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 IPR2016-01738
`Patent 8,880,862
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`PETITIONER’S MOTION FOR OBSERVATIONS REGARDING THE
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`CROSS-EXAMINATION TESTIMONY OF DR. GODMAR BACK
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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 IPR2016-01738
`Patent 8,880,862
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`PETITIONER’S MOTION FOR OBSERVATIONS REGARDING THE
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`CROSS-EXAMINATION TESTIMONY OF DR. GODMAR BACK
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`Proceeding No.: IPR2016-01738
`Attorney Docket: 39521-0025IP2
`Apple, Inc. (“Petitioner”) respectfully submits this motion for observations
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`regarding the cross-examination of Dr. Godmar Back. Petitioner’s observations,
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`set forth below, concern the 11/2/17 and 12/7/17 testimony of Dr. Back, which is
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`presented in its entirety in Exs. A-1046, and A-1047, respectively.
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`OBSERVATION 1:
`In Ex. A-1046 at 45:18-46:16, when asked whether the second memory
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`claimed in Amended Claim 174 could be either volatile or non-volatile memory,
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`Dr. Back testified on cross-examination that “[a] person of skill in the art would
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`not think of using non-volatile memory for its higher cost [or] for its slower rate of
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`access speed;” instead, “all the embodiments of the patent envision the use of
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`volatile memory.” This is relevant because Patent Owner relies on Dr. Back’s
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`testimony to support their arguments that the prior art does not render obvious the
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`substitute claims. Pap. 33, 10-12.
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`OBSERVATION 2:
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`In Ex. A-1046 at 47:21-48:6, Dr. Back testified on cross-examination that
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`“the cache may comprise volatile or non-volatile memory or any combination
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`thereof,” but that “[p]referably, the cache 13 is implemented in SDRAM, which I
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`have pointed out a person of skill in the art would understand to be volatile
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`memory.” In Ex. A-1046 at 50:10-51:1, when asked why it would be preferable to
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`implement cache 13 in SDRAM, Dr. Back testified on cross-examination that
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`“[v]olatile memory is faster, is cheaper, and, most importantly, for the method of
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`preloading envisioned in the '862 patent, the use of non-volatile memory is neither
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`necessary, nor beneficial.” This is relevant because Patent Owner relies on Dr.
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`Back’s testimony to support their arguments that the prior art does not render
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`obvious the substitute claims. Pap. 33, 10-12.
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`OBSERVATION 3:
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`In Ex. A-1046 at 60:12-60:21, when asked whether he agreed or disagreed
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`with a statement by Dr. Neuhauser that flash memory based designs were
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`expensive on a per bit basis at the time of invention, Dr. Back testified on cross-
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`examination that “I think that I would not have cited to this statement if I had
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`disagreed with it.” This is relevant because Patent Owner relies on Dr. Back’s
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`testimony to support their arguments that the prior art does not render obvious the
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`substitute claims. Pap. 33, 10-12.
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`OBSERVATION 4:
`In Ex. A-1046 at 76:22-78:15, when asked whether he had provided an
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`opinion on the meaning of the term “preloading” at paragraph 47 on page 18 of his
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`IPR2016-01365 declaration in support of Patent Owner’s response, Dr. Back
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`testified on cross-examination “let me be specific what I am doing the section is …
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`I am construing the term “preloading” as it would be understood by a person
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`skilled in the art reading the claims and the specification of the '608 patent….”
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`Attorney Docket: 39521-0025IP2
`This is relevant because Patent Owner relies on Dr. Back’s testimony to support
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`their arguments that prior art and combinations of prior art applied to the proposed
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`substitute claims would not meet a construction of “preloading” that is different
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`from the construction previously submitted by Patent Owner and Dr. Back in the
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`related IPR2016-01365 proceeding. Pap. 33, 2-8; Pap. 41, 10-11; Ex. 2025, ¶¶13-
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`16; Ex. 2027, ¶¶70-84.
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`OBSERVATION 5:
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`In Ex. A-1046 at 81:12-82:2, when asked whether the '608 and '862 patents
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`share the same specification, Dr. Back testified on cross-examination that “[y]es, I
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`do think that those two patents share the same specification.” This is relevant
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`because Patent Owner relies on Dr. Back’s testimony to support their arguments
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`that prior art and combinations of prior art applied to the proposed substitute
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`claims would not meet a construction of “preloading” that is different from the
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`construction previously submitted by Patent Owner and Dr. Back in the related
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`IPR2016-01365 proceeding. Pap. 33, 2-8; Pap. 41, 10-11; Ex. 2025, ¶¶13-16; Ex.
