`
`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 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
`______________
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`Record of Oral Hearing
`Held: September 20, 2017
`______________
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`
`
`
`
`Before GEORGIANNA W. BRADEN, DEBRA STEPHENS, and
`JASON J. CHUNG, Administrative Patent Judges.
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`
`
`
`
`
`
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`Case IPR2016-01365 (Patent 7,181,608 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
` W. KARL RENNER, ESQUIRE
` JEREMY J. MONALDO, ESQUIRE
` ANDREW PATRICK, ESQUIRE
` FISH & RICHARDSON P.C.
` 1425 K Street, NW
` Eleventh Floor
` Washington, DC 20005
` (202) 783-5070
`
`ON BEHALF OF THE PATENT OWNER:
` JOSEPH EDELL, ESQUIRE
` RICHARD ZHANG, ESQUIRE
` FISCH SIGLER LLP
` 5301 Wisconsin Avenue, NW
` Washington, DC 20015
` (202) 362-3500
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday, September
`20, 2017, at the U.S. Patent and Trademark Office, 600 Dulany Street,
`Alexandria, Virginia, in Courtroom A, at 1:00 p.m.
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` P R O C E E D I N G S
` JUDGE BRADEN: Good afternoon. We are convened
`today for oral arguments in IPR 2016-01365, which challenges
`U.S. Patent Number 7,181,608, and IPR 2016-01366, which
`challenges U.S. Patent Number 8,090936. I am Judge Braden.
`Also appearing remote is Judge Stephens and our colleague in
`the room there with you in Alexandria is Judge Chung.
` As Judge Stephens and I are appearing via video,
`we require counselors to speak directly into the microphone
`at the podium when talking and to identify the specific slide
`numbers when referring to demonstratives.
` Now, each party has 45 minutes total time to argue
`both cases as noted in the oral arguments' hearing order.
`Each party is free to divide its time amongst the cases as it
`chooses but must make clear at all times for purposes of the
`transcript which cases it's discussing. Additionally, we ask
`that if there are any objections, that the party holds their
`objections until it is their time at the podium.
` Petitioner, Apple, Inc., has the ultimate burden
`of establishing unpatentability. Therefore, petitioner will
`open the argument -- will open the hearing by presenting its
`case regarding the alleged unpatentability of the challenged
`claims. Petitioner may reserve rebuttal time. Thereafter,
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`Patent Owner Realtime Data LLC will respond to petitioner's
`arguments.
` Finally, petitioner may use any time it has
`reserved for rebuttal to respond to patent owner's arguments.
`On rebuttal, petitioner will be restricted to only those
`matters raised by patent owner in its presentation. I will
`maintain a clock and inform the parties when they have five
`minutes left.
` So, let's go ahead and get started with
`appearances for both sides. We'll start with petitioner.
` MR. RENNER: Good afternoon, your Honors. I'm
`Karl Renner from Fish & Richardson. I'm here on behalf of
`Apple. I'm joined by co-counsel Jeremy Monaldo and Andrew
`Patrick and representation from Apple, James Wiley. Jeremy
`will be presenting the direct today, your Honor.
` JUDGE BRADEN: Thank you very much, counselor.
` And for patent owner?
` MR. ZHANG: Hi, your Honor. Richard Zhang of
`Fisch Sigler on behalf of Realtime Data LLC. With me today
`is Joe Edell, Alan Fisch and Bill Sigler. And Mr. Edell will
`be presenting the direct. Thank you.
` JUDGE BRADEN: Thank you, counselor.
` All right. Petitioner, do you wish to reserve any
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`rebuttal time?
` MR. MONALDO: Yes, your Honor. We'd like to
`reserve approximately 15 minutes.
` JUDGE BRADEN: All right. Very good. You may
`begin your arguments when you are ready.
` MR. MONALDO: May it please the board, my name is
`Jeremy Monaldo from Fish & Richardson representing Apple as
`petitioner. I'm joined by two of my colleagues, Karl Renner
`and Andrew Patrick, as well as James Wiley from Apple.
