Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 1 of 19
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`Barry L. Breslow, Esq. (Resident Counsel)
`Nevada State Bar #3023
`Robison, Belaustegui, Sharp & Low
`A Professional Corporation
`71 Washington Street
`Reno, Nevada 89503
`Telephone: (775) 329-3151
`Email: bbreslow@rbsllaw.com
`
`Steve W. Berman (pro hac vice)
`Nicholas S. Boebel (pro hac vice)
`Hagens Berman Sobol Shapiro LLP
`1918 Eighth Avenue, Suite 3300
`Seattle, WA 98101
`Telephone: (206) 268-9320
`Emails: steve@hbsslaw.com;
`nickb@hbsslaw.com
`
`Christopher D. Banys (pro hac vice)
`Richard C. Lin (pro hac vice)
`Banys, P.C.
`1032 Elwell Court, Suite 100
`Palo Alto, CA 94303
`Telephone: (650) 308-8505
`Emails: cdb@banyspc.com;
`rcl@banyspc.com
`
`Attorneys for Plaintiff Applications in
`Internet Time LLC
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`APPLICATIONS IN INTERNET TIME, LLC,
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`SALESFORCE.COM, INC.,
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`v.
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`Plaintiff,
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`Defendant.
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`
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`Civil Action No.: 3:13-CV-00628-RCJ-VPC
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`PLAINTIFF APPLICATIONS IN
`INTERNET TIME, LLC’S REPLY CLAIM
`CONSTRUCTION BRIEF
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`RPX Exhibit 1060
`RPX v. AIT
`IPR2015-01751
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 2 of 19
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`I.
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`INTRODUCTION
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`In its responsive brief, Salesforce complicates the construction of simple, conventional
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`terms by importing limitations from certain embodiments described in the specification, rather
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`than applying the claim language and its common and ordinary meaning. But the claim terms
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`themselves and the principles governing their construction cannot be ignored. The claims
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`measure the invention, not the specification. Claim construction begins and ends in all cases with
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`the literal claim terms. Courts presume that claim terms carry their common and ordinary
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`meaning as understood by a skilled artisan viewing the intrinsic record. This meaning applies
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`unless the patentee gives the term a special definition, narrowly characterizes the invention in the
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`specification using words of exclusion or restriction, or clearly and unmistakably disclaims
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`subject matter in the specification or during prosecution. Salesforce’s brief fails to comply with
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`these canons of claim construction.
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`Salesforce’s constructions are a study in importing limitations into clear claim language.
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`For most terms, Salesforce skips the claim language and ordinary meaning altogether and
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`proceeds directly to inserting features from specific embodiments and prosecution claims found
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`nowhere in the AIT patents as issued. Salesforce’s constructions change the claim language
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`rather than construe it. For example, “automatically detecting” is now detecting by intelligent
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`agents, “changes that affect” are regulatory changes located in third party repositories.
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`Salesforce seeks not to construe the meaning of the actual claim language but to add features by
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`reading in limitations found only in certain preferred embodiments. But neither the inventors nor
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`the U.S. Patent Office considered Salesforce’s imported features critical to patentability, nor
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`would one of ordinary skill in the art in viewing the intrinsic record. This is why none of them
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`are recited in the issued claims. The Court should decline Salesforce’s invitation to insert them
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`now.
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 3 of 19
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`II.
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`ARGUMENT
`A.
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` “automatically detect[ing]”
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`Claim Term / Phrase
`
`AIT Proposed Construction
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`“automatically detect[ing]”
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`(‘482 claims 1, 21)
`(‘111 claim 13)
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`“detect[ing] without direct
`human intervention”
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`Salesforce Proposed
`Construction
`Indefinite, or in the
`alternative, requiring at
`least “detect[ing] without
`any intervention by a
`human operator through the
`use of one or more
`intelligent agents”
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`1.
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`Human Intervention
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`Salesforce’s construction of “automatically detecting” is flawed in two respects. First,
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`Salesforce’s proposed construction precludes the possibility of even indirect human intervention
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`in the process of “automatically detecting.” But software is not entirely autonomous and some
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`level of human interaction with the software is necessary. To at least some extent, a human
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`operator is required to initiate a software process on a machine before the machine can perform
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`any additional functions based on that process. (Rosenberg Reply Decl. at ¶ 27). Salesforce’s
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`construction would irrationally exclude all software.
