`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01365
`Patent 7,181,608
`
`
`
`
`
`
`
`
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`I.
`II.
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`TABLE OF CONTENTS
`Introduction…...……………………………………………………………..1
`Claim Construction..………………………………………………………...1
`A. Preloading ................................................................................................. 1
` Realtime’s Preloading Construction Improperly Inserts
`Limitations into the Claims……………………………………2
` Realtime’s Preloading Construction is Inconsistent with
`Examples of Preloading in the ’608 Patent……………………3
` Third-Party Evidence Does Not Support Limiting
`Preloading to Realtime’s Construction ………………………..6
`III. The Applied Prior Art Renders the Challenged Claims Obvious………….11
`A. Sukegawa Describes Preloading (All Claims) ........................................ 11
` Realtime Wrongly Advances that Preloading Cannot
`Encompass Storage in Non-Volatile Memory ………..……...11
` Sukegawa’s Description of Preloading Matches the
`Approach Claimed and Described by the ’608 Patent………..14
`B. Sukegawa Describes Preloading Prior to Completion of Initialization
`(All Claims) ............................................................................................ 15
` Initializing and Preloading are not Limited to Being
`Performed During the Same Initialization Process…………...15
` Sukegawa Describes Preloading Prior to Initialization of the
`CPU…………………………………………………………...19
`C. Dye Describes a Plurality of Encoders (Claims 16-17, 20-21, 25-26, 30-
`31)……………………………………………………………………...20
`D. The Combination Applied in Ground 1 is Proper (All Claims) ............. 23
` Dye ’284 was Properly Incorporated by Reference into
` Dye……………………………………………………….23
` Dye (without Dye ’284) Provides Sufficient Motivation...25
` Grounds 2-4 Remain Unchallenged……………………...28
`IV. Conclusion………………………………………………………………….28
`
`
`
`
`
`
`
`i
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`EXHIBIT LIST
`
`APPLE-1001
`
`U.S. Patent No. 7,181,608 to Fallon, et al. (“the ’608 Patent”)
`
`APPLE-1002
`
`Excerpts from the Prosecution History of the ’608 Patent (“the
`Prosecution History”)
`
`APPLE-1003
`
`Declaration of Dr. Charles J. Neuhauser (“Dec.”)
`
`APPLE-1004
`
`Curriculum Vitae of Dr. Charles J. Neuhauser
`
`APPLE-1005
`
`U.S. Patent No. 5,860,083 (“Sukegawa”)
`
`APPLE-1006
`
`U.S. Patent No. 6,374,353 (“Settsu”)
`
`APPLE-1007
`
`Burrows et al., “On-line Data Compression in a Log-structured
`File System” (1992) (“Burrows”)
`
`APPLE-1008
`
`U.S. Patent No. 6,145,069 (“Dye”)
`
`APPLE-1009
`
`U.S. Patent No. 7,190,284 (“Dye ’284”)
`
`APPLE-1010
`
`Jeff Prosise, DOS 6 – The Ultimate Software Bundle?, PC
`MAGAZINE, Apr. 13, 1993 (“Prosise”)
`
`APPLE-1011
`
`Excerpts from John L. Hennessey & David A. Patterson,
`Computer Architecture a Quantitative Approach (1st ed. 1990)
`(“Hennessey”)
`
`APPLE-1012
`
`U.S. Patent No. 6,158,000 (“Collins”)
`
`APPLE-1013
`
`File, Microsoft Press Computer Dictionary (3d ed. 1997)
`
`APPLE-1014
`
`Excerpts from Tom Shanley & Don Anderson, PCI System
`Architecture, (4th ed. 1999) (“Shanley”)
`
`
`
`ii
`
`
`
`APPLE-1015
`
`APPLE-1016
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Jacob Ziv & Abraham Lempel, A Universal Algorithm for
`Sequential Data Compression, IT-23 No. 3 IEEE
`TRANSACTIONS ON INFORMATION THEORY 337 (1977)(“Ziv”)
`
`James A. Storer & Thomas G. Szymanski, Data Compression
`via Textual Substitution, 19 No. 4 JOURNAL OF THE
`ASSOCIATION FOR COMPUTING MACHINERY (1982)(“Storer”)
`
`APPLE-1017
`
`Transcript of June 20, 2017 Deposition of Dr. Back
`
`APPLE-1018
`
`U.S. Patent No. 6,658,492 (“Kawahara”)
`
`APPLE-1019
`
`U.S. Patent No. 5,815,718 (“Tock”)
`
`APPLE-1020
`
`U.S. Patent No. 6,463,509 (“Teoman”)
`
`APPLE-1021
`
`Encoder, Microsoft Press Computer Dictionary (5th ed. 2002)
`
`APPLE-1022
`
`Encoder, The Computer Desktop Encyclopedia (2nd ed. 1999)
`
`
`
`
`
`iii
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`
`I.