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`2027, ¶¶70-84.
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`OBSERVATION 6:
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`In Ex. A-1046 at 82:4-83:8, when asked whether a POSITA would have had
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`the same understanding of the meaning of the term “preloading” when reading the
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`claims of the '608 patent and the amended claims of the '862 patent, Dr. Back
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`Proceeding No.: IPR2016-01738
`Attorney Docket: 39521-0025IP2
`testified on cross-examination that “I would say they would have the same
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`understanding.” This is relevant because Patent Owner relies on Dr. Back’s
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`testimony to support their arguments that prior art and combinations of prior art
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`applied to the proposed substitute claims would not meet a construction of
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`“preloading” that is different from the construction previously submitted by Patent
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`Owner and Dr. Back in the related IPR2016-01365 proceeding. Pap. 33, 2-8; Pap.
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`41, 10-11; Ex. 2025, ¶¶13-16; Ex. 2027, ¶¶70-84.
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`OBSERVATION 7:
`In Ex. A-1046 at 138:13-22, Dr. Back testified on cross-examination that
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`“preloading has to occur, prior to host system reset.” This is relevant because
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`Patent Owner relies on Dr. Back’s testimony to support their arguments that Settsu
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`does not “preload” because it “only begins loading boot data after receiving a
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`request over [a] computer bus,” and that Esfahani does not “preload” because “its
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`boot data is loaded into volatile RAM only after the CPU, system bus, and a low-
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`level firmware OS have all been initialized.” Pap. 33, 4-8; Pap. 41, 10-12; Ex.
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`2025, ¶¶13-15, 61; Ex. 2027, ¶¶70-77, 84.
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`OBSERVATION 8:
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`In Ex. A-1046 at 130:1-132:2, when asked about description at column 20 of
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`the '862 Patent, Dr. Back testified on cross-examination that “if you read further
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`down in the paragraph it lists a number of unique aspects to that technique of data
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`Proceeding No.: IPR2016-01738
`Attorney Docket: 39521-0025IP2
`preloading that's discussed in the '862 patent. For example, that it has to happen
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`upon host system power-up and reset and so on….” This is relevant because
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`Patent Owner relies on Dr. Back’s testimony to support their arguments that Settsu
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`does not “preload” because it “only begins loading boot data after receiving a
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`request over [a] computer bus,” and that Esfahani does not “preload” because “its
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`boot data is loaded into volatile RAM only after the CPU, system bus, and a low-
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`level firmware OS have all been initialized.” Pap. 33, 4-8; Pap. 41, 10-12; Ex.
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`2025, ¶¶13-15, 61; Ex. 2027, ¶¶70-77, 84.
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`OBSERVATION 9:
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`In Ex. A-1046 at 120:13-121:11, when asked whether a POSITA would have
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`understood that the data storage controller may receive requests for preloaded boot
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`data while it is preloading other boot data, Dr. Back testified on cross-examination
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`that “[y]es, that is correct,” adding that “it is possible for the data storage controller
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`to … engage in the preloading process while already servicing requests for
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`preloaded data during that second phase where booting and preloading may be
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`performed simultaneously.” This is relevant because Patent Owner relies on Dr.
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`Back’s testimony to support their arguments that Settsu does not “preload” because
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`it “only begins loading boot data after receiving a request over [a] computer bus,”
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`and that Esfahani does not “preload” because “its boot data is loaded into volatile
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`RAM only after the CPU, system bus, and a low-level firmware OS have all been
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`initialized.” Pap. 33, 4-8; Pap. 41, 10-12; Ex. 2025, ¶¶13-15, 61; Ex. 2027, ¶¶70-
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`77, 84.
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`OBSERVATION 10:
`In Ex. A-1046 at 145:8-146:12, when asked whether he had any opinion as
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`to whether Zwiegincew's techniques could work in Settsu's system after virtual
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`memory processing module 22 is enabled, Dr. Back testified on cross-examination
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`that “[t]hat is not something that I considered,” but added that “Zwiegincew's
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`techniques cannot be applied until after the virtual memory manager has been
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`loaded” and that “the virtual memory manager in Settsu's system is labeled 22 and
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`is part of the main OS module.” In Ex. A-1046 at 148:2-8, Dr. Back testified on
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`cross-examination that “I don't recall addressing application modules and function
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`definition files in my declaration where I explained why the proposed combination
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`of Settsu and Zwiegincew would not work. This paragraph is referring to figure 17.