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`The portions of the specification cited by Salesforce do not support its argument. First,
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`Salesforce selectively quotes a passage in the specification describing that the system “identifies
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`changes using intelligent network agents . . . and automatically effect(s) modifications in the
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`system without the use of programmers and/or programming.” (See Def. Br. at 12:16-19). But
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`the portion of this passage that Salesforce omits states that this intelligent agent embodiment
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`includes “recommending modifications to the business content.” (Boebel Decl., Ex. 1 (‘482
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`patent, at 7:64-65)). In this embodiment, the recommendations are made to humans, who must
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`review and approve any such changes before modifications to the system are made
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`“automatically,” a process exactly consistent with AIT’s proposed construction of “automatically
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`detecting” as “without direct human intervention.”
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`Salesforce also cites to a portion of the specification stating that “the invention provides
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`[for] monitoring and assimilating business change into business solutions rapidly, without
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 4 of 19
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`(re)programming.” (See Def. Br. at 12:19-22). But this passage says only that a certain type of
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`human intervention—(re)programming—not that no human intervention of any type is involved.
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`While it is certainly true that one of the problems the patents solved was to allow the propagation
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`of software changes “without requiring the services of one or more programmers to re-program
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`and/or recode the software items,” that specific form of direct reprogramming/recoding human
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`intervention does not preclude the use of any other forms of indirect human intervention.
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`(Boebel Decl., Ex. 1 (‘482 patent, at 8:41-43))
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`Salesforce similarly overstates a statement in the prosecution history where the patentee
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`distinguished a reengineering system disclosed in a prior art patent issued to Eager. In that
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`statement, the patentee merely pointed out that a system in which a human user is necessary to
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`“modify application screens and messages” is inconsistent with the claimed system for
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`“automatically detecting changes that affect an application.” The patentee never stated that a
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`human user must be completely excluded from any indirect involvement in the system to practice
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`the “automatically detecting” limitation of the claim.
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`Finally, Salesforce incorrectly argues that AIT’s proposed construction of “automatically
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`detecting” would render the claims indefinite because there is no clear boundary as to what level
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`of human intervention is permitted. But AIT’s proposed construction clearly refers to detecting
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`“without direct human intervention,” which is a concept readily understandable to those of
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`ordinary skill in the art.
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`2.
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`Intelligent Agents
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`Salesforce’s proposed construction of “automatically detecting” is also flawed because it
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`would limit the claim to the use of “intelligent agents” to perform the “automatically detecting”
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`operation of the change management layer. But as AIT noted in its opening brief, the
`specification identifies “intelligent agents” as just one of a variety of possible embodiments of
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`“automatically detecting”: “[t]he Change Configuration functions support creation and change of
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`End User functions through a variety of flexible and intelligent manual routines, such as
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`intelligent agents, screens, fields, reports, documents and logic that can be changed without
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 5 of 19
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`requiring programming skills.” (Boebel Decl., Ex. 1 (‘482 patent, at 10:6-14)). Salesforce argues
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`that this disclosure is inapplicable because it discusses only processes that occur after changes
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`have already been detected. But Salesforce is mistaken. This passage specifically refers to,
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`among other things, “intelligent agents,” which both parties agree is one embodiment disclosed in
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`the specification that performs the “automatically detecting” operation. Therefore, the passage
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`cannot be interpreted to describe only processes that occur after changes have already been
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`detected.
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`Moreover, as discussed in AIT’s opening brief, under the principle of claim differentiation
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`the term “automatically detecting” in claim 1 of the ‘482 patent cannot be limited to the use of
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`intelligent agents when claim 8, which depends on claim 1, adds the requirement of an
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`“intelligent agent” to detect changes that affect an application. In response, Salesforce cites to
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`cases stating that the doctrine of claim differentiation cannot be used to expand the scope of a
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`claim beyond what is disclosed in the patent. But the specification discloses multiple ways of
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`“automatically detecting” other than through the use of intelligent agents, all of which are covered
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`within the scope of the claims. So AIT’s construction does not expand the scope of the claim
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`beyond the patent’s disclosure.
