U.S. Patent No. 7,356,482
`Inter Partes Review
`Patent Owner’s Response
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`Case No. IPR2015-01750
` IPR2015-01751
` IPR2015-01752
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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`RPX Corporation,
`Petitioner
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`v.
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`Applications In Internet Time LLC,
`Patent Owner.
`____________________
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`
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`US Patent No. 7,356,482
`Issue Date: April 8, 2008
`Title: Integrated Change Management Unit
`____________________
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`Inter Partes Patent Review No. 2015-01750, 2015-01751; 2015-01752
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`__________________________________________________________________
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`Declaration of James Flynn
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`TABLE OF CONTENTS
`Introduction .......................................................................................................... 1
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`I.
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`II. Qualifications .................................................................................................... 2
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`III. Grounds for which this proceeding was instituted ........................................... 4
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`IV. Claim construction ............................................................................................ 6
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`a. The “application program” term ....................................................................... 8
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`b. The “change management layer” and the “automatically detecting changes”
`terms ........................................................................................................................ 9
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`c. The “fourth portion” phrase............................................................................13
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`d. The “intelligent agent” phrase ........................................................................14
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`V. Popp cannot anticipate claims 1 or 21 of the ‘482 patent or claim 13 of the ‘111
`patent because it does not disclose a “change management layer” or a “fourth
`portion” ....................................................................................................................14
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`VI. Kovacevic cannot anticipate claims 1 or 21 of the ‘482 patent or claim 13 of
`the ‘111 patent because it does not disclose a “change management layer” or a
`“fourth portion” ........................................................................................................17
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`VII. Balderrama and Java Complete cannot render claims 1 and 21 of the ‘482
`patent or claim 13 of the ‘111 patent obvious because Balderrama does not
`disclose a “change management layer”, “automatically detecting changes” or a
`“fourth portion” ........................................................................................................18
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`VIII. Popp in combination with Anand cannot render claims 13-17 and 33-37 of
`the ‘482 patent obvious ............................................................................................20
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`IX. Claims 3-6 and 22-26 of the ‘482 patent are not anticipated or obvious in
`view of any of the identified references or combinations ........................................20
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`X. Conclusion .........................................................................................................21
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`I.
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`Introduction
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`1.
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`I, James Flynn, am one of the authors for the article, “How JAVA
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`Makes Network-Centric Computing REAL,” which appeared in Java Complete!,
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`Datamation, March 1, 1996, pp. 42-43 (“Java Complete”).
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`2.
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`I graduated magna cum laude in 1983 from Manhattan College in
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`New York with a Bachelor of Science degree. My major area of concentration was
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`Computer Information Systems. In 1990, I received a Master of Business
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`Administration from New York University Stern School of Business, located in
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`New York.
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`3.
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`In 1996, I co-authored one of the first books on the Java
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`programming language, “Visual J++ Java Programming.” I have authored a
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`number of patents, one of which has issued, and I have published articles in well-
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`respected technology, trade and scholarly journals. I have been certified as a
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`Certified Document Imaging Architect and a Microsoft Certified Professional.
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`4.
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`Since 2012, I have been the President and Founder of Overlook, LLC
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`(“Overlook”), located in Northampton, MA. Overlook creates niche Internet TV
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`channels that run on its proprietary software platform, all of which was designed
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`by me. All of the application software code comprising the platform was either
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`TV channels are live on multiple platforms, including iOS and Windows.
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`5.
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`Prior to Overlook, I was the CEO of EZTakes, a vendor in the movie
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`download space. Prior to co-founding EZTakes, I was the Chief Operating Officer
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`at Pitney Bowes subsidiary that provided software and services for business-to-
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`consumer electronic communications and Internet commerce.
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`6.
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`I have been retained by the Patent Owner (“PO”), Applications in
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`Internet Time, LLC, in this matter. This Declaration sets forth my opinions and the
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`bases for those opinions regarding the validity of the instituted claims of U.S.
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`Patent No. 7,356,482 (the “’482 patent”) and U.S. Patent No. 8,484,111 (the “’111
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`patent”)1.
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`II. Qualifications
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`7.
