Trials@uspto.gov
`571-272-7822
`
`
`Paper 26
`Entered: October 25, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UBISOFT, INC. and SQUARE ENIX, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01291
`Patent 6,728,766 B2
`____________
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73(a)
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 26
`Entered: October 25, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UBISOFT, INC. and SQUARE ENIX, INC.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01291
`Patent 6,728,766 B2
`____________
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a); 37 C.F.R. § 42.73(a)
`
`
`
`
`
`
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`I.
`INTRODUCTION
`In this inter partes review, instituted pursuant to 35 U.S.C. § 134,
`Petitioner, as listed in the caption above, challenged the patentability of
`claims 1, 3, 7, 9, 13, and 15 of U.S. Patent No. 6,728,766 B2 (“the ’766
`patent”), owned by Uniloc 2017 LLC, (“Patent Owner” or “Uniloc”).1 This
`Final Written Decision is entered pursuant to 35 U.S.C. § 318(a) and
`37 C.F.R. § 42.73. For the reasons discussed below, Petitioner has not
`shown by a preponderance of the evidence that claims 1, 3, 7, 9, 13, and 15
`of the ’766 patent are unpatentable.
`
`A. PROCEDURAL HISTORY
`Petitioner filed a Petition to institute inter partes review of claims 1,
`3, 7, 9, 13, and 15 of the ’766 patent. Paper 4 (“Pet.”). Patent Owner filed a
`Preliminary Response. Paper 7 (“Prelim. Resp.”). On November 1, 2017,
`we instituted inter partes review as to claims 1 and 3 only.
`After institution, Patent Owner filed a Patent Owner Response.
`Paper 13 (“PO Resp.”). Petitioner filed a Reply. Paper 15 (“Reply”). On
`April 24, 2018, the Supreme Court held that a decision to institute under
`35 U.S.C. § 314 may not institute on fewer than all claims challenged in a
`petition. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018). Consistent
`with SAS, we modified our Institution Decision to institute on all of the
`challenged claims, including claims 7, 9, 13, and 15, on the grounds
`
`
` Patent Owner’s Mandatory Notice filed on May 10, 2017 identified both
`Uniloc USA, Inc. and Uniloc Luxembourg S.A. as the patent owners in this
`case. Paper 5, 1. Updated Mandatory Notices, however, indicate that the
`patent owner entity changed to Uniloc Luxembourg S.A., and most recently
`to Uniloc 2017 LLC. Papers 17, 25.
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`presented in the Petition and authorized Petitioner to respond to these
`modifications to our Institution Decision. Paper 18, 3 (stating that
`“Petitioner’s Institution Response Brief is for identifying matters that
`Petitioner believes the Board misapprehended or overlooked, or otherwise
`erred in its institution decision discussing the newly-added claims”
`(emphasis omitted)). Petitioner then filed a Petitioner’s Institution Response
`Brief. Paper 21 (“Pet. Inst. Resp.”).
`We heard oral arguments on August 7, 2018. A transcript of the
`hearing is in the record. Paper 24 (“Tr.”).
`
`B. RELATED MATTERS
`Petitioner identifies the ʼ766 patent as the subject of two district court
`cases pending in the U.S. District Court for the Eastern District of Texas
`(Case No. 2:16-cv-00397-RWS and Case No. 2:16-cv-00872-RWS). Pet.
`32; Ex. 1006; Ex. 1007.
`
`C. THE ’766 PATENT (EX. 1001)
`The ’766 patent is entitled “Methods, Systems and Computer Program
`Products for License Use Management on a Network.” Ex. 1001, (54). The
`’766 patent relates in particular to application program management on a
`computer network. Id. at 1:2224. According to the ’766 patent, control
`over software, such as application programs, is a challenge with respect to
`“maintaining proper licenses for existing software and deploying new or
`updated applications programs across the network.” Id. at 1:4557. In
`particular, the ’766 patent states that “[a] distributed network environment
`with a plurality of client stations and a plurality of different users accessing
`the applications from different clients increases the challenge associated
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`with managing license use to [ensure] compliance with limitations
`established by software designers.” Id. at 3:28–32. According to the
`’766 patent, management of license use for a network is provided as follows:
`License management policy information for a plurality of
`application programs is maintained at a license management
`server. Requests are received at the license management server
`for a license availability of a selected one of the plurality of
`application programs from a user at a client. The license
`management server determines the license availability for the
`selected one of the plurality of application programs for the user
`based on the maintained license management policy
`information and provides an unavailability indication to the
`client responsive to the selection if the license availability
`indicates that a license is not available for the user or an
`availability indication if the licensed availability indicates that a
`license is available for the user.
