`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`
`
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2016-01737
`Patent 8,880,862
`
`
`
`
`
`
`
`
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
`I.
`Claim Construction .......................................................................................... 1
`II.
`Boot Data List .................................................................................................. 1
`A.
`Non-Accessed Boot Data ................................................................................. 5
`B.
`III. Applied Prior Art Renders a “Boot Data List” Obvious ................................. 7
`A.
`Sukegawa Describes a “Boot Data List” (All Grounds) ................................. 7
`a.
`Sukegawa’s Files Are Boot Data Lists ............................................................ 7
`b.
`Sukegawa’s Table 3A is a Boot Data List ....................................................... 9
`B.
`Realtime Ignores Settsu’s “Boot Data List” (Grounds 2 and 4) ................... 11
`C.
`Zwiegincew Describes a “Boot Data List” (Ground 5) ................................. 12
`IV. Applied Prior Art Renders Obvious “Disassociating” Limitations ............... 13
`A.
`Sukegawa Describes “Disassociating Non-Accessed Boot Data from the
`Boot Data List” (Claims 96, 100, 106) .......................................................... 13
`Sukegawa’s User Deletion ............................................................................. 13
`a.
`Sukegawa’s Automatic Deletion ................................................................... 14
`b.
`Realtime Ignores Zwiegincew’s Disassociation (Ground 5) ......................... 16
`B.
`V. Applied Prior Art Renders Obvious “Loading” Limitations ......................... 16
`A.
`Sukegawa Loads Boot Data “That is Associated with a Boot Data List” (All
`Grounds) ........................................................................................................ 17
`Realtime Fails to Adequately Address Settsu and Zwiegincew’s Loading of
`Boot Data (Grounds 2, 4, and 5) .................................................................... 18
`VI. Applied Prior Art Is Properly Combined ....................................................... 18
`VII. Sukegawa Describes “Boot Data Compris[ing] a Program Code Associated
`with…an Application Program” (Claims 29, 53, 89) .................................... 21
`VIII. Dye Describes “a Plurality of Encoders” ...................................................... 22
`IX. Realtime’s Arguments on Dye ’284 are Misplaced ...................................... 24
`Dye ’284 was Properly Incorporated by Reference into Dye ....................... 24
`
`Dye (without Dye ’284) Provides Sufficient Motivation .............................. 25
`
`X.
`IPR is Constitutional ...................................................................................... 26
`
`B.
`
`
`
`i
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`XI. Conclusion ..................................................................................................... 26 
`
`
`
`
`
`ii
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`EXHIBIT LIST
`
`APPLE-1001
`
`U.S. Patent No. 8,880,862 to Fallon, et al. (“the ’862 patent”)
`
`APPLE-1002
`
`Excerpts from the Prosecution History of the ’862 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
`
`U.S. Patent No. 6,317,818 (“Zwiegincew”)
`
`APPLE-1011
`
`Jeff Prosise, DOS 6 – The Ultimate Software Bundle?, PC
`MAGAZINE, Apr. 13, 1993 (“Prosise”)
`
`APPLE-1012
`
`Excerpts from John L. Hennessey & David A. Patterson,
`Computer Architecture a Quantitative Approach (1st ed. 1990)
`(“Hennessey”)
`
`APPLE-1013
`
`(RESERVED)
`
`APPLE-1014
`
`File, Microsoft Press Computer Dictionary (3d ed. 1997)
`
`APPLE-1015
`
`Excerpts from Tom Shanley & Don Anderson, PCI System
`Architecture, (4th ed. 1999) (“Shanley”)
`
`
`
`iii
`
`

`

`APPLE-1016
`
`APPLE-1017
`
`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`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-1018
`
`Program File, Microsoft Press Computer Dictionary (3d ed.
