UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`BMW OF NORTH AMERICA, LLC,
`
`Petitioner
`
`v.
`
`STRAGENT, LLC
`
`Patent Owner
`
`____________
`
`Case No. IPR2017-00676
`
`U.S. Patent No. 8,209,705
`
`Title: SYSTEM, METHOD AND COMPUTER PROGRAM PRODUCT FOR
`SHARING INFORMATION IN A DISTRIBUTED FRAMEWORK
`____________
`
`DECLARATION OF VIJAY K. MADISETTI, PH.D.
`IN SUPPORT OF PETITIONER’S REPLY TO
`PATENT OWNER RESPONSE
`
`Page 1 of 30
`
`BMW v. STRAGENT
`IPR2017-00676
`BMW EXHIBIT 1026
`
`

`

`TABLE OF CONTENTS
`
`I.
`INTRODUCTION...................................................................................... 1
`II. MATERIALS REVIEWED........................................................................ 1
`III. LEGAL STANDARDS .............................................................................. 3
`IV. CLAIM CONSTRUCTION........................................................................ 4
`A.
`“real-time”........................................................................................ 5
`B.
`“in real-time, sharing the information utilizing at least one message
`format corresponding to a second network protocol associated with a
`second network which is different from the first network protocol” . 5
`“storage resource manager”.............................................................10
`C.
`“schedule” .......................................................................................10
`D.
`V. OPINIONS................................................................................................10
`A.
`Staiger discloses “in real-time, sharing the information utilizing at
`least one message format corresponding to a second network protocol
`associated with a second network which is different from the first
`network protocol” of [1.7] ...............................................................10
`Staiger discloses “a first interface-related second layer part, the first
`interface-related first layer messages being processed after which
`first interface-related second layer messages are provided” of [1.9]
`and “a second interface-related second layer part, the second
`interface-related first layer messages being processed after which
`second interface-related second layer messages are provided” of
`[1.10]...............................................................................................13
`OSEK/VDX discloses “causing a determination as to whether a
`storage resource is available” of limitation [1.2]..............................17
`D. OSEK/VDX discloses “in the event the storage resource is not
`available, determining whether a timeout has been reached and
`causing a re-request in connection with the storage resource if the
`
`C.
`
`B.
`
`
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`Page 2 of 30
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`

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`E.
`
`timeout has not been reached” of limitation [1.3] ............................20
`OSEK/VDX discloses “in real-time, sharing the information utilizing
`at least one message format corresponding to a second network
`protocol associated with a second network which is different from
`the first network protocol” of limitation [1.7]..................................23
`VI. CONCLUSION .........................................................................................26
`
`
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`Page 3 of 30
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`

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`I, Vijay K. Madisetti, Ph.D., hereby declare and state as follows:
`
`I.
`
`INTRODUCTION
`My name is Dr. Vijay K. Madisetti, and I submitted an expert
`1.
`
`declaration (Exhibit 1003) in this proceeding on January 18, 2017. My
`
`qualifications and compensation have been disclosed in Exhibit 1003.
`
`2.
`
`I submit this declaration to offer my independent expert opinion in
`
`support of BMW of North America, LLC (“BMW” or “Petitioner”) in its Reply to
`
`Patent Owner Response for inter partes review (“Petition”) of U.S. Patent No.
`
`8,209,705 (“the ’705 patent”) in the current proceeding.
`
`3.
`
`I also provide my opinions in response to certain positions taken by
`
`Stragent, LLC (“Stragent” or “Patent Owner”) in its Patent Owner Response. My
`
`opinions in this declaration are presented in addition to my opinions in my
`
`previous declaration. This declaration does not replace, modify, or withdraw any of
`
`my earlier opinions and analyses offered in this proceeding.
`
`II. MATERIALS REVIEWED
`In forming my opinions, I have reviewed the materials listed in my
`4.
