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`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 IPR2016-01739
`Patent 8,880,862
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`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
`
`Claim Construction .......................................................................................... 1
`A. Boot Data List ........................................................................................... 1
`B. Non-Accessed Boot Data .......................................................................... 5
`
`I.
`
`II.
`
`III. The Applied Prior Art Renders “Updating the Boot Data List” Obvious ....... 7
`A. Settsu Renders Obvious “Updating the Boot Data List” (All Claims)
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`…………………………………………………………………7
`B. Settsu in view of Zwiegincew Also Describes “Updating the Boot Data
`List” (All Claims) ................................................................................... 13
`
`IV. The Applied Prior Art Renders Obvious “Disassociating Non-Accessed Boot
`Data from the Boot Data List” (Claim 98) .................................................... 16
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`V.
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`The Applied Prior Art Renders Obvious “Updating the Boot Data List” in
`Response to the “Utilizing” Step (Claim 112) .............................................. 20
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`VI. Each of Settsu, Alone and in Combination with Dye and/or Zwiegincew
`Renders Obvious “a Plurality of Encoders” (Claim 46) ................................ 21
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`VII. The IPR is Constitutional .............................................................................. 26
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`VIII. Conclusion ..................................................................................................... 26
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`i
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`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
`
`(RESERVED)
`
`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
`
`U.S. Patent No. 6,158,000 (“Collins”)
`
`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”)
`
`
`
`ii
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`
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`APPLE-1016
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`APPLE-1017
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`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
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`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
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`Excerpts from Eric Pearce, Windows NT in a Nutshell (1999)
`(“Pearce”)
`
`APPLE-1026
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`Excerpts from Tim O’Reilly, Troy Mott, and Walter Glenn,
`Windows NT in a Nutshell (1999) (“O’Reilly”)
`
`APPLE-1027
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`(RESERVED)
`
`APPLE-1028
`
`Declaration of Michael Bittner in support of Petitioner's
` Motion for Pro Hac Vice Admission
`
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`iii
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
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`APPLE-1029
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`(RESERVED)
`
`APPLE-1030
`
`(RESERVED)
`
`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
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`Directory, Prentice Hall’s Illustrated Dictionary of Computing
`(Third Edition, 1998)
`
`APPLE-1036
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`U.S. Patent No. 5,915,252 (“Misheski”)
`
`APPLE-1037
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`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
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`Encoder, The Computer Desktop Encyclopedia (2nd ed. 1999)
`
`APPLE-1043
`
`Header, Microsoft Press Computer Dictionary (3d ed. 1997)
`
`APPLE-1044
`
`Access, Microsoft Press Computer Dictionary (3d ed. 1997)
`
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`iv
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
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`I.
`
`Introduction
`Patent Owner’s positions fail, as a proper application of the BRI standard
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`makes clear that Patent Owner (Realtime) was overreaching when pursuing overly
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`broad claims of the ’862 patent.
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`II. Claim Construction
`The Board indicated that no express constructions were required. Institution
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`Decision, 6. Despite this, and in an apparent attempt to manufacture patentability,
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`Realtime now urges the Board to adopt unduly narrow constructions of “boot data
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`list” and “non-accessed boot data.”
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`A. Boot Data List
`Realtime proposes that “[t]he term ‘boot data list,’…should mean ‘record used
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`to identify and load boot data into memory.’” Patent Owner Response (POR), 15.
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`Realtime’s construction, however, is not “the broadest reasonable interpretation”
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`because the construction improperly imports limitations. In re Van Geuns, 988 F.2d
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`1181, 1184 (Fed. Cir. 1993).
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`As an initial matter, Realtime provides no explanation for why the term
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`“list” would not have been understood by a POSITA and needs to be construed as
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`the term “record.” And, more impactful, Realtime provides insufficient
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`explanation for why a POSITA would have understood the term “boot data list” as
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`being limited to how the list is “used,” rather than what the list constitutes. As Dr.
