UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UBISOFT, INC. AND SQUARE ENIX, INC.,
`Petitioners
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`v.
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`UNILOC USA, INC. and UNILOC LUXEMBOURG S.A.,
`Patent Owners
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`IPR2017-01291
`PATENT 6,728,766
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`PATENT OWNER RESPONSE TO PETITION
`PURSUANT TO 37 C.F.R. § 42.120
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UBISOFT, INC. AND SQUARE ENIX, INC.,
`Petitioners
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`v.
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`UNILOC USA, INC. and UNILOC LUXEMBOURG S.A.,
`Patent Owners
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`IPR2017-01291
`PATENT 6,728,766
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`PATENT OWNER RESPONSE TO PETITION
`PURSUANT TO 37 C.F.R. § 42.120
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`Table of Contents
`INTRODUCTION ................................................................................... 1
`THE ’766 PATENT ................................................................................. 3
`A.
`Effective Filing Date ...................................................................... 3
`B.
`Overview of the ’766 Patent ........................................................... 3
`THE PETITION FAILS TO ESTABLISH
`UNPATENTABILITY ............................................................................ 4
`A.
`Claim Construction ......................................................................... 5
`B.
`The Petition Does Not Establish Express or Inherent
`Anticipation Of “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” ....................................................................................... 5
`1.
`The Institution Decision confirms that Olsen’s
`request is received from and associated with a
`“client” (not a user) .............................................................. 5
`The Petition does not prove requesting “a license”
`anticipates requesting, instead, “license
`availability” ........................................................................ 10
`THE SUPREME COURT IS CURRENTLY REVIEWING
`THE CONSTITUTIONALITY OF INTER PARTES
`REVIEW PROCEEDINGS .................................................................. 14
`CONCLUSION ...................................................................................... 15
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`2.
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`I.
`II.
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`III.
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`IV.
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`V.
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`ii
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`INTRODUCTION
`Pursuant to 35 U.S.C. § 313 and 37 C.F.R. § 42.120, Uniloc Luxembourg S.A.
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`IPR2017-01291
`U.S. Patent 6,728,766
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`
`I.
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`(“Patent Owner”) submits this Response to the Petition for Inter Partes Review (“the
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`Petition”) of U.S. Patent No. 6,728,766 (“the ’766 Patent”) filed by Ubisoft, Inc. and
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`Square Enix, Inc. (“Petitioner”).
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`The Petition provides no support of the conclusory statements contained
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`therein. The Petition contains little more than quotations of the challenged claim
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`language, followed by unexplained citations to the only cited reference, thereby
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`leaving the Board and the Patent Owner to guess as to how the quoted disclosure
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`allegedly anticipates the claim language in question. The dangers of the improper
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`and prejudicial guesswork of Petitioner is revealed at least twice in the Board’s
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`Institution Decision (IPR2017-01291, Paper No. 9). First, in instituting trial on
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`Claims 1 and 3 of the ’766 Patent, the Board confirmed that a client device sends
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`Olsen’s request, yet the Board made a “preliminary inference” that the request might
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`be “from a user” as required by the claim language. And second, the Institution
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`Decision improperly puts the burden on Patent Owner to show that Olsen
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`specifically excludes the request for “license availability” and not just a request for
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`a license as required by the claim language.
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`In the first instance, the record shows, as the Board confirms, that the request
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`sent in Olsen is by the client device itself, and there is no contrary argument in the
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`1
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`IPR2017-01291
`U.S. Patent 6,728,766
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`Petition other than a single conclusory sentence. The Board’s “preliminary
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`inference” that the request might, instead, be “from a user” is not supported by the
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`reference and is refuted by Petitioner’s own admissions. To the extent the Board’s
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`“preliminary inference” is based on the doctrine of inherency (an argument not
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`advanced in the Petition), inherent anticipation is improper and inapplicable here,
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`where the Petition does not even argue, much less attempt to prove, that the
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`“preliminary inference” is necessarily present, as opposed to merely possible or
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`probable.
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`In the second instance, the burden is on Petitioner to prove Olsen anticipates
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`the “license availability” limitation. The Petition has not and cannot meet this burden
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`simply by overlooking the relevant claim language. Nevertheless, the Institution
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`Decision states that it is the Board’s opinion that the Patent Owner has failed to show
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`that the Petition may not show anticipation by deviating from the express claim
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`language. There can be no question, particularly in view of recent controlling
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`authority, that the burden to prove unpatentability always rests with the Petition.
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`Moreover, the intrinsic evidence and express claim language differentiates a user’s
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`“license availability” from merely a client device requesting a license.
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`In view of the reasons presented herein, Patent Owner respectfully submits
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`that the Petition fails to meet its burden to prove unpatentability. Consequently, all
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`challenges against the ’766 patent should be dismissed.