` Today we're here to discuss two IPR proceedings
`involving two related patents, the '608 and '936 patents.
`Our time together is limited, the record is substantial, but
`I'll try to focus our discussion on just a narrow set of
`disputed issues.
` Moving to slide 2, you'll see that we've provided
`a table of contents for our demonstratives. That's there to
`provide convenient reference to the various sections.
`Although we have two patents involved in these proceedings,
`given the similarity of issues and the similarity of the
`patents, we have not organized our demonstratives by patent
`number but, instead, you'll see that we've organized and
`provided you with a list of disputed issues, and we've
`numbered those issues 1 through 6.
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` Issue 1 is unique to the '608 patent; issues 2
`through 4 apply to both patents; and issues 5 and 6 are
`unique to the '936 patent. Also, you'll see that starting at
`slide 52, we've provided a complete application of the prior
`art to the instituted claims.
` Now, these slides have been provided for reference
`on an as-needed basis. We do not intend to walk through
`them. Rather, our goal is to try to use our time
`efficiently, and I plan to start with a brief overview of the
`Realtime patents, a brief discussion of claim construction, a
`brief overview of the prior art and then jumping right into
`the disputed issues and specifically focusing on issues
`number 1 through 3 in our slides.
` That said, our goal and our primary objective of
`coming here today is to make sure we answer any questions
`your Honors might have. So -- so, please, feel free to stop
`me, steer the discussion in any direction that you'd like and
`you think would be helpful.
` So, with that background, I'd like to move to
`slide 7 to start with a brief overview of the Realtime
`patents. So, slide 7 shows you an overview or an annotated
`version of figure 1. As you can see, we have a data storage
`controller, 10, highlighted in red that manages storage of
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`data on a higher hard drive, 11, highlighted in green. The
`data storage controller, 10, highlighted in red, also has two
`important components, the cache, 13, highlighted in light
`blue, and the compression engine, 12, highlighted in darker
`blue.
` With this structure, the controller performs two
`important operations that are directed to speeding up the
`boot process. The boot process is the process that occurs
`when you turn on your computer or you reset it. And those
`two important operations are, first, preloading and, second,
`compression.
` So, starting with preloading, what is preloading?
`In the Realtime patents, preloading involves moving data from
`the hard drive into the cache. And what this achieves is
`faster access speed. The controller can simply provide data
`more quickly from the cache than it can from the hard drive.
`And because the controller takes data that is expected to be
`needed at boot, that boot data can be accessed more quickly
`in the system and the computer can be booted up faster.
` JUDGE BRADEN: Is there any kind of temporal
`restriction or -- if you look at the examples in the '608
`patent, is there any kind of example of there being a
`temporal restriction on when the data has to be moved?
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` MR. MONALDO: So, to answer your question, yes,
`there is -- is some temporal transition, and that was a great
`segue into my next point.
` So, there are important temporal and timing
`limitations to these claims in both the '608 and '936 patent.
`And, really, throughout the presentation, you'll hear us talk
`about two terms that really have temporal meaning, the first
`term "preloading," just mentioned, and that applies to both
`the claims of the '608 and the '936 patents.
` There's a second term that's found only in the
`'608 patents, and that's the phrase "prior to completion of."
`And that's an additive term to "preloading."
` So, now, both of these terms have something in
`common and something we've been talking about a lot amongst
`ourselves is that they both temporally define an end point.
`Take the term "preloading," we have the prefixe "pre" and the
`root "loading."
` So, looking at the prefix "pre," that means that
`the loading must occur before or in advance of something
`else. It's defining an end point. It's not defining a
`starting point. It tells you something must be loaded in
`advance.
` Similarly, "prior to completion of," again, we're
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`looking at an end point. We specifically have the language
`"prior to." It's telling us that there's an operation that
`occurs prior to another operation. It similarly defines an
`end point but no starting point. You can perform that
`operation prior to but there's no restriction on how far in
`advance you perform that operation.
