IPR2015-01750, Paper No. 77
`IPR2015-01751. Paper No. 79
`IPR2015-01752, Paper No. 77
`December 7, 2016
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`trials@uspto.com
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`571-272-7822
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`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`RPX CORPORATION,
`Petitioner,
`vs.
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`- - - - - -
`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent 7,356,482 B2)
`Technology Center 3600
`Oral Hearing Held: Tuesday, November 8, 2016
`
`Before: LYNNE E. PETTIGREW, MITCHELL G.
`WEATHERLY, and JENNIFER MEYER CHAGNON, Administrative
`Patent Judges.
`The above-entitled matter came on for hearing on Tuesday,
`November 8, 2016, at 1:00 p.m., Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
`
`
`IPR2015-01751. Paper No. 79
`IPR2015-01752, Paper No. 77
`December 7, 2016
`
`trials@uspto.com
`
`
`571-272-7822
`
`
`
`
`
`RECORD OF ORAL HEARING
`UNITED STATES PATENT AND TRADEMARK OFFICE
`- - - - - -
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`- - - - - -
`RPX CORPORATION,
`Petitioner,
`vs.
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`- - - - - -
`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent 7,356,482 B2)
`Technology Center 3600
`Oral Hearing Held: Tuesday, November 8, 2016
`
`Before: LYNNE E. PETTIGREW, MITCHELL G.
`WEATHERLY, and JENNIFER MEYER CHAGNON, Administrative
`Patent Judges.
`The above-entitled matter came on for hearing on Tuesday,
`November 8, 2016, at 1:00 p.m., Hearing Room B, taken at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`REPORTED BY: RAYMOND G. BRYNTESON, RMR,
`
`CRR, RDR
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`RICHARD F. GIUNTA, ESQ.
`ELISABETH H. HUNT, PH.D., ESQ.
`Wolf, Greenfield & Sacks, P.C.
`600 Atlantic Avenue
`Boston, Massachusetts 02210-2206
`617-646-8000
`
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`
`
`
`
`JONATHAN PEARCE, ESQ.
`STEVEN C. SEREBOFF, ESQ.
`SoCal IP Law Group LLP
`310 North Westlake Boulevard
`Suite 120
`Westlake Village, California 91362
`805-230-1350
`
`2
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
`
`
`P R O C E E D I N G S
`
`(1:00 p.m.)
`JUDGE CHAGNON: Good afternoon, everyone.
`We are here today for the final hearing for two different
`proceedings between Petitioner, RPX Corporation, and Patent
`Owner, Applications in Internet Time, LLC.
`These proceedings are IPR2015- 01750, relating to
`U.S. Patent No. 8,484,111, and IPR2015- 01751 and 01752
`relating to U.S. Patent No. 7,356,482.
`I am Judge Chagnon. I'm here today with Judges
`Pettigrew and Weatherly.
`We will start with having counsel introduce
`yourselves and let us know who will be presenting today.
`We'll start with Petitioner.
`MR. GIUNTA: Good afternoon, Your Honor. Rich
`Giunta and Elizabeth Hunt from Wolf Greenfield. Our plan, if
`it's agreeable, is to split the presentation.
`JUDGE CHAGNON: Okay. Thank you. Patent
`
`Owner.
`
`MR. PEARCE: Good afternoon, Your Honor.
`Jonathan Pearce and Steven Sereboff on behalf of Applications
`in Internet Time. We, likewise, will both be presenting.
`JUDGE CHAGNON: All right. Thank you so
`much. So I would like to remind the parties that during your
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
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`presentations today to please identify the demonstrative
`exhibit that you are on just to help the clarity of the record.
`And so pursuant to our order of October 26th each
`party today has 90 minutes of time total to present your
`arguments. You can allocate your time between the cases as
`you wish and we will be entering a single transcript into each
`of the three cases.
`Petitioner has the burden to prove unpatentability
`of the claims, so Petitioner will present first. Petitioner may
`reserve time for rebuttal, if desired. And Patent Owner will
`present after Petitioner's opening case and there will be no
`rebuttal time for Patent Owner today.
`Also, I just want to remind the parties that we do
`have confidential information in the record in this case and, as
`we discussed in our previous conference call, the parties do
`not have plans to discuss the confidential information today.