`
`previous declaration (Exhibit 1003) and the following materials and any other
`
`materials I identify in this declaration or in my previous declaration:
`
`(cid:120) Institution Decision
`
`(cid:120) Stragent, LLC’s Patent Owner Response
`
`1
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`Page 4 of 30
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`

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`(cid:120) Exhibit 2001: Declaration of Jeffery A. Miller
`
`(cid:120) Exhibit 2002: CV of Jeffery A. Miller
`
`(cid:120) Exhibit 2003: Excerpt of Merriam-Webster’s Collegiate Dictionary
`
`(cid:120) Exhibit 2004: Excerpt of Computer Dictionary
`
`(cid:120) Exhibit 2005: Excerpt of Webster’s New World Computer Dictionary
`
`(cid:120) Exhibit 1019: Declaration of Jeffery A. Miller in IPR2017-00458
`
`(cid:120) Exhibit 1020: SAE Paper 2000-01-0146, Current Vehicle Network
`Architecture Trends-2000
`
`(cid:120) Exhibit 1021: SAE Paper 2002-02-0437, Time-Triggered
`Communication on CAN
`
`(cid:120) Exhibit 1022: ISO 11898-2, Road vehicles - Controller area network
`(CAN) - Part 2: High-speed medium access unit
`
`(cid:120) Exhibit 1023: ISO 11898-3, Road vehicles - Controller area network
`(CAN) - Part 3: Low-speed, fault-tolerant, medium-dependent
`interface
`
`(cid:120) Exhibit 1024: U.S. Patent No. 5,379,405
`
`(cid:120) Exhibit 1025: Transcript of Jeffery A Miller’s deposition on
`December 1, 2017
`
`2
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`Page 5 of 30
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`

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`III. LEGAL STANDARDS
`In this declaration, I have applied my understanding of the legal
`5.
`
`standards for claim construction, anticipation and obviousness as I described in ¶¶
`
`44-56 of my previous declaration, Exhibit 1003.
`
`6.
`
`I have been told that in proceedings before the USPTO, the claims of
`
`an unexpired patent are to be given their broadest reasonable interpretation in view
`
`of the specification from the perspective of one skilled in the art. I understand that
`
`in this inter partes review proceeding, the intrinsic evidence, such as patent
`
`specification and prosecution history, carries more weight than extrinsic evidence
`
`such as a dictionary. For purposes of this petition, I have been asked to render an
`
`opinion on the term “in real-time, sharing the information utilizing at least one
`
`message format corresponding to a second network protocol associated with a
`
`second network which is different from the first network protocol,” which I
`
`understand Patent Owner proposed to construe in their Response. I have applied
`
`the broadest reasonable interpretation standard in rendering my opinion stated in
`
`this declaration. For those terms that have not expressly been construed, I have
`
`applied the broadest reasonable interpretation of the claim terms of the ’705 patent
`
`that is generally consistent with the terms’ ordinary and customary meaning, as one
`
`skilled in the relevant field would have understood them.
`
`3
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`Page 6 of 30
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`7.
`
`As I explained in my previous declaration, a person of ordinary skill
`
`in the art (POSITA) at the time the ’705 patent (December 2002) was filed would
`
`have a bachelor’s degree in electrical engineering, computer engineering, or a
`
`related engineering discipline and at least two years of industry experience in the
`
`field of distributed computing or automotive engineering, or equivalent experience,
`
`education, or both. The person would also have knowledge or familiarity with in-
`
`vehicle computing.
`
`8.
`
`Based on my education, training, and professional experience in the
`
`field of the claimed invention, I am familiar with the level and abilities of a person
`
`of ordinary skill in the art at the time of the claimed invention. I have technically
`
`supervised or worked with such individuals in the relevant time frame and I,
`
`myself, also met at least these minimum qualifications in this relevant time frame.
`
`I meet these qualifications today, as well.