`
`Id. at 5:3952.
`
`D. ILLUSTRATIVE CLAIM
`Challenged claims 1, 7, and 13 of the ’766 patent are independent.
`Illustrative claim 1 is reproduced below.
`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;
`receiving at the license management server a request for
`a license availability of a selected one of the plurality of
`application programs from a user at a client;
`determining the license availability for the selected one
`of the plurality of application programs for the user based on
`the maintained license management policy information; and
`providing an unavailability indication to the client
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`responsive to the selection if the license availability indicates
`that a license is not available for the user or an availability
`indication if the licensed availability indicates that a license is
`available for the user.
`
`Ex. 1001, 14:6415:16.
`
`
`E. ASSERTED REFERENCE AND GROUND OF UNPATENTABILITY
`Petitioner asserts one ground of unpatentability based on the
`anticipation of claims 1, 3, 7, 9, 13, and 15 by U.S. Patent No. 5,758,069,
`issued to Olsen (Ex. 1002, “Olsen”). Pet. 2.
`
`I.
`
`ANALYSIS
`
`A. CLAIM CONSTRUCTION
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b)
`(2012); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142–46 (2016).
`Consistent with that standard, claim terms also are given their ordinary and
`customary meaning, as would be understood by one of ordinary skill in the
`art in the context of the entire disclosure. See In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007).
`In our Institution Decision, we analyzed two terms drafted in means-
`plus-function format: “means for maintaining” and “computer readable
`program code means.” Paper 9, 69 (“Dec.”). We recognized that
`construing a means-plus-function limitation requires first defining the
`particular function of the limitation and then identifying the corresponding
`structure for that function in the specification. Golight, Inc. v. Wal-Mart
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`Stores, Inc., 355 F.3d 1327, 1333–34 (Fed. Cir. 2004). Our claim
`construction analysis follows.
`1. Means for Maintaining
`The parties agreed that the function for the claim 7 term is
`“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.” Pet. 3; Prelim. Resp. 5. With regard to corresponding
`structure, Petitioner identified “a database and equivalents thereof.” Pet. 3.
`Patent Owner argued that identifying a database in general is
`misleading. Prelim. Resp. 56. Patent Owner further pointed out the claim
`language describing that the “means must reside ‘at a license management
`server’” and that the server stores license use management policy
`information in a database. Id. at 5. Consequently, Patent Owner argued that
`Petitioner does not tie the structure recited in the claim with the database
`alleged to perform the function. Id. at 56.
`We agreed with Patent Owner that the claim language plainly states
`that “maintaining” occurs “at a license management server,” not a database
`as Petitioner proposed. Ex. 1001, 15:4850. The specification supports that
`position, as it describes the server system storing license use management
`policy information in hierarchical centralized preference database 208. Id. at
`12:5052. That description, however, refers only to “storing” the
`information in a specific type of database, which may be useful while the
`server “maintains” licenses across a distributed network. We determined,
`thus, that Petitioner failed to tie the “storing” to the entire function of
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`“maintaining” the information, as recited. A structure disclosed in the
`specification qualifies as “corresponding” structure only if the specification
`or prosecution history clearly links or associates that structure to the function
`recited in the claim. B. Braun Med. v. Abbott Labs., 124 F.3d 1419, 1424
`(Fed. Cir. 1997). The “clear linkage or association” in the specification of
`the structure to the function recited in the claim is determined based on the
`understanding of an artisan of ordinary skill. See AllVoice Computing PLC
`v. Nuance Commc’ns, Inc., 504 F.3d 1236, 1242 (Fed. Cir. 2007).