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`Absent an express definition in the specification or disclaimer using words of manifest
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`exclusion in the specification or file history, the plain meaning of the claim language, particularly
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`when bolstered by the doctrine of claim differentiation, controls. Hill-Rom Serv. Inc. v. Stryker
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`Corp., 755 F.3d 1367, 1371-72 (Fed. Cir. 2014). Disavowal applies only when the language of
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`the specification or prosecution history “make clear” that the invention is restricted to a particular
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`form. (Id.). But the language that the Federal Circuit has found to disclaim claim scope is not
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`present here. (Id.)(statements such as “the present invention requires ...” or “the present invention
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`is ...” or “all embodiments of the present invention are....”). Salesforce cites various references to
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`“the invention” in the AIT specification, but none of those uses states that any particular
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`implementation or recited feature is “required,” “necessary,” or otherwise restricts the scope of
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`clear claim language to intelligent agents. In fact, the specific quote that Salesforce relies on to
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`try to import intelligent agents into the claims resides in a section of the specification titled
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`“EXAMPLE,” demonstrating to one of skill in the art that intelligent agents are merely one
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`possible embodiment. (Rosenberg Reply Decl. at ¶29-31).
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`Salesforce’s mischaracterization of intelligent agents as the only disclosure of
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`“automatically detecting” likewise does not require the construction Salesforce proposes. The
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`Federal Circuit has noted that “claims should not be confined to the disclosed embodiments –
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`even when the specification discloses only one embodiment.” Woods v. DeAngelo Marine
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`Exhaust, Inc., 692 F.3d 1272, 1283 (Fed. Cir. 2012). Instead, such restrictions can be read into a
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`claim only “when a patentee sets out a definition and acts as his own lexicographer, or when the
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`patentee disavows the full scope of a claim term either in the specification or during prosecution.”
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`(Id.). (internal quotations omitted). The patentee did not expressly define the term
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`“automatically detecting” in the specification, nor did the patentee disavow the full scope of
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`“automatically detecting” in the specification or during prosecution. Thus, this term should be
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`construed according to its ordinary meaning in the art in light of the specification, which is the
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`Salesforce Proposed
`Construction
`“modifications to
`regulatory, technological, or
`social requirements stored
`in a third party repository
`that affect information
`about unique aspects of a
`particular application or
`functions common to
`various applications”
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`“modifications to
`regulatory, technological, or
`social requirements stored
`in a third party repository
`that affect an application”
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`
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`construction that AIT has proposed.
`B.
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`“changes that affect . . .”
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`AIT Proposed Construction
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`Claim Term / Phrase
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`“changes that affect the
`information in the first
`portion of the server or the
`information in the second
`portion of the server”
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`(‘111 claim 13)
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`“changes that affect a
`particular application”/
`“changes that affect an
`application”
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`(‘482 claims 1, 21)
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`“changes to an application’s
`metadata”
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`“changes to an application’s
`metadata”
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`Salesforce’s proposed constructions for the “changes that affect . . .” limitations in the
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`patents-in-suit should be rejected because those proposed constructions are unduly narrow. As
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 7 of 19
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`discussed in AIT’s opening brief, there is no support in the patent for Salesforce’s proposed
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`language that the changes must be limited to information “stored in a third party repository.”
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`Salesforce incorrectly relies on portions of the specification describing instances where the
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`detected changes are changes to information that is stored outside of the claimed system. But
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`these statements do not exclude the possibility that the detected changes are changes to
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`information that is internal to the system, rather than “stored in a third party repository.” Indeed,
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`in one of the passages cited by Salesforce, the specification states that “[t]he internet is one
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`source of information on regulatory changes that is both prompt and cost-effective.” (Boebel
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`Decl., Ex. 1 (‘482 patent, at 10:24-26)) (emphasis added). The specification therefore explicitly
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`states that the Internet is only one of many possible sources of information regarding changes that
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`affect an application.
