`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`TV MANAGEMENT, INC., D/B/A GPS NORTH AMERICA,
`Petitioner,
`
`vs.
`
`PERDIEMCO, LLC,
`Patent Owner.
`__________
`
`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
`__________
`
`Record of Oral Hearing
`Held: September 12, 2017
`__________
`
`
`
`
`Before WILLIAM V. SAINDON, CARL M. DEFRANCO, and
`AMBER L. HAGY, Administrative Patent Judges.
`
`
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
` VIVEK A. GANTI, ESQUIRE
` Hill, Kertscher & Wharton, LLP
` 3350 Riverwood Parkway
` Suite 800
` Atlanta, Georgia 30339
` (770) 953-0995
` vg@hkw-law.com
` STEVEN G. HILL, ESQUIRE
` Hill, Kertscher & Wharton, LLP
` 3350 Riverwood Parkway
` Suite 800
` Atlanta, Georgia 30339
` (770) 953-0995
` sgh@hkw-law.com
`
`
`ON BEHALF OF PATENT OWNER:
` ALAN WHITEHURST, ESQUIRE
` Quinn, Emanuel, Urquhart & Sullivan, LLP
` 777 6th Street Northwest
` 11th Floor
` Washington, D.C. 20001
` (202) 538-8103
` alanwhitehurst@quinnemanuel.com
` MARISSA R. DUCCA, ESQUIRE
` Quinn, Emanuel, Urquhart & Sullivan, LLP
` 777 6th Street Northwest
` 11th Floor
` Washington, D.C. 20001
` (202) 538-8109
` marissaducca@quinnemanuel.com
`
`The above-entitled matter came on for hearing
`
` on Tuesday, September 12, 2017, commencing at 9:29
` a.m., at the U.S. Patent and Trademark Office, 600
` Dulany Street, Alexandria, Virginia.
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`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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`
`PROCEEDINGS
` JUDGE SAINDON: Please be seated. Good
` morning. I'm Judge Saindon. With me here today
` are Judges DeFranco -- and joining us via video
` link in a moment will be Judge Hagy from our Dallas
` office.
` This is an oral hearing for IPR2016-01061,
` 64, and 01278. We have scheduled for today 75
` minutes for both parties to use between the cases
` as they see fit. Petitioner, you'll be able to
` reserve some time for rebuttal. So if you'd like
` to let me know in advance, then I'll put your clock
` with the time that you've kept for your main
` argument and we can reserve the rest of the time.
` Before you get started, we'll do our brief
` introductions with the parties. We'll start with
` patent owner.
` MR. WHITEHURST: Good morning, Your Honors.
` Alan Whitehurst from Quinn Emanuel on behalf of the
` patent owner, PerDiem. And with me today is my
` colleague, Ms. Marissa Ducca. And also with me is
` in-house counsel for PerDiem, Mr. Robert Babayi.
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` JUDGE SAINDON: Good morning. Petitioner?
` MR. GANTI: Good morning, Your Honors. For
` the petitioner, Vivek Ganti. And with me as
` back-up counsel is Steve Hill with the firm of
` Hill, Kertscher & Wharton.
` JUDGE SAINDON: Good morning. All right.
` Petitioner, you may approach the podium and set up
` and begin when ready. Let me know if you'd like to
` reserve some time for rebuttal.
` MR. GANTI: If I may, I would like to
` reserve 30 minutes for rebuttal.
` JUDGE SAINDON: Also, one preliminary thing
` before you get started. We saw the objections from
` petitioner on the slides. Is that correct?
` MR. GANTI: Yes. That is correct, Your
` Honor.
` JUDGE SAINDON: And there were none from
` patent owner?
` MS. DUCCA: That's correct, Your Honor.
` JUDGE SAINDON: Okay. Given the nature of
` the objections directed to whether something was
` raised in a brief, we will only rely on stuff that
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` is in the brief, so there's no need to rule on
` those objections. Patent owner, you may present
` your slides.