`Further, we found that the portions of the specification Petitioner
`relied on do not convey that database 208 performs the function of
`maintaining the recited information. Dec. 78. Petitioner proffered no other
`evidence or testimony regarding this issue. Consequently, we were not
`persuaded that Petitioner showed that a person of ordinary skill would
`understand that a database, alone, is clearly linked to “maintaining license
`management policy information for a plurality of application programs at a
`license management server . . . .” Id. at 7.
`Instead, for purposes of institution, we were persuaded that Patent
`Owner had shown sufficiently that the corresponding structure for the
`“means for maintaining” is, at a minimum, a processor executing algorithms
`for performing the function. Patent Owner argued that the specification
`discloses a processor for executing instructions because the specification, for
`example, describes all the flowcharts depicted in Figures 25 as follows:
`It will be understood that each block of the flowchart
`illustrations, and combinations of blocks in the flowchart
`illustrations, can be implemented by computer program
`instructions. These program instructions may be provided to a
`processor to produce a machine, such that the instructions
`which execute on the processor create [a] means for
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`implementing the functions specified in the flowchart block or
`blocks. The computer program instructions may be executed
`by a processor to cause a series of operational steps to be
`performed by the processor to produce a computer implemented
`process such that the instructions which execute on the
`processor provide steps for implementing the functions
`specified in the flowchart block or blocks.
`
`Ex. 1001, 7:2640.
`Patent Owner further pointed out that the specification does disclose
`algorithms for maintaining license management policy information. Prelim.
`Resp. 6. For example, the specification states that license use “is managed
`by setting certain policies, such as the limit of the number of users, whether
`crossing the limit of users is allowed or not and how users are counted
`(simultaneous number logged on, total number of clients that can use the
`application, and so on).” Ex. 1001, 12:3746. The specification also
`describes that the license management policies have default values that are
`customized by applying administrator overrides (id. at 12:4244) and user
`license policy preferences (id. at 12:4547).
`Therefore, we determined in our Institution Decision that the structure
`corresponding to the “means for maintaining” is, at a minimum, a processor
`programmed to carry out the algorithms for maintaining license management
`policy information for a plurality of application programs at a license
`management server, where the algorithms are setting policies such as
`limiting the number of users, whether crossing the limit of users is allowed
`or not, and how users are counted. Dec. 8. Patent Owner stated during oral
`argument that it believes the Board’s claim construction is correct. Tr.
`67:815.
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`During trial Petitioner was given an opportunity to argue its position
`on claim construction in light of the Board’s preliminary construction
`discussed above. Pet. Inst. Resp. 79. Petitioner contends that the
`’766 patent does not disclose algorithms and the claim is, therefore,
`indefinite. Id. In particular, Petitioner argues that those certain algorithms
`are only examples and are not detailed enough to be proper algorithms. Pet.
`Inst. Reply 8. We are not persuaded by this argument. An algorithm may be
`expressed in any understandable terms including as a mathematical formula,
`in prose, in a flow chart, or “in any other manner that provides sufficient
`structure.” Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340
`(Fed. Cir. 2008); see also Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357,
`1366 (Fed. Cir. 2003) (stating that structure disclosed is not inadequate
`merely because the written description omits details of circuitry or computer
`code). Here, the algorithms are stated in prose, and provide sufficient detail
`to apprise a person of ordinary skill in the art on what is needed to
`implement the computer code running at the server. Petitioner has directed
`us to no evidence to the contrary.
`Accordingly, we conclude that the corresponding structure for the
`“means for maintaining” is unmodified from the structure identified in the
`Institution Decision: a processor programmed to carry out the algorithms for
`maintaining license management policy information for a plurality of
`application programs at a license management server, where the algorithms
`are setting policies such as limiting the number of users, whether crossing
`the limit of users is allowed or not, and how users are counted.
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`2. Computer Readable Program Code Means
`Claim 13 recites “a computer readable storage medium having
`computer-readable program code means embodied in said medium” and
`“computer readable program code means for maintaining license
`management policy information,” among several additional computer
`readable program code means limitations. This claim language utilizes the
`word “means,” which triggers a rebuttable presumption that § 112, ¶ 6
`applies. Williamson v. Citrix Online, 792 F.3d 1339, 1349 (Fed. Cir. 2015).
`If the “computer readable program code means” terms recited in claim 13
`are indeed means-plus-function terms, then the Petition is deficient, as it
`fails to present the required claim construction analysis.