`
`Introduction
`Realtime’s arguments fail when longstanding legal principles are properly
`
`applied to the factual record. Indeed, a proper application of the broadest reasonable
`
`interpretation standard makes clear that Realtime overreached by pursuing overly
`
`broad claims in the ’608 Patent.
`
`II. Claim Construction
`In rendering its Institution Decision, the Board indicated that no express
`
`constructions were required. Institution Decision, 4. Despite this, and in an apparent
`
`attempt to manufacture patentability, Realtime now urges the Board to adopt an
`
`unduly narrow construction of “preloading” that improperly inserts limitations into
`
`the claims, and that is contradicted by examples within the specification, testimony
`
`of Realtime’s own expert, and third-party evidence. Patent Owner Response
`
`(“POR”), 12-16.
`
`A.
`Preloading
`Realtime proposes that “[t]he term ‘preloading,’ as used in claims 1, 3, 7-9,
`
`22, and 27, should mean transferring data from storage to memory in anticipation of
`
`immediate or near-in-time use.’” POR, 12. Realtime’s construction, however, is not
`
`“the broadest reasonable interpretation” because the construction improperly
`
`imports limitations that are missing from the ’608 Patent, excludes several examples
`
`of preloading provided in the ’608 Patent’s description, and is at odds with
`
`contemporaneous understanding of the term by persons of skill, as indicated by
`1
`
`
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`
`third-party evidence.
`
`
`
`Realtime’s Preloading Construction Improperly Inserts
`Limitations into the Claims
`Realtime’s “preloading” construction, which requires “transferring data from
`
`storage to memory in anticipation of immediate or near-in-time use,” improperly
`
`imports at least the “in anticipation of . . . use” and “immediate or near-in-time”
`
`limitations. These limitations are clearly absent from the claim language, and the
`
`specification nowhere describes preloading in these terms. Thus, importing the “in
`
`anticipation of . . . use” and “immediate or near-in-time” limitations into the
`
`construction of the term preloading is inconsistent with BRI.
`
`In an attempt to support its construction, Realtime asserts that “a POSITA
`
`would have understood that … movement of data from storage into memory is
`
`performed in anticipation of immediate or near-in-time use.” POR, 14. Realtime
`
`quotes the declaration of its expert, Dr. Back, ¶¶ 48-51. However, because the
`
`’608 Patent does not include the proposed language, Realtime provides no
`
`quotations to the ’608 Patent itself.
`
`And, although Dr. Back discusses portions of the ’608 Patent in ¶¶ 50-51,
`
`none of the portions cited by Dr. Back employ the terminology hand-picked by
`
`Realtime in an attempt to distinguish the prior art. See ’608, Abstract, 3:34-40,
`
`3:60-61, 21:50-54, 21:56-62, 22:9-19, 22:41-45, 32:13-38, FIGS. 7b, 8b. Indeed,
`
`the ’608 Patent nowhere describes a data transfer as being performed “in
`
`
`
`2
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`anticipation” of anything, let alone “immediate or near-in-time use.” Because the
`
`’608 Patent does not even use these terms to describe preloading, it would be
`
`improper to import them into the term preloading under BRI.