` MR. WHITEHURST: Thank you.
` MR. GANTI: Okay. Good morning, Your
` Honors. As I introduced myself before, my name is
` Vivek Ganti. I'm counsel for the petitioners.
` The patents at issue in these three
` proceedings relate to a series of continuation
` applications that claim priority to an original
` patent application filed back in December 2005. As
` stated in the petitions, the claims at issue use
` broad and over-generalized claim language to claim
` the claimed embodiments of these patents.
` The petitioners are software companies that
` do fleet tracking. And they were charged with
` infringing these claims. Now, the petitioners have
` faced the -- have confronted the patent owners and
` provided them with prior art. In response, the
` patent owner is seeking to subtly import
` limitations from the specification into its broader
` claims. The patent owner tried to do this in their
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` preliminary response, but the Board correctly
` observed that the proper standard is BRI and it's
` not appropriate to do that.
` With the limited time I have today, I'd
` like to address the patentability arguments raised
` by the patent owner with respect to the '012
` Patent, the '499 Patent, and the '931 Patent in
` that order.
` But before I get into those issues, I would
` like to provide a high-level overview of the Fast
` prior art reference. Because armed with a deep
` understanding of the Fast prior art and how it's a
` flexible system that accounts for numerous
` configurations, a conclusion for invalidity easily
` follows.
` So the Fast reference is listed as Exhibit
` 1003 in all three IPR proceedings. Fast is about a
` system that provides location tracking for users.
` So a user that has family members or mobile objects
` or vehicles can track those items. They approach a
` retailer and they purchase beacons from the
` retailer. A beacon is the name for the end device
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` attached to these mobile objects, which could be
` people or vehicles or anything of the like.
` Now, once a person purchases these beacons,
` the retailer authorizes them to be a subscriber of
` the system. They are a paid member of this service
` provided by Fast. So once they're authorized as a
` subscriber, they have access to a variety of
` functionality of Fast. A few of those pieces of
` functionality are different modules. One of them
` includes a dependent manager, which is a module
` that allows a subscriber to build profiles for
` those entities that they want to track. So it
` could be a father creating a profile for a child.
` And the subscriber in that case, the father, would
` use the dependent manager to do that.
` In addition, there's a guardian manager,
` which allows a subscriber to administer their
` system by creating different guardians to track
` different dependents. One example in Fast is the
` use of -- is using a babysitter as a guardian,
` where a parent wants a babysitter to be responsible
` for one or more children. Then that subscriber can
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` create a guardian user ID for the babysitter, and
` that way the babysitter could use the Fast services
` to watch over the dependents.
` Other modules include a zone manager to
` build zones for tracking these mobile objects that
` create event-driven alerts. And to control the
` conveyance of these alerts, there's a notification
` manager to define who receives alerts when certain
` events occur.
` Now, at a high level, Figure 22 of Fast
` shows an architecture of how beacons were deployed
` in the field. They began at the very top with the
` GMMS, which stands for Global Management Monitoring
` System. And the GMMS is the ultimate service
` provider. They have wholesalers that work
` underneath them, who then sell to retailers, who
` then eventually sell to subscribers. And I'll note
` that wholesalers sell to subscribers in certain
` arrangements. And for purposes of the petition,
` the wholesaler and retailer can be treated
` synonymously because they both sell to subscribers.
` And they both have the ability to create -- turn a
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` user into a subscriber using a wholesaler or
` retailer portal.
` But Figure 22 doesn't tell the whole
` picture. What happens once a subscriber becomes a
` subscriber -- that's something not shown in Figure
` 22. Because once somebody purchases beacons and
` administers their environment, they can allocate
` their beacons to different dependents and create
` guardians and track them separate of what's going
` on above -- the layer above them.