`1997)
`
`APPLE-1019
`
`Direct Memory Access, Microsoft Press Computer Dictionary
`(3d ed. 1997)
`
`APPLE-1020
`
`RAM and RAM Cache, Microsoft Press Computer Dictionary
`(3d ed. 1997)
`
`APPLE-1021
`
`Decoder, Microsoft Press Computer Dictionary (3d ed. 1997)
`
`APPLE-1022
`
`(RESERVED)
`
`APPLE-1023
`
`Excerpts from Kyle Loudon, Mastering Algorithms with C
`(1999) (“Loudon”)
`
`APPLE-1024
`
`Excerpts from Michael Barr, Programming Embedded Systems
`in C and C++ (1999) (“Barr”)
`
`APPLE-1025
`
`Excerpts from Eric Pearce, Windows NT in a Nutshell (1999)
`(“Pearce”)
`
`APPLE-1026
`
`Excerpts from Tim O’Reilly, Troy Mott, and Walter Glenn,
`Windows NT in a Nutshell (1999) (“O’Reilly”)
`
`APPLE-1027
`
`Cache, Microsoft Press Computer Dictionary (3d ed. 1997)
`
`APPLE-1028
`
`Declaration of Michael Bittner in support of Petitioner's Motion
`for Pro Hac Vice Admission
`
`
`
`iv
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`
`APPLE-1029
`
`RESERVED
`
`APPLE-1030
`
`Second Declaration of Dr. Charles Neuhauser
`
`APPLE-1031
`APPLE-1032
`APPLE-1033
`APPLE-1034
`
`U.S. Patent No. 6,117,187 (“Staelin”)
`U.S. Patent No. 5,625,809 (“Dysart”)
`U.S. Patent No. 5,590,331 (“Lewis”)
`Directory, The Dictionary of Computing & Digital Media
`(1999)
`
`APPLE-1035
`
`Directory, Prentice Hall’s Illustrated Dictionary of Computing
`(Third Edition, 1998)
`
`APPLE-1036
`
`U.S. Patent No. 5,915,252 (“Misheski”)
`
`APPLE-1037
`
`U.S. Patent No. 5,809,295 (“Straub”)
`
`APPLE-1038
`
`U.S. Patent No. 6,633,968 (“Zwiegincew ’968”)
`
`APPLE-1039
`
`Defendant Apple Inc.’s Invalidity Contentions, Case No. 4:16-
`cv-02595-JD (N.D. Cal.)
`
`APPLE-1040
`APPLE-1041
`
`Transcript of June 20, 2017 Deposition of Dr. Back
`Encoder, Microsoft Press Computer Dictionary (5th ed. 2002)
`
`APPLE-1042
`
`Encoder, The Computer Desktop Encyclopedia (2nd ed. 1999)
`
`
`
`
`
`v
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`
`I.
`
`Introduction
`Patent Owner’s positions fail, as a proper application of the BRI standard
`
`makes clear that Patent Owner (Realtime) was overreaching when pursuing overly
`
`broad claims of the ’862 patent.
`
`II. Claim Construction
`The Board indicated that no express constructions were required. Institution
`
`Decision, 6. Despite this, and in an apparent attempt to manufacture patentability,
`
`Realtime now urges the Board to adopt unduly narrow constructions of “boot data
`
`list” and “non-accessed boot data.”
`
`A. Boot Data List
`Realtime proposes that “[t]he term ‘boot data list,’…should mean ‘record used
`
`to identify and load boot data into memory.’” Patent Owner Response (POR), 19.
`
`Realtime’s construction, however, is not “the broadest reasonable interpretation”
`
`because the construction improperly imports limitations. In re Van Geuns, 988 F.2d
`
`1181, 1184 (Fed. Cir. 1993).
