IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Declaration of
`Vernon Thomas Rhyne, III
`
`In Support of the Petition for Inter
`Partes Review of U.S. Patent No.
`8,434,020
`
`
`In re Application of: Mathieu
`Kennedy Martin
`
`Patent No.: 8,434,020
`
`Filed: August 27, 2003
`
`Issued: April 30, 2013
`
`Assignee: Core Wireless Licensing
`S.a.r.l.
`
`Title: COMPUTING DEVICE WITH
`IMPROVED USER INTERFACE FOR
`APPLICATIONS
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`REBUTTAL DECLARATION OF DR. VERNON THOMAS RHYNE, III
`
`
`
`LG Exhibit 1015, Page 1
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Declaration of
`Vernon Thomas Rhyne, III
`
`In Support of the Petition for Inter
`Partes Review of U.S. Patent No.
`8,434,020
`
`
`In re Application of: Mathieu
`Kennedy Martin
`
`Patent No.: 8,434,020
`
`Filed: August 27, 2003
`
`Issued: April 30, 2013
`
`Assignee: Core Wireless Licensing
`S.a.r.l.
`
`Title: COMPUTING DEVICE WITH
`IMPROVED USER INTERFACE FOR
`APPLICATIONS
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`REBUTTAL DECLARATION OF DR. VERNON THOMAS RHYNE, III
`
`
`
`LG Exhibit 1015, Page 1
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`
`REBUTTAL DECLARATION OF VERNON THOMAS RHYNE, III
`
`
`I.
`
`BACKGROUND
`1. My name
`
`is Vernon Thomas Rhyne, III.
`
` My background,
`
`qualifications, and retention by LG are described in my previous declarations in
`
`support of the IPRs on the ’020 and ’476 patents.
`
`II. ASSIGNMENT &AND MATERIALS CONSIDERED
`I have been asked by LG to review and respond to the Declaration of
`2.
`
`Scott Denning, which was submitted on behalf of the Patent Owner (Core Wireless
`
`Licensing S.a.r.l.).
`
`3.
`
`In preparing this rebuttal Declaration, I have considered the following
`
`materials:
`
`• Patent Owner Response (regarding the ’020 patent)
`• Patent Owner Response (regarding the ’476 patent)
`• Declaration of Scott A. Denning (Exhibit No. 2001 - addresses both the ’020
`and ’476 patents) (“Denning Declaration”)
`• Ex. 2009 (U.S. Patent No. 6,993,328) (“Oommen”)
`• Transcript of April 28, 2016 Deposition of Vernon Thomas Rhyne, III
`• Transcript of September 7, 2016 Deposition of Scott Denning
`• Documents related to the Ericsson R380s phone:
`o Exhibit 1010 (Excerpt from 12/99 issue of Popular Science magazine)
`o Exhibit 1011 (User’s guide for Ericsson R380s)
`o Exhibit 1012 (Press release dated 3/18/99 from Open Mobile
`Alliance)
`
`LG Exhibit 1015, Page 2
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`
`
`o Exhibit 1013 (Article dated 3/18/199 from EE Times)
`• Exhibit 1014 (Excerpts from 2000 Edition of the Authoritative Dictionary of
`IEEE Standards Terms)
`
`III. “APPLICATIONS”
`All of the challenged claims in the ’020 and ’476 patents (claims 1, 2,
`4.
`
`5-8, 10, 11, 13, and 14 of the ’020 patent, and claims 1, 4, 5, 6, 8, 9, 20, 26, 27,
`
`and 29 of the ’476 patent) require “applications.” All of those claims also require
`
`an “application summary window” or “summary window” that lists functions or
`
`data within an “application,” while that application is “in an unlaunched state.”
`
`5.
`
`The Denning Declaration asserts that Blanchard does not disclose
`
`“applications,” and that a person of ordinary skill in the art (a “POSITA”) “would
`
`not interpret Blanchard as implementing the screens, or the icons shown on these
`
`screens, with ‘applications.’” See Denning Declaration at ¶ 44. I disagree, for the
`
`reasons explained below.
`
`6.
`
`The Denning Declaration points out—correctly—that Blanchard
`
`provides only a general description of the software used to implement the user
`
`interface that it describes, e.g. “instructions … for controlling the various operating
`
`features and functions.” See Denning Declaration at ¶ 46; Blanchard at 2:53-55.