`
`IV. CLAIM CONSTRUCTION
`Unless otherwise noted, my opinions in this declaration are consistent
`9.
`
`with the broadest reasonable interpretation of the claims to a person of ordinary
`
`skill in the art when the application leading to the ’705 patent was filed.
`
`10.
`
`I understand that for purposes of institution, the Board construed only
`
`one term “real-time” and did not find it necessary to construe other terms.
`
`Institution Decision, p. 9. I understand that Patent Owner is additionally seeking to
`
`4
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`construe the entire limitation [1.7], i.e., “in real-time, sharing the information
`
`utilizing at least one message format corresponding to a second network protocol
`
`associated with a second network which is different from the first network
`
`protocol.”
`
`A.
`11.
`
`“real-time”
`I understand that for purposes of institution, the Board determined that
`
`the broadest reasonable interpretation of “real-time” is “responses that occur in less
`
`than one second.” Institution Decision, p. 9.
`
`It is my understanding that Patent
`
`Owner construed “real time” to mean “any response time that may be measured in
`
`milli- or microseconds, and/or is less than 1 second.” Response, 16. I agree with
`
`the Board’s construction for reasons presented in my previous declaration, and in
`
`my opinion, the distinction between the Board’s construction and Patent Owner’s
`
`construction is not material to any grounds.
`
`“in real-time, sharing the information utilizing at least one
`B.
`message format corresponding to a second network protocol associated
`with a second network which is different from the first network
`protocol”
`I understand that Patent Owner seeks to construe limitation [1.7] as
`12.
`
`“can only mean that the method has received a first message in a ‘first network
`
`protocol associated with a first network’ (element 1.1), has then delivered that
`
`‘first network message’ to storage, where the ‘first network message’ is partaken
`
`of, used, experienced or occupied (that is ‘shared’) with a second network by way
`
`5
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`

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`of a second network protocol which is different from the first network protocol,
`
`and that the entire process is conducted ‘in milli- or microseconds, and/or is less
`
`than 1 second.’” Response, 16-17.
`
`13.
`
`I do not agree with Patent Owner’s proposed construction of [1.7]
`
`because, in my opinion, it is not the broadest reasonable interpretation of the
`
`claims.
`
`14.
`
`In my opinion, the term “real-time” should be construed as “responses
`
`that occur in less than one second,” consistent with the Board’s decision, and
`
`limitation [1.7] should be given its broadest reasonable interpretation that is
`
`consistent with its ordinary and customary meaning, in view of the meaning of
`
`“real-time” as construed.
`
`15.
`
`In my opinion, Patent Owner’s construction of limitation [1.7] does
`
`not fall within the scope of the plain claim language. For example, nowhere in
`
`limitation [1.7] recites “receiving” a first network message. Nor does it recite any
`
`“storage,” much less “delivering” a first network message to storage. See Ex.
`
`1025, p. 50, ll. 4-8 (Patent Owner’s expert, Dr. Miller agreeing that [1.7] does not
`
`recite “storage”). Limitation [1.7] does not require or imply where the information
`
`should be shared from. Instead, the plain language of limitation [1.7] only requires
`
`“sharing the information utilizing at least one message format,” where the
`
`“message format correspond[s] to a second network protocol associated with a
`
`6
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`second network which is different from the first network protocol,” and where the
`
`“sharing” occurs “in real-time.”
`
`16.
`
`In my opinion, Patent Owner’s construction of limitation [1.7] is also
`
`inconsistent with the disclosure of the ’705 specification. Specifically, in the ’705
`
`specification, embodiments disclosed state that “information is shared, in real-time,
`
`amongst a plurality of heterogeneous processes” Ex. 1001, 1:30-34. A POSITA at
`
`the time of the invention would understand that the ’705 specification discloses
`
`information sharing between or amongst processes, and would not require the
`
`inclusion of receiving any information from a first network within the real-time
`
`constraint.
`
`17.
