Ubisoft, Inc. et al.,
`
`v
`
`Uniloc Luxembourg S.A.,
`
`Case IPR2017-01291 (Patent 6,728,766)
`
`Hearing Before Sally C. Medley,
`Mariam L. Quinn (Presiding), and
`Jessica C. Kaiser
`
`August 7, 2018
`
`
`
`v
`
`Uniloc Luxembourg S.A.,
`
`Case IPR2017-01291 (Patent 6,728,766)
`
`Hearing Before Sally C. Medley,
`Mariam L. Quinn (Presiding), and
`Jessica C. Kaiser
`
`August 7, 2018
`
`
`
`Claim 1: user ggersective of license availability
`
`1. A method for management of license use for a network
`comprising the steps of:
`
`maintaining license management policy information for a
`plurality of application programs at a license management
`server, the license management policy information
`
`including at least one of a user identity based policy, an
`administrator policy override definition or a user policy
`override definition;
`
`
`
`— for the selected one of the
`plurality of application programs_ based on the
`maintained license management policy information; and
`
`providing an unavailability indication to the Client responsive
`to the selection if the license availability indicates that a
`license is— or an availability
`indication if the licensed availability indicates that a license
`is—-
`
`
`
`. a request for license availability1 from a user at a client” and “determining .
`.
`“receiving .
`
`. .fort e user”
`
`Undisputed claim construction:
`
`\/ The claim language explicitly requires that the request for
`license availability must be (1) received from and (2)
`determined for (3)- at a client.
`
`\/ This claim language is distinguishable from a request for
`license availability received from or determined for the
`client device itself.
`
`\/ The intrinsic evidence indicates the claimed license
`
`management is related to usage availability for a user of
`
`an application program.
`
`
`
`give rise to estoppel here
`
`Petitioner’s arguments in litigation
`
`In litigation, Petitioner successfully argued that the intrinsic
`
`evidence indicates “determining the license availability
`
`for the
`
`user" is distinct from determining that the user is authorized
`
`for a selected application program.
`
`EXZOOZ at pp. 23-27; see also District Court’s Claim Construction Order in
`
`Uniloc USA Inc., et a]. V. AVG Tech. USA, Inc., et al., Case No. 2:16-CV-00393,
`
`Dkt. No. 210, at pp. 55—59 [E.D.T.X. Aug. 16, 2017)
`
`
`
`
`
`
`' “furl-'3 hit: {1;
`.‘z'szz‘i'mii' t. The intrinsic evidence draws
`
`
`a distinction between authorization and license management. Generally speaking, the intrinsic
`
`evidence indicates that authorization is related to controlling access to an application program,
`
`whereas license management is related to usage of an application program. See, e.g., ’466 Patent
`
`at 10:57—58 (“User authorization 212 provides control over which applications may be accessed
`
`by a particular user or group”); 11:35—38 (“The license management component 216 thereby
`
`provides a convenient tool for tracking the usage of specified applications.’).
`
`
`
`
`
`Petitioner’s arguments in litigation
`give rise to estoppel here
`
`For example. in describing Figures 6 and 7, the specification states that “[a]t block 264,
`
`the server system 22 checks the user’s credentials to see if the user is authorized to bring up the
`
`user desktop interface application" and that “[i]fthe user is authorized. server system 22 processes
`
`a license request to determine if a license is available for the desktop application (block 268)." Id.
`
`at 13:50—60. In other words, a user could be authorized to use an application, but the available
`
`District Court’s Claim
`
`Construction Order in Uniloc
`
`license may already be allocated. The patentees argued this distinction during the prosecution of USA Inc-i et 31- V- AVG TeCh-
`
`the ’466 Patent. Specifically, the patentee argued the following:
`
`W’ith respect to Claims 9-11, Applicants again can find no discussion ofthe ‘license
`availability” recitations of these Claims in the cited portions of Oh or in Bladow.