`
`Indeed, Blanchard explains that it is intentionally silent regarding the specifics of
`
`LG Exhibit 1015, Page 3
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`
`
`the “hardware and programming techniques” used to implement the user interface
`
`that it describes:
`
`Since such systems utilize a variety of hardware and programming
`techniques, no attempt is made to describe the details of the
`program used to control the telephone terminal. However, the
`present invention must be blended into the overall structure of the
`system in which it is used and must be tailored to mesh with other
`features and operations of the system. (Blanchard at 5:13-20,
`emphasis added.)
`
`7.
`
`The Denning Declaration then asserts that a person of ordinary skill
`
`would conclude from Blanchard’s silence that “applications” were not used:
`
`If any conclusion could be reached by a POSITA from
`[Blanchard’s] structure and disclosure, it would be that Blanchard’s
`software is implemented with monolithic instructions, or an
`operating program as discussed by Oommen, and that these
`instructions include subroutines, perhaps dynamically linked as
`Oommen describes, that can be called to perform various features
`of the operating program. But a POSITA would not interpret
`Blanchard’s mention of “instructions” as disclosing a software
`architecture having applications layered on top of an operating
`system. (Denning Declaration, ¶ 46)
`
`8.
`
`I disagree with Mr. Denning’s opinion that a person of ordinary skill
`
`in the art “would not interpret Blanchard’s instructions” as including “applications
`
`layered on top of an operating system” for the several reasons that I explain in the
`
`following subsections of this Declaration.
`
`A.
`
`9.
`
`Prior to July 2000, “Applications” Were Known For Use In Mobile
`Telephones Such As The One Shown In Blanchard.
`The software architecture of “applications layered on top of an
`
`operating system” was known to those of ordinary skill in the art for use in mobile
`
`LG Exhibit 1015, Page 4
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`
`
`telephones by the July 2000 timeframe (i.e., before the July 28, 2000 priority date
`
`of the ’020 and ’476 patents). Blanchard is focused on describing a user interface
`
`and, hence, is intentionally silent regarding the specifics of the “hardware and
`
`programming techniques” used to implement that user interface. See Blanchard at
`
`5:13-16. A person of ordinary skill would recognize from this that Blanchard’s
`
`user interface should be implemented using known “hardware and programming
`
`techniques,” which as of July 2000 included “applications layered on top of an
`
`operating system.”
`
`10. As I explained in my original declaration, the fact that relevant
`
`systems having “applications layered on top of an operating system” were known
`
`by July 2000 and is acknowledged by the ’020 patent itself. See the ’020
`
`specification at 1:14-15 and 1:37-46 conceding that a prior art “mobile telephone”
`
`includes “several different applications
`
`(e.g., a message application, a
`
`contacts/address book application, a calendar application and a telephone
`
`application” that the user could “start/open.”)
`
`11. The fact that “applications layered on top of an operating system”
`
`were known by July 2000 is also demonstrated by the mobile phones that were
`
`known by that time. For example, as I pointed out in my original declaration,
`
`Ericsson’s R380 “smartphone” included a version of the Symbian EPOC32
`
`operating system as well as a variety of applications including “Contacts,”
`
`LG Exhibit 1015, Page 5
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`“Messaging,” and “Calendar.” A photo of the R380 with its cover opened is
`
`shown below:
`
`
`
`12. Mr. Denning also questions whether the Ericsson R380 was known to
`
`those of ordinary skill prior to July 28, 2000. Mr. Denning states that he has
`
`reviewed a manual for an Ericsson R380 (Ex. 2005) that has the date
`
`“October 2000,” which as Mr. Denning points out is “after the critical date of July
`
`28, 2000.” See the Denning Declaration at ¶ 16. However, there is an earlier
`
`manual for the Ericsson R380 phone, as well as other documentation, all
`
`confirming that the R380 was available prior to July 28, 2000.
`
`13.
`
`I have reviewed a manual for the Ericsson R380 which is dated
`
`“June 2000.” See Ex. 1011 (User’s Guide) at p. 3 (LGX071-002). This manual
`
`states that the phone uses the “EPOC32 operating system” from “Symbian Ltd.”
`
`See Ex. 1011 (User’s Guide) at p. 195 (LGX071-099). It describes the functions of
`
`the phone as being provided by “programs” such as “Contacts,” and “Messaging.”