` So one way a subscriber can do that is
` using a subscriber portal. And that's described in
` Figure 16 of Fast. And Figure 16 is broken up into
` 16-1 and 16-2, which is all part of the same
` flowchart.
` JUDGE SAINDON: Counsel, thanks for
` pointing out the figure numbers. Can you also
` point out the slide that you're on?
` MR. GANTI: Yes. I'm now referring to
` Slide 6 of petitioner's demonstrative.
` JUDGE SAINDON: Thank you.
` MR. GANTI: And at Slide 6 of petitioner's
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` demonstrative, it's showing Figure 16 of Fast,
` which is one flowchart that spans two sub-figures.
` And this is an important aspect of Fast because
` this allows a subscriber to configure their
` environment to their liking.
` First, a subscriber can log in. And that's
` at Box 505 where their credentials are checked.
` And this is important because this prevents one
` subscriber from being able to access another
` subscriber's account. So in this way, each
` subscriber is unique from another subscriber in the
` sense that they have access only to their own
` account and it protects the privacy of their
` dependents, as well as other sensitive information
` associated with the subscriber's account. Then the
` system authenticates the subscriber and gives them
` access to the portal. It gives them access to the
` portal, which includes a number of modules that I
` mentioned.
` A few of them I'd like to highlight include
` the ability to assign guardians to dependents.
` That's Box 527 of Figure 16-2. The ability to
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` manage scenarios and go to a scenario manager,
` which branches off into a different chain, which
` I'll address in just a moment. And that's Item
` 520. And also, a subscriber can manage user types,
` add or update or delete system users, and assign
` access levels to those system users. And I'm
` referring to Boxes 530, 532, and 534. And that's
` an important aspect of Fast because that allows the
` flexibility of a subscriber to create user types,
` create system users that have different access
` levels with different aspects of this portfolio.
` And then at the very end, if you follow the
` flowchart from 534, it goes back to Bubble B, which
` ties back to Figure 16-1, which is a box for user
` types, 514.
` JUDGE DEFRANCO: Mr. Ganti, so you're
` looking at Figure 16 to your Slide 6 here. And I'm
` listening to your interpretation of it. But where
` in the specification of the Fast reference is it
` saying what you're saying to us now? Because
` patent owner is arguing that those user types are
` predefined. In other words, they're canned into
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` the system and a subscriber or users can't change
` them. You know, they have to click on that user
` type and that's the level of access they get and
` that's it.
` MR. GANTI: Right.
` JUDGE DEFRANCO: So where in the
` specification of Fast does it describe what you're
` saying?
` MR. GANTI: Well, on Slide 7 of
` petitioner's demonstrative there are some excerpts
` that support my -- or petitioner's interpretation
` of Fast. So at Fast in Column 42, Lines 47 to 52,
` Fast talks about the subscriber portal allowing the
` subscriber to manage the user types, including
` adding, deleting, or updating system users. And
` that's important. Because when you do that, you're
` allowed to assign an access level. So that's a
` dynamic change made to a system user's ability to
` access the system. And that's not predefined.
` That's the opposite. That's a subscriber able to
` define access levels to their own liking. Not only
` that, but those access levels are stored in a
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` record of access levels associated with the user
` and kept in the list of user types. That's all --
` JUDGE HAGY: Counsel, I have a question.
` So are you saying that the subscriber could set
` up -- Guardian A could have a particular access
` that could be different from Guardian B, even
` though they're both the same user type?
` MR. GANTI: According to the teachings of
` Fast, that is correct. And Dr. Heppe also analyzed
` this portion of Fast and concluded that two
` different guardians can have different levels of
` access. In addition to that, each guardian can be
` allocated different dependents that they're
` responsible for so that Guardian A can not access
` Guardian B's dependents, and vice versa. And
` that's another way of distinguishing between one
` guardian and another.
