OBSERVATION has been served in its entirety this 29th day of August 2016 by
`
`electronic mail on the Patent Owner via its attorneys of record:
`
`Chris Coulson (ccoulson@kenyon.com)
`Michael Zachary (mzachary@kenyon.com)
`Clifford Ulrich (culrich@kenyon.com)
`Bradiumiprservice@kenyon.com
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`
`Respectfully submitted,
`
`
`
` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
`
`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
`Evan S. Day, Pro Hac Vice
`
`Attorneys for Microsoft Corporation
`
`
`
`
`Dated: August 29, 2016
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`
`1
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