UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`REALTIME DATA LLC,
`Patent Owner.
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`Case IPR2016-01737
`Patent 8,880,862
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`PETITIONER’S REPLY TO PATENT OWNER’S LIST OF PETITIONER’S
`ALLEGED IMPROPER REPLY ARGUMENTS
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`REALTIME DATA LLC,
`Patent Owner.
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`Case IPR2016-01737
`Patent 8,880,862
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`PETITIONER’S REPLY TO PATENT OWNER’S LIST OF PETITIONER’S
`ALLEGED IMPROPER REPLY ARGUMENTS
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Pursuant to the Board’s authorization on October 10, 2017, Petitioner Apple
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`Inc. (Apple) submits the following reply to Patent Owner’s list of the locations and
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`concise descriptions of the portions of Petitioner’s Reply (Paper 23) that Patent
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`Owner alleges exceed the proper reply scope. Contrary to Patent Owner’s
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`allegations, Petitioner respectfully submits that each argument included in Patent
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`Owner’s list is properly responsive to an argument made by Patent Owner, and
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`finds support in the Petition.
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`1. Realtime alleges that Petitioner’s argument at pages 7-8 of the Reply exceeds
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`the proper reply scope. In the pages identified by Realtime, Petitioner argues
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`that Sukegawa renders obvious the limitation “boot data list.” For example:
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` “As Dr. Neuhauser explained and the Institution Decision credited, a
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`POSITA would have found it obvious that Sukegawa’s files of OS and
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`AP control information are lists of boot data.” (Reply at 7.)
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` “As Dr. Neuhauser explained, a list is an obvious representation for a
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`collection of information and, thus, Sukegawa’s files represent lists of
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`control information.” (Id. at 8.)
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`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 29-36 of Patent Owner’s Response (Paper 20). For
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`example:
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`1
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
` “Sukegawa does not disclose this limitation. Instead, Sukegawa
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`describes that ‘the control information necessary for starting the OS
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`[operating system]’—the alleged ‘boot data’—is stored as a single file
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`in flash storage area 10A.” (Patent Owner’s Response at 29.)
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`Support for Petitioner’s argument can be found at, for example, pages 7-17
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`of the Petition (Paper 2).
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`2. Realtime alleges that Petitioner’s argument at pages 5-7 and 13-16 of the
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`Reply exceeds the proper reply scope. At the pages identified by Realtime,
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`Petitioner argues that a POSITA would have viewed the term “non-accessed
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`boot data” per its ordinary meaning as simply boot data that was not accessed,
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`and that Sukegawa renders obvious the “disassociating non-accessed boot
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`data” limitations. For example:
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` “[U]nder BRI, a POSITA would have viewed the term ‘non-accessed
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`boot data’ per its ordinary meaning as simply boot data that was not
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`accessed.” (Reply at 5.)
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` “[A] POSITA would have found Sukegawa’s user deletion of control
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`information obviously (and most likely) to include control information
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`that was not accessed (or not requested during system boot-up).” (Id. at
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`14.)
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`2
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
` “[B]ecause a POSITA would have found user deletion of ‘non-
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`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
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`the boot data list.” (Id. at 14.)
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` “Thus, Sukegawa’s automated deletion of AP control information from
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`cache area 10C involves disassociation of non-accessed boot data from
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`the boot data list. And, Realtime’s argument ignores the presence of OS
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`control information in Sukegawa and the obviousness of managing the
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`OS control information similarly to the AP control information.” (Id. at
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`15.)
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` “…Realtime does not properly assess obviousness and ignores the other
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`possibility – that the LRU algorithm could discard items not requested
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`during system boot-up. Indeed, as Dr. Neuhauser explained, the entire
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`point of an LRU algorithm is to remove data that has not been accessed
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`and, thus, a POSITA would have found Sukegawa’s automatic deletion
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`of control information obviously (and most likely) to include control
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`information that was not accessed (or not requested during system boot-
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`up).” (Id. at 15-16.)
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`3
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Response: Petitioner’s arguments are responsive to Patent Owner’s
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`arguments at pages 25-28 and 41-45 of Patent Owner’s Response. For
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`example:
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` “The term ‘non-accessed boot data,’ as used in claims 96, 100, 102, and
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`106, should means [sic] ‘boot data identified in the boot data list that
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`was not requested during system boot-up.’” (Patent Owner’s Response
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`at 25.)
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` “But Sukegawa’s removal of control information from table 3A does
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`not meet the ‘disassociating’ limitation.” (Id. at 41.)
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`Support for Petitioner’s argument can be found at, for example, page 56 of
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`the Petition.
