UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`AMERICAN MEGATRENDS, INC.,
`MICRO-STAR INTERNATIONAL CO., LTD,
`MSI COMPUTER CORP.,
`GIGA-BYTE TECHNOLOGY CO., LTD., AND
`G.B.T., INC.
`Petitioners,
`
`v.
`
`KINGLITE HOLDINGS INC.
`
`Patent Owner
`
`_________________
`
`Case IPR2015-01140
`
`U.S. Patent 6,519,659
`
`_________________
`
`DECLARATION OF STEFANO RIGHI
`
`
`
`
`
`1
`
`EX 1008
`IPR of Pat. No. 6,519,659
`
`
`EXHIBIT 2008
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`AMERICAN MEGATRENDS, INC.,
`MICRO-STAR INTERNATIONAL CO., LTD,
`MSI COMPUTER CORP.,
`GIGA-BYTE TECHNOLOGY CO., LTD., AND
`G.B.T., INC.
`Petitioners,
`
`v.
`
`KINGLITE HOLDINGS INC.
`
`Patent Owner
`
`_________________
`
`Case IPR2015-01140
`
`U.S. Patent 6,519,659
`
`_________________
`
`DECLARATION OF STEFANO RIGHI
`
`
`
`
`
`1
`
`EX 1008
`IPR of Pat. No. 6,519,659
`
`
`EXHIBIT 2008
`
`
`
`I, Stefano Righi, declare as follows:
`
`1.
`
`I have been retained by Hill, Kertscher, & Wharton, LLP, which
`
`represents American Megatrends, Inc., Micro-Star International Co., Ltd, MSI
`
`Computer Corp., Giga-Byte Technology Co., Ltd., and G.B.T., Inc. in connection
`
`with a petition for inter partes review of U.S. Patent No. 6,519,659, titled (the “659
`
`Patent”). I understand that the 659 Patent is currently assigned to Kinglite Holdings
`
`Inc.
`
`SCOPE OF ANALYSIS
`
`2.
`
`I have reviewed and am familiar with the 659 Patent, which was filed
`
`on June 18, 1999 and issued on February 11, 2003. I understand that the 659 Patent
`
`includes 24 claims. I also understand that the Petition for inter partes review that
`
`accompanies this Declaration seeks to cancel claims challenged claims 1-24 of the
`
`659 Patent.
`
`3. My analysis assumes that the time of invention is June 18, 1999, which
`
`is the filing date of the 659 Patent.
`
`4.
`
`I have reviewed and am familiar with various references, written
`
`materials, and literature, identified as follows:
`
`• Ex. 1001
`
`U.S. Patent No. 6,519,659 to Stevens (“the 659 Patent”)
`
`• Ex. 1002
`
`The file history of the 659 Patent
`
`• Ex. 1003
`
`U.S. Patent No. 6,185,696 (“Noll”)
`
`2
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`EXHIBIT 2008
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`
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`• Ex. 1004
`
`U S. Patent No. 5,822,581 (“Christeson”)
`
`• Ex. 1005
`
`U S. Patent No. 6,178,503 (“Madden”)
`
`• Ex. 1006
`
`U.S. Patent No. 5,732,268 (“Bizzarri”)
`
`• Ex. 1007
`
`U.S. Patent No. 5,519,843 (“Moran”)
`
`5.
`
`I have been asked to consider how a person of ordinary skill in the art
`
`(“POSITA”) would have understood the claims subject to inter partes review in light
`
`of the disclosure of the 659 Patent. I have also been asked how a POSITA would
`
`have understood and applied the references identified in paragraph 4 above.
`
`6.
`
`The only compensation that I am receiving is my normal employee
`
`salary paid by American Megatrends. My compensation is not dependent on the
`
`outcome of this inter partes review and in no way affects the substance of my
`
`statements in this declaration.
`
`BACKGROUND OF 659 Patent’S TECHNOLOGY
`
`7.
`
`The 659’s general field of technology relates to booting computer. To
`
`boot a computer, firmware or Basic Input Output System (BIOS) is used to configure
`
`and test hardware components of a computer. Specifically, The 659 Patent describes
`
`a system and method for writing to a storage device connected to such computer
`
`prior to boot to an operating system. The content of such writing is contained in a
`
`storage element available in the same system or downloaded from a server through
`
`a network connection.