` So, these two terms -- and this is important
`because, you know, as I'm sure you've seen in the briefing,
`what Realtime is trying to do is artificially insert into
`these terms a starting point. It's doing that in an attempt
`to distinguish prior art that I think all of us would agree
`meets that defined end point in the claim, that the
`preloading in our prior art comes before or prior to the
`completion of initialization. And, therefore, there's just
`simply no basis for that type of argument, looking at simply
`the words "pre" and the simply the words "prior to," both
`directed to defining end points --
` JUDGE BRADEN: But is there an argument based upon
`the examples in the specification? Is there any kind of
`example of them saying that it has to be immediately before
`or -- what kind of information can we glean from the
`specification that would help us to uncover what this could
`mean?
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` MR. MONALDO: So, you know, maybe we'll jump to
`slide 24 in our presentation. So, as you can see in slide
`24, the '608 patent does have several examples and instances
`where it describes preloading as occurring, quote, "upon
`initialization." Now, you see in that, Realtime is focused
`heavily on this in their briefing. You know, and this,
`arguably, at least arguably, defines some sort of starting
`point, "upon."
` Intentionally, however, the claims don't recite
`this language. The claims don't recite "upon
`initialization." Rather, there's been intentional change of
`that term "upon" to "prior to completion of." And with that
`intentional change, there's simply no reason to limit these
`claims to "upon initialization." There's different language
`that's been used and there is no reason to limit to the
`specific example in that specification.
` Now, this argument, this "upon" argument, actually
`cuts away from Realtime's argument. It actually supports
`Apple's because you can see there we have a specification
`where there's details and there's description and there's
`words that Realtime themselves have found additive. So, you
`have to define "preloading." You have to define that occurs
`upon initialization. So, "upon initialization" is an
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`additive term, means something more than preloading and is
`providing a detailed description.
` And with that example, there's simply no reason to
`limit the broader language "prior to completion of" or simply
`the term "preloading" to occurring or require some starting
`point or some temporal characteristic.
` And if we can move to slide 25, you also see that
`there are other alternatives to this language, this "upon
`initialization" language in the Realtime patents. You'll see
`on the left-hand side of slide 25 some of these examples.
` So, looking at the upper left, you'll see that the
`'608 patent describes an example where, quote, "prior to host
`system reset, the data stores controller can proceed to
`preload the portions of the computer operating system." So,
`in this example, preloading unequivocally occurs prior to
`host system reset.
` And, so, if we look at host system reset in the
`Realtime patents and how that's described, I think there's a
`consistent description of host system reset in comparable to
`turning on power. It's the reset button. It's when it's
`pushed. So, you can see this in figure 7B of the Realtime
`patents.
` If you look at that first step there, it's labeled
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`as numeral 75, you can see that tells you it's, quote, "power
`up or system reset." System reset is the first thing that is
`happening during an initialization cycle and, as a
`consequence, initialization of your processor or your
`preloading must occur after that host system reset.
` So, the '608 patent is telling you that in at
`least this example, your preloading occurs prior to that host
`system reset, and then your preloading or your initialization
`or your preloading occurs after. So, in other words, you
`have one cycle where you've preloaded, then you have a system
`reset, and then you have a second cycle when that preloaded
`data is used and your process server is visualized,
`separating the two cycles and, therefore, not really placing
`any temporal restriction on the claims.
` Judge Braden, does that answer your question? I
`know it was a long answer to your question but I just wanted
`to make sure we pause to make sure.
` JUDGE BRADEN: Thank you. I do believe that I
`understand your position. Thank you.
` MR. MONALDO: Okay. Excellent.
` All right. So, with that background, I'm going to
`jump back over --
` JUDGE STEPHENS: May I interrupt?
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` MR. MONALDO: Yes.
` JUDGE STEPHENS: Yes. Could you address the
`actual claim language and whether it requires a specific
`order in the '608 patent.