` But right here, this is broken down, not
` just on the user type level, but on the system user
` level as well. So between both of those teachings,
` Fast allows a subscriber to custom tailor every
` single individual that has access to that
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` subscriber portal to have different levels of
` access for different users as well, or for
` different dependents as well.
` JUDGE SAINDON: Counsel, so if you have
` these different user types, but then separate from
` that you can define different access levels, what's
` the point of the user type if the guardian can be
` defined as -- you know, equivalent to a supervisor
` by going in and fiddling with the different access
` levels?
` MR. GANTI: Well, a guardian would have to
` be able to have the ability to then update user
` types as well, and a subscriber can prevent a
` guardian from doing that.
` So moving back to Figure 16, one of the
` functionalities of Fast is the ability to manage
` user types. So a subscriber can block a guardian
` from having access to that particular functionality
` of the subscriber portal. In that sense, a
` guardian has limited access perhaps just to the
` scenario manager, but no other aspects of the
` subscriber portal. In that way, a guardian can be
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` isolated to just limited access.
` Now, going back to Your Honor DeFranco's
` comment about patent owner's argument that the user
` types are predefined. That argument is a bit of a
` misdirection because that argument is based on the
` wholesale/retail portal, which is Figure 14, a
` completely different figure than Figure 16.
` There are two portals described in Fast.
` One for wholesalers and retailers to deploy
` beacons. And in that scenario, Fast has -- teaches
` the ability to -- for a super administrator to
` change user types. But then on the subscriber
` level, there's a whole separate subscriber portal
` using user types in a different sense, because
` those user types can be modified by the subscriber.
` And I'll show that by bringing up a figure
` in Fast. I'd like to take just a moment to review
` Figure 14 of Fast, which is the wholesale/retail
` portal. So what I've put up on the screen is
` Figure 14-1 of Fast. And this is described as the
` wholesale/retail portal. And this is something
` that a super administrator can control. They have
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` access to this, as well as retailers and
` wholesalers. And here you'll notice that there's a
` user type, Box 409. That's not the same user types
` that are listed in Fast's subscriber portal.
` Fast's subscriber portal uses the designator 514 to
` refer to subscriber related user types. These are
` user types such as a reseller or administrator.
` And these user types relate to the idea of
` deploying beacons down to the subscriber level, but
` not going any further than that. But once a
` subscriber has access to the system, then the
` subscriber can define their own user types and give
` different access levels for those users with those
` user types.
` JUDGE DEFRANCO: So, Mr. Ganti, you say
` that Figure 16 is at the subscriber level and
` Figure 14 is at the administrator/operator level?
` MR. GANTI: That's right. That's right.
` And if you read the description of the figures at
` the very beginning of the Fast reference, it
` expressly identifies that those two flowcharts are
` separate for different aspects of the Fast system.
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` The portion I highlighted is Lines 35 to 36 of
` Column 2. And there it says Figure 14 is a logic
` flowchart showing the operator of the operation of
` the wholesaler/retailer portal in the system. And
` then when you look at 16, it's talking about the
` operation of an incident-handling system, which
` later on is clarified as the subscriber portal.
` JUDGE SAINDON: Counsel, I have another
` question on user types and access levels. I'm
` looking at Figure 16.1. And Box 512 says,
` "determine level of authorized access based on user
` type." And then I look down to Fast Column 42,
` Lines 47 through 52, and in a portion of there it
` says, "a record of the access level of each user is
` kept in the list of user types."
` And so I'm trying to -- reading those, it
` sounds like your access is determined by your user
` type, in which it would seem like it would preclude
` your Guardian A having different access than Guardian
` B scenario. That you'd have to be either a
` guardian or a -- what's another one? Supervisor.
` And that's how you get different access levels.
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` MR. GANTI: If that's the Board's
` interpretation -- which I'll admit, Fast talks
` about giving access levels to system users. And
` that disclosure alone shows that individual users
` can have different access levels. I don't think
` anything else needs to be said beyond that because
` that's exactly the kind of issues related to the
` patents at issue, the ability to tailor access
` levels on the user basis.