`
`Also see Ex. 1011 (User’s Guide) at p. 81 (LGX071-042) and p. 91 (LGX071-047).
`
`LG Exhibit 1015, Page 6
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`A person of ordinary skill would recognize these “programs” as being separate
`
`“applications.”
`
`14.
`
`I have also reviewed a copy of the Popular Science magazine from
`
`December, 1999, which has a feature on “Best of What’s New Awards 1999.”
`
`Exhibit 1010 is a copy of excerpts from that issue. As Ex. 1010 shows, the “Best
`
`of What’s New Awards 1999” includes a description of the R380: “Thin And Rich:
`
`You won’t have to sacrifice form for function with Ericsson’s R380—the first
`
`cellphone-PDA combo that’s the size of a regular phone.” See Ex. 1010 at
`
`LGX106-035.
`
`15.
`
`I have also reviewed the press coverage for the Ericsson R380.
`
`Exhibit 1012 is a copy of a press release from the Open Mobile Alliance dated
`
`March 18, 1999 and entitled “Ericsson unveils mobile phone equipped for
`
`communication and organization.” This press release states that “The R380 is
`
`based on the EPOC operating system.”
`
`16. Further, Exhibit 1013 is a copy of an article from EE Times dated
`
`March 18, 1999 and entitled “Ericsson launches Psion-like communicator.” This
`
`article states that “Ericsson launched the R380 dual-band smart phone at CeBit1
`
`
`1 According to its website (http://hfusa.com/trade-fairs/industry/information-
`technology/cebit/) “CeBIT is regarded throughout the world as the largest and most
`influential marketplace for information and communications technology — every
`
`LG Exhibit 1015, Page 7
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`Thursday (March 18) … featuring the EPOC operating system of Symbian plc,
`
`Ericsson’s joint-venture subsidiary.” See Ex. 1013. It also states that “The R380 is
`
`Ericsson’s attempt to catch up with the handheld offerings of Nokia, which has
`
`already fielded two generations of the pioneering Nokia 9000 communicator,
`
`which combines the functions of a GSM mobile phone and a palm-top computer.”
`
`17. Exhibits 1010-1013 confirm that the Ericsson R380 was known to
`
`those of ordinary skill in the art prior to the July 2000. Mr. Denning acknowledged
`
`this in his deposition. Denning Depo. at 132:7-19.
`
`18. Taken together, Exhibits 1010-1013 show that the Ericsson R380 is an
`
`example of a phone with “applications layered on top of an operating system” that
`
`was known by July 2000.
`
`B. The Oommen Reference Shows That The “Application-Operating
`System” Architecture Was Known For Use In Mobile Telephones
`19. As noted above, the Denning Declaration states that the Oommen
`
`reference describes what a person of ordinary skill would understand from
`
`Blanchard:
`
`If any conclusion could be reached by a POSITA from
`[Blanchard’s] structure and disclosure, it would be that Blanchard’s
`software is implemented with monolithic instructions, or an
`operating program as discussed by Oommen, and that these
`instructions include subroutines, perhaps dynamically linked as
`
`year buyers and sellers from all over the world gather in Hannover to discover and
`promote the latest trends of the digital age.”
`
`LG Exhibit 1015, Page 8
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`Oommen describes, that can be called to perform various features
`of the operating program. (Denning Declaration at ¶ 46).
`
`20. Oommen (U.S. Patent No. 6,993,328) (Ex. 2009) is based on a patent
`
`application that was filed on May 8, 2000. I understand this means it is prior art to
`
`the ’020 and ’476 patents. Mr. Denning agreed that Oommen was prior art to
`
`the ’020 patent. See Denning Depo. at 30:22-31:11.
`
`21. Mr. Denning is correct that Oommen describes “a conventional
`
`monolithic operating program” as one way to implement the software of a “mobile
`
`station” such as a cellular phone. See Oommen at 1:20-13. However, as described
`
`in Oommen’s “Background” section, the “monolithic operating program” can be
`
`improved by replacing it with a “control program that includes a group of current
`
`objects … and a dynamic agent operating program.” See Oommen at 2:13-16;
`
`3:16-27; compare Fig. 1 and Fig. 2. This approach allows the software on the
`
`phone to be more easily updated. For example, the email software on a phone can
`
`be updated by changing the “E-mail service object.” See Oommen at 3:27-30; also
`
`see Oommen at 3:23-27 (“Instead of replacing the entire operating program when a
`
`new service is being offered, only a portion of control program is required to be
`
`changed”).
