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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`APPLE INC.,
`Petitioner
`
`v.
`
`REALTIME DATA, LLC D/B/A/ IXO,
`Patent Owner
`
`_______________
`
`Case IPR2016-01738
`Patent 8,880,862
`
`_______________
`
`
`PATENT OWNER REALTIME DATA, LLC D/B/A IXO’S LIST OF
`PETITIONER’S IMPROPER REPLY ARGUMENTS
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`
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`
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`Pursuant to the Board’s authorization on October 10, 2017, Patent Owner
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`Realtime Data, LLC d/b/a IXO (“Realtime”) submits the following list of the
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`locations and concise descriptions of the portions of Petitioner’s Reply (Paper 24)
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`that exceed the proper reply scope. If the Board were to rely on these arguments
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`and evidence in finding the challenged claims unpatentable, Realtime would not
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`have had sufficient opportunity to respond.
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`1)
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`At pages 6-7 of the Reply, Petitioner argues that Sukegawa renders obvious
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`the limitation “boot data list.” For example:
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`•
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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 AP
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`control information are lists of boot data.” (Reply at 6.)
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`•
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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 7.)
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`2)
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`At pages 4-6 and 11-13 of the Reply, Petitioner argues that “non-accessed
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`boot data” should be construed to mean “boot data that was not accessed” and that
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`Sukegawa’s deletion of control information from table 3A renders obvious the
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`“disassociating non-accessed boot data” limitations. For example:
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`•
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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.” (Id. at 4-5.)
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`•
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`“[A] POSITA would have found Sukegawa’s user deletion of control
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`1
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`
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`information obviously (and most likely) to include control information that
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`was not accessed (or not requested during system boot-up).” (Id. at 12.)
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`•
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`“[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 the
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`boot data list.” (Id. at 13.)
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`•
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`“Thus, Sukegawa’s automated deletion of AP control information
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`from 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 OS
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`control information similarly to the AP control information.” (Id. at 13.)
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`•
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`“…Realtime does not properly assess obviousness and ignores the
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`other 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 point
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`of an LRU algorithm is to remove data that has not been accessed and, thus,
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`a POSITA would have found Sukegawa’s automatic deletion of control
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`information obviously (and most likely) to include control information that
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`was not accessed (or not requested during system boot-up).” (Id. at 15-16.)
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`3)
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`At page 15 of the Reply, Petitioner argues that Sukegawa discloses
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`performing the claim 14 step “accessing boot data” prior to the step “loading the
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`boot data into a memory.” For example:
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`•
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` “… Sukegawa accesses unloaded data from HDD2 prior to loading it
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`into flash memory 1.” (Id. at 15.)
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`•
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` “‘[A]ccess[ing]’ data is the ‘act of reading data from or writing data
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`to memory,’ which is accomplished by Sukegawa’s reading boot data from
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`2
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`
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`HDD2 when loading boot data into flash memory 1. APPLE-1044.” (Id. at
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`15.)
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`•
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`“Thus, a POSITA would have understood that the act of loading the
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`data into memory is necessarily preceded by the act of accessing the data to
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`be loaded, or written, into memory.” (Id. at 15.)
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`•
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`“Sukegawa then, separately, services request for loaded boot data.”
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`(Id. at 15.)
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`4)
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`At pages 15-16 of the Reply, Petitioner argues that the limitations
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`“accessing” or “loading” boot data “that is associated with a boot data list” do not
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`require the “boot data” be associated with the “boot data list” prior to accessing or
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`loading. For example:
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`•
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`“Indeed, claim 14 merely recites accessing boot data ‘associated with
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`a boot data list’ and, under BRI, places no restriction on whether that boot
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`data becomes associated with the boot data list prior to, or at the time of,
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`accessing.” (Id. at 16.)
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`5)
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`At pages 15-16 of the Reply, Petitioner argues that Sukegawa’s files of
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`control information disclose the limitations “accessing” or “loading” boot data
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`“that is associated with a boot data list.” For example:
`
`•
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`“Indeed, when Sukegawa loads/accesses a file of control information
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`from HDD2 to flash memory 1, the control information in the file is
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`associated with the file prior to its loading/accessing.” (Id. at 16.)
