` IPR2015-01953, Paper No. 98
`IPR2015-01964, Paper No. 101
`IPR2015-01996, Paper No. 93
` IPR2015-01970, Paper No. 99
`IPR2015-01972, Paper No. 102
`January 3, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC., ELECTRONIC ARTS, INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC., 2K SPORTS,
`INC.
`ROCKSTAR GAMES, INC. and BUNGIE, INC.
`Petitioners,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
` Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
` Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`____________
`
`Held: December 7, 2016
`____________
`
`
`BEFORE: SALLY C. MEDLEY, LYNNE E. PETTIGREW,
`WILLIAM M. FINK, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`December 7, 2016, commencing at 9:00 a.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`trials@uspto.gov
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`J. STEVEN BAUGHMAN, ESQ.
`JAMES L. DAVIS, ESQ.
`ANDREW N. THOMASES, ESQ.
`Ropes & Gray LLP
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-6807
`
`
`JAMES HANNAH, ESQ.
`PAUL J. ANDRE, ESQ.
`Kramer Levin
`990 Marsh Road
`Menlo Park, California 94025-1949
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 2
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE PETTIGREW: Please be seated. Good
`morning, everyone.
`ALL COUNSEL: Good morning.
`JUDGE PETTIGREW: This is a consolidated hearing
`for six cases, IPR2015-01951, 01953, 01964, 01970, 01972, and
`01996, Activision Blizzard, et al., vs. Acceleration Bay. Each
`side has 90 minutes to argue.
`Petitioners have the ultimate burden of establishing
`unpatentability and will argue first, presenting their case with
`regard to the challenged claims, and, if you wish, with regard to
`your motions to exclude.
`Patent Owner then will respond to Petitioners' case and
`present any arguments in support of your contingent motions to
`amend and motions to exclude, if you wish to argue those.
`Petitioners then may use any time they have reserved
`for rebuttal to respond to Patent Owner. And then, finally, Patent
`Owner may use any time you've reserved to respond only to
`Petitioners' arguments opposing your motions, your motions to
`exclude and motions to amend.
`I would like to remind everybody that this hearing is
`open to the public, and the transcript will be entered into the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
` 3
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`public record of these proceedings. So be careful not to discuss
`any confidential information.
`One additional item before we start. We did receive a
`communication from Patent Owner indicating that its expert and
`one of the inventors are in attendance; however, there has been no
`motion for live testimony, and the Panel does not anticipate
`asking questions of anyone except counsel.
`Before we begin, let's have each -- counsel for each
`party identify themselves and the party they represent for the
`record.
`
`Petitioner?
`MR. BAUGHMAN: Thanks, Your Honor. It's Steve
`Baughman from Ropes & Gray, with my colleagues Andrew
`Thomases and James Davis, on behalf of Petitioners Activision
`Blizzard, Electronic Arts, Take-Two Interactive, 2K Sports, and
`Rockstar Games. And we have counsel for Bungie, Andrew
`Brown, here as well, and we have a representative from
`Petitioner, Take-Two Interactive, Linda Zabriskie. Thank you.
`JUDGE PETTIGREW: Thank you.
`Patent Owner?
`MR. HANNAH: Good morning, Your Honor. James
`Hannah from Kramer Levin representing Acceleration Bay, and
`with me is Paul Andre of Kramer Levin. I also have -- the CEO
`of Acceleration Bay, Joe Ward, is here, and one of the inventors,
`Virgil Bourassa, is here, and Dr. Goodrich is here as well.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 4
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`JUDGE PETTIGREW: Thank you.
`Petitioner, you may begin when ready.
`MR. BAUGHMAN: Thank you, Your Honor.
`Good morning, Your Honors. May it please the Board.
`We would like to reserve at the outset 45 minutes of our time for
`rebuttal, please.