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`All of my opinions stated in this declaration are based on my own
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`personal knowledge and professional judgment. In forming my opinions, I have
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`relied on my knowledge and experience in software development practices, and on
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`the documents and information referenced in this report. I am competent to testify
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`as to the matters set forth herein.
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`(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)
`1 All references herein are to the ‘482 patent, unless otherwise noted. The ‘482 patent and the ‘111 patent share a
`specification.
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`8.
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` Attached hereto as Appendix A is a true and correct copy of my
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`Curriculum Vitae.
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`9.
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`I am being compensated at the rate of $300 per hour for my work as
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`an expert in this case. My compensation is not dependent on the content of my
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`opinions or the outcome of this case.
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`10.
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`The references I reviewed in preparing this declaration were:
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`Exhibit
`1001
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`1001
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`1004
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`1005
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`1006
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`1007
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`1008
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`1009
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`Description
`U.S. Patent No. 8,484,111 patent
`(IPR20015-01750)
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`U.S. Patent No. 7,356,482 patent
`(IPR2015-01751; IPR2015-01752)
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`U.S. Patent No. 6,249,291 (“Popp”)
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`Srdjan Kovacevic, Flexible, Dynamic User
`Interfaces for Web-Delivered Training,
`Proceedings of the Workshop on Advanced Visual
`Interfaces, 1996 (“Kovacevic”)
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`U.S. Patent No. 5,806,071 (“Balderrama”)
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`Java Complete!, Datamation, March 1, 1996, pp.
`28-49 (“Java Complete”)
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`E. F. Codd, Does your DBMS run by the rules?,
`ComputerWorld, October 21, 1985, pp. 49-60
`(“Codd”)
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`U.S. Patent No. 5,710,900 (“Anand”)
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`Decision Instituting Proceeding – Public Version
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`Decision Instituting Proceeding – Public Version
`(IPR2015-01751)
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`Decision Instituting Proceeding – Public Version
`(PR2015-01752)
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`III. Grounds for which this proceeding was instituted
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`11.
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`I understand that this inter partes review proceeding was instituted in
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`IPR2015-01750 for claims 13-18 of the ‘111 patent under the following three
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`grounds:
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`• Claims 13-18 as anticipated under 35 U.S.C. § 102(e) by Popp;
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`• Claims 13-18 as anticipated under 35 U.S.C. § 102(b)by
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`Kovacevic; and
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`• Claim 13-18 as obvious under 35 U.S.C. §103(a) in view of
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`Balderrama and Java Complete;
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`12.
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`I understand that this inter partes review proceeding was instituted in
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`IPR2015-01751 for claims 1, 7, 8, 10-21, and 27-40 of the ‘482 patent under the
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`following four grounds:
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`• Claims 1, 7, 8, 10–13, 18–21, 27–33, and 38–40 as anticipated
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`under 35 U.S.C. § 102(e) by Popp;
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`• Claims 13–17 and 33–37 as obvious under 35 U.S.C. § 103(a)
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`in view of Popp and Anand;
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`• Claims 1, 8, 10, 19–21, 28, 30, 39, and 40 as anticipated under
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`35 U.S.C. § 102(b) by Kovacevic; and
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`• Claims 1, 7, 8, 10–12, 19–21, 27–32, 39, and 40 as obvious
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`under 35 U.S.C. § 103(a) in view of Balderrama and Java
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`Complete.
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`13.
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`I understand that this inter partes review proceeding was instituted in
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`IPR2015-01752 for claims 3-6 and 22-26 of the ‘482 patent under the following
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`five grounds:
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`• Claim 22 as anticipated under 35 U.S.C. § 102(e) by Popp;
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`• Claims 3-6 and 23-26 as obvious under 35 U.S.C. § 103(a) in
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`view of Popp and Codd;
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`• Claim 22 as obvious under 35 U.S.C. in view of Balderrama
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`and Java Complete;
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`• Claims 3-6 and 23-26 as obvious under 35 U.S.C. § 103(a) in
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`view of Balderrama, Java Complete, and Codd; and
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`• Claims 3-6 and 23-26 as obvious under 35 U.S.C. § 103(a) in
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`view of Kovacevic and Codd.
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`14.