`
`As an initial matter, Realtime provides no explanation for why the term “list”
`
`would not have been understood by a POSITA and needs to be construed as the term
`
`“record.” And, more impactful, Realtime provides insufficient explanation for why
`
`a POSITA would have understood the term “boot data list” as being limited to how
`
`the list is “used,” rather than what the list constitutes. As Dr. Neuhauser explained,
`
`a POSITA would have viewed the term “boot data list” in the ’862 patent as just
`1
`
`
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`that, a list of boot data. APPLE-1003, ¶¶122-127. As explained in the Petition, boot
`
`data list should be given its ordinary meaning and at least be construed broadly
`
`enough to include a list of data associated with data requests expected to result from
`
`a system power-on/reset. Petition, 3-6, 10-13.
`
`Further, although Realtime’s attempt to import functional use to the term
`
`“boot data list” is itself improper and renders other claim language directed to use
`
`of the boot data list redundant and unnecessary, the ’862 patent does not limit use of
`
`the boot data list “to identify and load boot data into memory,” as Realtime contends.
`
`For example, the ’862 patent quite clearly describes “a list of boot data used for
`
`booting a computer system.” APPLE-1001, Abstract, 3:42-59. Realtime itself
`
`recognizes this, explaining that “the intrinsic evidence describes a ‘boot data list’ as
`
`comprising a list of data—specifically, boot data—that is to be used for booting a
`
`computer system.” POR, 20. Accordingly, the use of a boot data list cannot be
`
`construed more narrowly than simply being “used for booting a computer system.”
`
`APPLE-1001, Abstract, 3:42-59.
`
`Despite recognition of this described use of the boot data list in the ’862
`
`patent, Realtime realizes that this use is not narrow enough for its patentability
`
`arguments and attempts to further narrow the alleged use as being “to identify and
`
`load boot data into memory.” POR, 19. In an attempt to support this interpretation,
`
`Realtime first points to the claims of the ’862 patent, explaining that “Claim 6, for
`
`
`
`2
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`instances [sic], recites: ‘to load a portion of boot data in the compressed form that is
`
`associated with a boot data list using [sic] for booting the system into a first
`
`memory.’” POR, 21. However, claim 6 explicitly defines the “boot data list” being
`
`“used for booting the system,” not “used to identify and load boot data into
`
`memory.” Indeed, “load” and “into memory” are additional features added in claim
`
`6 that would be rendered duplicative and redundant if also imported into the term
`
`“boot data list.” And, the term “identify” is not used in the claims (or in the
`
`specification). Accordingly, the claims do not support Realtime’s attempt to limit
`
`“boot data list” as being “used to identify and load boot data into memory.”
`
`Realtime also focuses heavily on the ’862 patent’s description of FIG. 7B.
`
`POR, 21-24. However, Realtime itself recognizes that this description is merely
`
`“one exemplary embodiment” of the ’862 patent. POR, 21. Realtime does not
`
`sufficiently explain why the claimed boot data list should be limited to this
`
`embodiment and, in fact, limiting the claims to the particular embodiment of FIG.
`
`7B is inconsistent with the BRI standard. In re Van Geuns, 988 F.2d 1181, 1184
`
`(Fed. Cir. 1993). Moreover, the embodiment of FIG. 7B does not even use the
`
`terminology desired by Realtime or otherwise indicate that a boot data list must be
`
`“used to identify and load boot data into memory.” APPLE-1001, 21:43-65. And,
`
`similarly, the minimal description in the ’862 patent’s provisional application does
`
`not support Realtime’s attempt to import limitations to the term boot data list.
`
`
`
`3
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`
`REALTIME-2010, 58.
`
`Additionally, Dr. Neuhauser’s testimony does not support Realtime’s
`
`construction. As abundantly clear from the testimony quoted in the POR, Dr.
`
`Neuhauser was not providing his understanding of the term boot data list, but,
`
`instead, responding to Realtime’s specific question related to the embodiment of
`
`FIG. 7B. And, similar to Realtime’s cites to the ’862 patent, Dr. Neuhauser does not
`
`use the terminology desired by Realtime.