`37 C.F.R. § 42.104(b)(3). In other words, in light of the presumption that
`applies to a claim reciting “means,” we look for an explanation by
`Petitioner, who has the burden of showing in its Petition how the challenged
`claim is to be construed and how that construed claim is unpatentable. Id.
`Petitioner proffers no analysis of the scope of these claim terms and, more
`particularly, why or how the presumption is rebutted.2
`Because neither party rebutted the presumption that § 112, ¶ 6 applies
`to the “computer readable program code means,” we address this term as a
`means-plus-function term. Accordingly, the limitation “computer readable
`program code means for maintaining license management policy
`information,” at a minimum, encompasses the embodied algorithms linked
`
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` We recognize that in discussing the prior art, the Petition maps the
`“computer readable program means” to a license service provider software.
`Pet. 27. This showing, however, is insufficient to explain a rebuttal of the
`presumption borne by the use of “means.”
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`to the function “maintaining license management policy information.”
`Those algorithms, following our analysis for the term “means for
`maintaining” discussed above are, at a minimum: setting policies such as
`limiting the number of users, whether crossing the limit of users is allowed
`or not, and how users are counted.
`
`B. ANTICIPATION BY OLSEN
`Olsen is entitled “Electronic Licensing System.” Ex. 1002, [54]. It
`states by way of background that conventional licensing systems use a fixed
`set of licenses, and that license information is stored in a license database,
`along with information regarding which applications are in use and how
`many units are still available. Id. at 1:4448. In related software licensing
`systems, the application has embedded code that requests a license from the
`server. Id. at 1:5152. Typically, the server checks the database of licenses
`and grants the request, if the appropriate license is available. Id. at 1:5354.
`As requests are received and licenses granted, the information is logged into
`a file to track the usage of the various applications. Id. at 1:5557.
`However, when a license is not available at that server, the client contacts
`another server to find a license. Id. at 1:5859. Thus, the client typically
`has the responsibility to obtain the licenses from various servers, and
`individual servers provide the licenses at the client’s requests. Id. at
`1:5962.
`The problem with such systems is that the programs required at the
`client occupy a significant portion of the client’s memory resources. Id. at
`2:14. And because the license information is stored in the client’s memory,
`the license information may be lost and difficult to reconstruct, if the client
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`crashes. Id. at 2:47. Another problem with conventional licensing systems
`is that they rely on the code embedded in the application to establish
`licensing attributes. Id. at 2:1719. This code also establishes the licensing
`parameters from information it receives from the server, which means that
`the “behavior” of the license is not established until after the request is made
`and the license is obtained. Id. at 2:1923. The code in the application also
`must be revised in order to change the licensing terms. Id. at 2:2426.
`The Olsen system solves these problems by, first, providing license
`information stored in a distributed database among several servers and a
`license service provider (“LSP”) that constructs license certificate objects
`associated with a client request to adjust the information in the database and
`reflect the granting of requested licenses. Id. at 2:3435, 4854. Second,
`the client is equipped with a suitable library of application programming
`interfaces (“APIs”) for acquiring and managing licenses. Id. at 2:3739.
`The client “merely bundles the arguments for a license request and transmits
`them to the server.” Id. at 2:5758. For example, the client assembles a
`request for the license and provides the license criteria: publisher, product,
`version, and number of license units. Id. at 2:4042. Other information may
`be provided, such as the user’s name. Id. at 2:4243. The server, upon
`receipt of the request, searches the local database and passes the information
`to other servers to check their respective databases. Id. at 2:4448. Thus,
`“most of the license transactions occur at the servers.” Id. at 2:5657.
`Finally, because the license information is stored in the database, and the
`client only stores “the license handle associated with the license request,”
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`the license information may be reconstructed by finding in the database the
`particular transaction associated with the license handle. Id. at 2:6167.