`
`The ’705 specification also discloses that “past” instances of
`
`information may be stored on the bulletin board. This information may be
`
`replicated (or shared) amongst a plurality of bulletin boards. Ex. 1001, 1:34-50. In
`
`my opinion, one of ordinary skill in the art would understand that “past”
`
`information refers to information that may have been received at some time in the
`
`past, and provides additional confirmation that “in real-time, sharing” does not
`
`include “receiving information and storing it and sharing it in real-time.” Further,
`
`Figures 13 and 14 of the ’705 patent, along with related portions of the
`
`specification disclose that the data replication process (1400) can be triggered by a
`
`variety of notification mechanisms, including events, alarms, timers and flags. Id.
`
`7
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`at 9:25-34. In my opinion, based on this disclosure, one of ordinary skill in the art
`
`would further understand that sharing does not require receiving an input message
`
`from a first network.
`
`18.
`
`In addition, a person of ordinary skill in the art would appreciate that
`
`the ’705 patent discloses methods for sharing the information other than delivering
`
`the information to storage and sharing it from the storage. For example, the ’705
`
`specification discloses embodiments for “information sharing” without storage on
`
`a bulletin board. The disclosed “horizontal information sharing in a hierarchical
`
`system” where output variables generated by an ECU are output to local actuators,
`
`which are connected via discrete signal lines (physical layer interfaces) or
`
`networked actuators connected via a multiplexing bus. See Ex. 1001, 3:50-58; see
`
`also id. at 7:38-49 (“In an alternate embodiment of the remote message
`
`communication process (706) any remote process can access data via a single
`
`network interface . . . To communicate between two heterogeneous networks, this
`
`process may then be repeated in reverse by adding back the header information for
`
`the various layers of the second network, and eventually putting the message onto
`
`the second network’s physical link.”) (emphasis added). I understand that Dr.
`
`Miller testified that, while construing the term, he only considered one
`
`embodiment, but not the “alternate embodiment” of sharing. Ex. 1025, p. 128, ll.
`
`12-25 (Q. Did you list this sentence between line 38 and 40 of Colum 7 in the . . .
`
`8
`
`Page 11 of 30
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`Patent as one of the six parts that support your construction in your Declaration
`
`between page 11 and 13? . . . A. No, it doesn’t look like it.”) In my opinion, Patent
`
`Owner’s proposed construction of [1.7] limits sharing to only certain embodiments
`
`of the ’705 patent, namely, sharing from a storage such as a bulletin board. It fails
`
`to read on other embodiments of the ’705 patent that share information not using a
`
`shared storage. In my opinion, a claim construction that is not broad enough to
`
`cover an embodiment the patent itself discloses cannot be the broadest reasonable
`
`interpretation from the perspective of one skilled in the art.
`
`19.
`
`I understand that Dr. Miller, Patent Owner’s expert, in his deposition,
`
`explained that he included “delivering the first network message to storage” as part
`
`of the construction of [1.7] because “putting it into storage is one form of sharing.”
`
`Ex. 1025, p. 45, l. 14 - p. 46. l. 2. I understand Dr. Miller admitted that using a
`
`bulletin board or a shared storage is not “the only way to share information,” in
`
`light of the ’705 patent, and in fact, “there’s two embodiments [of sharing]
`
`described” in the ’705 patent. Id. at p. 46, l. 21 - l. 49, p. 20. I understand Dr.
`
`Miller further admitted that “there [are] other way information can be shared,”
`
`such as “talk[ing].” Id. at p. 46, ll. 4-12. I understand that it is improper to limit
`
`the meaning of [1.7] to a particular form of “sharing” while other forms are
`
`disclosed in the patent or known to a POSITA.
`
`9
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`20.
`
`Accordingly,
`
`it
`
`is my opinion
`
`that Patent Owner’s proposed
`
`construction of limitation [1.7] is not the broadest reasonable interpretation for the
`
`term for the reasons above and stated in my previous declaration.