`While Bladow does discuss determining whether a user is authorized to access a
`resource, this is distinct from the recitations of these claims related to venfi'ing
`license availability. For example, a user could be authorized to use an application
`but five instances of the application may already be executing and the server may
`only have a five concurrent user license- Thus, an authorized user could be denied
`an instance of a requested application because no license is available.
`(See, e.g.,
`Specification, p. 18, lines 1-9; p. 21, line 31 to p. 22. line 9). Accordingly, these
`claims are also patentable for at least these additional reasons.
`
`USA, Inc., et al., Case No. 2:16-
`
`CV-00393, Dkt. No. 210, at pp.
`
`5 5-5 9 (E. D.T.X. Aug. 1 6, 2 0 1 7)
`
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`
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`
`
`
`Petitioner’s Reply highlights deficiencies of Olsen
`
`In its Reply, Petitioner again invokes estoppel by focusing
`on Olsen’s “"— embodiment:
`
`To the extent the Board is concerned with whether Olsen teaches that the
`
`license availability request is "associated with“ a user. Olsen expressly discloses
`
`Olsen discloses an embodiment
`
`
`
`
`. a».
`
`ml}j§}l€jj€'it;§L1
`
`
`
`
`
`.I
`
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`
`
`
`this precise concept in at least
`
`Where the license availability request is user-specific. being based on the user’s
`
`name:
`
`"To request an application,
`
`the client assembles a request having the
`
`desired license criteria, such as the publisher, product, veision, and number
`
`of license units. This
`
`into:rmation is gravided with other
`
`relevant
`
`into:rmarionz such as the user's name. ”
`
`EXIOOZ. Olsen at 2:38-43 (reproduced in Petition at 14).
`
`"When a license is installed in LSP 110,
`
`the administrator may assign a
`
`license to an individual, machine, group, container, g other selected users.
`
`The license certificate is then only available to a user with Em
`
`”intmficorres ondin to the certi cate. "
`
`
`
`
`. a request for license availability1
`.
`“receiving .
`from a user at a client” and “determining .
`.
`. fort e user”
`
`The '7 66 patent specification provides instructive examples
`
`of usage-based, license-availability determinations for a
`
`user, including, for example, in the following disclosure:
`
`14
`
`of users to insure, for example, adequate response time, [or
`measuring and reacting to usage rates (such as by rebalanc-
`ing server capacity) and so on.
`In addition, a software
`designer may provide an application allowing administrators
`to change license use policies depending upon the requesting
`user. For example, users associated with the headquarters
`operations or network management department could be
`made exempt from license count limits while everyone else
`is subject to license count limits. Accordingly, license policy
`management may be provided by a centralized server system
`22 of the present invention in a manner analogous to that
`previously described for user preferences.
`
`5
`
`10
`
`for the user preference selection input. User
`itself, but
`preferences obtained through the application launcher pro-
`gram at any individual client station may then be made
`available by on-demand server 22 to that user regardless of
`the particular client station at which the particular user is
`working. Furthermore, while the descriptions above were
`
`(EX1001, 1413-8 and 23-28)
`
`
`
`
`. a request for license availability1
`.
`“receiving .
`from a user at a client” and “determining .
`.
`. fort e user”
`
`The '766 patent specification expressly disparages systems
`
`that tie license availability determinations to client devices,
`
`including in the following background statements:
`
`3
`
`typically
`it
`across applications for a user. Furthermore,
`associates personalized screen information with an Internet
`address which is client device rather than user associated,
`therefore limiting its ability to support roaming by users.
`
`Each of these “mobility” systems typically do not address
`the full range of complications which may arise in a het-
`erogeneous network utilizino diiferin devices and connec-
`
`
`
`
`
`Users would typically have
`to manually define session characteristics at each difl'ering
`workstation they used in the network or maintain local
`characteristic definitions which may be inappropriate for
`particular applications a user is executing and may substan-
`tially reduced the administrative convenience of a centrally
`
`controlled network.