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`As will be explained more fully below, it is my view that none of the
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`cited references anticipate or render obvious the identified claims of the ‘482
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`patents.
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`IV. Claim construction
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`15.
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`I understand that in an inter partes review, claim terms in an
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`unexpired patent are given their broadest reasonable construction in light of the
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`specification of the patent in which they appear. 37 C.F.R 42.100(b).
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`16.
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`In performing my analysis and rendering my opinions, I have
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`interpreted claim terms for which AIT has not proposed a construction by giving
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`them the ordinary meaning they would have to a person having ordinary skill in the
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`art, reading the (cid:1932)482 Patent with its relevant priority filing date (December 18,
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`1998) in mind and in light of its specification and file history.
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`17.
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`I understand that AIT has accepted Petitioner’s standard that a person
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`of ordinary skill in the art would have had at least a B.S. in Computer Science, or
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`in developing applications for client-server systems.
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`18.
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`By 1998, I had worked as a software developer for several years, had
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`been a technical executive in three companies, and was the Co-founder of @Work
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`Technologies located in New York. As co-founder, I had the privilege of working
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`directly with many engineers at @Work Technologies who were POSITAs in
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`1998. Therefore, because of my experience working and leading POSITAs at
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`@Work Technologies, I can appreciate what was known to them at the time and
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`within their ability. When preparing my opinions below, I applied the perspective
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`of such a POSITA as set in December 1998.
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`19.
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`I understand that the ‘482 patent comprises three independent claims,
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`namely claim 1, 21 and 41 and the ‘111 patent comprises one independent claim,
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`claim 13. However, the IPR proceeding has not been instituted for independent
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`claim 41 of the ‘482 patent. Therefore, independent claims 1 and 21 of the ‘482
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`patent, and claim 13 of the ‘111 patent, are addressed in detail below. All of these
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`claims require either a change management layer or a fourth portion that
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`automatically detects changes that affect an application.
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`20.
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`I also understand that the Patent Trial and Appeal Board (“PTAB”)
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`declined to construe any of the claim terms. However, in my opinion, a person of
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`ordinary skill in the art would require constructions for those terms.
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`21.
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`In reviewing the claims, I determined that the following terms
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`required construction to enable me to understand the scope of the claim. In
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`particular, I needed to construe: an “application”, the “change management layer”,
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`the “automatically detecting changes” term, the “fourth portion” in the ‘111 patent,
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`and the “intelligent agent” term.
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`22.
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`Importantly, I note that the phrase “change management layer” or
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`“automatically detecting changes” appears in every claim of the ‘482 patent.
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`a.
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`The “application” or “application program” term
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`23.
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`I think the appropriate definition of “application” or “application
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`program” is “a higher level program for use by an end-user to perform specific
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`kind of work that is useful to the end-user; its work is not related to the computer
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`itself, and therefore is not a utility.” While an application program can perform
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`specific tasks, its purpose is broader – performing useful work.
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`The “change management layer” and the “automatically detecting
`changes” terms
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`24.
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`Independent claim 1 includes the phrase “change management layer”
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`of which I am unaware of any corresponding term of art. The full associated
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`phrase is a “change management layer for detecting changes that affect a particular
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`application.”
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`25.
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`Independent claim 21 similarly requires “automatically detecting
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`changes that affect a particular application.”
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`26.
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`The term “change management layer” is not a term of art in
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`computer science, so I reviewed the specification to understand how a person of
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`ordinary skill in the art would interpret the term. Similarly, the meaning of
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`“change” in this context appeared important to a proper understanding of the scope
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`of the operation of the “change management layer” and the “automatically
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`detecting changes.”
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`27.
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`In my opinion, under the broadest reasonable interpretation, a person
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`of ordinary skill in the art would define a “change management layer” as
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`automatically detecting changes which impact how the application program should
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`operate.
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`28.
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`Importantly, the associated changes detected by the “change
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`management layer” or “automatically detect[ed]” arise from changes external to
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`the application program.
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`29.
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`In my opinion,
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`this definition
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`is
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`the broadest
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`reasonable
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`interpretation of the term “change management layer” and “changes” when read in
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`light of the specification. Figure 1 of the ‘482 patent shows a change layer that is
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`separate from the three other layers of the system:
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`30.