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`I am referring to figure 5.” In Ex. A-1046 at 149:15-150:4, Dr. Back testified on
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`cross-examination that it “was not necessary for me to consider figure 17 to arrive
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`at the conclusion that the proposed combination is not possible,” “[b]ecause I was
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`able to make that conclusion based on the proposed combination of Settsu and
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`Zwiegincew that I was asked to [e]valuate in this declaration.” This is relevant
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`because Patent Owner relies on Dr. Back’s testimony to support their argument
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`that Zwiegincew cannot be combined with Settsu. Pap. 33, 8-10; Ex. 2025 ¶¶ 18-
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`20.
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`OBSERVATION 11:
`In Ex. A-1047 at 112:19-113:4, when asked whether a POSITA would have
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`understood from Kroeker's abstract that Kroeker transfers data from disk to cache
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`in anticipation of a request for that data from the host system, Dr. Back testified on
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`cross-examination - “I think they would have.” In Ex. A-1047 at 113:6-113:13,
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`when asked whether a POSITA would have understood from Kroeker's abstract
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`that this transfer occurs before a request for data is received from the host system,
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`Dr. Back testified on cross-examination “Yes, I think the paragraph says -- that is
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`stated in one of the sentences, yeah.” This is relevant because Patent Owner relies
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`on Dr. Back’s testimony to support their argument that “none of the known prior
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`art references—alone or in combination—teaches or suggests the subject matter of
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`the proposed claims.” Pap. 20, 22; Pap. 33, 11; Ex. 2025 ¶ 27; Ex. 2022 ¶¶70-71.
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`OBSERVATION 12:
`In Ex. A-1047 at 115:5-19, when asked whether a POSITA would have
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`understood that the described prefetching from disk to cache occurs before the host
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`computer is ready for data but after the disk drive has completed its reset routine,
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`Dr. Back testified on cross-examination “[i]n the abstract it says, indeed, before the
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`computer is ready, but after disk drive has completed its reset routine, the disk
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`drive accesses the previously requested data and copies it onto the cache of the
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`disk drive.” This is relevant because Patent Owner relies on Dr. Back’s testimony
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`to support arguments that considerations of speed would have dissuaded a POSITA
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`from combining Sukegawa with Dye and Kroeker. See Pap. 41, 2-3, 5-7; Ex.
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`2027, ¶¶14-16, 34-44.
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`OBSERVATION 13:
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`In Ex. A-1047 at 114:13-115:3, when asked whether a POSITA would have
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`understood that Kroeker's disk drive would otherwise be idle during the period of
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`time after the completion of its reset routine and before the host computer is ready
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`for data, Dr. Back testified on cross-examination “it depends on a number of
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`factors that would require additional analysis which I have not performed because I
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`was not asked to do that as part of this declaration.” This is relevant because
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`Patent Owner relies on Dr. Back’s testimony to support arguments that
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`considerations of speed would have dissuaded a POSITA from combining
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`Sukegawa with Dye and Kroeker. See Pap. 41, 2-3, 5-7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 14:
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`In Ex. A-1047 at 117:9-118:15, when asked whether a POSITA would have
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`understood that the prefetching disclosed by Kroeker speeds Kroeker's overall boot
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`process, Dr. Back testified on cross-examination, “I'm not providing critique or
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`evaluation of Kroeker's method,” and that “I did not evaluate the speed of either
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`system separately because that is not what I was asked to do in this declaration.”
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`This is relevant because Patent Owner relies on Dr. Back’s testimony to support
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`arguments that considerations of speed would have dissuaded a POSITA from
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`combining Sukegawa with Dye and Kroeker. See Pap. 41, 2-3, 5-7; Ex. 2027,
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`¶¶14-16, 34-44.