`So please just remember that during your presentations.
`So, Petitioner, whenever you are ready. Did you
`want to reserve any time today for rebuttal?
`MR. GIUNTA: Yes, Your Honor. Our plan,
`depending on how many questions Your Honors have, is that
`we plan to go about an hour, maybe an hour and 10 minutes, so
`we would like to reserve 20 to 30 minutes, if that's acceptable
`to Your Honors.
`JUDGE CHAGNON: Okay.
`
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
`
`
`MR. GIUNTA: And could I just ask one point of
`clarification? You mentioned to reference the -- are the slides
`going to be in the record so can we refer to the slide number?
`Is that sufficient?
`JUDGE CHAGNON: You can refer to the slide
`number. We won't have them in the record, but it makes it
`easier if the court reporter needs to double-check things.
`MR. GIUNTA: Okay. So we don't need to
`reference the underlying evidence on the slide; it's sufficient
`to reference the slide number?
`JUDGE CHAGNON: Yes.
`MR. GIUNTA: Okay.
`JUDGE CHAGNON: Let me see if I can set this
`clock. Whenever you are ready, you can go ahead. Thank
`you.
`
`MR. GIUNTA: Thank you, Your Honor. So across
`these three proceedings, if I have done my math correctly, we
`have 12 instituted grounds on 44 claims. But the contested
`issues here are quite few.
`The Patent Owner filed only a single Patent Owner
`Response in all three proceedings and challenged only a
`handful of issues. So in the absence of questions from Your
`Honor, our plan is to focus on the handful of issues that the
`Patent Owner raised in the Patent Owner Response.
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`
`I plan to address the issues that are common across
`the grounds, real party-in- interest and claim construction, and
`also to address the Balderrama grounds.
`Ms. Hunt will address the Popp and Kovacevic
`grounds. And if Your Honors have any questions about any of
`the grounds for dependent claims, she is better served to
`answer those questions.
`So the primary dispute in these matters is one of
`claim construction of broad language. If we take a look at
`slide 44, the change management clause in the '482 patent
`recites "automatically detecting changes that affect an
`application."
`In the Institution Decisions on the '482 patent,
`Your Honors correctly noted that this clause is "quite broad."
`Your Honors rejected the assertion that it was limited to
`detecting changes that are external to an application and which
`impact how the application should operate.
`Patent Owner relies exclusively on the same failed
`claim construction argument. That argument should be
`rejected again for numerous reasons we plan to walk through.
`If Your Honors once again reject it, that is determinative on
`all grounds. Patent Owner offers no argument that any ground
`fails to meet the plain language of the claims, and the Patent
`Owner offers no other argument on the merits for any of the
`grounds.
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
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`
`Even if Your Honors were to adopt the narrow
`claim construction that the Patent Owner advanced, all the
`claims are still met by the grounds.
`RPX's expert filed a reply declaration in these
`matters explaining how every one of the grounds meets even
`Patent Owner's narrow construction. And his testimony is
`unrebutted. Patent Owner didn't depose him on that
`declaration.
`And the Patent Owner's expert at deposition
`actually conceded all the factual underpinnings that are
`necessary to determine that each of the grounds meets even the
`Patent Owner's narrow construction.
`For the '111 patent the Patent Owner similarly
`challenges only a single limitation that relates to detecting
`changes. That limitation is different in significant respects
`from the limitation that is challenged in the '482 patent. It
`does not, for example, refer to changes that affect an
`application.
`Patent Owner doesn't analyze the language in the
`'111 patent separately. Patent Owner simply asserts that it
`should have the same narrow construction as the different
`clause in the '482 patent. So the Patent Owner's arguments on
`the '111 fail for all of the same reasons as their arguments on
`the '482. They also fail because the Patent Owner doesn't even
`construe the actual language in the '111 patent.
`
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`
`I just wanted to briefly say a word about
`application, which is a term in the claims. Patent Owner
`makes a number of arguments about what the proper
`construction of application is. Those arguments are a
`red-herring.
`For each of the grounds, the Patent Owner does not
`challenge that what RPX points to as an application is actually
`an application. And as we walk through each of the grounds,
`we will point Your Honors to the evidence of record that
`demonstrates that.
`So I just want to say a brief word about real
`party-in- interest which is the only other issue that is arguably
`raised in the Patent Owner Response, and I think we can
`dispose of it fairly quickly.