`If you could turn to slide 12, given the short time here
`today, Petitioners rely on our petitions and evidence provided in
`briefing to support our arguments in the six trials and in the six
`joined Bungie trials that the challenged claims of the '966, '344,
`and '634 patents at issue here are all anticipated or obvious in
`view of the prior art and the permutations we have laid out here
`on slide 12.
`Turning to our slide 2, as Your Honors can see, we do
`have a number of demonstratives available in case particular
`topics arise, along with a table of abbreviations and a table of
`contents showing where the evidence comes from, but we don't
`plan to address them all unless there are particular questions.
`Instead, to assist the Board in considering the record,
`we had planned an opening discussion here of three topics, along
`with any questions, of course, that the Board may have.
`So first this morning I will briefly address several claim
`constructions, and, in particular, Patent Owner's attempt to read
`into the claims an array of limitations that are clearly not
`supported by the record here. Second, I will briefly touch on the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 5
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`public availability of the Lin reference, one of the two base
`references Petitioners rely on in these trials. And then my
`colleague, Mr. Thomases, will address Patent Owner's failed
`attempt to swear behind Lin by trying to piece together bits of
`uncorroborated evidence that, even if they are taken at face value,
`wouldn't make the necessary showing of actual reduction to
`practice two months before Lin's publication date.
`And then, third, my colleague, Mr. Davis, will address
`Patent Owner's failed substantive arguments about the prior art
`that Petitioners have shown render the claims unpatentable.
`Before we jump into those substantive topics, I would
`like to make a few brief observations about the kind of arguments
`and evidence that Patent Owner has put before the Board and,
`more importantly, the evidence and argument that it has not.
`So first I'd urge the Board to look carefully at the
`arguments that Patent Owner provides in its papers and the
`citations it suggests back them up, because, respectfully, they
`can't be taken at face value on matters of substance.
`If we take a look at our slide 53, the Board will recall
`that at institution, the Patent Owner argued in its preliminary
`response, that's paper 6, in the '1970 proceeding, that it had
`provided the Board a copy of a purported invention disclosure
`form with redactions of "information not necessary to establish
`actual reduction to practice," but, in fact, Patent Owner had
`removed some key information, including the December 23rd
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 6
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`date, showing the document post-dated our Lin reference by a
`month and the supposed reduction to practice by three months.
`Now, as Mr. Thomases will address substantively,
`Patent Owner has failed to swear behind Lin, so we suggest the
`Board bear in mind this redaction, as it's something we learned
`about by happenstance.
`Turning to slide 21 of their deck, Patent Owner's slide
`21, Patent Owner argues at the top here that Dr. Karger did not
`provide an opinion regarding secondary considerations.
`Respectfully, that's simply not true. It's, at best, an
`overstatement.
`Taking a look at our slide 166, Dr. Karger did consider
`at the petition stage but found no evidence of secondary
`considerations, and once Patent Owner first identified supposed
`secondary considerations in its Patent Owner response, he opined
`about each of them, and we have citations collected on slides 168
`to 70, 76, and 77. We are happy to address those if that should
`come up.
`And then as another example, turning to slide 38 of
`Patent Owner's deck, they argue Dr. Karger admits the
`Acceleration Bay patents operated at the application layer. I
`suspect the Board's aware from briefing that Dr. Karger takes
`exactly the opposite position. If we take a look at Exhibit 1024 --
`and this is Dr. Karger's declaration -- at pages 17 to 18, in
`paragraph 25, Dr. Karger noted that Dr. Goodrich asserts -- it's at
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 7
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`the bottom of the page 17 -- Dr. Goodrich asserts that the claims
`are operating at the application layer; however, the claims'
`core functionality is to relay packets -- e.g. flood -- from its
`source to its destinations, the other network nodes. According to
`the OSI model this functionality is transport and network layer
`functionality. So the claims are clearly operating at the transport
`and network layers of the OSI model. That is Dr. Karger's actual
`position. He certainly did not admit that they operate at the
`application layer.
`JUDGE PETTIGREW: Which exhibit are you referring
`to there?