` MR. MONALDO: Sure. Maybe we'll jump back to
`slide 12 where we discuss construction. So, we can see the
`language in the '608 patent claim 1 here. You can see
`there's an initializing step and then there's a preloading
`step, and there's a discussion that the preloading of that
`boot data to a cache memory occurs prior to completion of
`initialization. So, we've talked about that a little bit.
` In terms of claim construction, now, the only
`claim term that Realtime has proposed construction of is
`"preloading." And, so, you can see that construction listed
`here in slide 12, and that construction is, and what they've
`given you here, is "transferring data from storage to memory
`in anticipation of immediate or near-in-time use."
` So, now, Realtime draws that meaning from simply
`the term "preloading." No other claim language is used to
`inform that construction. Rather, what Realtime is doing
`here is looking at the single word "preloading" and
`transforming that into a 13-word phrase that simply has no
`basis and includes concepts "immediate," "near in time" that
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`are found nowhere in the claims or the specification of the
`patents.
` This construction is clearly an attempt to import
`some sort of timing requirement, some sort of starting point,
`that's simply absent from the terms, inconsistent with
`examples in the specification and inconsistent with the
`broadest reasonable interpretation standard. Under that
`standard, there's simply no reason to import elements or
`limitations into the term "preloading" when the prefix "pre"
`and the root "loading" are terms that are well understood by
`those skilled in the art.
` Realtime is asking you to take away, not look at,
`that ordinary meaning but, instead, import limitations that,
`instead of providing clarity, actually introduce ambiguity
`into the analysis.
` So, with that, no, I don't think there's any
`construction of terms at issue that would impart any part of
`starting point to these terms "preloading" or "prior to
`completion of." And I don't believe there's any order in the
`steps, necessarily. You know, there's many cases out there
`have talked about order in claims, and order in a method
`claim certainly has not been used by the federal circuit to
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`first or a step is listed first does not mean it has to occur
`first.
` Here we have specific language, "prior to
`completion of initialization," that confirms that the
`preloading actually must happen, at least partially, before
`the initialization. And, so, the order really has no basis
`for imparting meaning here when looking at these claim
`language as a whole. You have initializing step and then you
`have a preloading step. There's no reason or no limitations
`of the claim that define that the preloading must start at
`any particular time. We have an end point prior to
`completion of initialization but we have no starting point
`and no basis for saying that there is an order imparted by
`the claim language.
` So, Judge Stephens, does that answer your
`question? Is that clear? Any followup?
` JUDGE STEPHENS: Yes. No, but I have another
`question with the '936 patent. Can you speak to what the
`difference is between preloading and storing.
` MR. MONALDO: Sure, I can do that. Of course.
`So, preloading, what we have here is a concept that's called
`"loading" or "preloading" and "storage" and, you know,
`there's two different things called -- you know, talked about
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`in the patent and in the claims related to these terms. But
`my understanding and how I view these things is that loading
`is the movement of data from one component to another.
` So, data comes into a component. It might be used
`there temporarily and moved on, something like a register
`where it's not stored, or it could be retained there and it
`could be stored. So, there are different meanings to
`"storage" and "loading." So, whenever you're storing
`something, you must load it into that storage. If you're
`going to store it, you retain it there. If you're going to
`process it or do something else, you'll do that with your
`loaded data.
` So, the term "preloading" and "storing," you know,
`they're complimentary, as any loading would then result in
`some sort of storage of information, if that's what you're
`trying to achieve. And you can see that in the Realtime
`patents themselves. There's several examples, many of them
`that talk about preloading as storing memory in a cache.
` So, storage itself is not something that is
`distinct from preloading. The Realtime patents recognize
`this and they say preloading is something where you store
`memory in the cache. That's exactly what's happening. The
`preloading is the movement of the data from the hard drive to
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`the cache and the storage is the retention of that data,
`whether it be, you know, for a small period of time or a
`large period of time.
` Does that answer the question? I think that was a
`yes. No audio came through.
` In any event --
` JUDGE STEPHENS: Can you hear me?
` MR. MONALDO: Now I can, yes. Before not.
` JUDGE STEPHENS: Yes.