`AIT received extensive discovery in these matters.
`And despite that they offered you no evidence that Salesforce
`is an unnamed real party-in- interest. And quite simply that is
`because no evidence exists. Salesforce is not an unnamed real
`party-in- interest in these matters.
`RPX provided a detailed 21- page declaration from
`Mr. Chang in these matters. The Institution Decisions state
`repeatedly that Your Honors were unpersuaded by AIT's
`arguments because AIT provided no persuasive evidence to
`support its arguments. And Mr. Chang's declaration
`contradicted AIT's arguments.
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`
`Post-Institution, the Patent Owner issued a
`deposition notice for Mr. Chang, and it included a number of
`topics beyond the scope of his direct. We had a call with Your
`Honors, and Your Honors informed them that the deposition
`notice was too broad and the deposition would be limited to
`the scope of his direct.
`After being so informed, they decided to not
`depose him at all. So Mr. Chang's testimony is entirely
`unrebutted and the factual record is exactly the same as it was
`pre- Institution.
`If we take a look at slide 2, this is what the Patent
`Owner Response says about real party-in- interest. AIT offers
`no new evidence, again, the record is exactly the same as it
`was pre-Institution, and they offer no meaningful argument.
`They essentially seek rehearing on real
`party-in- interest and assert that Your Honors have got the law
`wrong. But they don't cite anything specific. And that's
`because Your Honors got it right.
`Patent Owner Response offers no reason at all to
`reconsider your decision that Salesforce is not an unnamed
`real party-in- interest. So unless Your Honors have questions,
`that's all we plan to say and we're going to focus on the prior
`art next.
`
`So the '482 and the '111 patents share a
`specification. The Institution Decisions succinctly summarize
`
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
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`the relevant portions of the spec by referencing figure 1 and a
`portion of the specification that summarizes it. We have
`reproduced those on slides 8 to 12.
`So the system and the specification has four
`components. There is a change management layer 11 which is
`described in the specification as including intelligent agents
`that cruise the web to identify regulatory and non- regulatory
`information that affect the user's business.
`There is a Java data management layer 13 which is
`described as a user interface built using Java. There is a
`metadata layer 15 that defines features of that user interface.
`And there is a business content layer 17 that is specific to
`particular business operations of interest to the user.
`The claims here are very broad and largely
`detached from the disclosure in the specification. The '482
`and '111 are part of a family of patents. And on slide 3 we
`have shown an earlier '287 patent in that family. And as Your
`Honors can quickly see, the claim there is extremely detailed
`and is limited to what is disclosed in the specification, a
`system for monitoring regulatory information.
`In a parent of the '111, AIT first introduced the
`claim that is substantially identical to claim 13 of the '111
`patent. We have produced that claim and claim 13 on slide 5.
`And the only difference, as you can see, are the ones that we
`have highlighted in red.
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`
`The Examiner's reaction to the introduction of this
`claim is noteworthy. The Examiner indicated that it was
`difficult to see how the claims went with the specification.
`The claims were extremely generic and broad and they didn't
`relate to regulatory changes or any of the things the
`specification describes the invention as being directed to. We
`would agree with the Examiner.
`So if we take a look at slide 13, here we have
`claim 1 of the '482 patent beside figure 1. The correspondence
`is rough, given that the claim language is so much broader
`than what is in the spec but, roughly speaking, the claims
`recite a first layer that includes information about unique
`aspects of an application which roughly corresponds to the
`business content layer, a second layer with information
`common to a variety of applications, which roughly
`corresponds to the metadata layer, a third layer that generates
`the functionality of the application, which roughly corresponds
`to the Java data management layer, and then the change
`management layer, that roughly corresponds to the change
`layer 11.
`
`Taking a look at slide 9, significantly the change
`management layer of the claims is much broader than the
`change layer described in the spec. As I mentioned, the spec
`says that the change layer includes change agents that cruise
`the web and identify on the web both regulatory and
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`non- regulatory changes. So the specification describes as one
`of the requirements of the change layer that it detect
`regulatory information on the web.
`The claims aren't remotely limited in this way.
`They are not limited to using agents. They are not limited to
`identifying changes on the web. And they are not limited to
`identifying regulatory changes.