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`OBSERVATION 15:
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`In Ex. A-1047 at 118:10-15, when asked whether he had an opinion about
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`whether Kroeker itself discloses a faster boot process, Dr. Back testified on cross-
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`examination, “[t]hat is not something that I was asked to evaluate.” This is
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`relevant because Patent Owner relies on Dr. Back’s testimony to support their
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`arguments that considerations of speed would have dissuaded a POSITA from
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`adding RAM to Sukegewa’s system for purposes of preloading, as proposed in
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`Petitioner’s combination of Sukegawa with Dye and Kroeker. See Pap. 41, 2-3, 5-
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`7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 16:
`In Ex. A-1047 at 117:17-118:15, Dr. Back testified on cross-examination, “I
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`was asked to consider whether a person of ordinary skill would be motivated to
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`combine Sukegawa's system with Kroeker[’s] system, and in doing so I considered
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`two motivations that were put in front of me, cost and speed … neither provides a
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`compelling motivation, because the cost, first of all, could be higher and the speed
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`is unknowable and it may be slower.” This is relevant because Patent Owner relies
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`on Dr. Back’s testimony to support their arguments that considerations of speed
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`would have dissuaded a POSITA from adding RAM to Sukegewa’s system for
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`purposes of preloading, as proposed in Petitioner’s combination of Sukegawa with
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`Dye and Kroeker. See Pap. 41, 2-3, 5-7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 17:
`In Ex. A-1047 at 91:2-9, when asked whether he would agree that it's also
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`possible that the proposed modifications may improve the boot speed of
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`Sukegawa’s system, Dr. Back testified on cross-examination “I think the important
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`statement is we do not know or a person of ordinary skill would not know either.”
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`In Ex. A-1047 at 91:11-20, Dr. Back testified on cross-examination “I think -- I
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`think either outcome is possible….” This is relevant because Patent Owner relies
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`on Dr. Back’s testimony to support their arguments that considerations of speed
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`would have dissuaded a POSITA from adding RAM to Sukegewa’s system for
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`purposes of preloading, as proposed in Petitioner’s combination of Sukegawa with
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`Dye and Kroeker. See Pap. 41, 2-3, 5-7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 18:
`In Ex. A-1047 at 97:10-98:2, when asked whether a POSITA would have
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`understood that there would be periods of time during Sukegawa's boot process in
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`which data is loaded from flash while the hard disk is idle, Dr. Back testified on
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`cross-examination “I don't know if a person of ordinary skill would be able to
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`make inferences about the state of the hard disk,” and that “[w]hat Sukegawa does
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`teach is that boot data can be read from the flash memory and said boot data would
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`not need to be read from the hard disk. That is at the core of the system as it is
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`described in the patent.” This is relevant because Patent Owner relies on Dr.
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`Back’s testimony to support their arguments that considerations of speed would
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`have dissuaded a POSITA from adding RAM to Sukegewa’s system for purposes
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`of preloading, as proposed in Petitioner’s combination of Sukegawa with Dye and
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`Kroeker. See Pap. 41, 2-3, 5-7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 19:
`In Ex. A-1047 at 107:3-19, when asked whether, when he wrote paragraph
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`37, he considered that in the proposed modified system boot data would be read
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`from Sukegawa's disk and written into RAM during a period of time when data is
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`not otherwise being loaded from Sukegawa's disk, Dr. Back testified on cross-
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`examination “So paragraph 37 relates to comparing the relative speeds of the types
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`of memory. I think you are asking would the data that is being written to RAM
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`come from the hard disk, and the answer is yes. Would it have been loaded from
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`the hard disk? That is correct as well. Your statement about during times when the
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`hard disk otherwise is not used is not supported by -- may or may not be true. It is
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`not -- not relevant.” This is relevant because Patent Owner relies on Dr. Back’s
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`Attorney Docket: 39521-0025IP2
`testimony to support their arguments that considerations of speed would have
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`dissuaded a POSITA from adding RAM to Sukegewa’s system for purposes of
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`preloading, as proposed in Petitioner’s combination of Sukegawa with Dye and
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`Kroeker. See Pap. 39, 2-3, 5-7; Ex. 2027, ¶¶14-16, 34-44.
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`OBSERVATION 20:
`In Ex. A-1047 at 67:22-68:7, when asked whether Exhibit 2028 states that
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`the smart media flash is a squarish non-volatile memory card of the type used in
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`digital cameras, MP3 music players, and the like, Dr. Back testified on cross-
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`examination “[u]sed in digital cameras, MP3 music players, and the like, uh-huh.”
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`In Ex. A-1047 at 47:13-48:1, when asked whether a POSITA would have
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`understood that the SDRAM DIMM cited in his declaration was designed for use
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`in, for example, a personal computer, Dr. Back testified on cross-examination
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`“[t]hey would have understood that this type of SDRAM could be used as the main
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`memory in a desktop computer.” This is relevant because Patent Owner relies on
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`Dr. Back’s testimony to support their argument that proposed modifications to
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`Sukegawa do not render obvious the substitute claims. Pap. 41, 4; Ex. 2027 ¶¶ 25-
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`28.