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`3. Realtime alleges that Petitioner’s argument at page 16 of the Reply exceeds
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`the proper reply scope. At the page identified by Realtime, Petitioner argues
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`Zwiegincew renders obvious the “disassociating non-accessed boot data”
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`limitations. For example:
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` “…Realtime cannot overcome the reasonable likelihood of success
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`established for Zwiegincew’s rendering obvious disassociating non-
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`accessed boot data from the boot data list in Ground 5.” (Reply at 16.)
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`4
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
` Response: Petitioner’s argument is responsive to Patent Owner’s
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`arguments at pages 25-28 and 36-45 of Patent Owner’s Response. For
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`example:
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` “The term ‘non-accessed boot data,’ as used in claims 96, 100, 102, and
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`106, should means [sic] ‘boot data identified in the boot data list that
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`was not requested during system boot-up.’” (Patent Owner’s Response
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`at 25.)
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` “Zwiegincew does not render obvious a ‘boot data list.’ To the extent
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`Apple asserts that the combination of Sukegawa and Zwiegincew
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`renders obvious ‘a boot data list,’ Apple is mistaken.” (Id. at 36.)
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`Support for Petitioner’s argument can be found at, for example, page 56 of
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`the Petition.
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`4. Realtime alleges that Petitioner’s argument at pages 16-17 of the Reply
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`exceeds the proper reply scope. At the pages identified by Realtime,
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`Petitioner argues that Realtime improperly attempts to import a limitation
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`missing from the claims, specifically, that loaded boot data must be
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`associated with the boot data list prior to loading the boot data into memory.
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`For example:
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` “Indeed, claim 13 merely recites loading boot data ‘associated with a
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`boot data list’ and, under BRI, places no restriction on whether that
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`5
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`boot data becomes associated with the boot data list prior to, or at the
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`time of, loading.” (Reply at 16-17.)
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`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 45-47 of Patent Owner’s Response. For example:
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` “A POSITA would have understood that loading boot data “that is
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`associated with…a boot data” list requires that the boot data be
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`“associated with” the boot data list prior to loading the boot data into
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`memory.” (Patent Owner’s Response at 46.)
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`Support for Petitioner’s argument can be found at, for example, page 37 of
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`the Petition.
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`5. Realtime alleges that Petitioner’s argument at pages 16-18 of the Reply
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`exceeds the proper reply scope. In the pages identified by Realtime,
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`Petitioner argues that Sukegawa loads boot data “that is associated with a
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`boot data list.” For example:
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` “Indeed, when Sukegawa loads a file of control information from
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`HDD2 to flash memory 1, the control information in the file is
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`associated with the file prior to its loading.” (Reply at 17.)
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`6
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 45-53 of Patent Owner’s Response. For example:
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` “Apple offers two theories for how Sukegawa discloses ‘a boot data
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`list.’ However, under either theory, Sukegawa’s alleged ‘boot data’ is
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`not associated with the alleged ‘boot data list’ prior to loading the
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`boot data into flash memory 1.” (Patent Owner’s Response at 48-49.)
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`Support for Petitioner’s argument can be found at, for example, pages 10-
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`13 of the Petition.
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`6. Realtime alleges that Petitioner’s argument at pages 16-18 of the Reply
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`exceeds the proper reply scope. In the pages identified by Realtime,
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`Petitioner argues that Sukegawa’s table 3A renders obvious the limitation
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`“loading” boot data “that is associated with a boot data list.” For example:
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` “[E]ach of Sukegawa, Settsu, and Zwiegincew render obvious this
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`feature, even under Realtime’s overly-narrow interpretation.” (Reply
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`at 17.)
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` “In fact, both operations must occur at relatively the same time and, as
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`such, a POSITA would have found it obvious to perform either
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`operation (table update or data load) just prior to the other.” (Id. at
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`17.)
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`7
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
` “As Dr. Neuhauser explained, a POSITA would have found it obvious
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`that, to generate this list, Sukegawa’s system receives a user selection
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`of data to preload, updates table 3A to indicate the selection, and then
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`loads the user-selected data into area.” (Id. at 18.)
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` “In this way, a POSITA would have found it obvious that the user-
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`selected data is associated with table 3A prior to its loading.” (Id. at
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`18.)
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`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 45-53 of Patent Owner’s Response. For example:
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` “Apple offers two theories for how Sukegawa discloses ‘a boot data
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`list.’ However, under either theory, Sukegawa’s alleged ‘boot data’ is
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`not associated with the alleged ‘boot data list’ prior to loading the
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`boot data into flash memory 1.” (Patent Owner’s Response at 48-49.)
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` “Assuming arguendo that Sukegawa’s table 3A were a ‘boot data
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`list,’ then the boot data Sukegawa loads into its cache does not
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`become associated with that list until after it has been loaded into the
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`cache, not before.” (Id. at 49.)