`Patent Owner's sole basis for alleging that the
`grounds are not met in both of the proceedings for the '482
`patent is that the claimed change management layer for
`automatically detecting changes that affect an application is
`not met.
`
`If we can take a look at slide 14, this is the portion
`of our reply in the - 01751 matter at page 4 where we cite the
`record evidence establishing that the Patent Owner did not
`challenge any other limitation for any ground. We don't have
`it on the slide but the reply in the - 01752 matter at page 3
`cites exactly the same evidence.
`And that's going to be globally true. If I give Your
`Honors a citation to our reply, I'm going to refer to the - 01751
`matter. But the - 01752, the other matter relating to the '482
`patent, has exactly the same content.
`So if you take a look at slide 44, here we have just
`given Your Honors the clause that the Patent Owner challenges
`as not met. And as Your Honors noted in the Institution
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`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`Decision, "the language of claim 1 is quite broad and requires
`only that the change management layer automatically detect
`changes that affect an application."
`So this is a simple, straightforward claim clause.
`It is undisputed that it includes no terms of art other than the
`word application. The Patent Owner's expert conceded this in
`testimony that we plan to walk through.
`Despite that, Patent Owner offers a complex
`construction that doesn't seek to construe any of the words in
`this clause at all and it repeats virtually every word in the
`clause and improperly adds limitations to it.
`So we can go to slide 49. And this is Exhibit 1057.
`So this is an exhibit we used when deposing the Patent
`Owner's expert. And it highlights the change management
`clause and what the correspondence is between the words in
`that clause and the construction that the Patent Owner
`advanced.
`So what we have below it is paragraph 27 of Dr.
`Jagadish's -- that's Patent Owner's expert -- his testimony
`about what this means. This correspondence that was shown
`in the colored boxes, the Patent Owner -- Dr. Jagadish
`admitted to this in deposition testimony that we cited in our
`reply at pages 9 to 10. So it is not contested. And we will
`revisit this several times when we're talking about their
`construction.
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
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`
`But quickly, if we could look at slide 16, it's
`significant to note that the term "change management layer"
`Patent Owner concedes is not a term of art. And the Patent
`Owner didn't construe change management layer at all. Patent
`Owner's construction is only of the function that the layer is
`described as performing. And the Patent Owner's expert
`conceded that numerous times in his deposition, and that
`testimony is cited in our reply at page 9.
`So if we can go back to Exhibit 1057. So what is
`construed here is the phrase "automatically detecting changes
`that affect an application." That phrase has eight simple
`words. Patent Owner's construction has 22 words that repeats
`virtually every one of these terms from the claim and then
`improperly adds limitations to it.
`So as shown by the green boxes, automatically
`detecting is not construed at all. It is simply repeated in the
`construction. The word "changes," as shown in the yellow
`box, is alleged to mean changes that arise from changes
`external to the application program.
`And if we could take a look at slide 19, this is
`testimony from Dr. Jagadish, Patent Owner's expert, where he
`conceded this, that the word "changes" is construed in the
`manner shown in the yellow boxes to mean changes that arise
`from changes external to the application program.
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`So if we go back to Exhibit 1057, this is clearly
`not a construction that is seeking to explain what the word
`changes mean. The alleged construction of changes repeats
`the term changes not once but twice. Patent Owner is clearly
`not interpreting the word changes. Patent Owner is seeking to
`improperly narrow it by importing limitations into the claim
`that limit the broad category of changes to a narrow category.
`If we go to slide 20, this is Patent Owner's expert
`conceding that the word changes is not a term of art. Given
`that, it should be given its plain and ordinary meaning
`consistent with the specification.
`The plain and ordinary meaning is clearly not the
`Patent Owner's tortured construction. In the Institution
`Decision Your Honors correctly rejected the assertion that the
`claims should be limited to detecting external changes.
`There is nothing in the specification that limits
`changes in the manner that the Patent Owner alleges. And this
`phrase, changes that arise from changes external to the
`application, isn't in the specification at all. The Patent Owner
`pulled this phrase out of thin air here in an attempt to save its
`overly broad claims.
`So if we go to slide 22, this is the Patent Owner
`Response where the Patent Owner argues that Petitioners and
`Your Honors construed "changes" so broadly that it can read
`on changes internal to an application program. It is not even
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`clear what internal to an application program even means but,
`whatever it means, the plain language of the claims clearly
`covers any change that affects the application, whether it
`would be internal or otherwise.