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`As seen in figure 1, the change management layer (here, the “change
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`layer”) is one of four separate layers: 1) the change management layer; 2) the Java
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`Data Management layer; 3) the Metadata layer, and 4) the Business Content Layer.
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`31.
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`I read from the specification that the “change layer primarily
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`involves an intranet or the Internet and uses one or more intelligent agents (IA’s)
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`that continually search on the Web for relevant changes in a selected business
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`area.” (col. 16, lines 17-24). This suggests to me that the change management layer
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`operates to search external to itself, e.g. on the Web, rather than receiving user
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`input.
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`32.
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`Further, the ‘482 patent indicates in col. 16, lines 18-60 that the
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`change management layer operates in contrast to a “conventional language-based
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`development environment” of FIG. 7 which describes the process of programming
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`and creating an executable application. So, unlike the typical development process,
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`the ’482 patent operates without “user input” of programming to alter the
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`functionality of the application to create a new “data entry form” (col. 16, lines 35-
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`47) that, itself, may accept user input.
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`33.
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`For example, FIG. 1 includes the phrase, “changes are identified on
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`the Internet using Intelligent Agents and provided for configuration” below the
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`“change layer”.
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`34.
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`The ‘482 patent specification indicates that an intelligent agent, used
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`by the change management layer, “can be used to identify changes in laws,
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`statutes, ordinances, regulations and related
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`issues, changes
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`in
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`technical
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`requirements, to provide feedback, and to perform Change Configuration tasks.”
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`(col. 20, lines 4-6).
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`35.
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`The specification includes as an example of the “change” detected by
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`the “change management layer” as changes to disposal of hazardous waste in
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`landfills are updated in the Federal Register, for example, on the Internet. (col. 10,
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`lines 21-60). The associated change may be identified and routed to “a selected
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`metadata table.” (col. 10, lines 50-54). Then the change may be integrated into
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`software automatically.
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`36.
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`In my opinion, the specification, including the example shown
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`above, makes clear to a person of ordinary skill in the art that the change
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`management layer automatically detects changes which impact how the application
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`program should operate and that these changes are not changes like user input or
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`the actions of the application itself. Instead, I understand that these changes are
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`changes external to the application program.
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`37. When construing claim 21, I also applied the same definition for
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`“automatically detecting” the “changes” as I did for the “change management
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`layer” of claim 1, primarily because it is clear from the specification of the ‘482
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`patent that the “changes” being detected are not user input or application internal.
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`c.
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`The “fourth portion” phrase
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`38.
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`The ‘111 patent includes the phrase “fourth portion”, but appears in a
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`corresponding limitation of claim 13 which reads “the fourth portion of the server
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`being configured to automatically detect changes that affect the information in the
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`first portion of the server or the information in the second portion of the server.”
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`(e.g. claim 13).
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`39.
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`The phrase “fourth portion of the server” of claim 13 of the ‘111
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`patent appears to correspond to the “change management layer” or the
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`“automatically detect[ing] changes” limitation in claims 1 and 21 of the ‘482
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`patent. At a minimum, the ‘482 patent and the ‘111 patent share a specification
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`and the associated “changes” are the same. Therefore, the “fourth portion” phrase
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`should be defined in the same way as the “change management layer” which
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`automatically detects changes which impact how the application program should
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`operate. Similarly, the “changes” in claim 13 of the ‘111 patent are changes
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`external to the application program.
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`The “intelligent agent” phrase
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`40.
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`Finally, the change management layer’s reliance upon the term
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`“intelligent agent” and my lack of a clear understanding of that phrase as a term of
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`art suggested to me that a definition of that term would be helpful. I found that the
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`‘482 patent actually defines the phrase “intelligent agent.” It stated that “An
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`‘intelligent agent’ is a specialized program that makes decisions and performs tasks
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`based on predefined rules and objectives.” (20:1-3). The ‘482 patent also states,
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`“An ‘intelligent agent’ is a specialized program that resides on a network, or at a
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`server as an applet, and can make decisions and perform tasks based on pre-
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`defined rules.” (10:42-45). An appropriate understanding of the “intelligent agent”
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`would take these two definitions into account.