`
`Finally, Realtime’s reference
`
`to
`
`the proposed District Court claim
`
`construction misses the mark. Specifically, Apple’s proposed construction does not
`
`align with Realtime’s desired construction and was offered under a narrower claim
`
`construction standard than applied in this proceeding. And, under that narrower
`
`standard, Realtime argued that boot data list “should be construed to have its plain
`
`and ordinary meaning in view of the construction of ‘boot data,’” which Realtime
`
`construed as “data related to the boot process.” REALTIME-2012, 1-3. Realtime
`
`offers no explanation for why the term “boot data list” should be construed broadly
`
`as its ordinary meaning under the narrower District Court standard and, yet,
`
`construed narrowly to require its functional use under the broader IPR standard.
`
`Because no explanation exists, Realtime should be held to its prior admission that
`
`the term “boot data list” should be given its ordinary meaning. Id.
`
`With this background, Realtime attempts to improperly import limitations
`
`
`
`4
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`into the term “boot data list.” Because Realtime’s attempt is inconsistent with the
`
`BRI standard and the description/claims of the ’862 patent, Realtime’s proposed
`
`construction should not be adopted and the term “boot data list” should be given its
`
`broadest reasonable ordinary meaning.
`
`B. Non-Accessed Boot Data
`Realtime proposes that “[t]he term ‘non-accessed boot data,’…should means
`
`[sic] ‘boot data identified in the boot data list that was not requested during system
`
`boot-up.’” POR, 25; REALTIME-2008, ¶¶60-65. As an initial matter, the term
`
`“non-accessed boot data” appears only in the claims, and finds no literal support in
`
`the specification of the ’862 patent. APPLE-1001, 26:37-34:26. With this posture,
`
`under the BRI standard, the intrinsic record does not functionally limit the term
`
`“non-accessed” to “not requested” or temporally limit the term “non-accessed” to
`
`“during system boot-up.” Rather, under BRI, a POSITA would have viewed the
`
`term “non-accessed boot data” per its ordinary meaning as simply boot data that was
`
`not accessed. APPLE-1003, ¶¶654-662.
`
`Similar to the term “boot data list,” Realtime focuses heavily on the ’862
`
`patent’s embodiment shown in FIG. 7B. POR, 26-28. Yet, here again, Realtime
`
`does not sufficiently explain why the claimed non-accessed boot data should be
`
`limited to this embodiment and, in fact, limiting the claims to the particular
`
`embodiment of FIG. 7B is inconsistent with BRI. In re Van Geuns, 988 F.2d 1181,
`
`
`
`5
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`1184 (Fed. Cir. 1993). In fact, the prosecution history consistently and explicitly
`
`confirms that these examples from the specification are “non-limiting” examples of
`
`non-accessed boot data. APPLE-1002 (Part 1), 156-157, 160-162. Indeed, the
`
`prosecution history confirms that “[t]hese aforementioned features…are not to be
`
`construed solely based upon this aforementioned passage in the Specification.” Id.
`
`When the intrinsic record itself confirms that described embodiments are “non-
`
`limiting” examples of a claim term, those examples should not be used to limit that
`
`claim term under the BRI standard.
`
`Further, the portion of the ’862 patent cited in Realtime’s POR and the
`
`prosecution history as supporting “non-accessed boot data” includes references to a
`
`“non-requested data block” “[d]uring the application launch process.” APPLE-
`
`1001, 22:12-23:26; APPLE-1002 (Part 1), 156-157, 160-162. Thus, Realtime’s own
`
`citations and statements contradict limiting non-accessed boot data to only data “not
`
`requested during system boot-up.” Id. Indeed, adopting Realtime’s construction
`
`would improperly exclude a specific embodiment (during application launch) that
`
`Realtime cites now in support of its construction and also cited during examination
`
`to show written description of the relevant term. Id.
`
`With this background, Realtime attempts to improperly import limitations into
`
`the term “non-accessed boot data.” Because Realtime’s attempt is inconsistent with
`
`the BRI standard, the description/claims of the ’862 patent, and the prosecution
`
`
`
`6
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`history, Realtime’s proposed construction should not be adopted and the term “non-
`
`accessed boot data” should be given its broadest reasonable ordinary meaning.