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`Neuhauser explained, a POSITA would have viewed the term “boot data list” in
`1
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`the ’862 patent as just that, a list of boot data. APPLE-1003, ¶¶77-86. As
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`explained in the Petition, boot data list should be given its ordinary meaning and at
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`least be construed broadly enough to include a list of data associated with data
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`requests expected to result from a system power-on/reset. Petition, 13-16, 19-30.
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`Further, although Realtime’s attempt to import functional use to the term
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`“boot data list” is itself improper and renders other claim language directed to use
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`of the boot data list redundant and unnecessary, the ’862 patent does not limit use
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`of the boot data list “to identify and load boot data into memory,” as Realtime
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`contends. For example, the ’862 patent quite clearly describes “a list of boot data
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`used for booting a computer system.” APPLE-1001, Abstract, 3:42-59. Realtime
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`itself recognizes this, explaining that “the intrinsic evidence describes a ‘boot data
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`list’ as comprising a list of data—specifically, boot data—that is to be used for
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`booting a computer system.” POR, 16. Accordingly, the use of a boot data list
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`cannot be construed more narrowly than simply being “used for booting a
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`computer system.” APPLE-1001, Abstract, 3:42-59.
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`Despite recognition of this described use of the boot data list in the ’862
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`patent, Realtime realizes that this use is not narrow enough for its patentability
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`arguments and attempts to further narrow the alleged use as being “to identify and
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`load boot data into memory.” POR, 15-20. In an attempt to support this
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`interpretation, Realtime first points to the claims of the ’862 patent, explaining that
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`2
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`“Claim 6, for instances [sic], recites: ‘to load a portion of boot data in the
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`compressed form that is associated with a boot data list using [sic] for booting the
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`system into a first memory.’” POR, 17. However, claim 6 explicitly defines the
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`“boot data list” being “used for booting the system,” not “used to identify and load
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`boot data into memory.” Indeed, “load” and “into memory” are additional features
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`added in claim 6 that would be rendered duplicative and redundant if also imported
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`into the term “boot data list.” And, the term “identify” is not used in the claims (or
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`in the specification). Accordingly, the claims do not support Realtime’s attempt to
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`limit “boot data list” as being “used to identify and load boot data into memory.”
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`Realtime also focuses heavily on the ’862 patent’s description of FIG. 7B.
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`POR, 17-20. However, Realtime itself recognizes that this description is merely
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`“one exemplary embodiment” of the ’862 patent. POR, 17. Realtime does not
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`sufficiently explain why the claimed boot data list should be limited to this
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`embodiment and, in fact, limiting the claims to the particular embodiment of FIG.
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`7B is inconsistent with the BRI standard. In re Van Geuns, 988 F.2d 1181, 1184
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`(Fed. Cir. 1993). Moreover, the embodiment of FIG. 7B does not even use the
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`terminology desired by Realtime or otherwise indicate that a boot data list must be
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`“used to identify and load boot data into memory.” APPLE-1001, 21:43-65. And,
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`similarly, the minimal description in the ’862 patent’s provisional application does
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`not support Realtime’s attempt to import limitations to the term boot data list.
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`3
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
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`REALTIME-2010, 58.
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`Additionally, Dr. Neuhauser’s testimony does not support Realtime’s
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`construction. As abundantly clear from the testimony quoted in the POR, Dr.
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`Neuhauser was not providing his understanding of the term boot data list, but,
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`instead, responding to Realtime’s specific question related to the embodiment of
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`FIG. 7B. POR, 18. And, similar to Realtime’s cites to the ’862 patent, Dr.
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`Neuhauser does not use the terminology desired by Realtime.
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`Finally, Realtime’s reference to the proposed District Court claim
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`construction misses the mark. Specifically, Apple’s proposed construction does
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`not align with Realtime’s desired construction and was offered under a narrower
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`claim construction standard than applied in this proceeding. And, under that
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`narrower standard, Realtime argued that boot data list “should be construed to have
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`its plain and ordinary meaning in view of the construction of ‘boot data,’” which
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`Realtime construed as “data related to the boot process.” REALTIME-2012, 1-3.