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`3
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`EXHIBIT 2008
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`8.
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`As would be known to a POSITA at the time of invention, computer
`
`booting may include performing a power on self-test (POST) process. The POST
`
`procedure includes routines that ensure that the computer is ready for the booting of
`
`the operating system. This includes checking on the status of RAM memory. This
`
`also includes checking on the status of configuration information (e.g., floppy drives,
`
`hard drives, keyboards and user preferences).
`
`9. Microsoft Windows is an example of an operating system and an
`
`example of an application executed by Microsoft Windows may be Microsoft Office.
`
`10. The claims of the 659 Patent encompass well-known elements of a
`
`computer and well-known writing of content from a storage element to a storage
`
`device prior to booting a computer.
`
`11. For example, Claim 1 of the 659 Patent covers the copying,
`
`transferring, or moving one storage element to a storage device prior to booting an
`
`operating system.
`
`QUALIFICATIONS AND EXPERTISE
`
`12. My resume/curriculum vitae is attached to this declaration as Exhibit
`
`A.
`
`13.
`
`I have over 30 years of experience in firmware and software
`
`development, working with networked computer systems, software and hardware
`
`design and with the underlying technologies of the patent, such as BIOS
`
`4
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`EXHIBIT 2008
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`
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`development, chip-set (core logic) development, mother boards development, X86
`
`Personal Computers development.
`
`14.
`
`I have served as a Vice President of Software Utility for American
`
`Megatrends (AMI) from March 2009 to present and managed the development
`
`grounds for DOS, Windows, and Linux. I won OEM contracts with Dell, Microsoft,
`
`and Lenovo. Additionally, I have served as AMI’s representative at the UEFI Forum
`
`Board of Directors. I was previously the Director of Software Utility for AMI for
`
`more than eight years.
`
`15. Prior to joining AMI, I was employed with Olivetti’s consumer division
`
`and riprografic division where I, among other things, developed BIOS for personal
`
`computer and laser printer technology and firmware. Additionally from 1990-1998,
`
`I was an R&D Manager for Selca SpA where I managed the user interface and
`
`communications R&D group for the product line SELCA S3000 Numeric Control
`
`Systems.
`
`16.
`
`In 1984 I obtained a master degree in electronic engineering from the
`
`University of Bologna.
`
`A PERSON OF ORDINARY SKILL IN THE ART
`
`17.
`
`I am advised and understand that a person of ordinary skill in the art is
`
`a hypothetical person who is presumed to have known the relevant art at the time of
`
`the invention. Factors that may be considered in determining the level of ordinary
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`5
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`EXHIBIT 2008
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`skill in the art may include: (1) the type of problems encountered in the art; (2) prior
`
`art solutions to those problems; (3) rapidity with which innovations are made; (4)
`
`sophistication of the technology; and (5) educational level of active workers in the
`
`field.
`
`18.
`
`I have been advised and understand that a person having ordinary skill
`
`in the art (“POSITA”) is presumed to be aware of all pertinent art, thinks along
`
`conventional wisdom in the art, and is a person of ordinary creativity.
`
`19. Given the foregoing considerations, my opinion is that a POSITA at the
`
`time of the invention claimed in the 659 Patent in 1999 is a person having at least a
`
`Bachelor of Science degree or its equivalent in electrical engineering, computer
`
`science, computer engineering or equivalent field including mathematics, and at
`
`least one-year of experience working in the field of computer engineering or
`
`software engineering.
`
`20. At the time of the invention of the 659 Patent, I was an individual
`
`having at least ordinary skill in the art, according to my definition.
`
`CLAIM CONSTRUCTION
`
`21.
`
`I will be construing the below terms according to their broadest
`
`reasonable interpretation, which I understand is not used in litigation or other
`
`proceedings. I have been advised and understand that the claims are to be given their
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`6
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`EXHIBIT 2008
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`broadest reasonable interpretation (“BRI”) in light of the specification as it would
`
`be read by a POSITA at the time of invention.