`
`III. Applied Prior Art Renders a “Boot Data List” Obvious
`A.
`Sukegawa Describes a “Boot Data List” (All Grounds)
`Sukegawa’s system includes two types of boot data lists: (1) files of control
`
`information and (2) management information table 3A. Petition, 10-13; APPLE-
`
`1003, ¶¶122-127, 176. Realtime argues that neither Sukegawa’s files nor
`
`Sukegawa’s table 3A include a boot data list. Realtime’s arguments, however, are
`
`premised on an incorrect claim construction (see Section II.A) and each of (1)
`
`Sukegawa’s files and (2) Sukegawa’s table 3A include a boot data list as properly
`
`construed. And, even under Realtime’s erroneous construction, Sukegawa’s table
`
`3A represents a “record used to identify and load boot data into memory.”
`
`a.
`
`Sukegawa’s Files Are Boot Data Lists
`
`As Dr. Neuhauser explained and the Institution Decision credited, a POSITA
`
`would have found it obvious that Sukegawa’s files of OS and AP control information
`
`are lists of boot data. Petition, 10-12; APPLE-1003, ¶¶122-124; Institution
`
`Decision, 13-14. Rather than responding to Dr. Neuhauser and the Institution
`
`Decision, Realtime attempts to sidestep Apple’s analysis by arguing that a file does
`
`not necessarily include a separate, internal list of the file’s content. POR, 30-33.
`
`However, this was not the argument made by Apple and adopted in the Institution
`
`
`
`7
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Decision. Petition, 10-12; APPLE-1003, ¶¶122-124; Institution Decision, 13-14.
`
`By focusing on an argument that was not made, Realtime’s entire analysis is a red
`
`herring and leaves Realtime without any rebuttal to Apple’s argument that
`
`Sukegawa’s files of OS and AP control information are themselves lists of boot data.
`
`Indeed, Realtime criticizes the definition of “file” cited by Apple, yet offers
`
`an alternative definition that aligns with Apple’s definition and argument.
`
`Specifically, Apple’s definition confirmed that a file is a “collection of information.”
`
`APPLE-1014, 3. Similarly, Realtime’s definition states that “[a] file is a collection
`
`of related information.” REALTIME-2013, 4. As Dr. Neuhauser explained, a list
`
`is an obvious representation for a collection of information and, thus, Sukegawa’s
`
`files represent lists of control information. APPLE-1003, ¶¶122-124; APPLE-1031,
`
`5:16-20 (“file, is a list”); APPLE-1032, 10:57-60, 12:16-21 (“file is a list”); APPLE-
`
`1033, Abstract (“file includes a list”).
`
`Realtime’s expert, Dr. Back, does nothing to rebut Dr. Neuhauser’s opinion,
`
`focusing instead on a separate, internal list, rather than the files themselves.
`
`REALTIME-2008, ¶¶76-79. Dr. Back also opines that Sukegawa’s control
`
`information does not include a list because it represents a “kernel image.”
`
`REALTIME-2008, ¶78. Sukegawa, however, never uses the terms “kernel” or
`
`“image” and Dr. Back offers no evidence to support his interpretation of Sukegawa
`
`or his explanation that a kernel image would not include a list.
`
`
`
`8
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Finally, Realtime argues that a file cannot “be both the claimed ‘boot data’
`
`and ‘boot data list.’” POR, 33. Here again, however, Realtime’s argument misses
`
`the mark, as Dr. Neuhauser explained that Sukegawa’s file is the boot data list and
`
`Sukegawa’s control information within that file is the boot data. Petition, 10-12;
`
`APPLE-1003, ¶¶122-124. Dr. Neuhauser’s explanation is consistent with the ’862
`
`patent, which describes that the “list of boot data” includes “boot data” itself.
`
`APPLE-1001, 3:42-59 (“adding to the list any boot data”).