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`Realtime offers no explanation for why the term “boot data list” should be
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`construed broadly as its ordinary meaning under the narrower District Court
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`standard and, yet, construed narrowly to require its functional use under the
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`broader IPR standard. Because no explanation exists, Realtime should be held to
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`its prior admission that the term “boot data list” should be given its ordinary
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`meaning. Id.
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`4
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`With this background, Realtime attempts to improperly import limitations into
`
`the term “boot data list.” Because Realtime’s attempt is inconsistent with the BRI
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`standard and the description/claims of the ’862 patent, Realtime’s proposed
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`construction should not be adopted and the term “boot data list” should be given its
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`broadest reasonable ordinary meaning.
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`B. Non-Accessed Boot Data
`Realtime proposes that “[t]he term ‘non-accessed boot data,’…means ‘boot
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`data identified in the boot data list that was not requested during system boot-up.’”
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`POR, 20; REALTIME-2008, ¶¶55-60. As an initial matter, the term “non-accessed
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`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
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`standard, the intrinsic record does not functionally limit the term “non-accessed” to
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`“not requested” or temporally limit the term “non-accessed” to “during system boot-
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`up.” Rather, under BRI, a POSITA would have viewed the term “non-accessed boot
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`data” per its ordinary meaning as simply boot data that was not accessed. APPLE-
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`1003, ¶¶203-205.
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`Similar to the term “boot data list,” Realtime focuses heavily on the ’862
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`patent’s embodiment shown in FIG. 7B. POR, 20-23. Yet, here again, Realtime
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`does not sufficiently explain why the claimed non-accessed boot data should be
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`limited to this embodiment and, in fact, limiting the claims to the particular
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`5
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`embodiment of FIG. 7B is inconsistent with BRI. In re Van Geuns, 988 F.2d 1181,
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`1184 (Fed. Cir. 1993). In fact, the prosecution history consistently and explicitly
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`confirms that these examples from the specification are “non-limiting” examples of
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`non-accessed boot data. APPLE-1002 (Part 1), 156-157, 160-162. Indeed, the
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`prosecution history confirms that “[t]hese aforementioned features…are not to be
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`construed solely based upon this aforementioned passage in the Specification.” Id.
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`When the intrinsic record itself confirms that described embodiments are “non-
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`limiting” examples of a claim term, those examples should not be used to limit that
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`claim term under the BRI standard.
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`Further, the portion of the ’862 patent cited in Realtime’s POR and the
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`prosecution history as supporting “non-accessed boot data” includes references to a
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`“non-requested data block” “[d]uring the application launch process.” APPLE-
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`1001, 22:12-23:26; APPLE-1002 (Part 1), 156-157, 160-162. Thus, Realtime’s own
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`citations and statements contradict limiting non-accessed boot data to only data “not
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`requested during system boot-up.” Id. Indeed, adopting Realtime’s construction
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`would improperly exclude a specific embodiment (during application launch) that
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`Realtime cites now in support of its construction and also cited during examination
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`to show written description of the relevant term. Id.
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`With this background, Realtime attempts to improperly import limitations into
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`the term “non-accessed boot data.” Because Realtime’s attempt is inconsistent with
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`6
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`the BRI standard, the description/claims of the ’862 patent, and the prosecution
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`history, Realtime’s proposed construction should not be adopted and the term “non-
`
`accessed boot data” should be given its broadest reasonable ordinary meaning.
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`III. Applied Prior Art Renders “Updating the Boot Data List” Obvious
`A.
`Settsu Renders Obvious “Updating the Boot Data List”
`Realtime contends that each ground is defective because Petitioner’s
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`combinations fail to disclose claim 5’s “updating the boot data list,” and that Settsu
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`does not teach or suggest this limitation, because “any changes or updates to Settsu’s
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`functional module files does not change Settsu’s purported ‘boot data list.’” POR,
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`24. Realtime is mistaken.