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`V.
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`Popp cannot anticipate claims 1 or 21 of the ‘482 patent or claim 13
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`of the ‘111 patent because it does not disclose a “change management
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`layer” or a “fourth portion”
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`41.
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`Popp is directed to managing Internet transactions. In particular,
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`Popp explains that a user can connect to the Internet and use the Web to connect to
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`a home page. Once the user has established a connection to the Internet, the system
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`of Popp may be used to dynamically generate Web pages. Popp teaches a system
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`that generates Web pages in response to a user’s input.
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`42.
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`In order to anticipate a claim, Popp must disclose every limitation of
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`that claim. However, Popp fails to disclose the “change management layer”
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`claimed in claim 1, the “automatically detecting changes” in claim 21 or the
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`“fourth portion” in claim 12 of the ’111 patent.
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`43.
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`It appears that the Board relied upon Popp’s teaching of an
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`inputControl Object as meeting
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`the “change management
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`layer” and
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`“automatically detecting changes” in the ‘482 patent and the “fourth portion”
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`disclosed in the ‘111 patent.
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`44.
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`The “InputControl Object 664” of Popp indicates that a change is
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`detected “when a user inputs a change that affects a Web page, such as modifying
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`field 632 within page 622 to specify a new name.”
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`45.
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`The activity applied as meeting this limitation is user input into a
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`user interface on a web page. In my opinion, this is insufficient to anticipate the
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`“change management layer” of the ‘482 patent or the “fourth portion” of the ‘111
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`patent.
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`46.
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`Popp discloses an application program that automatically detects
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`changes from its own operation. Such a change is not automatically detected
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`external to the application program. Rather in Popp, the user’s interaction with the
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`changes that occurred external to the application.
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`47.
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`Therefore, Popp does not disclose a “change management layer” or
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`“automatically detect[] changes” which impact how the application program
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`should operate where those changes arise from changes external to the application
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`program as required by the broadest reasonable interpretation of those terms within
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`the ‘482 patent by a person of ordinary skill in the art.
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`48.
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`Likewise, the “fourth portion” of claim 13 of the ‘111 patent cannot
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`be anticipated by Popp.
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`49.
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`Neither the ‘482 specification nor the ’111 specification suggest that
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`the changes detected by the “change management layer” or “fourth portion” is a
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`change that results from a user inputting data into a Web page form.
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`50.
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`As viewed by a person of ordinary skill in the art, under the broadest
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`reasonable interpretation, Popp does not anticipate claim 1 or 21 of the ‘482 patent.
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`Similarly, claim 13 of the ’111 patent which requires a “fourth portion” also cannot
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`be anticipated by Popp. The remaining dependent claims of either the ‘482 or the
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`‘111 patent are likewise not anticipated by Popp by virtue of their dependencies on
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`claims 1 and 21 of the ‘428 patent or claim 12 of the ‘111 patent.
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`VI. Kovacevic cannot anticipate claims 1 or 21 of the ‘482 patent or
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`claim 13 of the ‘111 patent because it does not disclose a “change
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`management layer” or a “fourth portion”
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`51.
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`Kovacevic is directed to a web-based tutoring system for students.
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`The website described by Kovacevic, once created, does not change. Kovacevic
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`appears to be directed to a teaching system for presenting web pages to illustrate
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`concepts for learning.
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`52.
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`It appears that the Board relied upon Kovacevic’s disclosure of
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`sequencing control primitives as meeting the “change management layer”,
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`“automatically detecting changes” and “fourth portion”. As with Popp, the
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`operation of the “sequencing control primitives” makes clear that they are
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`essentially user interface elements that receive user interactions with the software.
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`(Kovacevic at p. 114, col. 2 para. 6).
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`53.
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`In my opinion, a person of ordinary skill in the art would not have
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`viewed Kovacevic’s user interface or user interaction as disclosing the “change
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`management layer”, the “automatically detecting changes” or the “fourth portion.”
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`54.
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`Nothing in Kovacevic suggests that it is capable of detecting any
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`changes that arise from changes external to the application program. Rather, the
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`changes detected in Kovacevic are based on a user’s purposeful interaction with
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`55.