`MR. BAUGHMAN: Your Honor, that is Exhibit 1024,
`paragraph 25. And if I forget, and I probably will, when I'm
`referring to a paper number, I'm generally referring to the '1970
`proceeding just as a choice among the six.
`I would also caution that Patent Owner may be trying
`this morning to mix evidence across the proceedings, and I would
`urge the Board to take a look in each case at what's actually
`present there because it does vary case to case. We have tried to
`put our citations to evidence and indications of which matter is
`concerned with each issue on our slides.
`Second, as we'll be discussing, Patent Owner failed to
`support its various positions in the papers authorized by the
`Board, and while it may try here to pivot to new positions, it can't
`backfill with new arguments now. The Board's scheduling order,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 8
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`paper 10 in the '1970 matter, makes clear that Patent Owner is
`required to put any arguments for patentability on which it
`intended to rely in that response or it's waived.
`And third, finally, as the Board weighs the evidence that
`is actually appropriately before Your Honors, it's going to
`become clear that Patent Owner is actively running away from
`the merits. It is running away from the prior art that is clearly
`prior art, and it is running away from the actual language of its
`claims.
`
`So turning to slide 13 of our deck, and that leads us into
`the first substantive topic I am going to address, which is claim
`construction. What they imagine their claims -- sorry, what they
`imagine their patents teach and what their claims actually cover
`are two different things. So let's take a look at Patent Owner's
`slide 36, please.
`Now, you see on this slide a series of bullets about what
`Patent Owner says its patents teach and things that are not
`actually in the claims. In fact, the only thing that's going to show
`up in the claims here, which is the third bullet, the TCP/IP
`protocol, which is shown in some dependent claims, like claim 8
`of the '344 patent.
`Now, if you look at what they've got here, the first two
`talk about a broadcast channel -- do you see the second bullet?
`Let's highlight that in red -- a broadcast channel, in the first
`bullet, that overlays an underlying network -- let's highlight that --
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 9
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`and it's made up of computer applications. Let's put that in
`brown, please.
`Now if you actually take a look at the claim language,
`we have that captured in slide 62, independent claims. You are
`not going to find any of those terms, and the reason is, turning to
`our slide 14, that the Patent Owner is trying to pack all of that
`information into four very straightforward terms that should get
`their plain and ordinary meaning and which the Board found no
`need to construe at institution: participant, connection,
`information delivery service, and game environment.
`Patent Owner argues that in each of those you have to
`read in two extra limitations. One, the application, and second,
`the logical broadcast channel which overlays an underlying
`network. It's not in just one of these terms, it's in each of these
`terms, so they show up, as Patent Owner would have it, in
`multiple spots in each of the claims.
`Now, turning to slide 15, Patent Owner argues that
`Dr. Karger was unable to construe the claims and not able to
`apply them, and that is simply not what happened here. As the
`Federal Circuit has made clear and we show in the Vivid case at
`the top right, you only need to construe claims to the extent
`necessary to resolve the controversy.
`As in the second box on the right, Dr. Karger applied at
`institution the plain and ordinary meaning of the terms. That's
`what he testified. And he testified in reply, once these extra
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 10
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`limitations had been suggested, that he had no need to do any
`further construction of the outer limits of these terms in order to
`show that they were all met by the prior art.
`And if you take a look at his opening declaration, that's
`Exhibit 1019 -- and we don't need to turn to it -- but he used these
`terms throughout the document -- for example, in paragraph 40 --
`and he applied them and mapped them to the claims in paragraphs
`92 to 97, and in Appendix C, pages 131 to 32, for an example.
`Now, in Patent Owner's slides you'll see lots of criticism
`of Dr. Karger because they say he couldn't apply the claim terms.
`Again, not true. If you look, for example, at their slide 17, the
`question here was about forming a broadcast channel for a game
`of interest on the right and whether he came up with an
`understanding or a definition. Dr. Karger's response was that his
`task was to determine whether the prior art could be mapped to
`the phrase, and it didn't require him to come up with a precise
`definition. He applied the plain and ordinary meaning.