`
`22. The first term I will construe is “memory.” Under the BRI standard,
`
`the term “memory” is at least as broad as “a device that stores information, including
`
`instructions or data, accessible through one or more actions initiated by the
`
`processor.” Memory refers to a device with the ability of containing information
`
`that can be used by the processor. Such information can be either code or data. The
`
`operation of retrieving code is usually referred as “fetching code”, while the
`
`operation of retrieving data as “reading data”; in both cases, the CPU is accessing
`
`information which was previously written in memory. Such information may be
`
`retained by memory for a short or long period of time, but the lifecycle of the
`
`information in memory mainly affects the definition of storage which is the subject
`
`matter of the next term.
`
`23. Second, I will construe “storage device.” Under the BRI standard, the
`
`term “storage device” is at least as broad as “a device that persistently maintains
`
`information, including instructions or data, accessible through one or more actions
`
`initiated by the processor.” Storage is a particular type of memory with the
`
`characteristic to persist the information even when the computer is powered down.
`
`Therefore storage is not only able to provide information to the processor, but it is
`
`also capable to preserve it for a very long period of time.
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`7
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`EXHIBIT 2008
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`24. Third, I will construe “instruction sequences.” Under the BRI, the term
`
`“instruction sequences,” is at least as broad as “one or more segments of computer
`
`code that can be executed by the processor to perform a specific task.” Instruction
`
`sequences are the building block of software and a combination of one or more of
`
`such sequences constitute an application program. Instruction sequences are at the
`
`base of the Von Neumann architecture and allow a general purpose computer to
`
`execute a specific task. Instructions are fetched by the processor in order to
`
`determine what action the program requires to be executed.
`
`25. The fourth term I will construe is “a post-boot application program.”
`
`Under the BRI standard, the term “post-boot application program” is at least as broad
`
`as “software that executes after the operating system is loaded and that performs a
`
`task desired by the user.” One or more instruction sequences constitute an
`
`application program. The attribute post-boot refers to the fact that the application is
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`executed in the context of an Operating System and having available all the services
`
`that such OS offers. The operation of booting an operating system requires the BIOS
`
`or a boot manager to load an Operating System boot loader. The boot loader must
`
`be in a format that is supported by the BIOS or the boot manager, so that it can be
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`loaded and executed; such boot loader accomplishes the task to initialize the
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`Operating System and all its services. Once the Operating System is fully booted,
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`8
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`EXHIBIT 2008
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`post-boot application can be executed by the user or by automatic processes setup
`
`by the user or by the system administrator.
`
`26. At the time of invention, numerous post-boot application programs
`
`were available on the market such as: Microsoft Word 97, Microsoft Excel 97, Lotus
`
`Organizer 97 GS, Dragon NaturallySpeaking, Visio 5.0., etc. There is a huge
`
`number of applications available for every operating system. Such applications can
`
`be provided by the Operating System manufacturers or by third parties that develop
`
`their application compatible to the specific Operating System. In modern Operating
`
`System multiple applications can be executed at the same time; they can work
`
`independently or they can interact to accomplish more complex tasks. For example
`
`a mail application may make use of a different application to render file attachments
`
`to the mail. The ability of different application to interact in such manner is just one
`
`of the several services offered by the Operating System.
`
`27. The fifth term I will construe is “a file system.” Under the BRI, “a file
`
`system” is at least as broad as “a system for organizing information on a storage
`
`device, based on directories and files, which defines how to access storage
`
`elements.” The term “file system” is utilized in the 659 Patent, e.g. Ex. 1001, p. 22,
`
`14:2-3, and exemplified in Figure 2B; however, its meaning is not expressly
`
`discussed. One of ordinary skill in the art, reading the Patent, would understand the
`
`term “file system” to have the above meaning. File system is referring to the way in
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`9
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`EXHIBIT 2008
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`which the various software components are persisted in the storage device. Such
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`software component, or files, can include either code or data or also a combination
`
`of the two. In order to read and write files to the file system it is necessary to follow
`
`the file system rules. The software may have intrinsic knowledge of the file system
`
`rules and access directly, i.e. read and/or write, the file system within the storage
`
`device or it may make use of a file system driver which abstract the operation of
`
`reading and writing to the file system. Every operating system includes drivers to
`
`provide services to access the various file systems present in the system. A POSITA
`
`would understand that the information organized in a file system could include data
`
`or code.