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`In my opinion, Kovacevic does not disclose of the “change
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`management layer” required by claim 1 of the ‘482 patent. Similarly, Kovacevic
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`fails to include the “automatically detecting changes” required by claim 21 of the
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`‘482 patent or the “fourth portion” of claim 13 of the ’111 patent. The remaining
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`dependent claims of both patents are not anticipated by Kovacevic by virtue of
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`their dependencies on independent claims 1 and 21 of the ‘482 patent and claim 13
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`of the ‘111 patent.
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`VII. Balderrama and Java Complete cannot render claims 1 and 21 of the
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`‘482 patent or claim 13 of the ‘111 patent obvious because
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`Balderrama does not disclose a “change management layer”,
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`“automatically detecting changes” or a “fourth portion”
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`56.
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`Balderrama discloses a system whereby a manager may update a
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`point of sale system from a remote computer. So, as described by Balderrama, a
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`checker at a taco restaurant may operate a point of sale to sell food products. A
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`manager, who may or may not be remote from the checker or the checker’s point
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`of sale location, may upload changes to a database that powers the menu such as
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`prices or item availabilities. In response, the point of sale system or an associated
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`checker. This change may alter those prices or available items.
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`57.
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`It
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`appears
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`that
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`the Board
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`suggested
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`that Balderrama’s
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`update/modification detector 82 meets the “change management layer” limitation
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`required by claim 1 of the ‘482 patent and the “automatically detecting changes”
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`limitation in claim 21 of the ‘482 patent as well as the “fourth portion” in claim 13
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`of the ‘111 patent.
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`58.
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`However, like Popp and Kovacevic, Balderrama’s specification
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`reflects that the changes detected by the “update modification detector 82” are
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`input by a store manager using the application. (Balderrama at col. 10, lines 6-10).
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`59.
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`The types of updates include “adding or deleting a data record
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`associated with an item, modifying a field containing item price or tax rate, or
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`time-delaying the presentation of a store daily ‘special’.” (Balderama at 10:14-21).
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`60.
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`In my opinion, the changes addressed in this paragraph of
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`Balderrama again relate to a user performing an internal change to the application.
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`61.
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`Clearly, Balderrama’s update/modification detector 82
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`is an
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`application program’s internal data input control, not the “change management
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`layer”, “automatically detecting” or “fourth portion” envisioned in the ‘482 and
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`‘111 patents.
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`62.
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`It is my opinion that Balderrama in view of Java Complete cannot
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`render any of the independent claims of the ‘482 or ‘111 patent obvious. As a
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`result, it also cannot render the claims dependent on those claims obvious.
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`VIII. Popp in combination with Anand cannot render claims 13-17 and 33-
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`37 of the ‘482 patent obvious
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`63.
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`Because Anand does not add substantively to the disclosure of Popp
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`regarding the “change management layer” or the “automatically detecting
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`changes”, the combination of Popp with Anand does not render any of claims 13-
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`17 or 33-37 of the ‘482 patent obvious.
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`IX. Claims 3-6 and 22-26 of the ‘482 patent are not anticipated or
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`obvious in view of any of the identified references or combinations
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`64.
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`As I understand it, the Board also has found claims 3-6 and 22-26 of
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`the ‘482 patent either anticipated or obvious in view of one or more of Popp,
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`Balderrama, and Kovacevic.
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` As indicated above, Popp, Kovacevic and
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`Balderrama each fail to disclose the “change management layer” or the appropriate
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`“change” as understood by a person of ordinary skill in the art in the relevant time
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`frame. Thus, in my opinion, none of the proposed combinations anticipates or
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`renders claims 3-6 or 22-26 obvious.
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`X.
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`Conclusion
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`65.
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`I declare that all of
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`the statements made herein of my own
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`knowledge are true and that all statements made on information and belief are
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`believed to be true; and further that the statements were made with the knowledge
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`that willful false statements and the like are punishable by fine or imprisonment, or
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`both, under Section 1001 of Title 18 of the United States Code and that such
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`willful false statements may jeopardize the validity of the ‘482 and the ‘l 1 1 patent.
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`Date: May 20, 2016
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`Flynn
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`2]