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`In addition, the specification further states that “[t]he change layer primarily involves an
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`intranet or the Internet and uses one or more intelligent agents (IA’s) that continually search on
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`the Web for relevant changes in a selected business area.” (Boebel Decl., Ex. 1 (‘482 patent, at
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`16:18-22)) (emphasis added). An intranet is an internal network that may be, and frequently is,
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`walled off from third party repositories. (Rosenberg Reply Decl. at ¶ 33). Thus, the reference in
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`the specification to a change layer that is confined to an intranet supports that the claimed system
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`can be implemented without the use of information stored in third party repositories. (Id.).
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`Still further, the specification describes an exemplary process where “Intelligent Agent
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`launches one or more intelligent agents (IAs) to pursue internal and external Web activities.”
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`(Boebel Decl., Ex. 1 (‘482 patent, at 19:66-67)) (emphasis added). Once again, the discussion in
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`the specification to the IA change detection agent operating internally within the system refers to
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`an embodiment where changes are detected within the system, not in relation to a third party
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`repository. (Rosenberg Reply Decl. at ¶ 33). Moreover, contrary to Salesforce’s assertion, such
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`changes internally within the system can be changes to metadata. (Id. at ¶ 34). Indeed,
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`Salesforce fails to point to any portion of the specification excluding detection of metadata
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`changes.
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`Salesforce’s attempt to limit the claims to the embodiment set forth in Figure 1 of the
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`Case 3:13-cv-00628-RCJ-VPC Document 73 Filed 10/30/15 Page 8 of 19
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`patent lacks merit. The specification does not state that Figure 1 depicts the sum total of the
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`patentee’s invention. To the contrary, the specification simply states that Figure 1 “schematically
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`illustrates the relationship of four layers that are the primary components of the invention.”
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`(Boebel Decl., Ex. 1 (‘482 patent, at 8:50-51)). Thus, the specification makes clear that Figure 1
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`is merely a high-level depiction of the general relationship between the four layers of the
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`disclosed invention and does not limit the scope of the asserted claims. See Innova/Pure, Inc. v.
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`Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004) (“particular embodiments
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`appearing in the written description will not be used to limit claim language that has broader
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`effect[,] . . . unless the patentee has demonstrated a clear intention to limit the claim scope using
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`words or expressions of manifest exclusion or restriction.”) (internal quotations and citations
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`omitted).
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`Salesforce also erroneously contends that the “changes that affect . . .” limitations should
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`be limited to three specific categories of “modifications to regulatory, technological, or social
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`requirements.” Salesforce asserts that “the specification does not identify any other categories of
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`material changes detected by the claimed change management layer,” but this is incorrect. (Def.
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`Br. at 20:8-13). The specification states that the change management layer “includes one or more
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`change agents that . . . identify and bring to the user’s attention relevant regulatory and non-
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`regulatory changes found on the Web that may affect a user’s business.” (Boebel Decl., Ex. 1
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`(‘482 patent, at 9:34-38)). In other words, the specification describes that the change
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`management layer can detect any type of change that may have an impact on the user’s business,
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`not just changes within certain categories of subject matter.
`C.
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`“dynamically generate . . .”
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`Claim Term / Phrase
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`AIT Proposed Construction
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`“dynamically generate a
`functionality and a user
`interface”
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`(‘111 claim 13)
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`“dynamically generate” means
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`“generate or update when
`needed.”
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`No construction necessary for
`“a functionality and a user
`interface.”
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`Salesforce Proposed
`Construction
`Indefinite, or in the
`alternative, requiring at
`least “generate [both a
`functionality and a user
`interface] immediately and
`concurrently without any
`modification of software by
`a user”
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`“dynamically generated
`when the client computer
`connects to the server
`computer” / “dynamically
`re-generated”
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`(‘482 claims 1, 21)
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`“dynamically [re-]generated”
`means “generate or update
`when needed.”
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`No construction necessary for
`“when the client computer
`connects to the server
`computer.”
`Salesforce’s position with respect to the “dynamically generate . . .” limitations continues
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`Re-generated: “generated
`again after in [sic] initial
`generation”
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`to change. Initially, Salesforce asserted that these limitations are indefinite. Then it offered an
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`alternative construction to AIT’s proposed construction for these limitations. Now, Salesforce
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`has overhauled its alternative construction into a brand new construction. Salesforce focuses
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`several pages in its brief to argue for its new construction, but then reverses course again in a
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`short paragraph arguing that the entire limitation is indefinite—in other words, has no support in
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`the specification or prosecution history, and would not be comprehensible to a skilled artisan.