`
`Because the only corroborated testimony on record supports Apple’s analysis
`
`of Sukegawa’s files of control information, Sukegawa’s files represent the claimed
`
`boot data list. APPLE-1003, ¶¶122-124.
`
`b. Sukegawa’s Table 3A is a Boot Data List
`
`As a second example, Dr. Neuhauser explained how a POSITA would have
`
`understood that Sukegawa’s management information table 3A is a boot data list
`
`(e.g., list of files of application/OS data). Petition, 12-13; APPLE-1003, ¶¶125-126.
`
`Realtime argues that Sukegawa’s table 3A is a directory, not a boot data list. POR,
`
`34-36. Realtime’s argument, however, supports Apple’s interpretation.
`
`Specifically, Realtime admits that “Sukegawa’s table 3A functions as a
`
`directory that includes entries of information for correlating file names of control
`
`information stored in flash storage area 10A” and Dr. Back acknowledges that table
`
`3A “references the locations of control information files stored in flash memory 1.”
`
`
`
`9
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`POR, 34; REALTIME-2008, ¶83. By including entries or references to control
`
`information files, which include boot data, Realtime’s own analysis confirms that
`
`Sukegawa’s table 3A serves as a boot data list. APPLE-1003, ¶¶125-126. Indeed,
`
`Realtime does nothing to rebut Apple’s contention (supported by evidence) that
`
`Sukegawa’s table is a list, instead choosing to rename Sukegawa’s table 3A as a
`
`directory. POR, 34-36. A directory, however, is a list of files. APPLE-1034, 86
`
`(“listing of information about data files”); APPLE-1035, 183 (“list of all the files”);
`
`APPLE-1036, 14:2-15 (“directory is a list of files”); APPLE-1037, 4:13-24. Thus,
`
`Realtime’s argument confirms that Sukegawa’s table 3A is a list of files of control
`
`information (boot data) and represents a boot data list.
`
`Further, Dr. Neuhauser explained how the ’862 patent maintains, in table
`
`3A, a list of boot data specified using its custom utility program. Petition, 13;
`
`APPLE-1003, ¶176. Realtime’s only response is that Sukegawa’s “AP control
`
`information stored on flash memory 1 is not ‘boot data.’” POR, 35-36. However,
`
`as explained in the Petition, boot data includes application data, such as
`
`Sukegawa’s AP control information. Petition, 3-6. Indeed, the ’862 patent
`
`confirms that “boot data may comprise program code associated with an operating
`
`system of the computer system, an application program, and a combination
`
`thereof.” APPLE-1001, 3:47-50. Thus, contrary to Realtime’s argument,
`
`Sukegawa’s AP control information is boot data listed in table 3A. And,
`
`
`
`10
`
`

`

`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Realtime’s argument ignores how Sukegawa’s table 3A also manages OS control
`
`information stored in flash memory unit 1. APPLE-1005, 2:11-16, 2:65-3:3, 4:58-
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`63, 6:19-66; APPLE-1003, ¶¶33, 123-129.
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`With the structure described above, Sukegawa’s table 3A is a boot data list
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`and even meets Realtime’s overly-narrow construction. For instance, the
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`“management information table 3A” is used to “manage[] the storage areas 10A to
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`10C of the flash memory unit 1.” APPLE-1005, 5:5-7. Specifically, Sukegawa’s
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`table 3A includes “information for correlating” file names and control information
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`and Sukegawa “determines whether the control information to be accessed is stored
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`in the flash memory unit 1 by using the management information table 3A.” APPLE-
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`1005, 5:41-61. Because Sukegawa’s table 3A is used to manage Sukegawa’s
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`memory unit 1 by determining whether control information has been loaded or needs
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`to be loaded, a POSITA would have understood that Sukegawa’s table 3A is a record
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`that is “used to identify and load boot data into memory.” Thus, Sukegawa’s table
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`3A is a boot data list, even under Realtime’s overly-narrow construction.