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`Settsu discloses a boot data list in at least two ways: (1) lists of boot data that
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`are stored within the OS functional module files themselves; and (2) lists of boot
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`data that are referenced by mini OS module 7 in the course of booting the OS.
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`APPLE-1003, ¶¶77-86, 116; Petition, 17-30, 34.
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`As Dr. Neuhauser explained, “Settsu’s description renders obvious updating
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`both types of lists.” APPLE-1003, ¶117. For example, a POSITA “would have
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`understood that OS modules, such as Settsu’s, require updates when new, updated
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`code becomes available,” and further would have understood that, “to benefit from
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`such updates in Settsu’s system or simply to account for changes in user preference,
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`Settsu’s system updates the OS data stored in boot device 3.” Id. This would involve
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`7
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`updates to boot data lists in Settsu; “namely, updates to lists of boot data included
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`within OS functional module files stored in boot device 3, as well as updates to lists
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`of boot data, such as the function definition file 71 or the OS main body module 8.”
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`Id.
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`Settsu’s OS Files
`With respect to updates to lists of boot data included within OS functional
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`module files themselves, Realtime alleges that “no such list exists,” and that, as such,
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`“there would not have been any motivation to a POSITA to update that list, as
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`required by claim 5.” POR, 28.
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`Yet, as Dr. Neuhauser explained, “[b]ecause each electronic file includes a list
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`of data stored within the file, one of one of ordinary skill would have understood
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`that an OS functional module file stored on boot device 3 includes a list of data
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`necessary for starting the OS – a boot data list as described by the ’862 Patent.”
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`APPLE-1003, ¶ 78.
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`Realtime asserts that “a POSITA would have understood that the files in
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`Settsu…do not necessarily contain a list of their contents,” and that, “[m]ore
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`importantly, a POSITA would have understood that the files in Settsu to which
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`Apple and Dr. Neuhauser point – object files created when the OS is built or rebuilt
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`– do not contain a list of their contents.” POR, 27.
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`8
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`With this argument, Realtime attempts to sidestep Apple’s analysis by arguing
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`that a file does not necessarily include a separate, internal list of the file’s content.
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`POR, 25-27. However, Apple argued that Settsu’s files are themselves lists of boot
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`data and Realtime does not respond to this analysis.
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`Specifically, Realtime criticizes the definition of “file” cited by Apple, yet
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`offers an alternative definition that aligns with Apple’s definition and argument.
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`Specifically, Apple’s definition confirmed that a file is a “collection of information.”
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`APPLE-1014, 3. Similarly, Realtime’s definition states that “[a] file is a collection
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`of related information.” REALTIME-2012, 4. As Dr. Neuhauser explained, a list
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`is an obvious representation for a collection of information and, thus, Settsu’s OS
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`files represent lists of boot data. APPLE-1003, ¶¶77-79; APPLE-1031, 5:16-20;
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`APPLE-1032, 10:57-60, 12:16-21; APPLE-1033, Abstract.
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`Realtime’s expert, Dr. Back, does nothing to rebut Dr. Neuhauser’s opinion,
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`focusing instead on a separate, internal list, rather than the files themselves.
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`REALTIME-2008, ¶¶72-75. Because the only corroborated testimony on record
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`supports Apple’s analysis of Settsu’s OS files, Settsu’s files represent the claimed
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`boot data list. APPLE-1003, ¶¶77-79.
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`Further, Settsu’s FIG. 36 (below) illustrates that each of Settsu’s OS program
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`files are divided into mini OS and OS main body modules, and that these modules
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`9
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`each include header, code, and data portions. APPLE-1006, 23:48-24:62, FIGS. 34-
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`35.
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`
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`APPLE-1006, FIG. 12 (excerpt, annotated).