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`OBSERVATION 21:
`In Ex. A-1047 at 73:12-20, when asked whether it would be fair to say that a
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`flash memory card is primarily the flash memory itself, Dr. Back testified on cross-
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`examination “I think so. I think the -- it is the flash memory, some additional
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`circuitry, and the packaging around it, but its price, for example, would -- would be
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`dominated by the cost of the flash memory itself. In Ex. A-1047 at 39:15-19, when
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`asked whether a POSITA in February of 2000 would have understood that an
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`SDRAM DIMM is mounted on a printed circuit board, Dr. Back testified on cross-
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`examination “[y]es, they would have.” In Ex. A-1047 at 37:1-5, when asked
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`whether a POSITA in February 2000 would have understood that an SDRAM
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`DIMM would include a series of SDRAM integrated circuits, Dr. Back testified
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`“[y]es, they would, would have.” In Ex. A-1047 at 47:6-11, when asked whether it
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`would be fair to say that the cost of any components that are included in the
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`SDRAM DIMM would be reflected in the price of the SDRAM DIMM, Dr. Back
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`testified on cross-examination “Yes, that's correct.” This is relevant because Patent
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`Owner relies on Dr. Back’s testimony to support their argument that proposed
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`modifications to Sukegawa do not render obvious the substitute claims. Pap. 41, 4;
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`Ex. 2027 ¶¶ 25-28.
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`OBSERVATION 22:
`In Ex. A-1047 at 61:9-18, when asked whether based on the prices that he
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`cited, the price charged by the advertising supplier for a 64 megabyte SDRAM
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`DIMM module dropped by about a third from December 1, 1999 to March 21,
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`2000, Dr. Back testified on cross-examination “[s]o in these particular
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`advertisements we see price of 299, 250, and 199, so -- so yes, that's -- I think your
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`arithmetic is correct.” In Ex. A-1047 at 62:2-10, when asked whether that was a
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`33% decrease, Dr. Back testified on cross-examination “[y]es, yes, but again let me
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`reiterate. My task here was not to examine price trends in RAM.” This is relevant
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`because Patent Owner relies on Dr. Back’s testimony to support their argument
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`that known prior art does not render obvious the substitute claims. Pap. 41, 3-5;
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`Ex. 2027 ¶¶ 25-28.
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`OBSERVATION 23:
`In Ex. A-1047 at 32:8-18, when asked how the March 7 and March 21, 2000
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`issues show what a POSITA as of February 3, 2000, would have been aware of,
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`Dr. Back testified on cross-examination “I think that the three advertisements in
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`paragraph 25, 26, 27 taken together show that a clear trend leading to price drops
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`for flash took place at the time of the invention.” This is relevant because Patent
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`Owner relies on Dr. Back’s testimony to support their argument that “[t]he
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`evidence refutes the alleged “cost” motivation” for “supplement[ing] the flash in
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`Sukegawa with DRAM.” Pap. 41, 3-5; Ex. 2027 ¶¶ 25-28.
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`OBSERVATION 24:
`In Ex. A-1047 at 11:16-20, when asked if he reviewed the entirety of the PC
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`Magazine issues, Dr. Back testified on cross-examination “I did not.” In Ex. A-
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`1047 at 11:10-14, when asked if he reviewed only the excerpts that are included as
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`exhibits, Dr. Back testified on cross-examination “That is correct.” In Ex. A-1047
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`at 19:15-20:9, when asked if he reviewed any other trade publications, Dr. Back
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`testified on cross-examination “I personally did not review any other trade
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`publications….” In Ex. A-1047 at 20:22-21:8, when asked if he had conducted a
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`study of the markets for flash memory and for RAM during the relevant time
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`frame, Dr. Back testified on cross-examination “My task was not to conduct a
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`study of pricing.” This is relevant because Patent Owner relies on Dr. Back’s
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`testimony to support their argument that “[t]he evidence refutes the alleged “cost”
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`motivation” for “supplement[ing] the flash in Sukegawa with DRAM.” Pap. 41, 3-
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`5; Ex. 2027 ¶¶ 25-28.
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`Date: January 5, 2018
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`/Andrew B. Patrick/
`W. Karl Renner, Reg. No. 41,265
`Jeremy Monaldo, Reg. No. 58,680
`Andrew B. Patrick, Reg. No. 63,471
`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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`15
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`Proceeding No.: IPR2016-01738
`Attorney Docket: 39521-0025IP2
`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 January 5, 2018, a complete and entire copy of this Petitioner’s
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`Motion for Observations Regarding the Cross-Examination Testimony of Dr.
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`Godmar Back was provided via email to the Patent Owner by serving the email
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`correspondence 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.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(858) 678-5667
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