` Now, Fast does say that these access levels
` are stored as a record of access, but then it's
` associated with a list -- kept in a list of
` user types. So perhaps it's a combination of the
` user type, but then the individual user's access
` level.
` But at the end of the day, a person of
` ordinary skill in the art reading this would
` understand that individual users can have different
` levels of access because it's based on a system
` user level. And that's all a person of ordinary
` skill in the art needs to know to be able to
` understand that you can tailor individuals to have
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` different levels of access, even though there is
` that statement about looking up a user type. And
` even if a subscriber is unsatisfied with a
` guardians's level of access, they can create a new
` user type, maybe Guardian 2. Because the list in
` Figure 14 -- in Item 14 of Figure 16-1 uses the
` ETC, which Dr. Heppe explains is a list that's not
` comprehensive, but that can be added to. It's
` supposed to be flexible in the sense that you can
` add as many user types as you'd like to.
` So once a guardian is created and given
` levels of access, then that guardian can log into
` the subscriber system using their guardian ID. And
` then at Box 512, a level of access is determined
` for that guardian and that guardian can then access
` different aspects of the subscriber portal.
` JUDGE DEFRANCO: So, Mr. Ganti, you know,
` obviously we're speaking to the Fast reference
` right now, but, you know, it all has to be tied
` back to the claim. And I'm looking at Claim 1 of
` the '012 Patent. So it's -- the second paragraph
` talks about conveying the object location
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` information or conveying the object location to a
` third user based on information specified by the
` first user. So, you know, can you take us through
` and tell us where is the first user and where is
` this third user in the context of Fast? And my
` second question is, do we need to make an
` interpretation of the word "specified"? What does
` that mean in the context of this claim?
` MR. GANTI: Sure. The petitioner analyze
` this. There are two different paths to invalidity
` here. First, there's an authorized user,
` authorized first user. That could be a wholesaler
` authorizing a subscriber or a subscriber
` authorizing a guardian. In either case, the
` subscriber or the guardian would be a first user in
` those scenarios.
` The theory that the petitioner relies on
` focuses on a notification scheme. That's the
` primary argument that the petitioner has made. A
` notification scheme is a list of recipients who get
` alerted to when an event occurs, or a
` location-based event occurs. And that maps
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` precisely to one of the embodiments of the '012
` Patent, which lists that a location -- that an
` information access code could be made up of a list
` of user IDs.
` JUDGE DEFRANCO: So you're saying a
` notification scheme meets the language of conveying
` the object location information to the third user?
` MR. GANTI: That's right.
` JUDGE DEFRANCO: And who's the third user?
` The guardian or --
` MR. GANTI: The third user could be any
` entity listed in that notification scheme. So if a
` subscriber creates a notification -- or implements
` a notification scheme, he can select a guardian or
` rescue personnel or even other dependents as
` recipients. Those recipients are the third user.
` The first user would be the subscriber who
` implemented the notification scheme. They're the
` first user because they specified by actually
` implementing it, by creating it or selecting it
` using the scenario builder. And they're authorized
` to do so by the wholesaler who created the
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`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` subscriber in the first place.
` JUDGE HAGY: Counsel, I have a question on
` that. So Claim 1 says that an administrator
` authorizes the first user. So if the first user is
` the subscriber, who's the administrator in that
` situation?
` MR. GANTI: The administrator could be the
` wholesaler or the retailer. And that particular
` scenario is disclosed in the '012 Patent. I'll
` refer to the patent owner's demonstrative. In
` their demonstrative on Page 16, they put an excerpt
` of the common written description. I believe it's
` citing to the '499 Patient, but the '012 Patent has
` the same language. And in there, they highlighted
` the section in blue. That states that anyone who
` has access to the internet can be authorized users
` if they pay for the service.