`
`
`
`Realtime’s Preloading Construction is Inconsistent with
`Examples of Preloading in the ’608 Patent
`Contrary to BRI, Realtime’s construction improperly excludes examples of
`
`preloading in the ’608 Patent. POR, 3-7, 12-16, 16-26. Specifically, the claims
`
`require preloading boot data prior to completion of initialization of the central
`
`processing unit. The ’608 Patent describes several examples where preloading
`
`occurs prior to completion of initialization because the preloading occurs prior to
`
`system reset or boot. In these examples, the ’608 Patent simply states that preloading
`
`occurs prior to system reset or boot; it does not qualify how far in advance of reset
`
`or boot the preloading occurs. Thus, these examples align with the claim language,
`
`but are not limited to preloading “in anticipation of immediate or near-in-time use,”
`
`as advocated by Realtime.
`
`For example, the ’608 Patent explains that “prior to host system reset, the data
`
`storage controller can proceed to pre-load the portions of the computer operating
`
`system from the boot device (e.g., hard disk) into the on-board cache memory.”
`
`’608, 21:45-65. In this example, “[s]ince the same portions of the operating system
`
`must be loaded upon each boot process, it is advantageous for the boot device
`
`
`
`3
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`controller to preload such portions and not wait until it is commanded to load the
`
`operating system.” Id.
`
`This example makes explicit that, contrary to Realtime’s arguments,
`
`preloading occurs “prior to host system reset” (i.e., prior to boot1). Indeed, the ’608
`
`Patent deems such an approach “advantageous.” ’608, 21:45-65.
`
`The ’608 Patent provides further confirmation that preloading may occur prior
`
`to a subsequent boot process through discussion of two alternative examples. In a
`
`first example, preloading is completed prior to boot and, in a second, alternative
`
`example, booting and preloading are performed simultaneously. ’608, 22:20-50.
`
`Specifically, the ’608 Patent explains that:
`
`It is to be understood that the depending on the resources of the given
`system (e.g., memory, etc.), the preloading process may be completed
`prior to commencement of the boot process, or continued after the boot
`process begins (in which case booting and preloading are performed
`simultaneously).
`’608, 22:40-50.
`
`This passage demonstrates that, in a system equipped with appropriate
`
`resources (e.g., non-volatile cache memory), preloading in the ’608 Patent is
`
`
`1 The ’608 Patent explains, at 11:26-30, that “the boot process begins when the
`
`CPU of the host system is released from external reset ….”
`
`
`
`4
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`completed before a boot process commences. Indeed, and as the passage makes
`
`clear by its alternative example, preloading during the boot process is only necessary
`
`in systems lacking appropriate resources.
`
`Along these lines, the ’608 Patent explains, and Dr. Back confirms2, that the
`
`cache memory device in which preloaded boot data is stored “may comprise…non-
`
`volatile memory” in which data is persistently stored across boot cycles. ’608, 6:60-
`
`63. Indeed, Dr. Back explained that, “if boot data were stored in the cache memory
`
`and if a form of non-volatile memory were used, then this data stored in the cache
`
`would be available after subsequent power on.” APPLE-1017 42, 76. Dr. Back
`
`added, “[t]hat’s what non-volatile means.” Id., 76.
`
`By describing examples of preloading prior to boot, including examples of
`
`preloading into non-volatile memory, the intrinsic record of the ’608 Patent runs
`
`contrary to Realtime’s attempt to narrow the term preloading. Indeed, Realtime’s
`
`“preloading” construction is improper because it excludes examples within the ’608
`
`Patent specification and is inconsistent with the testimony of Realtime’s own expert,
`
`Dr. Back.
`
`
`2 In his deposition on June 20, 2017, Dr. Back was asked whether the claimed cache
`
`memory “could be either volatile or non-volatile,” and he concluded that yes, “it
`
`could be either way.” APPLE-1017, 29-30.