`
`B. Realtime Ignores Settsu’s “Boot Data List” (Grounds 2 and 4)
`In the Petition, Dr. Neuhauser explained how Settsu describes “a boot data
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`list” and how a POSITA would have found it obvious to use Settsu’s boot data list
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`with Sukegawa. Petition, 62-65; APPLE-1003, ¶¶143-146. Realtime ignores this
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`analysis in its POR. Without any rebuttal argument or evidence, Realtime cannot
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`overcome the reasonable likelihood of success established for Settsu’s rendering
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`obvious a boot data list in Grounds 2 and 4. Institution Decision, 21-23.
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`C. Zwiegincew Describes a “Boot Data List” (Ground 5)
`As discussed at Section III.A, Sukegawa describes a boot data list (Ground 1).
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`Nevertheless, Zwiegincew also describes a boot data list and combines with
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`Sukegawa and Dye (Ground 5) to provide an additional basis for this feature.
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`APPLE-1003, ¶¶148-149. Realtime’s argument against Zwiegincew primarily
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`focuses on Zwiegincew’s scenario files as not being applicable to boot. POR, 36-
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`41. However, Zwiegincew explicitly describes that “[s]trategically ordering
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`pages…tends to work best” in situations, such as “boot.” APPLE-1010, 2:12-15.
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`As Dr. Neuhauser explained, because “Zwiegincew’s scenario files are ordered
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`copies of pages or ordered references to pages,” a POSITA would have found it
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`obvious that Zwiegincew’s scenario files are useful during “boot,” a process where
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`Zwiegincew itself recognized that page ordering “tends to work best.” APPLE-
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`1003, ¶¶148-149; APPLE-1010, 2:12-15.
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`Dr. Back attempts to rebut this argument by testifying that “Zwiegincew’s
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`techniques require the presence of a functioning operating system in order to work.”
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`REALTIME-2008, ¶86. Dr. Back, however, provides no citations to Zwiegincew or
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`additional evidence to support his opinion. Id. And, in addition to being
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`uncorroborated, Dr. Back is incorrect, as evidence shows scenario files, such as
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`Proceeding No.: IPR2016-01737
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`Zwiegincew’s, are operational and useful during operating system boot. APPLE-
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`1038, Abstract, 2:65-3:16, 11:59-12:4, 14:20-43.
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`Thus, as Dr. Neuhauser explained, a POSITA would have found it obvious to
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`use Zwiegincew’s scenario file for boot and, when used for boot, Zwiegincew’s
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`scenario file is a boot data list. APPLE-1003, ¶¶148-149.
`
`IV. Applied Prior Art Renders Obvious “Disassociating” Limitations
`A.
`Sukegawa Describes “Disassociating Non-Accessed Boot Data
`from the Boot Data List” (Claims 96, 100, 106)
`Sukegawa’s system uses two types of techniques for managing control
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`information (boot data): (1) user selection of control information to load/remove and
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`(2) automatic selection of control information to load/remove. Petition, 27-28, 56;
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`APPLE-1003, ¶¶654-662. Realtime argues that neither technique disassociates non-
`
`accessed boot data from the boot data list. However, each of Sukegawa’s (1) user
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`deletion and (2) automatic deletion disassociate non-accessed boot data, even under
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`Realtime’s overly-narrow construction.
`
`a. Sukegawa’s User Deletion
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`Realtime argues that Sukegawa’s user deletion is insufficient because the
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`deletion is “‘based on the user’s judgement’” and “the user can delete the control
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`information regardless of how recently it was accessed.” POR, 42-43. Although
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`Realtime may be correct that a user in Sukegawa can delete control information
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`that was accessed, Realtime fails to properly assess obviousness and consider the
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`other possibility – the user can delete control information that was not accessed.