`
`
`
`(EX1001, 3:1-19)
`
`10
`
`15
`
`
`
`.a requestfor license availabilit. from a user at a client” and‘‘determining.. .fort e user
`
`“receiving.
`
`During prosecution, Applicants successfully
`
`distinguished certain art as follows:
`
`A method for management of license use for a network
`19.
`comprising the steps of:
`maintaining license management policy iniormation for a plurality of
`application programs at a license management sewer. the license
`management policy information Including at least one of a user identity based
`policy. an administrator policy override definition or a user policy override
`definition;
`receiving at the license management server a request for a license
`
`EX1005, p. 135.
`
`management policy InformatIonnd
`providing an unavailability Indication to the client responsive to the
`selection if the license availaoility indicates that a licenseIs not available@
`
`
`
`
`
`. a request for license availabilit
`.
`“receiving .
`from a user at a client and ‘determining .
`.
`
`.
`
`.
`
`.
`
`,,
`
`. fort e user (Christiano, Col. 1. lines 24-38, emphasis added). Accordingly.
`
`;f
`
`
`
`a
`
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`
`‘
`
`l: i we}
`
`
`aim; » ' a ‘
`
`
`
`Duvvoori describes license management as follows:
`
`Another configu ration option for the 32-bit agent service and the 16-bit agents
`released by the assignee on Jun. 21, 1996 is the abiity to choose an
`automatic denial of unregistered applications. In this mode. any application
`' programs that the entel'prlse of whlch the network Is a part does not
`want executed on its computers are automatically denied each time a
`launch request is received or a launch thereof is detected.
`
`
`(Duwoori, Col. 13, lines 43-50, emphasis added). Accordingly. 1':
`
`
`
`r124 ;;-;‘-':4:~:
`
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`t we!) iu;'_‘ :1: ’,“':'3le'll_: _‘—."r
`
`
`-":.:;3
`
`EX1005, p. 136.
`
`
`
`(Wyman, Col. 6, lines 55-58. emphasis added).
`
`
`" ‘ ;:;"- l'f:j" (in! l}: 31:“,‘13'Pfi1‘: 7;,17’31'7‘i
`
`{5r 1;;
`
`lié“:i:fjb'"'rl:' pl' 2 I'"'Ii
`
`
`
`10
`
`
`
`Olsen is deficient and cumulative with the art successfully distinguished during prosecution
`
`selected application program.“ Id. 1i l9. Olsen states that the “secmity
`
`~ Paper 9 (Original
`equivalency check“ is performed to ‘ ::__ my" -'
`106 is among those assigned to the license certificate.“ Ex. 1002, 12:14—17.
`Institution Decrsron) at 15'
`
`Olsen’s description of the security equivalency check seems to concern the
`
` ..
`'
`‘ a“; This portion of Olsen.
`
`0 “receiving requests from clients 106" (Pet. at 12-14.. citing
`
`EXIOOZ. 3:54-61):
`
`0
`
`“client 106 may request licenses for access to applications“
`
`(id.. citing EXIOOZ, 3:54-61):
`
`0
`
`“LSP 110 receives the request for a number of license units
`
`Paper 13 at 8 (citing Pet).
`
`from client 106" (id, citing EXlOOZ. 3 254-61):
`
`0
`
`"To request an application. the client assembles a request
`
`having the desired license criteria. (step 810)“ (id. citing
`
`EXIOOZ. 223-47).
`
`11
`
`
`
`Olsen is deficient and cumulative with the art successfully distinguished during prosecution
`
`
`
`
`EX1002, 6:10—11.
`
`60 send the request to LSP 110 (step 808). The request is
`generated using the license acquisition API and suitably
`specifies particular information relating to the application.
`such as the publisher. product. and version for which license
`units are requested. In addition. the AP! suitably indicates
`65 the number of license units requested. so that the number of
`units consumed is specified by the API. Client 106 transmits
`the request to LSP 110 and waits for a response.
`
`EX1002, 10:60-67.