`
`
`
`
`
`5
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Third-Party Evidence Does Not Support Limiting
`Preloading to Realtime’s Construction
`As discussed at Sections II.A.(1)-(2), the plain language of the claims and
`
`
`
`intrinsic record of the ’608 Patent do not support Realtime’s construction of
`
`preloading. Because the intrinsic record is clear that preloading should not be
`
`construed to import the hand-picked limitations offered by Realtime, consideration
`
`of extrinsic evidence is unnecessary. Third-party evidence, however, supports
`
`Apple’s interpretation of preloading.
`
`In the POR, Realtime attempts to equate the term “preload” with the term
`
`“prefetch” and use third-party definitions for the term “prefetch” as a surrogate for
`
`the actual claim term “preload.” Specifically, Realtime points to “step 77” of
`
`Figure 7b, in which boot data is said to be “preloaded into the onboard cache
`
`memory.” POR, 14 (citing ’608, 22:40-45, 22:20-39). Figure 7b labels “step 77”
`
`as “Prefetch Data Blocks Specified in List,” and Realtime asserts that this
`
`“disclosure indicates that ‘preloading’ has a meaning similar to ‘prefetching.’”
`
`POR, 14. Figure 7b, however, is the only part of the ’608 Patent that uses the term
`
`“prefetch.” Indeed, the ’608 Patent’s specification does not even mention the term
`
`“prefetching” or in any way establish that the terms “preloading” and “prefetching”
`
`have a similar meaning. The ’608 Patent’s use of the term “prefetch” in Figure 7b
`
`merely indicates that prefetching is an example of preloading; not that preloading
`
`is limited to only prefetching.
`
`
`
`6
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Realtime also attempts to use the prosecution history of the ’608 Patent to tie
`
`the term preload to the term prefetch, noting that the examiner initially rejected the
`
`’608 Patent based on a prior art reference that disclosed prefetching. Here again,
`
`Realtime’s evidence merely shows that preloading is broad enough to include
`
`prefetching as an example; not that preloading is limited to only prefetching.
`
`By providing only a single instance where the ’608 Patent uses the term
`
`prefetch as an example of preloading, Realtime falls far short in establishing that
`
`the ’608 Patent equates the term “preloading” with the term “prefetching.”
`
`Accordingly, the term “preloading” should not be limited by the definitions of the
`
`term “prefetching” provided by Realtime.
`
`Further, even assuming consideration of Realtime’s definitions of
`
`“prefetching,” Realtime’s “preloading” construction is inconsistent with these
`
`definitions and other third-party evidence. Realtime itself acknowledges that
`
`prefetching refers “to the process of retrieving data before it is needed.” POR, 15.
`
`Retrieving data “before it is needed” is not limited to “immediate or near-in-time”
`
`retrieval, and none of Realtime’s definitions even use these terms Realtime seeks
`
`to import into the claims.
`
`Additionally, third-party evidence of the actual claim term “preloading”
`
`supports an interpretation of preloading that is broader than transfer “in
`
`anticipation of immediate or near-in-time use.” For example, third-party evidence
`
`
`
`7
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`shows that the term “preload” was understood to cover loading before powering on
`
`of a computer system. APPLE-1018, 12:18-23 (“the preloaded executable module
`
`and boot time initiator 1320 are permanently stored in the read-only
`
`memory….Each time the…computer is powered on or rebooted, the boot time
`
`initiator 1320 is automatically executed”); APPLE-1019, 1:40-44 (“an offline class
`
`loader…classes are preloaded into memory without requiring runtime dynamic
`
`loading”), 2:1-7 (“an offline class loader to preload a browser in the client's read-
`
`only memory.…At system initialization or power up,…the browser is loaded from
`
`read-only memory”).
`
`In fact, as shown in FIGS. 9-10 (below), Teoman demonstrates that the term
`
`“preload” was understood to cover preloading of operating system and application
`
`data into a non-volatile cache for boot – the same operations performed by
`
`Sukegawa. APPLE-1020, 3:4-11, 7:43-63, 9:15-10:54, 13:23-59, 14:65-16:29.