`If we go to slide 22, so during the deposition Dr.
`Jagadish, AIT's expert, conceded that RPX's broad plain
`meaning of the word changes is consistent with the
`specification. It reads on the embodiments of the
`specification. Despite that, he asserted that it was "overly
`broad." That's legal error.
`JUDGE WEATHERLY: I think his testimony
`really is more fairly characterized as the construction reads on
`the embodiments in the spec because it is overly broad. So,
`you know, I'm not sure I agree with your characterization of
`his statement.
`MR. GIUNTA: I'm sorry, Your Honor. He clearly
`believes that the claim reads on the embodiments in the
`specification and, yes, he definitely --
`JUDGE WEATHERLY: And if it's broader than
`the one that he advocates, of course it would read on the
`things that are in the specification.
`MR. GIUNTA: Well, it could be broader, I
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`suppose --
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`JUDGE WEATHERLY: So what conclusion are we
`supposed to draw from here?
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`MR. GIUNTA: Well, the conclusion is that it is
`not a term of art, which means it is supposed to be given its
`plain and ordinary meaning consistent with the specification.
`His testimony is that the meaning, the plain and
`ordinary meaning that RPX has applied is not inconsistent with
`the specification.
`JUDGE WEATHERLY: Okay.
`MR. GIUNTA: His, I believe his testimony, if I
`were to fairly characterize --
`JUDGE WEATHERLY: There is not really any
`need for you to be as tricky as you are being, in my view. If
`characterizing the meaning is the plain and ordinary meaning,
`the testimony, and looking at it on the screen, you've got it on
`the screen, is that Patent Owner's expert is commenting on
`your expert's claim interpretation, which he characterizes as
`being overly broad.
`So the only reason I'm piping in and asking
`questions is I'm having trouble following the logic for what it
`is that you want us to -- well, why is what you are saying
`persuasive of anything?
`MR. GIUNTA: Okay, yeah, and if I could just --
`JUDGE WEATHERLY: And it seems as though
`you are mischaracterizing the other side's expert.
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`MR. GIUNTA: Apologies. We don't intend to
`mischaracterize what Dr. Jagadish said. He unquestionably
`believes that our construction is overly broad.
`I believe what -- if I were to fairly characterize his
`testimony, he believes that if you go and look in the
`specification at the kinds of changes that are automatically
`detected, he puts them in a bucket that he says those changes
`all arise from something that is external.
`So he believes that it is appropriate claim
`construction to go in and look in the specification, find some
`characteristic of all of the things that are automatically
`detected, and then limit the word changes in that manner.
`And the point that we are trying to make,
`obviously unpersuasively to Your Honor, is that if one -- if the
`proper way to construe a term that's not a term of art is to give
`it its plain meaning, as long as that meaning is consistent with
`the specification, and I believe it is fair to characterize his
`testimony as he did not challenge that this was -- the broad
`meaning that we have is somehow inconsistent with the
`specification.
`I would agree with Your Honor. He said it is too
`broad. And he did say, given that it's so broad, it clearly
`covered the embodiments in the specification. The point that
`we -- the reason we believe it --
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`JUDGE WEATHERLY: And my response to that is
`
`so what?
`
`MR. GIUNTA: The reason we believe it's
`important is because the Federal Circuit in the case that we've
`cited at page 11 says, under the broadest reasonable
`interpretation, the claim must be given its plain meaning
`unless it is inconsistent with the specification.
`JUDGE WEATHERLY: Okay.
`MR. GIUNTA: And his testimony was that it is not
`inconsistent with the specification. So we believe its plain --
`JUDGE WEATHERLY: That's where I think your
`characterization and my understanding might diverge a little
`bit.
`
`What's the, you know, when I look at the claim
`language, and I read it as a change management layer for
`automatically detecting changes that affect an application, why
`shouldn't we read that as a means- plus- function recitation, as a
`layer for detecting, with layer being kind of a nonce word and,
`therefore, dive into the spec and look and see what kind of
`detecting is going on and what are the structures that are
`performing that function?