`Now, when it came time afterwards, after Patent Owner
`had tried to layer in these extra limitations, he did go back and
`take a look, and if you see in his Exhibit 1024, paragraph 53 --
`and this is on page 30, and if we could highlight 53, please -- he
`found no evidence that the patentee had acted as its own
`lexicographer or disavowed claim scope. That's what would be
`required to vary from the plain and ordinary meaning under, say,
`the Info-Hold case that we cited in our reply.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 11
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`Now turning to slide 16, let's take a look at this logical
`broadcast channel that overlays an underlying network limitation
`that Patent Owner tries to add to each of its terms. Turning to
`slide 17, in fact, the specifications of all three patents say that this
`is in one embodiment, and one embodiment is a logical broadcast
`channel.
`I would urge you to take a look at the papers from
`Patent Owner. They omit the phrase "one embodiment" when
`they quote this part of the spec, and you can see additional
`statements about this in the '344 and in the '966, again, "one
`embodiment," and as the Federal Circuit has made clear, even
`when there is only a single embodiment in the spec, that's not
`limiting without a manifest exclusion or restriction intent
`expressed in clear language.
`Now, here we have quite the opposite. If you turn to
`slide 18, we have dependent claims adding a broadcast channel to
`the independent claim 1 in both the '344 and '966. On the next
`slide we have that parallel independent claim. And as we show in
`the bottom of slide 18, the Federal Circuit has made clear that
`this -- in the Liebel-Flarsheim case, it indicates that the element
`that's added, like "broadcast channel," is not part of the base
`claim.
`
`Turning to slide 20, the same is true for the game
`application or the application, depending on the patent, that
`they're trying to add to all of these claim limitations, and, in fact,
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 12
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`if you look at the Patent Owner's preliminary response, there is an
`admission there. This is paper 6 in the '1970 proceeding at the
`bottom of page 9, and you'll see it says, "the '344 patent describes
`using a broadcast channel to overlay a point-to-point network
`where each node (participant)" -- so it doesn't say node
`application; it doesn't say application participant. It's equating
`nodes and participants.
`And turning back to slide 20, the specification says the
`same thing. So in column 4 of the '344, we have pointed to
`several quotes here in the top two boxes, the specification, talking
`about point-to-point connections or edges between host
`computers, i.e., nodes. And, again, an edge connection between
`two computers. So these two terms, participant and connection,
`are tied together. The connections are between participants, and
`the spec shows those participants can be host computers.
`Jumping to column 15, where Patent Owner has been
`pointing, it talks about computer processes which can be
`application programs, e.g., and later in column 15, there's a
`clarification that connections may be made by a broadcast
`component that is separate from the application program. So,
`again, the idea that the claims are limited to an application is
`simply not correct, and this is further illustrated in the language
`of the claims themselves.
`So if we take a look at the '344 patent, Exhibit 1001,
`page 56, claims 1 and 9, please. Okay, so we have the base claim
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 13
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`with the computer network and participants, and in claim 9,
`adding, "wherein each participant is a process executing on a
`computer." So it's not limited in claim 1 to a process, let alone a
`process that is an application. The same is true in '966, claim 9,
`and '634, claim 7.
`Turning to slide 21, where is all this coming from?
`Well, the Patent Owner's arguing it's all coming from the
`understanding of a person of ordinary skill in the art. We have
`collected a bunch of the places where they have argued that, that
`the application layer and the OSI reference model are coming in
`through the knowledge of a person of skill.
`So turning to slide 22, we have got a person of skill
`testifying that neither the application layer -- this is Dr. Karger --
`nor the OSI reference model appears anywhere, in the challenged
`claims, in the spec. It's not in the inventor's declarations. It's not
`in the supposed invention disclosure form. While Patent Owner
`is arguing that all of its claims are limited to the application layer,
`the lower left here, we have a dependent claim that's talking about
`TCP/IP connections, which Patent Owner concedes are at the
`transport layer.