`
`The certificate database object dtecks each license record
`in the database until srrflieient records are accumuleted. If so
`compatible license records are found in the [resent damhese.
`LSP 110 constructs license catificete objects from the
`buffers matching the publisher. Irodrct. and version fields
`(step 826). he finesse certificate objects are queried to
`determine whether enough units have been accrumlnted to 55
`fulfill the request (step 818). If the request cannot be fulfilled
`
`EX1002, 11:49-56.
`
`CREATE CERTIHCAIE
`
`DATABASE OBJECT
`
`376
`
`$54RCH LOCAL LICENSE
`CERTIHCAIE DATABASE
`
`
`
`
`
`
`
`
`SELECT NEXT
`LSP J: SDIRCH
`
`12
`
`
`
`Olsen is deficient and cumulative with the art successfully distinguished during prosecution
`
`
`1':l_at?[by remwmg forexample thepolicy attributesofthe
`
`H's];
`
`license. the user information associated with the request. any
`existing license assignments. and the raw number of units 45
`originally installed. This is performed before actually
`obtaining the license to determine whether all of the required
`license units are available.
`EX1002,11:40-48_
`
`If an assignment exists on the license certificate it performs
`
`
`,
`4
`-
`:1
`-_1
`il_
`_,
`FINE”- 1; vf‘l‘f
`~37
`._:.'.l Leiflhi-i—V
`3‘”
`
`
`r.
`A
`-
`.
`
`(step 830').
`
`EX1002, 12:14 19.
`
`.:-‘-'..,J.J£t..-J - certificate object returns an error .
`
`35"
`
`836
`
`838
`
` l-MNDLE
`70 Cl
`
`65 application transmitsa release notification to LSP 110
`
`TRANSMN
`
`IE/W
`
`EX1002, 12:64.
`
`13
`
`
`
`Petition is facially deficient re. means+funotion limitations
`
`Board’s original Institution Decision (Paper 10 at 17):
`
`21. Claims 15. 16. ‘72. 23, 35. and 36
`
`For independent claims 15 and 16. we determined above that
`
`Petitioner had not identified sufficient corresponding structure for "means
`
`for installing a plurality of application programs at the server." In its
`
`asserted ground. Petitioner addresses the limitations of claims 1. 15. and 16
`
`together. Pet. 28—52. For this limitation. although Petitioner contends
`
`Kasso has application programs stored at a server’s storage device.
`
`Petitioner does not address whether this teaching meets the corresponding
`
`structure discussed above (i.e., steps 112—116 of Figure 8 and the associated
`
`description (Ex. 1001. 17:55—67) (and their equivalents». Pet. 30—31.
`
`14
`
`
`
`Petition is facially deficient re. means+function limitations
`
`Board Denied Petitioner’s Request for
`
`Rehearing focusing on claim construction:
`
`We are also not persuaded by Petitioner’s contention that the
`
`“database" is the only structure that is clearly linked such that the claims are
`
`(Paper 12 p. 3)
`
`not indefinite. Req. Reh’ g 12. Our reviewing court has made clear that we
`
`Now we turn to Petitioner’s argument against our construction of the
`
`term “means for maintaining.” This argument centers on the contention that
`
`the Specification of the ”766 patent does not disclose an “algorithm.” Req.
`
`Reh’g 3—11. This argument is not persuasive for two reasons. First, the
`
`Petition did not proffer any contentions, argument, or evidence regarding
`whether the ’766 patent disclosed a sufficient (or any) algorithm, and,
`
`(Paper 12 p- 4)
`
`therefore, we could not have misapprehended or overlooked the matter. It is
`
`Petitioner’s burden to show that the matter was presented previously, and
`
`that we overlooked or misapprehended the matter. Absent such a showing,
`
`the Rehearing Request presents new arguments akin to an unauthorized
`
`reply to the preliminary response, which is not the role of a Request for
`
`Rehearing under our rules.
`
`15
`
`
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