`
`
`
`8
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`
`APPLE-1020, FIG. 9 (highlighted)
`
`
`
`
`
`9
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`
`APPLE-1020, FIG. 10 (highlighted)
`
`
`
`For the reasons discussed above, neither the ’608 Patent nor third-party
`
`evidence supports Realtime’s attempt to import the “in anticipation of . . . use” and
`
`“immediate or near-in-time” limitations into the term preloading.
`
`
`
`10
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`III. The Applied Prior Art Renders the Challenged Claims Obvious
`A.
`Sukegawa Describes Preloading (All Claims)
`As discussed in the Petition, Sukegawa’s controller 3 performs “a cache
`
`function” by “using the flash memory unit 1 as a cache memory,” and describes two
`
`techniques for preloading boot data into this cache memory: (1) user selection of
`
`data to preload, and (2) automatic selection of data to preload. Sukegawa, 1:50-61,
`
`4:7-10, 5:14-6:17, 6:19-58, 7:28-55; APPLE-1003, ¶¶55-58, 109-115. As Dr.
`
`Neuhauser explains, “Sukegawa makes use of the same techniques to identify data
`
`to be preloaded as the ’608 Patent.” APPLE-1003, ¶¶56-57. Because Realtime’s
`
`construction is improper and these examples fall within the ordinary meaning of
`
`preloading as set forth in Section II (above), Sukegawa describes preloading and
`
`Realtime’s arguments fail.
`
`
`
`Realtime Wrongly Advances that Preloading Cannot
`Encompass Storage in Non-Volatile Memory
`Realtime argues that Sukegawa does not disclose “preloading” but, rather,
`
`“Permanent Storage in Flash Memory for Later Access.” POR, 16. Specifically,
`
`Realtime construes preloading as involving “transferring data from storage to
`
`memory,” but contends, erroneously, that this transfer cannot encompass retrieving
`
`boot data from a boot device and “storing” it in a non-volatile memory device, for
`
`use in a subsequent boot process. Id., 4-5.
`
`
`
`11
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Indeed, Realtime’s attempt to distinguish Sukegawa is dependent on the
`
`misconception that preloading cannot involve storing data in non-volatile memory,
`
`as described in Sukegawa. POR, 18. This misconception, however, was effectively
`
`dispelled by Realtime’s expert during deposition where Dr. Back confirmed that the
`
`’608 Patent describes preloading data into a non-volatile cache3.
`
`Realtime argues that “the ’608 Patent draws a clear distinction between the
`
`concepts of ‘storing’ and ‘loading,’ and ‘storing’ and ‘preloading.’” POR, 18-20
`
`(citing ’608, Abstract, 1:15-21, 1:39-41, 3:41-51, 4:6-22). Yet, Realtime cites to
`
`only narrow slices of the ’608 Patent, ignoring broader and more relevant description
`
`that repeatedly contradicts its arguments. Id.
`
`For example, the ’608 Patent’s Abstract describes that, as part of the
`
`preloading process, “boot data is retrieved from a boot device and stored in a cache
`
`memory device.” Similarly, at 3:49-52, the ’608 Patent states that “[i]n a preferred
`
`embodiment, the boot data is retrieved from a boot device and stored in a cache
`
`
`3 Dr. Back confirmed that the claimed cache memory “could be either volatile or
`
`non-volatile,” that preloaded boot data is “stored in the cache memory device,” and
`
`that, “if boot data were stored in the cache memory and if a form of non-volatile
`
`memory were used, then this data stored in the cache would be available after
`
`subsequent power on.” APPLE-1017, 29-30, 38, 76.
`
`
`
`12
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`memory device,” and at 4:20-22, the ’608 Patent explains that “[t]he boot device
`
`controller further includes a cache memory device for storing the preloaded boot
`
`data.”
