U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`RPX Corporation,
`Petitioner,
`
`v.
`
`Applications In Internet Time LLC,
`Patent Owner.
`____________________
`
`Case No. 2015-01750
`Patent No. 8,484,111 B2
`
`Case 2015-01751
`Case 2015-01752
`Patent No. 7,356,482
`______________
`
`PATENT OWNER’S SUR-REPLY1
`
`
`
`
`1 This is a single Sur-Reply addressed to all three cases and, therefore, the identical
`
`document is being filed in each case. All cites herein to the record of these cases
`
`are in the order set forth above.
`
`
`
`1
`
`
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`RPX Corporation,
`Petitioner,
`
`v.
`
`Applications In Internet Time LLC,
`Patent Owner.
`____________________
`
`Case No. 2015-01750
`Patent No. 8,484,111 B2
`
`Case 2015-01751
`Case 2015-01752
`Patent No. 7,356,482
`______________
`
`PATENT OWNER’S SUR-REPLY1
`
`
`
`
`1 This is a single Sur-Reply addressed to all three cases and, therefore, the identical
`
`document is being filed in each case. All cites herein to the record of these cases
`
`are in the order set forth above.
`
`
`
`1
`
`
`
`U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`Patent Owner (AIT) thanks the Board for the opportunity to present this sur-
`
`reply, limited to addressing partial quotations in Petitioner’s (RPX) Reply Brief,
`
`which are misleading and out of context. (Dkt. 72/74/72). RPX’s partial quotes
`
`relate to interpretation of an important term here, “change.”
`
`The full quotes demonstrate that AIT was arguing for a broader meaning of
`
`the term and against the defendant’s effort to narrow it. RPX’s Reply Brief asserts
`
`that AIT’s construction of “change” in these proceedings is inconsistent with its
`
`litigation position. (Dkt. 70, p. 2, 9-11 / Dkt. 72, p. 2, 7-8 / Dkt. 70, p. 1, 6-7). In
`
`support, RPX excerpts short quotations from AIT’s Reply Claim Construction
`
`Brief in that litigation (Ex. 1060/1060/1160). In context, however, it becomes clear
`
`that AIT has been consistent in the IPR proceedings and the district court litigation
`
`(i.e., that “changes” must arise from changes external to the application program).
`
`The full quotes demonstrate that AIT was arguing against the defendant’s efforts to
`
`narrow the term in two ways.
`
`First, RPX asserts, “AIT told the Nevada District Court that even under the
`
`narrower claim construction standard applicable there, ‘changes’ means broadly
`
`‘any type of change that may have an impact on the user’s business’” (Dkt. 70, p. 2
`
`/ Dkt. 72, p. 2-3 / Dkt. 70, p. 1-2) (emphasis RPX’s). Similar assertions by RPX are
`
`
`
`2
`
`
`
`U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`repeated elsewhere. (Dkt. 70, p. 10 / Dkt. 72, p. 7 / Dkt. 70, p. 6) This partial
`
`quotation is lifted from the paragraph shown below (Ex. 1060/1060/1160, p. 7):
`
`Salesforce also erroneously contends that the “changes that
`affect . . .” limitations should be limited to three specific categories
`of “modifications
`to
`regulatory,
`technological, or
`social
`requirements.” Salesforce asserts that “the specification does not
`identify any other categories of material changes detected by the
`claimed change management layer,” but this is incorrect. (Def. Br.
`at 20:8-13). The specification states that the change management
`layer “includes one or more change agents that . . . identify and
`bring to the user’s attention relevant regulatory and nonregulatory
`changes found on the Web that may affect a user’s business.”
`(Boebel Decl., Ex. 1 (‘482 patent, at 9:34-38)). In other words, the
`specification describes that the change management layer can
`detect any type of change that may have an impact on the user’s
`business, not just changes within certain categories of subject
`matter.
`
`
`As seen in context, AIT was simply arguing against defendant Salesforce’s
`
`attempt
`
`to
`
`limit “change”
`
`to
`
`three specific categories (i.e., regulatory,
`
`technological, or social requirements). The final clause in the last sentence
`
`demonstrates this: “not just changes within certain categories of subject matter.”
`
`RPX’s omission of the final clause in the last sentence, and its omission of the
`
`entire paragraph, causes its partial quotation to be misleading.
`
`Second, RPX asserts, “AIT told the Nevada District Court that even under
`
`the narrower claim construction standard applicable there, … the specification
`
`
`
`3
`
`
`
`U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`‘do[es] not exclude the possibility that the detected changes are changes to
`
`information that is internal to the system.” (Dkt. 70, p. 2 / Dkt. 72, p. 2-3 / Dkt.