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`Consequently, it is unclear from Salesforce’s briefing exactly what its position is with respect to
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`these limitations.
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`Salesforce’s arguments lack merit. First, Salesforce incorrectly equates the term
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`“dynamically generate” with the description in the specification of converting changes into
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`changes in work/task lists, data entry forms, etc. “without requiring the services of one or more
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`programmers to re-program and/or recode the software.” (Def. Br. at 21:19-22:4). But there is
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`no evidence that the patentee intended “dynamically generate” to be limited to this description in
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`the specification. Indeed, the patentee never explicitly defined “dynamically generate” anywhere
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`in the patent – a point that Salesforce concedes. (See Def. Br. at 23:11-12). Nor did the patentee
`ever disavow any scope of “dynamically generate” in the specification or during prosecution.1
`Consequently, the Court should reject Salesforce’s attempt to limit the scope of “dynamically
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`generate” to the descriptions of specific embodiments in the specification. See Woods, 692 F.3d
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`1 Salesforce’s reference to statements made by the patentee during prosecution of the patents-in-
`suit do not constitute any disavowal of claim scope. (See Def. Br. at 22:5-10). Rather, those
`statements were simply made by the patentee as a high-level description of the general goals of
`the invention, and not for purposes of defining the term “dynamically generate.” (See Stake
`Decl., Ex. 8 at 2-3).
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`at 1283.
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`With respect to the temporal scope of this limitation, AIT’s proposed construction--
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`“generate or update when needed”--is more consistent with the specification and the dictionary
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`definition of “dynamically” than Salesforce’s proposed language of generating “immediately and
`concurrently.”2 Significantly, the specification describes a “Java data management layer and thus
`what the end user sees is defined only by metadata and is generated as needed by a single
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`program that interprets what a form will look like.” (Boebel Decl., Ex. 1 (‘482 patent, at 15:26-
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`29)).
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`Finally, there is nothing indefinite about the term “dynamically generate” or AIT’s
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`proposed construction of the term. Salesforce suggests that the term is indefinite because the
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`claim does not specify who or what is responsible for performing the action of “dynamically
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`generating.” But the fact that the claims do not specifically recite who must perform the
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`“dynamically generating” action does not make the claim indefinite. Rather, this simply means
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`that the claim does not restrict who or what must perform this particular action. See Ultimax
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`Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009) (“Merely
`
`claiming broadly does not render a claim insolubly ambiguous, nor does it prevent the public
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`from understanding the scope of the patent.”).
`D.
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`“layer” / “portion of the server” or “portion”
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`Claim Term / Phrase
`
`AIT Proposed Construction
`
`“layer”
`
`(‘482 claims 1, 3, 5, 10, 20,
`21, 23, 25, 30, 40)
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`“a set of functionally or
`logically related software
`components”
`
`
`“portion of the server” /
`“portion”
`
`(‘111 claims 13-17)
`
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`“a functionally or logically
`related subset of one or more
`
`server computers”
`
`
`Salesforce Proposed
`Construction
`Indefinite, or in the
`alternative, requiring at
`least “a group of data and/or
`functions that is separate
`and distinct from other such
`groups”
`
`Indefinite, or in the
`alternative, requiring at
`least “a subset of one server
`computer separate and
`distinct from other subsets”
`
`
`22 Salesforce’s position suffers from a related flaw that it injects ambiguity into the claims by not
`clarifying what happens “concurrently.” For something to be concurrent, two or more things
`must be happening at the same time. In Salesforce’s proposed construction, that is not clear.
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`Salesforce’s proposed constructions of “layer,” “portion of the server,” and “portion”
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`
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`should be rejected because they incorrectly graft on the requirement that each “layer” or “portion”
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`be “separate and distinct” from each other. The specification consistently describes the different
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`layers of the integrated change management system as being closely interrelated to each other.
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`(Boebel Decl., Ex. 1 (‘482 patent, at 12:24-25; 9:52-56; 9:59-61)). In fact, the specification
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`describes that the “business content layer is defined by and referenced in the metadata layer . . . .”