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`6)
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`At pages 15-17 of the Reply, Petitioner argues that Sukegawa’s table 3A
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`renders obvious the limitation “loading” boot data “that is associated with a boot
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`3
`
`
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`data list.” For example:
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`•
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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.” (Id. at 16.)
`
`•
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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 operation
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`(table update or data load) just prior to the other.” (Id. at 16-17.)
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`•
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`“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 of
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`data to preload, updates table 3A to indicate the selection, and then loads the
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`user-selected data into area.” (Id. at 17.)
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`•
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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 17.)
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`7)
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`At pages 17-18 of the Reply, Petitioner argues that Settsu and Zwiegincew
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`render obvious the limitations “accessing” or “loading” boot data “that is
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`associated with a boot data list.” For example:
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`•
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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.” (Id. at 16.)
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`•
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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 list.” (Id.
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`at 17.)
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`8)
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`At pages 21-22 of the Reply, Petitioner argues that Dye’s compression
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`engines and components that perform encoding operations meet the “plurality of
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`encoders” limitations. For example:
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`4
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`
`
`•
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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, Realtime
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`itself acknowledges that Dye includes a plurality of encoders.” (Id. at 22
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`(internal citations omitted).)
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`•
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`“Specifically, Dye contemplates multiple compression engines.
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`Because Dye’s compression engine is an encoder (as Realtime admits),
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`Dye’s multiple compression engines represent multiple encoders.” (Id. at 22
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`(internal citations omitted).)
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`9)
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`At pages 25-26 of the Reply, Petitioner argues that Sukegawa renders
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`obvious the “utilizing the stored additional portion of the operating system to at
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`least further partially boot the computer system” limitation. For example:
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`•
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`“Realtime fails to address, however, specific disclosure from
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`Sukegawa (cited in the Petition and by Dr. Neuhauser) of a swapping
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`operation used to meet a request for data that is not present in HDD2 or flash
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`memory unit 1, in which a ‘program (including data) stored in the main
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`memory 23 is shifted from the main memory 23 as a swap file,’ and in
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`which ‘the swap file is shifted to the HDD 2.’ Sukegawa, 7:66-8:8.” (Id. at
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`25-26 (emphasis provided by Petitioner).)
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`•
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`“As noted by Dr. Neuhauser, ‘a swap file including control
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`information can be stored at the HDD 2’ and Sukegawa’s controller 3 ‘can
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`read out the swap file … on an as needed basis’ [sic] from the storage area
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`of the HDD 2,’ for example, to further partially boot the computer system. In
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`at least this way, Sukegawa renders obvious this feature of claim 9.” (Id. at
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`26 (internal citations omitted).)
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`5
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`
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`Respectfully Submitted,
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`Date: October 13, 2017
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`
`
`
`
`
`
`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`Richard Z. Zhang (Reg. No. 73,397)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: (202) 362-3527
`Fax: (202) 362-3501
`Email: Joe.Edell.IPR@fischllp.com
`Email: Richard.Zhang.IPR@fischllp.com
`
`Desmond S. Jui (pro hac vice)
`Fisch Sigler LLP
`96 North Third Street
`Suite 260
`San Jose, CA 95112
`Phone: (650) 362-8209
`Email: Desmond.Jui.IPR@fischllp.com
`
`William P. Rothwell (Reg. No. 75,522)
`Noroozi PC
`2245 Texas Drive, Suite 300
`Sugar Land, TX 77479
`Phone: (281) 566-2685
`Email: William@nooozipc.com
`
`Kayvan B. Noroozi (pro hac vice)
`Noroozi PC
`1299 Ocean Avenue, Suite 450
`Santa Monica, CA 90401
`Phone: (310) 975-7074
`Email: Kayvan@noroozipc.com
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 13, 2017, a true and correct copy of the
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`foregoing Patent Owner’s List of Petitioner’s Improper Reply Arguments is being
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`served electronically to the Petitioner at the correspondence email addresses of
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`record provided in the Petition as follows:
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`W. Karl Renner (Lead Counsel) IPR39521-0025IP2@fr.com
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`
`
`Respectfully Submitted,
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`Date: October 13, 2017
`
`
`
`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: (202) 362-3527
`Fax: (202) 362-3501
`Email: Joe.Edell.IPR@fischllp.com
`
`
`
`
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