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`Settsu describes that the contents of the headers included in the files are used
`
`to search for code and data portions of these modules when loading those portions
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`into memory 2 during the boot process. APPLE-1006, 24:27-32 (“When booting
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`up..., the contents of the header 106 can be used to search through the OS program
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`file 105 for the code and data areas”). Thus, a POSITA would have understood that
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`Settsu’s OS functional module file stored on boot device 3 and preloaded into
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`10
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`memory 2 includes a list of data necessary for starting the OS – a boot data list as
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`described by the ’862 Patent.1
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`Thus, Realtime’s argument that “there would not have been any motivation to
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`a POSITA to update” lists of boot data included within Settsu’s OS functional
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`module files, which is premised on the notion that “no such list exists,” fails. Thus,
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`as Dr. Neuhauser confirms, Settsu’s description renders obvious updating these lists
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`of boot data. APPLE-1003, ¶117. Indeed, Realtime acknowledges that in updating
`
`Settsu’s operating system “some data may change” in Settsu’s OS module. POR,
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`29-30.
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`Settsu’s Lists of Modules
`With respect to updates to lists of boot data such as Settsu’s function
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`definition file 71 or OS main body module 8, Realtime alleges that, “[t]o the extent
`
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`1Realtime alleges that “a POSITA would not consider a header—a single entity—
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`to constitute a list.” POR, 28; REALTIME-2008, ¶74. Yet, a “header” is “[a]n
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`information structure that precedes and identifies the information that follows, such
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`as…a set of records…or an executable program,” and “[o]ne or more lines in a
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`program that identify and describe for human readers the program, function, or
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`procedure that follows.” APPLE-1043. Thus, headers in Settsu’s modules are lists
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`of boot data. APPLE-1006, 23:48-24:62, FIGS. 12, 34-35.
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`11
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`a POSITA would have considered Settsu’s function definition file 71…to be a
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`‘boot data list,’ such an omnibus list is not updated in Settsu’s system,” and that
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`“Apple has not identified any updates that could potentially implicate a change to
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`Settsu’s listing of OS modules.” POR, 28-30. Realtime adds that “a POSITA
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`would have understood that most, if not all, operating system updates would not
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`change the list of OS modules in Settsu’s system.” POR, 29.
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`Implicit in Realtime’s argument that “most…operating system updates
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`would not change the list of OS modules in Settsu’s system” is an acknowledgment
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`that there are operating system updates that would result in such updates. POR,
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`29. Indeed, and as Dr. Neuhauser explained, lists of OS modules, such as Settsu’s,
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`require updates when new modules become available (or old modules become
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`obsolete) and to accomplish these updates, updates to lists of boot data (such as
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`Settsu’s function definition file 71 or OS main body module 8) would need to be
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`made. APPLE-1003, ¶117; APPLE-1006, 5:39-51, 13:55-65, 14:44-52, 16:7-
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`17:62, FIGS. 12, 20(ST213).
`
`Likening Settsu’s function definition file to a “recipe for chicken pot pie,”
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`Realtime contends that a “baker may decide to add more carrots or use less dark
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`meat, but the seven ingredients that end up in the pie never change.” POR, 30.
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`However, just as a chef might add, subtract, or alter ingredients in a chicken pot
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`pie (e.g., replacing dark meat with white meat, or carrots with corn), a POSITA
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`12
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`would have understood that operating system updates might result in addition,
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`subtraction, or alteration of specific OS modules within Settsu’s system, and that
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`these changes, in turn, would result in changes to listings of modules included with
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`function definition file 71 or OS main body module 8. APPLE-1003, ¶117.
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`B.
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`Settsu and Zwiegincew Also Render Obvious “Updating the Boot
`Data List”
`Importantly, Realtime does not dispute that Zwiegincew’s scenario files
`
`include lists of data or that these lists in the scenario files are updated. POR, 31-36.
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`Rather, Realtime alleges that a “POSITA would not have thought to use
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`Zwiegincew’s teachings relating to hard page faults to Settsu’s boot context.” POR
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`31; REALTIME-2008, ¶¶82-90. With this premise, Realtime’s argument against
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`Zwiegincew primarily focuses on Zwiegincew’s scenario files as not being
`
`applicable to boot. POR, 31-36. However, Zwiegincew explicitly describes that
`
`“[s]trategically ordering pages…tends to work best” in situations, such as “boot.”