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`(Id. at 12:24-25). In other words, information that is associated with the “business content layer”
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`is expressed as metadata and stored in the metadata layer. (Rosenberg Reply Decl at ¶ 19). Thus,
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`Salesforce’s proposed construction, which attempts to create a physical separation between the
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`layers of the system, is simply inapplicable. In the context of computer software, and especially
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`with respect to the system disclosed in the patents-in-suit, there is no real physical separation
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`between different layers. (Id. at ¶ 49-50). Rather, the separation between the different layers is
`conceptual, as in AIT’s proposed construction.3 (Id)..
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`Salesforce’s reliance on the prosecution history is entirely misplaced. Salesforce argues
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`that the patentee’s statements distinguishing the claimed invention from the Eager prior art
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`reference somehow acts as a disclaimer to AIT’s proposed construction. But the patentee argued
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`during prosecution only that the Examiner could not rely on the same “functionality layer”
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`disclosed in Eager to fulfill the requirements of both the “third layer” and the “change
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`management layer” recited in the patent claims. (See Stake Decl., Ex. 5 at 14). In other words,
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`the patentee took the position that the Examiner failed to explain how the single “functionality
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`layer” in Eager met the requirements of both the “third layer” and the “change management
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`layer” in the claims. This statement does not constitute a disclaimer of AIT’s proposal to
`construe “layer” as “a set of functionally or logically related software components.”
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`In addition, Salesforce incorrectly asserts that AIT’s proposed constructions of “layer,”
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`3 Indeed, the title of the patents-in-suit, “Integrated Change Management Unit,” itself suggests a
`system that is comprised of closely interrelated (as opposed to separate and distinct) parts.
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`“portion of the server,” and “portion” would render the claims indefinite. One of ordinary skill in
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`the art understands with reasonable certainty what constitutes “a set of functionally or logically
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`related software components.” (Rosenberg 9/18/15 Decl. at ¶ 34-35, 61-63). Each
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`“layer”/“portion” recited in the claims has corresponding language specifying the operations of
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`that particular “layer”/“portion” (e.g., in ‘482 claim 1, “a change management layer for
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`automatically detecting changes that affect an application”). Thus, the claims themselves, read in
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`light of the specification, provide those of ordinary skill in the art ample information to discern
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`what constitutes the “set of functionally or logically related software components” for each
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`“layer”/“portion.”
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`Finally, with respect to the terms “portion of the server” and “portion,” Salesforce fails to
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`support its proposed construction of “a subset of one server computer separate and distinct from
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`other subsets.” As AIT noted in its opening brief, the term “server” is not limited to one single
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`server computer, but instead refers to “one or more server computers.” Salesforce does not
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`respond to this point in its claim construction brief, implicitly conceding that “portion of the
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`server” and “portion” are not limited to a single server computer.
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`E.
`“unique aspects of a particular application” / “functions common to various
`applications”
`
`Claim Term / Phrase
`
`AIT Proposed Construction
`
`“information about [the]
`unique aspects of a
`particular application”
`
`(‘482 claims 1, 21)
`(‘111 claim 13)
`“unique aspects”
`
`(‘482 claims 1, 21)
`(‘111 claim 13)
`“information about user
`interface elements and one
`or more functions common
`to various applications” /
`“information about the user
`interface and functions
`common to a variety of
`applications”
`
`
`“metadata that defines a data
`element or application
`function relating to a specific
`activity of a particular
`application”
`
`Subject to constructions above,
`no construction necessary –
`plain and ordinary meaning.
`
`
`“metadata that defines user
`interface elements and/or
`
`application functions common
`to multiple applications”
`
`
`Salesforce Proposed
`Construction
`“unique aspects”: Indefinite
`
`
`Indefinite
`
`
`Indefinite, or in the
`alternative, requiring at
`least “information about
`user interface components
`and functions used by
`multiple different
`applications, excluding any
`unique aspects of those
`applications”
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`(‘111 claim 13)
`(‘482 claims 1, 21)
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`Salesforce erroneously contends that the use of the terms “unique” and “common” in the
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`patent claims renders the claims indefinite. Both of these terms are well-understood by both
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`those of skill in the art and lay r