`
`Indeed, as Dr. Neuhauser explained, Sukegawa contemplates deletion of
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`“unnecessary” control information and a POSITA would have viewed an
`
`“unnecessary file of loaded control information” as “control information not
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`necessary for the start of the OS/AP” and, therefore, control information “not
`
`accessed by Sukegawa’s controller 3.” APPLE-1003, ¶¶656-659. Accordingly, a
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`POSITA would have found Sukegawa’s user deletion of control information
`
`obviously (and most likely) to include control information that was not accessed
`
`(or not requested during system boot-up). Id.
`
`With this background, Sukegawa’s user deletion of control information
`
`clearly disassociates boot data from a boot data list – a point Realtime does not
`
`contest. Because the claims merely define the disassociated boot data as being
`
`“non-accessed,” the claims do not prevent the disassociation as occurring
`
`responsive to user input. Thus, because a POSITA would have found user deletion
`
`of “non-accessed” boot data to be an obvious part of Sukegawa’s user deletion,
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`Sukegawa renders obvious disassociating non-accessed boot data from the boot
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`data list. APPLE-1003, ¶¶656-659.
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`b. Sukegawa’s Automatic Deletion
`
`Realtime does not dispute that Sukegawa’s automatic deletion involves
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`disassociation of data from Sukegawa’s lists. POR, 43-45. Instead, Realtime first
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`argues that Sukegawa’s automated technique for managing cache area 10C is
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`directed to AP control information, which is not boot data. Id. However, as
`
`discussed at Section III.A.b., boot data includes application data, such as
`
`Sukegawa’s AP control information. Petition, 3-6; APPLE-1001, 3:47-50. Thus,
`
`Sukegawa’s automated deletion of AP control information from cache area 10C
`
`involves disassociation of non-accessed boot data from the boot data list. And,
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`Realtime’s argument ignores the presence of OS control information in Sukegawa
`
`and the obviousness of managing the OS control information similarly to the AP
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`control information. APPLE-1005, 2:11-16, 2:65-3:3, 4:58-63, 6:19-66; APPLE-
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`1003, ¶¶33, 123-129.
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`Additionally, Realtime argues that “[a]n LRU algorithm” cannot disassociate
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`non-accessed boot data because it “could discard items from the cache that were
`
`requested during system boot-up if those items happen to be the least-recently-used
`
`items when eviction from the cache is taking place.” POR, 45. Again, while this
`
`may be true, Realtime does not properly assess obviousness and ignores the other
`
`possibility – that the LRU algorithm could discard items not requested during
`
`system boot-up. Indeed, as Dr. Neuhauser explained, the entire point of an LRU
`
`algorithm is to remove data that has not been accessed and, thus, a POSITA would
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`have found Sukegawa’s automatic deletion of control information obviously (and
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`15
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`most likely) to include control information that was not accessed (or not requested
`
`during system boot-up). APPLE-1003, ¶¶660-662.
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`Because a POSITA would have found deletion of “non-accessed” boot data
`
`to be an obvious part of Sukegawa’s automated process, Sukegawa renders
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`obvious disassociating non-accessed boot data from the boot data list. Id.
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`B. Realtime Ignores Zwiegincew’s Disassociation (Ground 5)
`In the Petition, Dr. Neuhauser explained how Zwiegincew disassociates non-
`
`accessed boot data from the boot data list. Petition 71, 76; APPLE-1003, ¶¶213-
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`215, 479-481. Realtime ignores this analysis in its POR. Without any rebuttal
`
`argument or evidence, Realtime cannot overcome the reasonable likelihood of
`
`success established for Zwiegincew’s rendering obvious disassociating non-
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`accessed boot data from the boot data list in Ground 5. Institution Decision, 21-23.
`
`V. Applied Prior Art Renders Obvious “Loading” Limitations
`Realtime improperly attempts to import yet another limitation missing from
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`the claims, contending that loaded boot data must be associated with the boot data
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`list “prior to loading the boot data into memory.” POR, 45-47. The claim
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`language, however, places no such temporal restriction on when the boot data must
`
`be associated with the boot data list relative to loading. Indeed, claim 13 merely
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`recites loading boot data “assoc