`
`APPLE-1010, 2:12-15. As Dr. Neuhauser explained, because Zwiegincew’s
`
`scenario files are “ordered copies of pages,” a POSITA would have found it obvious
`
`that Zwiegincew’s scenario files are useful during “boot,” a process where
`
`Zwiegincew itself recognized that page ordering “tends to work best.” APPLE-
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`1003, ¶¶119-121; APPLE-1010, 2:12-15.
`
`Dr. Back attempts to rebut this argument by testifying that “Zwiegincew’s
`
`techniques require the presence of a functioning operating system in order to work.”
`
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`13
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`REALTIME-2008, ¶82. Dr. Back, however, provides no citations to Zwiegincew or
`
`additional evidence to support his opinion. Id. And, in addition to being
`
`uncorroborated, Dr. Back is incorrect, as evidence shows scenario files, such as
`
`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
`
`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 that is updated. APPLE-1003, ¶¶119-121.
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`Despite Zwiegincew’s clear description of “boot” as an exemplary hard page
`
`fault scenario in which bottlenecks might occur, Realtime still contends that
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`“Zwiegincew does not describe, or relate to, improving boot speed or prefetching
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`pages expected during the boot process.” POR, 32. Realtime suggests that
`
`“[o]verall, a POSITA would have understood that Zwiegincew is not concerned with
`
`and does not recognize a problem with boot speed due to hard page faults during the
`
`boot process.” POR, 34. Regardless of whether Zwiegincew’s “overall” description
`
`relates to boot, Zwiegincew specifically recites “boot” as an example of a hard page
`
`fault scenario, and a POSITA would therefore have understood that Zwiegincew’s
`
`pre-fetching techniques could be applied during the boot process in order to reduce
`
`the occurrence of hard page faults during that process, thereby improving boot speed.
`
`
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`14
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`APPLE-1003, ¶¶ 87-90; APPLE-1010, Abstract, 1:45-51, 1:5-3:55, 2:12-15, 5:50-
`
`51, 8:66-9:13, FIGS. 1, 2.
`
`With this background, by its description of a scenario file and of updating a
`
`scenario file, Zwiegincew renders obvious a boot data list, and updating a boot data
`
`list. Petition, 35-37, 55-60; APPLE-1003, ¶¶87-90, 119-122, 199-208. Indeed, and
`
`as Dr. Neuhauser explained, a POSITA “would have recognized that…a scenario
`
`file used in the context of preventing hard page faults during boot is a form of boot
`
`data list”; “[s]pecifically, because the scenario file includes copies of, or references
`
`to, data used during the boot process, the scenario file includes a list of data
`
`associated with data requests expected to result from a system power-on/reset (i.e.,
`
`boot data).” APPLE-1003, ¶90.
`
`Thus, as explained by Dr. Neuhauser, Zwiegincew’s scenario file corresponds
`
`to the claimed boot data list, and Realtime’s allegation that “Zwiegincew’s
`
`techniques require the presence of a functioning operating system in order to work”
`
`is mistaken. Petition, 35-37, 55-60; APPLE-1003, ¶¶119-122, 199-208; POR, 32.
`
`Realtime further alleges that “Zwiegincew’s page swapping method, which
`
`requires an initialized virtual memory manager, is antithetical to Settsu’s teachings.”
`
`POR, 35. Realtime, however, provides no evidence to support this proposition, other
`
`than citation to Settsu’s mention of a “virtual memory processing module.” Id.