`
`22. Thus, in my opinion a person of ordinary skill in the art would have
`
`understood from Oommen that a “monolithic operating program” was a less
`
`desirable way to implement a cellular phone, and that it was preferable to use a
`
`LG Exhibit 1015, Page 9
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`control program where the specific software modules (the “group of objects”) used
`
`to provide particular user services could be separately updated. Mr. Denning
`
`agreed with this conclusion in his deposition. See Denning Depo. at 188:2-8.
`
`23. Oommen does not use the word “applications.” Instead, it refers to the
`
`software modules that provide user services user as “objects.” See Oommen
`
`at 3:27-30 (“E-mail service object”); 5:27-31 (same); and 5:36-37 (“scheduling
`
`program object”). Nonetheless, a person of ordinary skill in the art would have
`
`understood the “E-mail service object” and “scheduling program object” described
`
`in Oommen were “applications.”
`
`24. Similarly, a person of ordinary skill in the art would have understood
`
`that Oommen’s description of “objects” that are linked to a “dynamic agent
`
`operating program” to be referring to what the Denning Declaration describes as a
`
`software architecture with “applications layered on top of an operating system”
`
`(Denning Decl. at ¶ 46). And as explained above, Oommen specifically teaches
`
`that it is preferable to use the “applications” approach instead of the “monolithic”
`
`approach.
`
`25.
`
`In sum, Oommen confirms that what Mr. Denning describes as
`
`“applications layered on top of an operating system” was known for use in mobile
`
`telephones before July 2000. Oommen also shows that the approach of
`
`LG Exhibit 1015, Page 10
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`
`
`“applications layered on top of an operating system” was preferable to using a
`
`“monolithic operating program.”
`
`26. Thus, Oommen directly contradicts Mr. Denning’s opinion that a
`
`person of ordinary skill would understand that “Blanchard’s software is
`
`implemented with monolithic instructions.” Oommen shows that a person of
`
`ordinary skill would not have chosen to use a “monolithic operating program” to
`
`implement Blanchard.
`
`C. The Term “Application” Does Not Require “Multithreading” And
`An “Operating System”
`27. Mr. Denning also opines in his Declaration that in the context of
`
`the ’020 patent, the term “application” refers to software that must be operating on
`
`a device that is “able to perform multiple threads of execution so that the device
`
`can view the App Snapshot while another application is open.” See Denning
`
`Declaration at ¶ 23. Also see Denning Depo. at 145:5-16; Denning Declaration
`
`at ¶¶ 19-22 (providing reasons for opinion). I disagree with Mr. Denning. In my
`
`opinion, a person of ordinary skill in the art would not interpret the term
`
`“application” as requiring multithreading.
`
`28. The ’020 and ’476 patents are about a user interface for a small-screen
`
`device, and are not directed to providing an explanation of the underlying software
`
`and hardware “architecture” of
`
`the device, such as whether
`
`it allows
`
`multithreading. The problem being addressed in those patents is efficient
`
`LG Exhibit 1015, Page 11
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
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`navigation through the user interface. See, for example, the ’020 patent at 1:47-49
`
`(“with conventional user interfaces, a user may need to scroll around and switch
`
`views many times to find the right data/functionality”) and 1:33-36 (“The interface
`
`can be thought of as having many layers, with the user having to first locate the
`
`correct top level function and then, within that function, progressively drill down
`
`(sometimes through 3 or more layers) to complete the required task”).
`
`29. The ’020 and ’476 patents describe addressing this problem with a
`
`user interface that has an “application summary window” (or “App Snapshot”).
`
`See, e.g., the ’020 patent at 2:20-25; 3:23-30 (describing the “innovative summary
`
`window” as the “App Snapshot”). The patents do not describe the underlying
`
`software that is used to implement the “application summary window” in any
`
`detail.
`
`30. As Mr. Denning has recognized, the patents note that the “program”
`
`that “enables the device to operate in accordance with the above aspects of the
`
`invention … may be an operating system.” See the ’020 patent at 2:43-44
`
`(emphasis added) and the Denning Decl. at ¶19. But this sentence does not require
`
`that an operating system be used. Rather, it simply notes that this is one option,
`
`while suggesting that other options are possible.