` MR. MONALDO: Sorry. I was reading lips that last
`time.
` JUDGE STEPHENS: Okay. Thank you.
` MR. MONALDO: No problem. So, no, this is great.
` So, in terms of presentation, I guess, you know, I
`just wanted to recap and focus on the two important
`limitations here in the Realtime patents, preloading, as we
`discussed, and there's a second important limitation,
`compression.
` So, compression, what is that? That allows you to
`compress data, get more data into that faster cache. And
`because in the Realtime patents -- and we can move back to
`slide 7, Andrew -- because the Realtime patents perform
`compression and because that decompression process is faster
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`than the process of moving data from hard drive to cache, you
`can get more data out quickly.
` And, so, with that, I'd like to start with --
`discuss the prior art a bit. On slide 18, we have a
`description of Sukegawa. As you can see here, Sukegawa has
`many of the same components as the Realtime patents:
`controller, highlighted in red, again; a hard disk,
`highlighted in green; and a cache, highlighted in light blue.
` So, Sukegawa is directed to achieving the same
`goal as the Realtime patents, speeding up the boot process.
`So, with the same structure and the same goal, it's not
`surprising that Sukegawa would perform the same solution, and
`that is preloading data from the hard disk into the cache so
`that it's available upon boot and you can access it more
`quickly to boot up the host system.
` Now, while Sukegawa has that first important
`feature, preloading, it merely does not have compression.
`And for compression, we turn to a secondary reference, Dye.
`You can see that in slide 19. And, so, as you can see in
`slide 19, we have an annotated version of Dye's figure 3
`where we have a controller, again highlighted in red, and it
`has a compression engine, highlighted in dark blue, same as
`the Realtime patents.
`
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`Case IPR2016-01365 (Patent 7,181,608 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
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` So, Dye's compression engine and controller, what
`does it do? It performs compression on data that's stored in
`the flash memory away, shown in lighter blue. Dye's flash
`memory aligns exactly with Sukegawa's flash memory and, as
`shown on slide 25, a person of ordinary skill would have
`found it obvious to add Dye's compression to Sukegawa.
` And, so, looking at slide 20, you'll see that the
`proposed combination's really very simple. Sukegawa performs
`preloading as it describes, and Dye's compression engine is
`added to achieve the additional benefits of compression.
`These benefits were well known to increase storage capacity
`and to speed access of data.
` Accordingly, Dye explicitly tells you this. It
`tells you that you get larger storage capacity, you get
`faster access to data, so a person of ordinary skill in the
`art certainly would have found it obvious to add in
`compression and, in addition, would have been motivated to do
`so to faster speed the boot time.
` So, I planned to move to slide 22 -- 21 here. So,
`slide 21 is a transition slide. You'll see this throughout
`our presentation. Just thought I'd take a minute to explain
`what's being shown on slide 21. We have a list of issues at
`the top, '608 issues. These are issues that are relevant to
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`Case IPR2016-01365 (Patent 7,181,608 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
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`the '608 patent. There are four issues listed there. Those
`are the ones that apply to '608. The first issue is bolded
`because that's what my plan was to discuss next.
` The '936 issues start in the middle, issues 2
`through 5. As you'll see, issue one is excluded because that
`does not relate to claim language that's in the '936 patent.
`Issues 2 through 4 are in both sections because they apply to
`both. And issue 5 has been added because that's unique to
`the '936 patent.
` Now, hopefully that's clear but, as I mentioned, I
`really wanted to focus our time on issues 1 through 3 unless
`your Honors would like to discuss any of the other issues
`involved in the proceeding.
` And, so, starting with issue one, we discussed
`this at some length already, the examples in the
`specification, the examples that align or are narrower and
`use narrower terminology than what's used here in the '608
`patent claims and what's additional examples to prior to host
`system reset, for example, where preloading actually occurs
`in different cycles.
` But I thought I'd take a minute just to refresh
`and just remind that Realtime has offered no construction of
`this phrase "prior to completion of." It's a phrase that's
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`Case IPR2016-01365 (Patent 7,181,608 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
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`clearly in the '608 patents. What their argument does,
`though, is it says this phrase transcends preloading and
`requires the operations to occur during the same
`initialization process.