`
`C.
`21.
`
`“storage resource manager”
`I understand the Board decides that this term does not require
`
`construction. To the extent the term is construed, for the reasons stated in my
`
`previous declaration, its broadest reasonable interpretation is hardware or software
`
`that controls interaction with the storage resource. See Ex. 1001, 6:11-21.
`
`D.
`22.
`
`“schedule”
`I understand the Board decides that this term does not require
`
`construction. To the extent the term is construed, for the reasons stated in my
`
`previous declaration, its broadest reasonable interpretation is “a procedural plan
`
`that indicates the time and sequence of each operation,” as defined by Merriam-
`
`Webster’s Collegiate Dictionary in the context of a program. Ex. 1016, 5.
`
`V.
`
`OPINIONS
`A.
`Staiger discloses “in real-time, sharing the information utilizing at
`least one message format corresponding to a second network protocol
`associated with a second network which is different from the first
`network protocol” of [1.7]
`I understand Patent Owner argues that “Staiger does not disclose
`23.
`
`limitation 1.7,” because paragraph 51 “to which Petitioner cites . . . refers to
`
`10
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`multiplexing.”
`
`Response, 29-30.
`
`I do not agree with Patent Owner’s
`
`characterization of Staiger for the following reasons.
`
`24.
`
`First, Patent Owner argues the distinction between “multiplexing”
`
`and “sharing,” while the ’705 patent itself discloses “multiplexing” as an
`
`embodiment of “sharing.” Id. For example, the ’705 patent discloses that
`
`information can be shared by multiplexing in a system. Ex. 1001, 3:46-59 (“ECUs
`
`(102) typically share information with devices that are connected on the same
`
`physical multiplexing system”), Figure 8, and 7:53-58 (“the core process of storing
`
`data from remote processes
`
`that are communicated
`
`through multiplexed
`
`communication links, into the bulletin board is described”). Because the ’705
`
`patent describes “multiplexing” as one embodiment of “sharing,” in my opinion,
`
`Staiger’s disclosure of “multiplexing” falls squarely within the scope of [1.7].
`
`Furthermore, in my opinion, even if [1.7] is construed as delivering information to
`
`storage and sharing information from that storage, as Patent Owner proposes,
`
`Staiger still discloses [1.7]. For example, Staiger discloses the intercommunication
`
`processor 200 processes and stores messages from the network interfaces to 207
`
`and 208 through the use of a bulletin board prior to sending over the networks
`
`connected to the CAN bus (202-205), since all messages would be processed
`
`through 239 (the storage area) within intercommunication processor 200. Ex. 1004,
`
`¶ 51, Figure 2. Staiger then discloses that the message from CPUs 207 and 208
`
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`can be sent to one of the different CAN bus networks (202 to 205) through use of
`
`the intercommunication processor 200. Id. Specifically, Staiger discloses that “the
`
`message is multiplexed by the switchboard 201 to the intercommunication
`
`preprocessor 200, then, the intercommunication preprocessor 200 processes the
`
`message and initiates immediate distribution.” Id. Accordingly to Staiger, CPU’s
`
`207 and 208 provide connections to different networks and bus systems, such as
`
`FireWire, IEEE 1394, or MOST for example, and CAN buses 202-205 may be
`
`CAN-C or CAN-B buses which are themselves different and heterogeneous
`
`networks. Id. at ¶¶ 36, 38.
`
`12
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`25.
`
`I understand, Dr. Miller agreed during his deposition that Staiger
`
`discloses CAN busses 202-205 are connected to different network protocols from
`
`those protocols busses 210 and 211 are connected to, and these network protocols
`
`use different message formats. See Ex. 1025, p. 66, l. 21 - p. 68, l. 13. He also
`
`admitted that the Staiger busses 202-205, 210, and 211 can receive and send
`
`messages. Id. at p. 69, ll. 19-21. Along with Staiger’s disclosure that “message
`
`generated by one of CPUs 207 and 208 has to be broadcasted to CAN busses 202-
`
`205,” I understand Dr. Miller agreed that Staiger discloses messages received from
`
`busses 210-211 can be shared with CAN busses 202-205 through bus adaptors
`
`214-217. Id. at p. 73, ll. 3-10.