`
`Although Settsu includes a “virtual memory processing module,” Settsu does not
`
`
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`15
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`describe that its virtual memory processing module is necessary to implement page
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`preloading techniques of Zwiegincew and Realtime does not provide evidence to
`
`support its conclusion. And, even assuming Realtime is correct, Realtime does not
`
`consider the benefit of using Zwiegincew’s techniques for the remainder of the boot
`
`process after Settsu’s “virtual memory processing module” has loaded or a
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`POSITA’s ability to modify Settsu to implement Zwiegincew’s page preloading
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`during boot. In any event, Realtime is incorrect, as evidence confirms that loading
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`pages from scenario files, such as Zwiegincew’s, is possible and useful during
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`operating system boot. APPLE-1038, Abstract, 2:65-3:16, 11:59-12:4, 14:20-43.
`
`Finally, Realtime offers a conclusory and limited view that Zwiegincew’s
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`“pattern recognition technique” would not result in updates to boot data lists in
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`Settsu. POR, 36. However, as Dr. Neuhauser explained, Zwiegincew’s method of
`
`refining its scenario file would have motivated a POSITA to update Settsu’s boot
`
`data lists—either the lists of boot data stored within the OS module files themselves
`
`or the function definition file—based on patterns of requests received during the
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`boot process. Petition, 35-37, 55-60; APPLE-1003, ¶¶119-122, 199-208.
`
`IV. Applied Prior Art Renders Obvious “Disassociating Non-Accessed Boot
`Data from the Boot Data List” (Claim 98)
`First, Realtime attempts to confine Apple’s analysis of “disassociating non-
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`accessed boot data” to Zwiegincew’s disclosure at 6:20-25. POR, 37. The
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`Petition, however, references much more disclosure from Zwiegincew and relies
`
`
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`16
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`on Zwiegincew’s automatic generation and refinement of scenario files based on
`
`pattern recognition, to ensure that pages corresponding to faults that re-occur
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`frequently are included. Petition, 58-59. Indeed, as Dr. Neuhauser explained,
`
`Zwiegincew’s pattern recognition automatically generates scenario files with pages
`
`most likely to be accessed and then refines scenario files to include pages
`
`corresponding to faults that re-occur frequently while removing pages
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`corresponding to faults that do not re-occur frequently. APPLE-1003, ¶¶203-205.
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`With this technique, Zwiegincew generates/refines scenario files by associating
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`frequently-accessed pages (i.e., pages corresponding to faults that re-occur
`
`frequently) and disassociating infrequently-accessed or non-accessed pages (i.e.,
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`pages corresponding to faults that do not re-occur frequently). Id.
`
`Realtime attempts to divert attention from these arguments by focusing on
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`Zwiegincew 6:20-25. As part of Realtime’s diversion, Realtime incorrectly
`
`attempts to construe Dr. Neuhauser’s deposition as testimony that “the cited
`
`passage [Zwiegincew, 6:20-25] does not address Zwiegincew’s scenario file.”
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`POR, 37; REALTIME-2011, 150:8-17. However, the testimony found at
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`Realtime’s citation to the deposition transcript does not refer to Zwiegincew or
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`relate to Realtime’s argument at all. Id. And, Dr. Neuhauser’s other testimony
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`confirms that Zwiegincew’s “virtual memory manager…plays into the scenario
`
`files,” and that, although “scenario files aren't mentioned there,” “if you read the
`
`
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`17
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`Proceeding No.: IPR2016-01739
`Attorney Docket: 39521-0025IP3
`whole patent you realize that the virtual memory manager is working with the
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`scenario files.” REALTIME-2011, 179:1-6.
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`Thus, Realtime’s diversion fails and, as Dr. Neuhauser explained, a POSITA
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`would have properly considered Zwiegincew 6:20-25 is assessing how scenario
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`files are refined based on pattern recognition. APPLE-1003, ¶¶203-205. In fact, a
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`POSITA would have found it logical that, in refining scenario files, “requested
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`pages are swapped with less used pages in the RAM 220” such that “the least
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`recently used pages are” removed from the scenario file in RAM. Id.
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`After this failed diversion, Realtime reverts back to its argument that
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`Zwiegincew does not relate to boot. POR,
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