` In large part, an argument by Realtime's leverage
`that we haven't discussed is this use of antecedent basis.
`We disagree that antecedent basis requires the same
`initialization process. Thought it would be helpful to turn
`to slide 23 just to briefly discuss that.
` So, as shown in the version of claim 1 on slide
`23, we've added highlighting here to show you where
`antecedent basis exists, where it does not.
` So, looking first at the yellow language, we have
`"a central processing unit," and then we follow that with
`"the central processing unit." Here the drafter was clear
`when it's used antecedent basis to identify that the same
`physical component, "the central processing unit," was being
`referred to in both steps.
` Now, if you turn to the blue language, you can see
`that the language recites "initializing" but does not follow
`it with any reference to any particular initialization, does
`not use the article "the" in the blue language and doesn't
`recite "the initialization." So, as illustrated by these
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`Case IPR2016-01366 (Patent 8,090,936 B2)
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`differences, the drafter --
` JUDGE BRADEN: Doesn't that kind of -- doesn't
`that contradict, then, about your arguments on "the central
`processing" because it's -- in the first line, you have
`"initialization of a central processing," and then you have
`"completion of initialization of the central processing
`unit"? Is it not the same thing? So, would that not follow
`in step?
` MR. MONALDO: It's the same physical component.
` JUDGE BRADEN: If your -- your argument is, if I
`understand correctly, that "the central processing unit" is
`referring back to the antecedent basis of "a central
`processing unit"; correct?
` MR. MONALDO: Correct. That is correct.
`Our argument -- let me just expound on that a little bit.
`It's referring to the same physical component. So, you have
`the same physical component involved in both steps. That is
`correct.
` And, so, we're looking at antecedent basis on the
`component level, not on the initialization level. And that's
`our point. And, you know, we think that this antecedent
`basis argument that's been leveraged, it doesn't support
`Realtime because there's no antecedent basis as it relates to
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`Case IPR2016-01366 (Patent 8,090,936 B2)
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`"initialization." It relates to "a central processing unit,"
`the component. And quite the contrary, I think that actually
`reveals the vulnerability -- vulnerability of their argument.
` But if we could just take a step back and just
`antecedent basis aside, if you consider the claim language,
`what it actually establishes, even if it said, "the
`initialization," which it doesn't, but even if it did, it
`explicitly uses language "prior to," and as a consequence,
`establishes that end point we talked about earlier by which
`preloading must occur. It must occur prior to completion of
`initialization. There's no claim language that designs a
`starting point. It didn't say, "after." It doesn't say that
`preloading must start after any particular initialization.
`The only temporal term is "prior to." And that confirms it
`was important to our claim drafter to define an end point
`explicitly but it was not important to define the starting
`point, how far in advance, how far prior to the preloading
`actually occurs.
` So, under the broadest reasonable interpretation
`standard, this language itself, "preloading," is clear and it
`can start at any point as long as it occurs prior to
`completion of that explicit lead defined end point. Because
`Sukegawa's preloading occurs prior to completion of
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`Case IPR2016-01365 (Patent 7,181,608 B2)
`Case IPR2016-01366 (Patent 8,090,936 B2)
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`initialization, no one disputes that, Sukegawa's preloading
`meets the claimed end point.
` And, so, while that language is explicit, it's
`unambiguous and there's really not reason to refine it or
`change it. You know, as we discussed, there are examples in
`the specification with more limited details that are not
`present in the claims.
` So, with that, unless there's some further
`questions, I'd like to step to slide --
` JUDGE BRADEN: And, counselor, just so you know,
`you have six minutes left of your main time before you start
`eating into your rebuttal time.
` MR. MONALDO: Excellent. Thank you, Judge Braden.
` So, I was going to step to slide 31 at this point.
`So, as shown in slide 31, our third disputed issue here
`applies to both the '608 and '93
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