`
`In this way, and contrary to Realtime’s arguments, the ’608 Patent clearly and
`
`repeatedly discloses that preloading boot data involves “storing” that boot data in a
`
`cache memory device, just as Sukegawa does. APPLE-1003, ¶56 (citing Sukegawa,
`
`1:50-61, 5:10-14, 6:49-58, 7:7-9). Moreover, and as Dr. Back confirmed4, the ’608
`
`Patent clearly explains that the cache memory device in which preloaded boot data
`
`is stored may comprise “non-volatile memory,” similar to Sukegawa’s. ’608, 6:60-
`
`63, FIG. 1. The fact that the ’608 Patent describes other examples where the cache
`
`is volatile is inconsequential because the claims are not limited to a type of cache
`
`memory and the ’608 Patent quite clearly describes non-volatile memory, such as
`
`Sukegawa’s, as being applicable.
`
`Thus, Realtime’s attempt to distinguish Sukegawa on the basis of Sukegawa’s
`
`preloading processes involving storage of boot data in non-volatile memory fails.
`
`
`4 Dr. Back confirmed during deposition that, in the 2000 timeframe, “[t]here were
`
`high-speed non-volatile memories,” and that “boot data [could] indeed be stored on
`
`such memories.” APPLE-1017, 11.
`
`
`
`13
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Sukegawa’s Description of Preloading Matches the
`Approach Claimed and Described by the ’608 Patent
`Regardless of construction, the examples identified in Section II (above)
`
`
`
`demonstrate that, in a system equipped with appropriate resources (e.g., non-volatile
`
`cache memory), preloading in the ’608 Patent is completed before a boot process
`
`commences. ’608, Abstract, 3:49-52, 4:20-22, 6:60-63, 21:45-65, 22:40-50, FIG. 1.
`
`Indeed, as both the testimony of Dr. Back and the examples of the ’608 Patent make
`
`clear, preloading in the ’608 Patent encompasses storage of boot data in non-volatile
`
`memory, for use during a boot process that would follow a subsequent power
`
`off/power on cycle. APPLE-1017, 11, 29-30, 40-42, 76; ’608, Abstract, 3:49-52,
`
`4:20-22, 6:60-63, 11:26-30, 21:45-65, 22:20-50, FIG. 1.
`
`As Dr. Neuhauser explains, this is precisely the approach disclosed by
`
`Sukegawa, which describes preloading boot data into non-volatile cache memory, to
`
`ensure that the preloaded data is available immediately after power on. APPLE-
`
`1003, ¶¶56-57 (citing Sukegawa, 1:50-61, 4:7-11, 5:10-14, 6:49-58, 7:7-9). Thus,
`
`Sukegawa’s description matches preloading examples in the ’608 Patent and, as a
`
`consequence, a proper construction of preloading must encompass the preloading
`
`operations performed by Sukegawa.
`
`
`
`14
`
`
`
`B.
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Sukegawa Describes Preloading Prior
`to Completion of
`Initialization (All Claims)
`Realtime argues that the “plain language” of the claims “requires that the steps
`
`of ‘initializing’ and ‘preloading’ be performed during the same initialization
`
`process,” and that this, “in turn, requires that these steps be performed during the
`
`same power-on cycle of the computer system.” POR, 27-28. From this, Realtime
`
`concludes that Sukegawa cannot invalidate any claim because Sukegawa discloses
`
`initializing and preloading during different power-on cycles. POR, 28.
`
`Realtime is mistaken. Under BRI, there is no basis for requiring the claimed
`
`“initializing” and “preloading” to be performed during the same initialization
`
`process.