` And that's exactly what's happening in
` Fast. Subscribers are paying for this location
` tracking service. They are authorized users and
` they're authorized by wholesalers and retailers.
` In addition, a subscriber can authorize a guardian
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` based on the flowchart in Figure 16. And the
` guardian can then select a notification scheme to
` notify recipients for location-based alerts. And
` in that scenario, any recipient of the notification
` scheme would be a third user. The second
` user -- the claims actually don't say second user.
` It just says a second user identification code.
` That would be the dependent being tracked that's
` subject to the scenario.
` I'd like to note that the patent owner
` hasn't raised any arguments with respect to the
` notification scheme theory raised by the
` petitioner. There's no discussion in their patent
` owner response. And for that reason, they waive
` their right to challenge the notification scheme as
` meeting the information access code.
` Alternatively, the petitioner's cite to the
` user type as an example of an information access
` code, because that's something that a subscriber
` can -- that's something the subscriber can manage
` to give guardians access to the subscriber portal.
` And Dr. Heppe testified that once you have access to
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`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` the subscriber portal, you can get access to the
` individual dependents that are associated with the
` subscriber account. Fast teaches the location
` manager in Column 20 that allows a single point
` location for any of the dependents. And that's a
` feature available to the subscribers.
` Now, moving back to the high-level overview
` of Fast, in addition to a subscriber being able to
` access certain features -- one of those features is
` a scenario manager. The scenario manager has two
` components; a scenario builder and a scenario
` monitor. The scenario builder allows a subscriber
` to pick different building blocks and assemble them
` and save them as a named scenario. And once
` they're activated, the scenario monitor continues
` to monitor for parameters and triggers
` event-driven alerts according to an active
` scenario.
` And finally, Fast teaches the use of a
` beacon manager, which is the server side software
` agent dedicated to a beacon. So in the field there
` are a number of hardware devices out there called
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` beacons, which can vary in complexity, vary in
` manufacturers. But Fast normalizes all of those
` variances by using a beacon manager that executes
` on the server side to track the beacon and to
` interface with the beacon. And Fast teaches in
` Column 30, Line 67, to Column 31, Line 3, that the
` beacon manager performs threshold monitoring. And
` that's an issue I'll address later on. But that's
` critical to an understanding that the beacon
` manager is responsible for determining
` event-generated alerts.
` We spoke a little bit about the '012
` Patent. But given the time, I'd like to jump to
` the '499 Patent. Now, the '499 Patent has a number
` of elements, Elements 1 through M. And they embody
` similar concepts that we spoke about with the '012
` Patent, but it adds a few more details.
` JUDGE SAINDON: Counsel, what slide are you
` on?
` MR. GANTI: Now I'm on Slide 20 --
` JUDGE SAINDON: Thank you.
` MR. GANTI: -- of petitioner's
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`Case IPR2016-01061 (Patent 8,223,012)
`Case IPR2016-01064 (Patent 9,003,499)
`Case IPR2016-01278 (Patent 9,071,931)
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` demonstratives, which provide an overview of Claim
` 1 of the '499 Patent.
` The '499 Patent involves the concept of an
` information sharing environment. I'll use the
` acronym ISE for short. And it creates the first
` information sharing environment. And within it are
` event-information sharing environments. So Fast
` teaches this concept by -- in two ways. One where
` a wholesaler creates an information sharing
` environment. And then within it, each subscriber
` underneath that wholesaler executes their own
` scenarios to track mobile objects. And each of
` those scenarios are event ISEs within the
` wholesaler ISE.
` Another way to look at it is a subscriber
` forms the first level ISE. And underneath it, the
` wholesaler -- or underneath it, different guardians
` who are assigned by the subscriber create
` scenarios. And that's something Dr. Heppe testified
` to in Paragraph 45 of his declaration. He showed
` an exemplary configuration of Fast where a
` subscriber sits at the top, has a guardian tracking
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`26
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