`
`26.
`
`Therefore, in my opinion, a person of ordinary skill in the art would
`
`recognize that Staiger discloses sharing information associated with a first network
`
`protocol utilizing a message format corresponding to a second network protocol,
`
`even under the Patent Owner’s overly narrow interpretation of [1.7].
`
`Staiger discloses “a first interface-related second layer part, the
`B.
`first interface-related first layer messages being processed after which
`first interface-related second layer messages are provided” of [1.9] and
`“a second interface-related second layer part, the second interface-
`related first layer messages being processed after which second
`interface-related second layer messages are provided” of [1.10]
`I understand that Patent Owner asserts that although Petitioner
`27.
`
`identified the “first interface-related first layer part” and “second interface-related
`
`second layer part,” Petitioner allegedly failed to “point to anything that shows a
`
`13
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`‘second layer part,’ where the first layer messages are “processed” to provide
`
`‘second layer messages.’” Response, 33.
`
`I do not agree with Patent Owner’s
`
`characterization of the claim limitations or Staiger for the following reasons.
`
`28.
`
`First, it is my opinion that Patent Owner’s reading strains the claim
`
`language and is inconsistent with the ’705 patent. For example, Patent Owner
`
`admits that CAN bus adapters 214-217 can be considered “a first interface portion
`
`for interfacing with the first network, the first interface portion including a first
`
`interface-related first layer part for receiving first interface-related first layer
`
`messages.” Response, 32-33. However, Patent Owner alleges that Staiger does
`
`not disclose a “second layer part,” where the first layer messages are “processed”
`
`to provide “second layer messages.” Response, 33. To Patent Owner, Staiger does
`
`process information, but it is only to convey the information by way of the
`
`multiplexer. Id.
`
`29.
`
`However, in my opinion, limitations [1.9] and [1.10] only require that
`
`the first/second interface-related first layer messages are processed and the
`
`first/second interface-related second layer messages are provided afterwards. The
`
`claim languages do not specify where the first layer messages are processed, or
`
`which components provide the second layer messages. I understand, during his
`
`deposition, Dr. Miller also admitted that the limitations do not specify “where” the
`
`messages are processed, only “when.” See Ex. 1025, p. 87, ll. 6-9 (“I’m not sure if
`
`14
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`it says ‘where.’ It says ‘when.’”) Therefore, in my opinion, Patent Owner’s
`
`interpretations of [1.9] and [1.10] do not comply with the broadest reasonable
`
`interpretation standard.
`
`30.
`
`Further, even if [1.9] and [1.10] should be narrowly interpreted to
`
`require that the first/second interface-related first layer messages are processed to
`
`provide the second layer messages, as Patent Owner proposes, Staiger still
`
`discloses [1.9] and [1.10].
`
`31.
`
`As Patent Owner agrees, Staiger’s CAN bus adapters 214-217 include
`
`“a first interface portion” and “a second interface portion.” Response, 32-33.
`
`Staiger further discloses that “[t]he bus adapters 214 to 217 might be formed by
`
`standardized CAN controllers providing connections to the respective CAN busses
`
`202 to 205 via CAN-C or CAN-B physical layers.” Ex. 1004, ¶ 38. In my
`
`opinion, a POSITA would know that a standardized CAN controller can process
`
`messages it receives. Indeed, according to the CAN international standards (ISO
`
`11898 standards), any standardized CAN controller should support at least two
`
`layers – the Data Link Layer and the Physical Layer, both have data processing
`
`functions. Ex. 1023, Figure 1 (reproduced below).