`
`28. The sixth element I will construe is “a storage element.” Under the
`
`BRI, “a storage element” is at least as broad as “a physical memory structure or
`
`information contained within memory.” In my decades of experience as an engineer,
`
`storage element refers a physical structure of a memory device that saves
`
`information. After reviewing the 659 Patent, I see multiple references of the term
`
`“storage element,” various references are made in the specification (and the claims,
`
`such as claim 1), one specific example is made in claim 4, and the other specific
`
`example is made in claim 6. Claim 1 states “a memory for storing instruction
`
`sequences by which the processor-based system is processed, the memory having at
`
`least one storage element.” Memory may refer to both the RAM or to the device
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`10
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`EXHIBIT 2008
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`storing the instruction sequences which can be in turn for example flash ROM of
`
`disk. Claim 4 states “the at least one storage element is a non-volatile memory.” A
`
`non-volatile memory is a physical structure that stores information. Claim 6 states
`
`“the at least one storage element is a file.” A file alone is information, not a physical
`
`structure. To account for these various references and examples in the 659 Patent,
`
`the term “storage element” must be at least as broad as “a physical memory structure
`
`or information contained within memory.” This construction encompasses the
`
`example of claim 4 (a non-volatile memory), the example of claim 6 (a file) and is
`
`consistent with the references to “storage element” as they appear in the specification
`
`and the claims, which allow for “storage element” to be a part of RAM, ROM, or
`
`any other memory.
`
`ANTICIPATION
`
`29.
`
`I have been advised and understand that a claimed invention is
`
`“anticipated” only if each and every element as set forth in the claim is found either
`
`expressly or inherently described, in a single prior art reference. By “inherently,” I
`
`mean that a POSITA would understand from the context of a reference that an
`
`element would necessarily need to be part of what is described in the reference, a
`
`conclusion derived from the context of the reference and the skill of a POSITA. To
`
`use a simple illustration, if a reference described a computer, but did not specifically
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`11
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`EXHIBIT 2008
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`state a processor, a processor would be inherent in the reference because a POSITA
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`would understand that a processor is a known feature of every computer.
`
`Ground One: Madden
`
`30.
`
`I have reviewed Exhibit 1005, which is U.S. Patent No. 6,178,503 B1
`
`(“Madden”). The application leading to the issuance of Madden as a patent was
`
`filed September 11, 1998, before the application leading to the issuance of the 659
`
`Patent.
`
`31. Madden describes a boot management program that may reside in any
`
`of Madden’s memories, including storage devices. Madden describes the power on
`
`process as a sequence of POST, boot manage and Operating system boot loader. It
`
`is clear that POST need to be stored in BIOS flash ROM; it is clear that boot loader
`
`and other Operating System artifacts need to be stored in the permanent storage 124
`
`of Fig.1. It is possible to store the boot manager application in several storage
`
`devices, including the permanent storage 124 of Fig.1.
`
`32. During boot-time, Madden’s boot management program causes a
`
`processor to write the contents of the at least one storage element to the storage
`
`device. The description of the invention of Madden indicates that in order to select
`
`to boot to a specific Operating System, the boot manager will copy all the required
`
`Operating System files from a folder associated with the specific Operating System
`
`to the root folder, where the boot process will look for the files necessary to execute
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`12
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`EXHIBIT 2008
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`the boot process. In this comparison we will identify the folder including the files to
`
`be read as the at least one storage element and the root folder as the storage device.
`
`It must be appreciated that in various circumstances folders may be mounted in the
`
`scope of the file system as independent storage devices; such mounted devices will
`
`be given a specific identifier, a driver letter in the Windows Operating System
`
`terminology. In the same way, we can categorize in the pre-boot space different
`
`folders on a disk as storage elements and storage devices.
`
`33. Because “multiple operating systems are stored simultaneously on one
`
`or more hard disks,” (Ex. 1006, p. 6, 3:40-42), “moving files” includes writing files
`
`from one storage element to a storage device. In order to execute the operation
`
`described by Madden will consist in the two steps: 1. reading at least one storage
`
`element into memory 120 from the directory associated with the Operating System
`
`chosen for booting and 2. writing the same one or more files to the root directory of
`
`storage device. Thus, a POSITA would understand that memory 120 includes at
`
`least one storage element.