`
`
`
`Initializing and Preloading are not Limited to Being
`Performed During the Same Initialization Process
`Claim 1 recites “initializing a central processing unit of the computer system”
`
`(the “initializing” step) and “preloading the boot data into a cache memory prior to
`
`completion of initialization of the central processing unit of the computer system”
`
`(the “preloading” step). With this language, claim 1 does not tie “initialization” in
`
`the “preloading” step to the “initializing” step. Indeed, notably absent from claim
`
`1’s “preloading” step is reference to any particular initialization, as its preloading
`
`step recites initialization without reference to “the” initializing step, much less
`
`insertion of any requirement for antecedent basis (i.e., insertion of the article “the”)
`
`
`
`15
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`or other limitation on when preloading starts relative to the “initializing” step. To
`
`this point, as drafted, the timing of the “preloading” step is limited in only one way
`
`– it must occur “prior to completion of initialization of the central processing unit.”
`
`While the preloading must temporally occur before initialization completes, the
`
`claim is without temporal limitation on how far in advance the preloading must
`
`occur. In other words, the “preloading” step does not specify when the preloading
`
`must start. To this point, although the prior to “completion” language allows
`
`preloading to occur after initialization starts, applying the claim language, no basis
`
`exists for requiring preloading to occur contemporaneously with initialization.
`
`Realtime’s argument reinforces this point, as Realtime turns to antecedent
`
`language applied elsewhere in the claim to advance its position, tacitly recognizing
`
`the absence of similar language as a modifier for the critical term, “initialization.”
`
`Specifically, Realtime directs attention to “[t]he use of the definite article ‘the’ in
`
`the term ‘the central processing unit’,” in its attempt to argue that antecedent basis
`
`exists to support a requirement for “‘preloading prior to completion of initialization
`
`of the central processing unit’ and ‘initializing a central processing unit’
`
`...occur[ring] during the same initialization process—not two or more separate
`
`processes.” POR, 30. Although Petitioner agrees that use of the term “the” indicates
`
`antecedent basis for “central processing unit,” Petitioner disagrees that the presence
`
`of “the” as a modifier for central processing unit imparts any limitation on the
`
`
`
`16
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`initialization referenced within the preloading step. Rather, presence of “the” simply
`
`confirms that the central processing unit mentioned in the “preloading” step is the
`
`same central processing unit mentioned in the “initializing” step.
`
`Indeed, Realtime’s reliance on the definite article “the” to establish a
`
`connection between “the central processing unit,” as recited in the preloading step,
`
`and “a central processing unit,” as recited in the initialization step, suggests an
`
`awareness on Realtime’s part of the general requirements for establishing antecedent
`
`basis. And yet, when the claims were drafted and presented to the Patent Office,
`
`Realtime nevertheless demonstrates its conscious choice to omit a similar definite
`
`article or other limiting language in front of the term “initialization” in the
`
`“preloading” step.
`
`The drafter’s omission of that language, and its consequent non-existence in
`
`the claims as written, is glaring, and it leaves open as possibilities that “preloading
`
`prior to completion of initialization” and “initializing” might occur during the same
`
`initialization process, or might not. The drafter should bear the burden of this
`
`omission and the consequential breadth in claim scope, particularly given the lack
`
`of basis, either in the plain language of the claims themselves, or in the specification,
`
`for assuming, as Realtime urges, that “preloading prior to completion of
`
`initialization” and “initializing” must occur during the same initialization process.
`
`
`
`17
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Realtime argues that one particular embodiment from the specification, which
`
`describes “preloading the boot data upon initialization of the host system,” “confirms
`
`that preloading is designed to be performed with (and prior to completion of) an
`
`initialization that occurs during…the same power-on cycle.” POR, 32 (citing ’608,
`
`4:18-19). This embodiment, however, fails to support Realtime’s argument because,
`
`in plain contrast to this embodiment, the claims do not recite preloading “upon”
`
`initialization. Rather, this embodiment highlights the breadth of the claim language
`
`where “upon” was substituted for the broader “prior to completion of” language. By
`
`making this substitution, Realtime covered the “upon” embodiment, but also quite
`
`clearly intended coverage of other examples where preloading occurred “prior to,”
`
`but not “upon” initialization.