`
`15
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`32.
`
`Thus, in my opinion, Staiger discloses “a first interface-related second
`
`layer part, the first interface-related first layer messages being processed after
`
`which first interface-related second layer messages are provided” recited in
`
`limitation [1.9] and “a second interface-related second layer part, the second
`
`interface-related first layer messages being processed after which second interface-
`
`related second layer messages are provided” recited in limitation [1.10].
`
`33.
`
`Patent Owner also contends
`
`that Millsap’s “digital-to-analog
`
`converter does not provide a first interface-related second layer message as
`
`required,” to support its theory that Staiger, in combination with Millsap and
`
`Wong, still fails to disclose [1.9] and [1.10]. I also disagree. In my opinion, it is
`
`known to a POSITA at the time of the invention of the ’705 patent that a digital-to-
`
`16
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`

`analog converter processes digital signals into analog signals, and therefore can
`
`process the first layer message into the second layer message. I understand that
`
`Dr. Miller also agreed. Ex. 1025, p. 85, l. 22 - p. 86. l. 11 (“Q. Would you agree
`
`that the conversion between a digital signal to an analog signal can be viewed as
`
`processing the signal? A. Sure.”) Therefore, in my opinion, Staiger, in combination
`
`with Millsap and Wong, discloses “a first interface-related second layer part, the
`
`first interface-related first layer messages being processed after which first
`
`interface-related second layer messages are provided” and “a second interface-
`
`related second layer part, the second interface-related first layer messages being
`
`processed after which second interface-related second layer messages are
`
`provided.”
`
`34.
`
`Accordingly, in my opinion, Staiger anticipates [1.9] and [1.10], and
`
`Staiger in view of Millsap and Wong renders [1.9] and [1.10] obvious, for reasons
`
`stated above and in my previous declaration.
`
`OSEK/VDX discloses “causing a determination as to whether a
`C.
`storage resource is available” of limitation [1.2]
`I understand that Patent Owner asserts that OSEK/VDX does not
`35.
`
`disclose “causing a determination as to whether a storage resource is available,”
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`because in OSEK/VDX, “[n]odes in the logical ring therefore determine the status
`
`of other network nodes based on messages received from them, not transmitted to
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`them.” Response, 45-46 (emphasis original). I do not agree with Patent Owner’s
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`characterization of the claim limitations or OSEK/VDX for the following reasons.
`
`36.
`
`In my opinion, Patent Owner fails to apply the broadest reasonable
`
`interpretation of limitation [1.2] while analyzing the disclosure of limitation [1.2].
`
`Specifically, Patent Owner misreads
`
`limitation [1.2]
`
`to require
`
`that
`
`the
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`determination must be made by a node based on messages transmitted to them, a
`
`meaning that is not in the plain and ordinary meaning of limitation [1.2]. Quite the
`
`opposite, limitation [1.2] does not state where the determination is made, or how
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`the determination is made. See Ex. 1025, p. 107, ll. 8-17 (Dr. Miller agreeing that
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`[1.2] does not require how the determination is made).
`
`It is my opinion that
`
`making a determination of the availability of another node based on messages
`
`received from that node falls within the scope of limitation [1.2].
`
`37.