`
`34. Madden also demonstrates that the contents are moved (e.g., written)
`
`independently of a post-boot application program. I have carefully reviewed the
`
`entire Madden patent and I cannot find any reference that any of the operation
`
`described is achieved because of an operating system application. Instead there are
`
`clear references that the entire process is achieved before the system is booted to the
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`13
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`EXHIBIT 2008
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`Operating System. As such, no Operating System application program may have any
`
`effect on the process described in Madden.
`
`35. Only after completion of the boot process, when the operating system
`
`is in operation, the operating system pass “control to application programs as they
`
`are invoked.” Based on this we can surely understand that the application program
`
`does not run pre-boot and thus, such applications do not affect any pre-boot
`
`operations such as transferring, copying, or moving files by the boot management
`
`software. It is clear by the explanation done by Madden of the entire execution flow
`
`from power on to the execution of application to perform tasks as desired by the
`
`user that such post-boot application program affect the performance of computer
`
`only after the Operating System is fully initialized. Because the boot manager as
`
`described by Madden has the function to select which Operating System to boot, it
`
`is impossible that such post-boot application program have any effect on the pre-
`
`boot process implementing boot manager.
`
`36.
`
`In addition to describing locally transferring information before an
`
`operating system is loaded, Madden also mentions establishing a communications
`
`link between the user computer and the service computer to facilitate the transfer of
`
`information before booting an operating system. Such service computers, at the time
`
`of invention, typically included a database for the purpose of effectively managing
`
`information. It is also defined by Madden that the source of the at least one file that
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`EXHIBIT 2008
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`is getting copied in the local storage element may be not only local but also remote.
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`In this case the storage elements are read from a server computer connected to the
`
`local computer through a local area network. In order for the local computer to read
`
`file from the permanent storage on the server computer, it is necessary to initialize a
`
`network adapter device and initialize a network stack with the goal to establish a
`
`communication link between the local computer and the server computer. Through
`
`such communication link it is possible to transfer information in the form of at least
`
`one file. Such transfer of information through a communication link is a well know
`
`practice, supported by industry standard. It was also known at the time of this
`
`invention that such services may be used also by BIOS POST through the usage for
`
`example of the PXE protocol.
`
`37.
`
`I will now evaluate the similarity of the Madden reference to the
`
`challenged claims of the 659 Patent.
`
`38. A POSITA would understand that a computer is a processor-based
`
`system. A computer is general purpose computing device which can be programmed
`
`to execute a specific task by software in the form of instruction sequences. Such
`
`instruction sequences need to be stored locally or remotely and they must be encoded
`
`in a format that is specific by the Central Processing Unit used in the computer. You
`
`may have one or more CPU in a computer. A POSITA would further understand that
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`OS A 106 or OS B 108 in Figure 1 are storage elements because each represents one
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`or more files in a directory.
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`39. POSITA would understand that the processor executes the instruction
`
`of the boot management program 136 stored in permanent storage 124 and loaded
`
`in memory 120. The instruction sequences used by the CPU to execute a task need
`
`to be stored in a persistent storage device so that they can be available when the
`
`system is powered up. Thus, a POSITA would understand that boot management
`
`program must be stored in memory 120 in order to be executed by the processor.
`
`BIOS is normally stored in a solid state device, aka flash ROM, soldered to the
`
`computer motherboard; boot manager solutions can be stored both in the ROM or in
`
`a storage device local to the system or in network shares made accessible by network
`
`protocols. The embodiment discussed in these charts refers to a boot manager stored
`
`in the local storage device, typically the hard disk.
`
`40. A POSITA would understand that the storage device is local to the
`
`processor and also local to memory because they are all contained within the same
`
`computer (machine 102 or 114) in Figure 1. The persistent storage which includes
`
`both the storage element and the storage device is local to the processor as described
`
`by different blocks included into the “TO BOOT” item 102 in Fig.1. Such persistent
`
`storage needs to be local to the processor because the processor needs to load both
`
`boot manager and OS into memory in order to execute the same. It is normally
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`expected at the time of the invention that all the building blocks to boot the computer
`
`to the specific Operating System chosen are stored locally to the system.