`And as we noted earlier, Dr. Karger, in Exhibit 1024,
`paragraph 25, testified that the claims are clearly operating at the
`transport and network layers of the OSI model to be performing
`their core functionality.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 14
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`Turning to slide 26, the Federal Circuit tells us you have
`to construe the claims the same way for both invalidity and
`infringement, but while Patent Owner's asserting the claims are
`limited to the application layer, if you look at the infringement
`claim charts it's using to argue to Your Honors, it's talking about
`logical and physical network topologies.
`And I'll just note as a procedural matter, this is an
`example of incorporating by reference. It's a claim chart that's
`not part of the arguments, and in the document we have a citation
`on slide 47 to the Cisco case that points out why that's improper.
`Unless there are questions at this stage on claim
`construction, I am going to briefly mention some issues about Lin
`being prior art, slide 27.
`JUDGE FINK: What about the argument that I guess
`we should give patentable weight to the preamble statement of --
`there's a question of whether or not it's preamble or not, I guess,
`but the -- what weight we should give to the information delivery
`service or the -- in the '966 patent or the -- there's another term in
`the -- for the gaming --
`JUDGE PETTIGREW: Providing a game environment
`in the '344.
`JUDGE FINK: -- in the '344.
`MR. BAUGHMAN: Yes, Your Honor, I am trying to
`find it. If we can go to 62, please, just so we have the claims in
`front of us.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 15
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`Your Honor, we don't -- we haven't taken a position
`about whether the preambles are limiting, because we have
`covered the claims either way. We have shown they are
`disclosed. I know that Your Honors found at institution that they
`were limiting or were inclined to go that direction. I think this is
`an argument that Patent Owner is urging, but our position is that
`the claims are unpatentable whether or not the claims are
`limited -- sorry, whether or not the preambles are limiting.
`JUDGE FINK: What's your position on that point?
`MR. BAUGHMAN: Well, Your Honor, I think you can
`see that there is antecedent basis coming out of the -- of some of
`the preambles, and in some ways there is also just a statement of
`purpose. So I think it's a bit of a mix, but to the extent Your
`Honors are finding that limiting because of the preamble -- sorry,
`because of the antecedent basis issue, again, we think they're
`covered by the art we've provided.
`JUDGE PETTIGREW: Do you disagree with Patent
`Owner's position that there aren't preambles at all because there is
`no transitional phrase, I think with the exception of claim 10 in
`the '634?
`MR. BAUGHMAN: Well, Your Honor, it's a bit
`metaphysical, but I think we have just not found it necessary to
`take a position. I know that's probably not satisfying to Your
`Honors, and I apologize. We have treated the language as if it
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 16
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`were limiting so that we make sure it's covered in case Your
`Honors do reach that conclusion.
`Turning to our slide 27, please, if we could talk briefly
`about Lin being prior art, and I will address public availability.
`Turning actually to Patent Owner's slide 19, this is another
`situation that's a head-scratcher. They argue we have provided no
`evidence that Lin was publicly available in the first bullet here,
`and respectfully, there is plenty of it.
`Turning to our slide 28, there are actually two different
`ways we've shown that Lin is publicly available. One is through
`a website at the University of California at San Diego. We have
`their systems administrator, Mr. Little, testifying from his
`personal knowledge, from inspecting the edit dates, the last
`modified dates on the server, that it was publicly available as of
`November 23rd, 1999. He talks about the business practices of
`UCSD in operating the website, and he testified articles could be
`located by year or by author or by searching. Dr. Karger
`confirmed that this website is a place that people of ordinary skill
`would look for information relevant to the field and that UCSD,
`in particular, had a reputation in this area.