`1. User Versus Client Issue
`At the heart of the challenged claims lies a distinction of “user” versus
`“client.” For instance, claim 1 recites that the license management server
`receives “a request for a license availability of a selected one of the plurality
`of application programs from a user at a client.” Ex. 1001, 15:57
`(emphasis added). Claim 1 further requires that the license availability is
`determined for the user based on the maintained license management policy
`information. Id. at 15:811. Finally, claim 1 recites “providing an
`unavailability indication to the client . . . if the license availability indicates
`that a license is not available for the user or an availability indication if the
`licensed availability indicates that a license is available for the user.” Id. at
`15:1216 (emphases added). Thus, the plain and ordinary meaning of the
`claim language requires that a user at a client request license availability,
`and that the license availability is determined for the user, with an indication
`of availability or unavailability provided to the client.
`The user is, thus, an individual interfacing with the server via a client,
`which is hardware, such as a computing device. See, e.g., id. at 6:59 (“It
`further provides an essentially hardware transparent ability for an individual
`user to interface to an on-demand server supported client station while
`maintaining the user’s personal preferences for each application program.”);
`id. at 3:674:2 (“An icon is displayed on the screen of the client station
`through which a user may initiate execution of the application program.”);
`id. at 4:1418 (“A profile manager program on the on-demand server
`provides a user interface and maintains profile information for each client
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`(hardware related) and user (preferences) for all managed configurable
`application programs available on the on-demand server.” (emphases
`added)). The claim language is, therefore, particular about the license
`availability being determined on a user basis, instead of for the client. The
`difference is important because Patent Owner contends that Olsen’s
`licensing system determines and assigns licenses to clients, not users, and
`therefore, Olsen does not request or determine license availability for a user,
`as required by the claims. PO Resp. 510. We agree with Patent Owner.
`Olsen describes a method that allows a user to choose a license
`among options from a list (Ex. 1002, 10:4551), determines license units
`available by reviewing user information associated with the request (id. at
`2:3843, 11:4046), accesses license records using the user’s login
`information (id. at 11:3234); and provides an administrator the option to
`assign a license to an individual, machine, group, container, or other selected
`users (id. at 8:2931). Petitioner has relied on these disclosures in particular
`to argue that Olsen’s “license availability request is user-specific.” Reply
`45. These disclosures paint the picture that a user is involved in requesting
`the license and providing information (user information) that is reviewed in
`determining whether to grant the license. But mere involvement by the user
`or user information in the process of license availability determination is
`insufficient to meet the claim. We look for evidence that the request and
`determination of license availability are directed to answering the question
`of whether there is a license available for the user.3
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` Petitioner does not dispute the scope of “request for license availability”
`beyond its plain and ordinary meaning. See Tr. 20:1219 (Petitioner stating
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`Olsen describes determining whether a license unit is available for the
`client, even though a user or user information appears to be involved in the
`process. For example, although the request for a license includes the user’s
`login information and the determination involves reviewing the user
`information, Olsen “determines whether the license units corresponding to
`the license record are available to the requesting client.” Ex. 1002,
`11:4046 (emphasis added). Further “[t]o consume the units, [Olsen]
`checks the license information for any existing assignments, [and i]f an
`assignment exists on the license certificate, it performs a security
`equivalency check to determine whether the requesting client 106 is among
`those assigned to the license certificate.” Id. at 12:1318 (emphasis added).
`The license units may be reinstated and become available “for use by other
`clients, if appropriate.” Id. at 12:5658 (emphasis added). And Olsen
`describes that when “client 106 no longer requires the license units, the
`application transmits a release notification to LSP 110.” Id. at 12:6465.
`Therefore, based on the above disclosures, we find that Olsen
`describes determining license availability for a client. Not only does Olsen
`plainly states this at column 11 lines 40 to 46, but Olsen also explains that if
`the client is assigned to a license certificate (where a security equivalency
`check ensures proper assignment), the license certificate object consumes
`the license for the client. Id. at 12:1318.
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`that “request for license availability does not require any construction” and
`that the plain language says, “you’re making a request to determine if a
`license available--is available.”).
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`As stated above, the claims require, however, that the license
`availability request is from a user and that the license availability is
`determined for that user. The best disclosures in Olsen for supporting the
`contention that Olsen’s request is user-specific come from the descriptions
`of the user information and the assignment of a license by an administrator.
`See id. at 8:2937, 11:3234, 11:4046. Petitioner argued that it is
`irrelevant that Olsen’s license response is always going back to a client, as
`the ’766 patent specification also describes this. Tr. 14:1017. According
`to Petitioner, if the license request considers user information and “ties the
`request to that user by looking at the licensing record with the user
`information and doing that comparison . . . that request and that license is
`tied to the user and satisfies the limitations” of the claim. Id. at 15:5–10.