`MR. GIUNTA: So it is not an argument obviously
`that the other side has raised so I haven't given it extensive
`thought. But I think that the word layer is a term that has a
`known meaning to those of skilled in the art.
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`JUDGE WEATHERLY: Okay. So 112, 6 wouldn't
`apply in your view?
`MR. GIUNTA: Right.
`JUDGE WEATHERLY: Okay.
`MR. GIUNTA: Right. So on their face the claims
`of the '482 patent are extremely broad. They are not limited to
`what the specification describes. They don't detect changes in
`regulations on the web using intelligent agents. And the
`Patent Owner was exploiting that breadth by asserting the '482
`patent in litigation.
`If we take a look at slide 25, Patent Owner has
`offered an entirely different construction in its litigation with
`Salesforce. There they allege that changes that affect an
`application should be construed to mean changes to an
`application's metadata.
`They did not inform the Board or RPX of this
`different construction. It is something that we simply found
`on our own. And, therefore, the Patent Owner Response
`doesn't explain why AIT offered Your Honors a completely
`different construction than they offered the court.
`If we go to slide 26, the Patent Owner Response
`has a couple of arguments that are curious. There are places
`in the Patent Owner Response which argue that the change
`management layer should be construed to detect changes that
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`arise from changes external to the application, or arise from
`changes to metadata about the application.
`The metadata argument is strange because it is not
`commensurate in scope with the claim construction that they
`have offered Your Honors. It appears to be a remnant of an
`attempt to offer an argument or a construction that was broad
`enough to encompass AIT's litigation position, but they
`abandoned that attempt in their construction.
`And we believe the reason they did is that their
`litigation construction reads right on the Balderrama grounds
`if nothing else, and we're going to walk through that.
`On slide 25, taking a look at the arguments, so in
`the litigation Salesforce argued that changes that affect an
`application should be interpreted as limited to what the
`specification actually describes, regulatory or other
`information, and a third- party repository, which I assume is
`the over-the-web disclosure in the specification they are trying
`to get into the construction.
`So AIT resisted this narrowing. And in doing so
`they made unqualified statements about the breadth of the
`claims. On slide 25 AIT argued that the detected changes can
`be any type of change that may have an impact on the user's
`business.
`
`Now, AIT asked for a sur-reply. They asserted that
`we misrepresented their litigation position. And Your Honors'
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`order stated that the sur-reply "should not contain argument."
`It unquestionably does. It is full of argument. And in its
`arguments AIT argues that its positions are consistent, but it
`doesn't explain why they offer an entirely different
`construction here that is narrower in respects than the
`construction that they offered in the litigation.
`AIT's litigation argument that detected changes can
`be any type of change that may have an impact on the user's
`business is entirely unqualified.
`In the sur-reply, they assert that in the litigation
`Salesforce was arguing about one way in which changes could
`be narrowed, excuse me, the subject matter of the changes. In
`these proceedings AIT seeks to narrow the meaning of changes
`in another way based upon how they allegedly arise.
`AIT's unqualified litigation statement that changes
`can be any type of change that have an impact on the user's
`business is inconsistent with its position here that changes
`covers only certain changes that impact the user's business,
`i.e., those that arise from changes external to the application.
`JUDGE WEATHERLY: And what would you like
`us to do with the inconsistency?
`MR. GIUNTA: I think it is informative of why it
`is important to give these claims their straight broad and plain
`meaning, because AIT clearly has the ability to draft their
`claims however they want. They intentionally sought really
`
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`Case IPR2015-01750 (Patent No. 8,484,111 B2)
`Case IPR2015-01751 and IPR2015-01752 (Patent No. 7,356,482 B2)
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`broad claims and they are exploiting that breadth in the
`litigation, both by asserting the patent and by telling the court
`that changes broadly means any type of change.
`Their attempt to narrow the plain meaning of the
`word "changes" here I would suggest should be rejected.
`Their tortured construction is not the plain meaning of this
`term that they admit is not a term of art. It is completely
`arbitrary. The phrase, changes that arise from changes
`external to the application, is no where described in the spec.
`So clearly the purpose of the claim is to put the
`public on notice about what is protected by the patent. Patent
`Owner should not be allowed to obtain very broad claims that
`are clear on their face, assert them, and then, when they are
`shown to be unpatentable, argue for a narrow construction
`here, in an attempt to save them, in a manner
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