`
`70, p. 1-2) (emphasis RPX’s). Similar assertions by RPX are repeated elsewhere.
`
`(Dkt. 70, p. 10 / Dkt. 72, p. 7 / Dkt. 70, p. 6). RPX’s partial quotation is lifted
`
`from the paragraph shown below (Ex. 1060/1060/1160, p. 5-6):
`
`Salesforce’s proposed constructions for the “changes that
`affect . . .” limitations in the patents-in-suit should be rejected
`because those proposed constructions are unduly narrow. As
`discussed in AIT’s opening brief, there is no support in the patent
`for Salesforce’s proposed language that the changes must be
`limited to information “stored in a third party repository.”
`Salesforce incorrectly relies on portions of the specification
`describing instances where the detected changes are changes to
`information that is stored outside of the claimed system. But these
`statements do not exclude the possibility that the detected changes
`are changes to information that is internal to the system, rather than
`“stored in a third party repository.” Indeed, in one of the passages
`cited by Salesforce, the specification states that “[t]he internet is
`one source of information on regulatory changes that is both
`prompt and cost-effective.” (Boebel Decl., Ex. 1 (‘482 patent, at
`10:24-26)) (emphasis added). The specification therefore explicitly
`states that the Internet is only one of many possible sources of
`information regarding changes that affect an application.
`
`As seen in context, AIT was simply arguing against defendant Salesforce’s
`
`attempt to limit “changes” to information in a “third party repository.” AIT opens
`
`the paragraph by protesting the “unduly narrow” construction proposed by
`
`Salesforce. RPX’s partial quotation omits the final clause in the same sentence
`
`
`
`4
`
`
`
`U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`which makes plain that AIT was simply arguing against Salesforce’s unduly
`
`narrow construction.
`
`Note the use of the term “system” in the full paragraph versus “application.”
`
`Consider, too, how RPX has used the partial quotation about a “system” to argue
`
`that AIT was inconsistent in statements about an “application.” In this proceeding,
`
`AIT argues that the claimed “changes” are “external to an application program.”
`
`Compare this with AIT’s construction in the district court litigation -- that the
`
`change can be “internal to the system.” That is, “changes” are external to the
`
`application but may be internal to an overall system that includes the application.
`
`The Board may wish to consider testimony of the experts relevant to “application”
`
`differing from “system.” (See e.g., Ex. 2032, ¶¶ 36, 53 (citing Ex. 1002, ¶ 29), 60-
`
`61, 79-80; Ex. 1002, ¶ 19). Therefore, here too, RPX’s omission of the final clause
`
`in the last sentence, and its omission of the entire paragraph, causes its partial
`
`quotation to be misleading when read absent the surrounding context.
`
`
`
`
`
`
`
`5
`
`
`
`U.S. Patent Nos. 7,356,482 and 8,484,111
`Inter Partes Review
`Patent Owner’s Sur-Reply
`
`Case Nos. IPR2015-01750
`IPR2015-01751
`IPR2015-01752
`
`AIT invites the Board to consider the entirety of its Markman briefs in the
`
`district court litigation, and is confident that the Board will agree that AIT has been
`
`consistent. In conclusion, AIT again thanks the Board for considering the
`
`surrounding context of RPX’s misleading partial quotations.
`
`
`Date: September 16, 2016
`
`Respectfully Submitted,
`By:/jonathan pearce/
`Jonathan Pearce (Reg. No. 60,972)
`jpearce@socalip.com
`M. Kala Sarvaiya
`ksarvaiya@socalip.com
`SoCal IP Law Group LLP
`310 N. Westlake Boulevard, Suite 120
`Westlake Village, CA 91362
`Telephone: (805) 230-1350
`Fax: (805) 230-1355
`
`Attorneys for Applications In Internet Time
`LLC
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of this “Patent Owner’s Sur-Reply”
`has been served via email on September 16, 2016, upon the following:
`
`Richard F. Giunta
`Elisabeth H. Hunt
`Randy J. Pritzker
`Michael N. Rader
`
`RGiunta-PTAB@wolfgreenfield.com;
`EHunt-PTAB@wolfgreenfield.com;
`RPritzker-PTAB@wolfgreenfield.com;
`MRader-PTAB@wolfgreenfield.com
`
`Dated: September 16, 2016
`
`
`
`
`
`By: /Anneliese Lomonaco/
`
`Anneliese Lomonaco
`
`
`
`
`
`6
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