`Petitioner argued that such a request is “now from a user, whether the client
`actually does the transmitting or not, and that request is responsive to a user
`and tied to that user, whether the client is receiving the license back or not.”
`Id. at 15:13–17. The argument, however, is not commensurate with the
`scope of the claim. The claim requires that, in addition to the request for a
`license availability, the method determines the license availability for the
`user. If Olsen’s request includes the user information, there may be
`evidence tending to show that Olsen receives a request from a user for
`license availability. But this same evidence does not show that Olsen
`determines license availability for the user.
`We agree with Petitioner that Olsen’s user chooses the application for
`which a license is needed (Ex. 1002, 10:4648) and Olsen’s client assembles
`a request (id. at 10:4445, 10:5667). The request seems to be associated
`with a user because Olsen describes the LSP transmitting the request and
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`granting a corresponding license handle, and storing this handle in the
`transaction database “along with other information associated with the
`license request.” Id. at 11:111. The information includes the user’s NDS
`distinguished name. Id. at 11:1316. Thus, by the time Olsen stores the
`license handle, the user’s login information is associated with the license
`request.
`After this step of storing the information and the license handle,
`however, Petitioner’s evidence falls short of the preponderance of the
`evidence standard. The Petitioner bears the burden of proving a proposition
`of unpatentability by a preponderance of the evidence. 35 U.S.C. § 316(e).
`The burden of showing something by a preponderance of the evidence
`requires the trier of fact to believe that the existence of a fact is more
`probable than its nonexistence before the trier of fact may find in favor of
`the party who carries the burden. Concrete Pipe & Products of Cal., Inc. v.
`Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 622
`(1993).
`Olsen’s user information/login information is used in two processes:
`(1) to access license records in the database in the process of creating the
`license certificate object (id. at 11:3234); and (2) in the process of
`determining whether the requested license units are available to the client
`(id. at 11:4046). Olsen describes the process of “actually obtaining” the
`license by first determining “whether all of the required license units are
`available.” Id. at 11:4648. Olsen’s license certificate object does this by
`reviewing the policy attributes of the license, the user information associated
`with the request, any existing license assignments, and the raw number of
`units originally installed. Id. at 11:4046. Thus, there is evidence of the
`
`17
`
`
`
`IPR2017-01291
`Patent 6,728,766 B2
`
`user information being part of the license availability determination. Olsen
`is clear, however, in stating that the license certificate object “suitably
`determines whether the license units corresponding to the license record are
`available to the requesting client.” Id. (emphasis added). Olsen describes
`the client as a “conventional network terminal, for example a personal
`computer” that is connected to the server. Id. at 5:656:1. The client of
`Olsen is not an individual, person, or virtual representation of a network
`user.
`Therefore, we find that Olsen determines license availability for the
`client—not the user. No other passage from Olsen describes determining
`license availability for the requesting user. While user information may be
`used in determining the license availability for the client, Olsen, we find,
`does not describe what role the user information plays in the determination
`such that the license availability determination would be user-specific.
`Thus, the nonexistence of the user-specific determination is more probable
`than its existence. See Concrete Pipe, 508 U.S. at 622. And, therefore,
`Petitioner has not shown by a preponderance of the evidence that Olsen
`discloses “determining the license availability for the selected one of the
`plurality of application programs for the user based on the maintained
`license management policy information,” as required by claim 1.
`2. “License Availability” Versus “Security Equivalency Check”
`Our determination is further supported by Olsen’s description of what
`happens after determining the license availability for the client. Olsen
`performs an additional check before consuming the available licenses.
`Ex. 1002, 12:917. This check is a “security equivalency check to
`determine whether the requesting client 106 is among those assigned to the
`
`18
`
`
`
`IPR2017-01291
`Patent 6,728,766 B2
`
`license certificate (step 828).” Id. That is, the licenses may be available for
`the client, but Olsen checks further to ensure that the user is authorized to
`access the application program. Ex. 2001 ¶¶ 1921. Olsen’s assignment to
`the license certificate was effected when
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