`
`31. Mr. Denning also identifies claim 17 of the ’020 patent, which
`
`depends from claim 16, and adds a limitation requiring the “computer-readable
`
`LG Exhibit 1015, Page 12
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`code” that displays the “application summary window” to comprise “an operating
`
`system program.” See the Denning Decl. at ¶ 19. However, because claim 17 is a
`
`dependent claim, it does not suggest that an operating system is required by the
`
`independent claim it depends from, claim 16. Thus, claim 17 only suggests that an
`
`operating system is an option for the computer program product of claim 16, not a
`
`requirement, which is inconsistent with Mr. Denning’s opinion that the term
`
`“application” requires an “operating system.”
`
`32. Mr. Denning opines that a single portion of a sentence in the ’020
`
`specification (see 4:58-59) demonstrates that the App Snapshot (application
`
`summary window) must be displayed at the same time that another application has
`
`an actively running “thread of execution,” and concludes that the patents require
`
`multithreading. I disagree, because this interpretation does not make sense in the
`
`context of the specification more generally, nor does it make sense in the technical
`
`context at the time.
`
`33. The portion of the specification Mr. Denning identifies reads as
`
`follows:
`
`A further possible feature is that the constituency of the App
`Snapshot may vary with the actions of the user. For example, if the
`mobile telephone has an active Calendar application, and the user
`opens the App Snapshot for Contacts, then the Contacts App
`Snapshot may include contact information for parties in the
`previously or currently open Calendar application. But if the user
`opened the Contacts App Snapshot when the Phone application was
`current, then the Contacts App Snapshot may instead include
`
`LG Exhibit 1015, Page 13
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`contact information of the most called party, or a missed call party,
`or a party whose call the user is auto-replying to. (’020 patent at
`4:53-63)
`
`34. This passage refers to a “Contacts App Snapshot” that may include
`
`information from “the previously or currently open Calendar application.”2 In my
`
`opinion, a person of ordinary skill would not have interpreted this reference to the
`
`“previously or currently open Calendar application” to mean that the Calendar
`
`application must have an active thread of execution at the time that the App
`
`Snapshot is displayed. At most, this sentence shows that having the Calendar
`
`application open at the time that the Contacts App Snapshot is displayed is an
`
`option, as is the option to have it opened at some “previous” time.
`
`35. Even if the ’020 specification actually stated that the Calendar
`
`application was required to be “open” while the Contacts App Snapshot is
`
`displayed, that would not mean that the device was necessarily required to be able
`
`to perform “multiple threads of execution,” nor would it mean that the Calendar
`
`application necessarily had an “active thread of execution.” A single-threaded
`
`processor could display an App Snapshot on top of a window from an “open” (but
`
`currently suspended) Calendar application.
`
`
`2 In ¶ 22 of his Declaration Mr. Denning misquotes the ’020 patent by referring to
`the term “applications.” The cited portion of the ’020 specification only refers to a
`single opened application, namely the Calendar application.
`
`LG Exhibit 1015, Page 14
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`36. Furthermore, reading this passage to mean that multi-threading is a
`
`requirement for the term “application” does not make sense in the overall context
`
`of the ’020 and ’476 patents. As explained above, the ’020 and ’476 patents are
`
`about a user interface for a small-screen device, and are not directed to the
`
`underlying specifics of the software and hardware “architecture” of the device.
`
`37.
`
`In fact, the ’020 and ’476 patents make clear that even the concept of
`
`an “application” is not what it is important to the invention. The ’020 specification
`
`states it this way:
`
`The present invention can also be used in systems which do not
`have a concept of separate applications as such. Then, the snapshot
`views are then views of commonly used functions and/or data …
`(’020 patent at 5:20-24, underlining added)
`
`38. This passage confirms that the underlying software that is used to
`
`implement the “application summary window” is not what was considered
`
`important. Thus, a person of ordinary skill in the art would not interpret the ’020
`
`and ’476 patents as using the term “applications” in the highly specific way that
`
`Mr. Denning describes.
`
`39.