`
`Indeed, the examples identified in Section II (above) demonstrate that, in a
`
`system equipped with appropriate resources (e.g., non-volatile cache memory),
`
`preloading in the ’608 Patent occurs prior to the beginning of a boot process. ’608,
`
`Abstract, 3:49-52, 4:20-22, 6:60-63, 21:45-65, 22:40-50, FIG. 1. And, as Realtime’s
`
`own expert Dr. Back testified during deposition, the central processing unit of a
`
`computer system is initialized during the computer system’s boot process. APPLE-
`
`1017, 56. Because examples of preloading in the ’608 Patent occur prior to the
`
`beginning of a boot process that starts initialization of a central processing unit,
`
`
`
`18
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`Realtime’s position is inconsistent with the ’608 Patent specification and improperly
`
`excludes embodiments.
`
`For these reasons, Realtime’s argument that “preloading” and “initializing”
`
`must occur during the same initialization process is not supported by the plain
`
`language of the claims or the ’608 Patent specification. Accordingly, Realtime’s
`
`argument does not accord with the broadest reasonable interpretation.
`
`
`
`Sukegawa Describes Preloading Prior to Initialization of the
`CPU
`Realtime does not dispute that Sukegawa describes storing boot data in flash
`
`memory unit 1 prior to initialization of the host computer system’s CPU. Instead,
`
`Realtime limits its argument to the contention that the claimed “preloading” and
`
`“initializing” must be performed during the same initialization process. POR, 27-
`
`37. As explained above, Realtime is mistaken as to this alleged requirement.
`
`Indeed, a proper application of the broadest reasonable interpretation standard
`
`makes clear that Sukegawa describes preloading “prior to completion of
`
`initialization of the central processing unit,” and that Realtime was overreaching
`
`when pursuing the overly broad claims of the ’608 Patent. Sukegawa, 5:10-12, 6:19-
`
`26, 6:45-54; APPLE-1003, ¶¶111-114. In fact, as explained at Section III.A.(2),
`
`Sukegawa’s description matches preloading examples in the ’608 Patent and, as a
`
`consequence, a proper construction of “preloading prior to completion of
`
`initialization” must encompass the preloading operations performed by Sukegawa.
`
`
`
`19
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`C. Dye Describes a Plurality of Encoders (Claims 16-17, 20-21, 25-26,
`30-31)
`As discussed in the Petition, Dye “uses a ‘parallel lossless
`
`compression/decompression’ ‘designed to process stream data at more than a
`
`single byte or symbol (character) at one time.’” Petition, 60. Realtime contends
`
`that Dye’s disclosure is insufficient because Dye implements “a single algorithm”
`
`with a “single encoder that distributes the encoding calculations among several
`
`stages.” POR, 38 (emphasis in original). Although Realtime acknowledges that
`
`Dye includes a plurality of “stages” or “processes” in performing encoding,
`
`Realtime contends that each stage or process “perform[s] a subpart of the single
`
`encoder’s encoding operation, but do[es] not each output encoded data
`
`themselves.” POR, 38-42. Realtime is incorrect.
`
`As Dr. Neuhauser explains, the logic of Fig. 13 serves “as an encoder of the
`
`Input Stream” “because this logic encodes four bytes of the input stream 610
`
`against the four bytes in the history table...and produces encoded information
`
`representing the sequence in Output Mask and Output Count.” APPLE-1003,
`
`¶¶284-285. In fact, “there are 16 such encoders used in the system of Dye” and the
`
`output of these encoders “are sent to the selection logic shown in Dye Fig. 14.”
`
`APPLE-1003, 284-286. Dye’s selection logic processes “multiple compressed
`
`blocks” from the 16 such encoders and “generates a combined compress mask.”
`
`Dye, 23:58-24:15 (“a compressed block that includes one or more of the 4 symbols
`
`
`
`20
`
`
`
`Proceeding No.: IPR2016-01365
`Attorney Docket: 39521-0023IP1
`received on this cycle”). For these reasons, as Dr. Neuhauser explained, Dye
`
`includes a plurality of encoders that, a
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