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`Support for Petitioner’s argument can be found at, for example, pages 10-
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`13 of the Petition.
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`8
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`7. Realtime alleges that Petitioner’s argument at pages 17-18 of the Reply
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`exceeds the proper reply scope. In the pages identified by Realtime,
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`Petitioner argues that Settsu and Zwiegincew render obvious the limitation
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`“loading” boot data “that is associated with a boot data list.” For example:
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` “[E]ach of Sukegawa, Settsu, and Zwiegincew render obvious this
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`feature, even under Realtime’s overly-narrow interpretation.” (Reply
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`at 17.)
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` “In the Petition, Dr. Neuhauser explained how Settsu and Zwiegincew
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`each describe loading boot data that is associated with a boot data
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`list.” (Id. at 18.)
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` “…Realtime cannot overcome the reasonable likelihood of success
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`established for Settsu and Zwiegincew rendering obvious loading boot
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`data that is associated with a boot data list in Grounds 2, 4, and 5.”
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`(Id. at 18.)
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`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 45-53 of Patent Owner’s Response. For example:
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` “To the extent Apple argues that any of the other asserted prior art
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`meets this limitation, none of the prior art provides a rationale to
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`modify Sukegawa resulting in Sukegawa’s control information being
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`9
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`associated with table 3A prior to loading that information into flash
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`memory 1.” (Patent Owner’s Response at 50.)
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` “A POSITA would not have considered Settsu’s teachings regarding
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`function definition file 71 pertinent to the operation of Sukegawa’s
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`table 3A or to storage of OS and AP control information in
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`Sukegawa’s permanent storage area 10A.” (Id. at 51-52.)
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` “Moreover, Apple’s arguments regarding how Burrows’s and
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`Zwiegincew’s teachings relate to the “associated with” limitation are
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`equally conclusory.” (Id. at 53.)
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`Support for Petitioner’s argument can be found at, for example, pages 60-
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`66 of the Petition.
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`8. Realtime alleges that Petitioner’s argument at pages 22-23 of the Reply
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`exceeds the proper reply scope. In the pages identified by Realtime,
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`Petitioner argues that Dye’s compression engines and components that
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`perform encoding operations meet the “plurality of encoders” limitations.
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`For example:
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` “Indeed, a component that performs encoding operations is commonly
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`understood to be an encoder. Because Realtime admits that Dye has a
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`plurality of components that each perform encoding operations,
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`10
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
`Realtime itself acknowledges that Dye includes a plurality of
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`encoders.” (Reply at 23 (internal citations omitted).)
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` “Specifically, Dye contemplates multiple compression engines.
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`Because Dye’s compression engine is an encoder (as Realtime
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`admits), Dye’s multiple compression engines represent multiple
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`encoders.” (Id. at 23 (internal citations omitted).)
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`Response: Petitioner’s argument is responsive to Patent Owner’s
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`argument at pages 64-69 of Patent Owner’s Response. For example:
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` “To improve on the traditional encoder, Dye teaches a purportedly
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`new, single encoder that distributes the encoding calculations among
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`several stages. But each of these stages is not a separate encoder—on
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`the contrary, each unit is a part of Dye’s single encoder” (Patent
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`Owner’s Response at 66.)
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`Support for Petitioner’s argument can be found at, for example, pages
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`34-36 and 50 of the Petition.
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`11
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`Date: October 18, 2017
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
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`/Jeremy J. Monaldo/
`W. Karl Renner, Reg. No. 41,265
`Jeremy Monaldo, Reg. No. 58,680
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorneys for Petitioner
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`12
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`Proceeding No.: IPR2016-01737
`Attorney Docket: 39521-0025IP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(1) and 42.6(e)(4)(iii), the undersigned
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`certifies that on October 18, 2017, a complete and entire copy of this Petitioner’s
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`Reply to Patent Owner’s List of Petitioner’s Alleged Improper Reply Arguments
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`was provided via email to the Patent Owner by serving the email correspondence
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`addresses of record as follows:
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`Joseph F. Edell, Richard Z. Zhang, Desmond S. Jui (pro hac vice)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW, Fourth Floor
`Washington, DC 20015
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`William P. Rothwell, Kayvan B. Noroozi (pro hac vice)
`Noroozi PC
`2245 Texas Drive, Suite 300
`Sugar Land, TX 77479
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`Email: Joe.Edell.IPR@fischllp.com
`Richard.Zhang.IPR@fischllp.com
`Desmond.Jui.IPR@fischllp.com
`William@noroozipc.com
`Kayvan@noroozipc.com
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`/Diana Bradley/
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`Diana Bradley
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(858) 678-5667
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