`
`41. A POSITA would understand that boot management program, in order
`
`to copy the storage element 106, 108, 110 or 112 to the root directory, will cause the
`
`storage element 106, 108, 110 or 112 to be read into memory 120 becoming storage
`
`elements of the memory 120 at a particular point in time and then written to storage
`
`device 124. The description of Madden does not specify a specific location where
`
`the boot manager is stored and there are multiple possible implementation. It is
`
`surely an easy solution to store the boot manager program in the same persistent
`
`storage device 124 of Fig.1. (Ex. 1006, p.16, 19:27-30). As already described before
`
`such boot manager application causes the copy of at least one file from one operating
`
`system specific directory to the root folder, which can be considered as storage
`
`element and storage device, being consistent with the BRI definition of such terms.
`
`42. A POSITA would understand that application programs are executed
`
`only when OS is fully booted and has control over the system hardware. Madden
`
`explain very clearly the entire booting process: initially POST is executed, which
`
`pass control to a boot manager, which in turn pass control to an Operating System
`
`boot loader. Only when the initialization of the Operating System is complete, then
`
`it is possible to execute Operating system applications, which requires the
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`availability of Operating System services, available only after the completion of the
`
`booting process of the Operating System.
`
`43. Accordingly, the act of writing between the storage element and storage
`
`device in 124 it is happening in pre-boot and it is independent of a post-boot
`
`application program. As such Operating System application program cannot have
`
`any effect on the process described in Madden of writing the storage elements to a
`
`storage device. The act of writing is a pre-boot task accomplished by a boot manager
`
`executing before the Operating System boot loader gets control: it is the same boot
`
`manager that after user selection of what Operating System is desired, it executes
`
`the writing of the at least one file to the storage device and then boot the same
`
`selected operating system passing control to its boot loader which make use of the
`
`copied files.
`
`44. A POSITA would understand that disk bootstrap routine is part of the
`
`boot management program. Boot management program first copy the selected OS
`
`files into root directory and then pass control to the selected operating system. It is
`
`clear that the boot management program described by Madden accomplishes the
`
`following functions: get input from the user in regard to what OS is desired to be
`
`used to boot the system, activate such OS properly copying file to the root directory,
`
`load the OS loader in memory and pass control to it. Disk bootstrap routine refers to
`
`this last function of the boot management program.
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`18
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`45.
`
` A POSITA would understand that some important files of the
`
`operating system are stored in a storage device that has a file system. Every storage
`
`device need to be organized in order to provide the ability to identify specific
`
`information. A file system is a set of rules defining how the information is
`
`organized. Every operating system supporting such file system is including a file
`
`system driver that allow to access information with entering in the organization
`
`details of the information.
`
`46.
`
` A POSITA would find that element [7.1] of the 659 Patent is present
`
`in Madden because the root directory includes files used by the operating system to
`
`start-up . “Start-up” is not a term that is ordinarily used in the industry in a defined
`
`or well-determined manner, but from how the term is applied in the 659 Patent, it is
`
`broad enough to include a directory having to deal with operating systems, a
`
`directory having to deal with boot-up, and a directory dealing with the transfer of
`
`the initial start-up application as described in Figure 3.
`
`47.
`
` A POSITA would understand that changing a boot record OEM is the
`
`same as setting a directory pointer. A directory pointer is information that can be
`
`used to identify the content copied and making it in this way available to any process
`
`willing to make use of such copied content. The same goal is achieved also by boot
`
`record OEM name indicated by Madden. Therefore the OEM name in the boot
`
`record may implement the directory pointer in claim 7.4.d
`
`19
`
`
`EXHIBIT 2008
`
`
`
`48.
`
` A POSITA would appreciate that the system of Madden would
`
`constitute a computer readable program product. The boot manager described by
`
`Madden is a computer program that needs to be readable from the processor in order
`
`to be executed. Every instruction sequence that need to be executed in a computer
`
`need to be a software product readable by the processor: in order to execute an
`
`instruction sequence, processor need to follow a fetch, decode and execute cycle.