`
`I was asked in my deposition what the term “application” meant as of
`
`July 2000, and I said, without reference to any dictionary or other reference, that in
`
`my opinion it referred to “a particular procedural piece of code that did something
`
`that you wanted to have done”:
`
`Q. And at the time of July of 2000 what was an application?
`
`LG Exhibit 1015, Page 15
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`A. It would be a particular procedural piece of code that did
`something that you wanted to have done. (Rhyne Depo at 31:5-8).
`
`40. Since my deposition, I have done further to consult the 2000 Edition
`
`of the Authoritative Dictionary of IEEE Standards Terms. (Ex. 1014). It provides
`
`several definitions of “application,” including:
`
`A software program consisting of one or more processes and
`supporting functions. (PE/SUB) 1379-1997
`
`A computer program that performs some desired function.” (C)
`1003.5-1999) (Ex. 1014 at 3)
`
`41. The same IEEE dictionary also provides definitions of “application
`
`software,” including the following:
`
`Software designed to fulfill specific needs of a user; for example,
`software for navigation, payroll, or process control. Contrast:
`support software, system software. (Ex. 1014 at 3)
`
`42. All of these definitions are consistent with each other, and none of
`
`them supports Mr. Denning’s opinion that an “application” requires an “operating
`
`system” or “multithreading.” Rather, these definitions show that an “application”
`
`was understood in July 2000 to be software that has a particular function (i.e. a
`
`particular application).
`
`43. Further, as shown above, the definition of “application software”
`
`specifically contrasts “application software” with “system software,” where the
`
`definition of “system software” provided in that same IEEE dictionary shows that
`
`an “operating system” is only one example of “system software”:
`
`LG Exhibit 1015, Page 16
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`
`
`Software designed to facilitate the operation and maintenance of a
`computer system and its associated programs, for example,
`operating systems, assemblers, utilities. Contrast: application
`software. See also: support software. (Ex. 1014 at 7).
`
`44. The contrast that the IEEE dictionary draws between “application
`
`software” and “system software” is very different from saying that there is no
`
`“application” without an “operating system.” Rather, what that contrast shows is
`
`that the “application software” is designed to “fulfill needs of a user,” whereas
`
`“system software” is designed to fulfill needs of the computer system. Software
`
`that is designed to fulfill the needs of a user need not be running on top of a
`
`distinct operating system, though of course it could be, and it will generally be
`
`easier to write if it is. Software design in general has become more and more
`
`“layered” over time as engineers build on work that has already been done. Mr.
`
`Denning’s opinion that an “application” is software that is necessarily run on top
`
`on an “operating system” is incorrect – especially as it was practiced at the time of
`
`the invention.
`
`45. Similarly, Mr. Denning opines that “a software module is not an
`
`application,” but instead “comprises a sub-routine or function that can be
`
`performed within the monolithic operating program.” Denning Decl. at ¶ 13.
`
`Again, I disagree. The above-cited IEEE dictionary defines “module (software)”
`
`as follows:
`
`LG Exhibit 1015, Page 17
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`
`(2)(A)(software) A program unit that is discrete and identifiable
`with respect to compiling, combining with other units, and loading;
`for example, the input to, or output from, an assembler, compiler,
`linkage editor, or executive routine
`
`(2)(B)(software) A
`(Ex. 1014 at 4-5).
`
`logically separable part of a program.
`
`46. These definitions show that Mr. Denning is incorrect to contrast “a
`
`software module” with an “application.” In fact, these definitions show that a
`
`“software module” may meet the IEEE definitions of “application,” as “a program
`
`unit that is discrete and identifiable” (i.e., a module) may be “a computer program
`
`that performs some desired function,” or “software designed to fulfill specific
`
`needs of a user; for example, software for navigation, payroll, or process control.”
`
`D. Mr. Denning Mischaracterizes My Deposition Testimony
`Regarding Blanchard
`47. Mr. Denning further states that I testified “that Blanchard fails to
`
`disclose any application and would not have been implemented with an operating
`
`system.” Denning Decl., ¶ 57; see also ¶¶ 58. I disagree. My testimony was that
`
`Blanchard would have been understood to have applications, even though the word
`
`“application” was not used:
`
`Q. And it's your testimony that the phone book icon is an
`application even though Blanchard never refers to the phone book
`icon or screen as an application, correct?