`
`In my opinion, OSEK/VDX discloses “causing a determination as to
`
`whether a storage resource is available” of limitation [1.2]. The OSEK
`
`specification, for instance, discloses that each node causes a determination via
`
`monitoring for certain conditions as to whether storage resources on other nodes
`
`are available (whether the nodes function correctly. Ex. 1008, 18 (“A periodical
`
`message . . . provides a ‘heart-beat’ for an ECU, which allows other ECUs to
`
`determine that it is functioning correctly.”) The OSEK specification discloses that
`
`communications deadlines are monitored both on the sender’s side and also on the
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`receiver’s side. Id. at 38 (emphasis added). Thus a determination of the resource
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`availability or not is made on the presence and absence of these periodical
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`messages. Id. Specifically, OSEK specification discloses that “[a] monitoring
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`node is able to distinguish 2 states of a monitored node,” e.g., node present if
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`specific NM message received (alive or ring), and node absent if specific NM
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`message not received during time-out. Ex. 1009, 9-10. OSEK specification also
`
`discloses that “[a] monitoring node is able to distinguish 2 states of itself,” e.g.,
`
`present or not mute if specific NM message transmitted (alive or ring), or absent or
`
`mute if specific NM message not transmitted during time-out. Id. at 10. Therefore,
`
`in my opinion, a POSITA would understand OSEK/VDX discloses
`
`the
`
`determination as to whether a resource is available or not depending on the receipt
`
`and transmission of messages.
`
`38.
`
`I understand that Dr. Miller, during his deposition admitted that
`
`OSEK/VDX discloses the monitoring node does make a determination as to the
`
`presence of the monitored node based on whether an NM message is received. Ex.
`
`1025, p. 111, ll. 15-19 (“Q. Do you agree that monitoring node can make a
`
`determination as to the presence of the monitored node based on whether an NM
`
`message is received from the monitored node? A. That’s true.”) In my opinion,
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`that example of OSEK/VDX alone discloses [1.2]. I also understand that Dr.
`
`Miller testified that in his opinion a monitoring node is not able to tell whether
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`itself is present based on whether an NM message is transmitted, because he
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`believed that “a person can’t tell if he’s dead.” Id. at p. 114, l. 5 - p. 115, l. 2.
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`However, Dr. Miller’s testimony directly contradicts with OSEK/VDX, which
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`explicitely discloses that “[a] monitoring node is able to distinguish 2 states of
`
`itself,” present or absent, based on if specific NM message is transmitted. Ex.
`
`1009, 9-10.
`
`39.
`
`Accordingly, OSEK/VDX, in my opinion, discloses limitation [1.2]
`
`for the reasons stated above and in my previous declaration.
`
`OSEK/VDX discloses “in the event the storage resource is not
`D.
`available, determining whether a timeout has been reached and causing
`a re-request in connection with the storage resource if the timeout has
`not been reached” of limitation [1.3]
`I understand that Patent Owner asserts that OSEK/VDX does not
`40.
`
`disclose limitation [1.3]. I do not agree with Patent Owner’s characterization of
`
`the claim limitations or OSEK/VDX for the following reasons.
`
`41.
`
`Patent Owner alleges that limitation [1.3] is not met because there is
`
`no determination whether a timeout has been reached, and that there is no re-
`
`request in connection with a storage resource if the timeout has not been reached.
`
`Response, 49. I disagree.
`
`42.
`
`As I explained in my previous declaration, OSEK/VDX discloses a set
`
`of timers, TTyp, TMax, and TError, that determine when to send requests and error
`
`notifications to other nodes in the network. Ex. 1009, 24-25. When a node does
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`not receive a message from another node within a specified timeframe (e.g., TTyp
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`and/or TMax), the latter is determined to be unavailable. Id. at 9-10. FIG. 14,
`
`annotated below, shows an example of a node becoming unavailable. Id. at 29.
`
`Node 1 (i.e., storage resource)
`becomes unavailable
`
`43.
`
`When a node becomes unavailable (i.e., “in the event the storage
`
`resource is not available”), the determining node enters a recovery state, which
`
`OSEK NM terms “NMLimpHome,” and starts the TError timer, a cycle time in
`
`which a node signals that an error has occurred. Id. at 25, 45 (FIG. 29). In
`
`“NMLimpHome” mode, a node determines whether TError has expired (i.e.,
`
`“determining whether a timeout has been reached”). Id.
`
`44.
`
`As I explained above, OSEK/VDX causes a determination as to
`
`whether a storage resource is available (limitation [1.2]), either at the moni