`And library science expert Dr. Bennett testified it was
`accessible to the public. Turning to slide 29, we also have
`evidence about the Lin authors' web page which collects
`information about epidemiological protocols. It identifies Lin
`with a citation. Dr. Bennett went to the website and found the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 17
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`paper listed there. We have testimony from the internet archive
`manager, Mr. Butler, that that was a true and correct copy of the
`website as of November 1999. And Dr. Karger confirmed again
`that going to the websites of individual researchers is something a
`person of ordinary skill would do, especially at this time, trying to
`find what's pertinent and up-to-date information about the art.
`JUDGE PETTIGREW: I think the question is whether
`that evidence is sufficient under the body of case law we have
`from the Federal Circuit.
`MR. BAUGHMAN: Understood, Your Honor, and I
`will -- I'll address that as well. So on slide 30, we talk about
`personal knowledge. On slide 31, you know, we talk about being
`able to access this through the website. Mr. Little testified that
`the same software was running in 1999. By the way, he had been
`working here since 1985, and we have that testimony on slide 28.
`He reports there was no -- I'm sorry, here we go -- back
`to 31, there was no significant downtime in being able to access
`the system, on slide 31 at the bottom there. And he testifies on
`slide 32 that you could access by year, by author, or by searching,
`and he testifies in the first box of his testimony there that he has
`found articles using the advanced search form, and he was there
`at the time in 1999.
`JUDGE PETTIGREW: Hasn't Patent Owner provided
`evidence that the advanced search form doesn't work?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 18
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`MR. BAUGHMAN: Well, two things here, Your
`Honor. First, I don't think there's any testimony about that.
`There are questions that are being asked by counsel during a
`deposition, putting certain papers in front of Mr. Little. Mr. Little
`testified that he understood the system was working and had no
`significant downtime and that he had found things using it and
`that he would actually be surprised to find that some things might
`not be working, but respectfully, a search today by an attorney for
`Acceleration Bay, even if that's shown in evidence -- and I don't
`think it is, I think it's only in questions on some pages -- doesn't
`show that the system wasn't working in 1999, as Mr. Little
`testified repeatedly.
`If you actually take a look at Exhibit 2079, the error is
`not about something related to the keywords or the search. It just
`says that the server was unavailable when they ran this search.
`And so I don't think there's any evidence that that wasn't working
`in 1999. Mr. Little testified about it, as a general business
`practice of the system, and that's certainly been more than enough
`evidence on numerous occasions, both in the Federal Circuit and
`in district courts.
`So, for example, in the Constant s. Advanced
`Micro-Devices case we cited and In Re Hall that they cited and
`the Marvell Semiconductor case they cited, the general practice is
`certainly enough information to show that something was
`accessible.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 19
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`And there are additional ways to reach this article
`besides the advanced search form. So turning to slide 33, we
`have the author's website collecting information on
`epidemiological protocols with this title, Gossip Versus
`Deterministic Flooding: Low Message Overhead and High
`Reliability for Broadcasting on Small Networks.
`Now, of course, prior art existed before Google searches
`and internet searches, and this is the kind of information that a
`person of ordinary skill would look to. We have Dr. Karger
`saying so, and Dr. Karger testifies on slide 34 that using the list of
`titles -- so if you clicked on the year and looked at all the titles --
`you would know from this title both the intended outcome and the
`proposed solution for what that article is talking about. So we
`have Mr. Little testifying that you could, indeed, search. For
`example, Exhibit 2030, page 38, line 7 to 10:
`"QUESTION: Was there search functionality?
`"ANSWER: Yes.
`"QUESTION: In 1999?
`"ANSWER: Yes."
`But we also have Dr. Karger testifying that a person of
`skill would have found this article even without the advanced
`search form. So we certainly did, turning back to Patent Owner's
`slide 19, put in evidence that Lin was publicly available.
`Your Honor, I don't know if that addressed your
`question, but I'm happy to talk further about it.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 20
`
`
`
`
`
`
`
`Case IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`Case IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Case IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`JUDGE PETTIGREW: Yeah, I assume that "publicly
`available" there from Patent Owner's perspective is a legal
`description. I understand that to b