`
`49. A POSITA would appreciate that the computer readable program
`
`product entails a computer usable medium having computer code embodied therein.
`
`The instruction sequences previously defined need to be stored or maintained in
`
`permanent storage when the system is powered down in order to be available to the
`
`processor as soon as power is applied back to the system. As such permanent storage
`
`is a computer usable medium storing instruction sequences which constitutes
`
`computer code that the processor will use when the system is powered on.
`
`50. A POSITA would appreciate that the fact that a low-level network
`
`connection is used necessarily implies “establishing a communications link.” In
`
`order for the local computer to read file from the permanent storage on the server
`
`computer, it is necessary to initialize a network adapter device and initialize a
`
`network stack with the goal to establish a communication link between the local
`
`computer and the server computer. Such network stack includes also a low-level
`
`network connection module.
`
`20
`
`
`EXHIBIT 2008
`
`
`
`Ground Two: Noll
`
`51.
`
`I have reviewed Exhibit 1003, which is U.S. Patent No. 6,185,696
`
`(“Noll”), which is Exhibit 1005. The application leading to the issuance of Noll as a
`
`patent was filed May 27, 1998, before the application leading to the issuance of the
`
`659 Patent.
`
`52. Noll describes the idea of reprogramming from a secondary BIOS
`
`ROM to a primary BIOS ROM, and it anticipates the challenged claims. When the
`
`system is powered on the processor start execution from the primary BIOS ROM,
`
`selected by default. Early in POST, BIOS verifies the integrity of the BIOS image
`
`stored in the primary BIOS ROM; if it results to be corrupted, BIOS selects the
`
`secondary BIOS ROM and pass control to it. Also the integrity of such secondary
`
`BIOS ROM is reviewed and, if the test is passing, the secondary BIOS ROM copy
`
`its content to the primary BIOS ROM either from RAM, where the secondary BIOS
`
`ROM has been copied to, or directly from the secondary BIOS ROM, depending on
`
`the implementation, and then the booting process resumes. In this case we have a
`
`clear example of writing to a storage device.
`
`53.
`
`I will now evaluate the similarity of the Noll reference to the challenged
`
`claims of the 659 Patent.
`
`54. A POSITA would understand that secondary BIOS ROMs would have
`
`at least one storage element because it contains a BIOS image.
`
`21
`
`
`EXHIBIT 2008
`
`
`
`55. A POSITA would appreciate that the “storage device” is “local” to the
`
`processor because it is connected to the system bus, as illustrated by Figure 1. Both
`
`BIOS ROMs are connected to the system bus of the computer so that processor may
`
`access the same with minimal configuration. Such configuration may be provided
`
`directly by hardware at reset as a default selection or very simple configuration to
`
`switch from the primary to the secondary BIOS ROM changing the state of
`
`ROMSEL2 through a specific general purpose input/output (“GPIO”).
`
`56. A POSITA would understand that the writing in step 1.4 does not in
`
`any way depend upon a post-boot application program. I have carefully reviewed
`
`the entire Noll patent and I cannot find any reference that any of the operation
`
`described is achieved because of an operating system application. Instead there is
`
`clear reference that the entire process is achieved before the system is booted to the
`
`Operating System. As such no Operating System application program may have any
`
`effect on the process described in Noll.
`
`57. A POSITA would understand that the programing of the primary BIOS
`
`ROM is executed through an instruction sequence, as mentioned in 1.4. In order to
`
`write the primary BIOS ROM there are a number of operation that depend on
`
`execution of specific instruction sequences implementing algorithms like copying
`
`the secondary BIOS ROM to RAM for execution, selecting BIOS ROM 1, erasing
`
`the content of the same through device specific commands, writing new code and
`
`22
`
`
`EXHIBIT 2008
`
`
`
`data on the same BIOS ROM 1 from memory according to the system architecture
`
`described in Fig.1. Different system architecture requiring different instruction
`
`sequences may be possible too. But in any case the programming of the primary
`
`BIOS ROM requires execution of specific program implemented by a series of
`
`specific instruction sequences.
`
`58. A POSITA would understand that ROM is non-volatile memory. Both
`
`BIOS ROMs must be non-volatile memory because they need to maintain code and
`
`data when
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