`
`A. I agree with you that --well, I guess the simple answer to your
`question is yes. Blanchard does not refer to it as an application. To
`the phone book capability that's provided in the phone that this --
`
`LG Exhibit 1015, Page 18
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`
`Blanchard has written about, that is not referred to specifically as
`an application.
`
`Q. So is it your testimony that the phone book icon must inherently
`be an application?
`
`A. Well, the icon is not the application. It's -- it's the graphical
`symbol
`that represents
`the commonly and well-understood
`application on phones at this time of having a phone book where
`phone numbers and other information like addresses and e-mail
`addresses were stored within the nonvolatile memory of the phone
`so that you could access those data to make a phone call or look up
`an address or something. The icon represents the phone book
`application. It's just a picture on the screen. (Rhyne Depo.
`at 70:14-71:13, underlining added for emphasis)
`
`48. Mr. Denning also states that in my deposition I testified that
`
`“Blanchard’s mobile telephone would not have included an ‘operating system.’”
`
`Denning Decl. at ¶ 57 (citing “Rhyne 90:2-14”). Again, I disagree. What I
`
`testified was as follows:
`
`Q. And you agree that as of July 2000 these instructions would not
`include operating system instructions, right?
`
`A. They wouldn't include what later I think of -- what I think of as
`an actual operating system. Okay. They say, "Instructions" -- and
`I'm in line 53 and '4 -- "for controlling the various operating
`features and functions originating at the terminal," but to my
`recollection, the phones at least I had any experience with in that
`time frame did not have what later -- or for larger PCs and things
`would be called a true operating system. (Rhyne Depo. at 90:2-14,
`underlining added for emphasis)
`
`49. The reason that I used the phrases “to my recollection” and “the
`
`phones at least I had any experience with” is that I was thinking about my
`
`experience at Motorola, and I could not remember any commercially available
`
`LG Exhibit 1015, Page 19
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`
`Motorola phones from the July 2000 timeframe that had a “true operating system”
`
`(though these phones obviously had system software, as well as software for
`
`performing user functions such as making calls).
`
`50. At the point where I gave this testimony, I had forgotten the fact that
`
`the Symbian operating system was in use on a mobile phone prior to July 2000:
`
`Q. Does reading paragraph 13 of your declaration refresh your
`recollection as to the availability as of July 2000 of at least one
`mobile phone that had an operating system?
`
`MR. HELGE: Objection; leading, foundation.
`
`THE WITNESS: It does. I had forgotten that the Symbian, which I
`had studied a bit as part of my prep for the trial, was available in
`that phone. (Rhyne Depo. at 123:16-24).
`
`51. Furthermore, at the time of my deposition I had not considered the
`
`Oommen reference that Mr. Denning identifies in his Declaration. As explained
`
`above, Oommen shows that the approach of “applications layered on top of an
`
`operating system” was both known and preferable to using a “monolithic operating
`
`program.”
`
`52.
`
`In light of the Ericsson phone with its Symbian operating system and
`
`the Oommen reference, there is no doubt that the use of an “operating system” for
`
`a mobile telephone was known to a person of ordinary skill by July 2000.
`
`53. Further, as explained above, in my opinion the term “application”
`
`does not necessarily imply a separate and distinct “operating system” in July 2000,
`
`particularly not in the context of mobile telephones. However, even if that were
`
`LG Exhibit 1015, Page 20
`LG Electronics, Inc. v. Core Wireless Licensing S.A.R.L., Trial No. IPR2015-01984
`
`
`
`not true, and the claims of the ’020 and ’476 patents required a distinct and
`
`separate operating system, those claims are nonetheless obvious from Blanchard.
`
`54. As I explained above, the use of such an operating system was known
`
`to a person of ordinary skill as of July 2000, and the Oommen reference shows that
`
`a person of ordinary skill would have known that it is preferable to use an
`
`operating system that supported separate applications instead of a monolithic
`
`operating system. The user interface described in Blanchard could just as readily
`
`have been implemented on a mobile phone with a distinct operating system (i.e.,
`
`with “applications layered on top of an operating system”) as on a phone that did
`
`not have such an architecture.
`
`IV. BLANCHARD’S APPLICATION SUMMARY “WINDOW”
`55. As discussed in my previous Declaration, Blanchard’s Figure 3 shows
`
`a main menu of icons (including Phone Book, Mailbox, etc.), and
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