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`2
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`IPR2017-01291
`U.S. Patent 6,728,766
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`II. THE ’766 PATENT
`A. Effective Filing Date
`The ’766 Patent is titled “Methods, Systems and Computer Program Products
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`for Distribution of Application Programs to a Target Station on a Network.” EX1001
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`at [54]. The ’766 issued from U.S. Patent Application No. 09/829,854, which is a
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`divisional of U.S. Patent Application No. 09/211,529 (now U.S. Patent No.
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`6,324,578). EX1001 at [62]. Thus, the effective filing date for the ’766 Patent is
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`December 14, 1998, which is the filing date of its parent application. The ’766
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`Patent issued on April 27, 2004 and was originally assigned to the International
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`Business Machines Corporation (“IBM”). EX1001 at [73].
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`B. Overview of the ’766 Patent
`The ’766 Patent relates to managing license-compliant use of application
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`programs within a heterogeneous computer network environment. EX1001, 1:21-
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`23; 3:24-36; 5:37-6:9. Preferred embodiments centralize license management for
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`authorized users, who may access application programs from various client stations
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`across the managed network over time, to ensure compliance with certain license
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`restrictions. License policy information is centrally maintained (e.g., at a central
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`server) so that “the entire process [can] be controlled from a single point for an entire
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`managed network environment.” Id. In certain embodiments, a server may determine
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`license availability and provide application programs on-demand to an authorized
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`3
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`user who has logged into a client supported by the server.
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`IPR2017-01291
`U.S. Patent 6,728,766
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`Claims 1, 7, and 13 are the independent claims of the ’766 Patent. Claim 1 is
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`reproduced below:
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`1. A method for management of license use for a network comprising
`the steps of:
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`[a] 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;
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`[b] 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;
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`[c] 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
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`[d] providing 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.
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`III. THE PETITION FAILS TO ESTABLISH UNPATENTABILITY
`The Board instituted trial on the following grounds presented in the Petition:
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`4
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`IPR2017-01291
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`US. Patent 6,728,766
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`Reference @
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`Olsen'
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`A.
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`Claim Construction
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`The Petition only offers proposed constructions for independent Claim 7.2
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`Because the Board’s Institution Decision (IPR2017-01291, Paper no. 9) only
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`instituted trial for claims 1 and 3, Patent Owner construes the claim language
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`such that the claims are given their broadest reasonable interpretation in light of
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`the specification of the ’766 Patent, pursuant to 37 C.F.R. § 42-100(b), and for
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`the purposes of this review.
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`B.
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`The Petition Does Not Establish Express or Inherent Anticipation
`Of “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”
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`1.
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`The Institution Decision confirms that Olsen ’s request is
`received from and associated with a “client” (not a user)
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`In the Institution Decision, the Board makes the “preliminary inference” that
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`“[a]lthough it appears that a ‘client’ sends Olsen’s request, we can infer preliminarily
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`from the Olsen disclosures addressed in the Petition—utilizing the user’s name and
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`assigning ownership of licenses to users—that the request is associated with the
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`1Us. Patent No. 5,758,069
`2 Patent Owner agrees in principle that independent Claim 7 recites means-plus—
`fimction limitations that invoke pre—AIA 35 U.S.C. § 112, 116.
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`IPR2017-01291
`U.S. Patent 6,728,766
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`requesting user, not just the client.” Institution Decision at 14. At a minimum, the
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`Institution Decision confirms that a “client” (i.e. a device) sends Olsen’s request.
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`And while the Institution Decision states that “[t]his preliminary inference, of
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`course, is an issue of fact that will be resolved on a full record”, there is no evidence
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`before the Board (and indeed the Board cites none) that supports a conclusion that
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`Olsen discloses the license management server receives a request for a license
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`availability from the user, as expressly required by the claim language. See
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`Institution Decision at 14. Moreover, there is nothing in the Petition other than block
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`quotes from Olsen and a single sentence of conclusory attorney argument.3
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`Therefore, this “issue of fact” appears to turn exclusively on the doctrine of
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`inherency.
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`A prior art reference cannot anticipate “unless [it] discloses within the four
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`corners of the document not only all of the limitations claimed but also all of the
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`limitations arranged or combined in the same way as recited in the claim.” Net
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`3 Furthermore, Petitioner has the burden to prove anticipation by articulating its
`reasoning for each limitation within the Petition itself. See 35 U.S.C. § 316(e). The
`Federal Circuit has held that the Board is not “free to adopt arguments on behalf of
`petitioner that could have been, but were not, raised by the petitioner during an IPR.
`Instead, the Board must base its decision on arguments that were advanced by a
`party, and to which the opposing party was given a chance to respond.”). See In re
`Magnum Oil Tools Int'l, Ltd., 829 F.3d 1364, 1381 (Fed. Cir. 2016). For this reason
`alone, the threshold evidentiary burden is not met here for the “receiving” limitations
`recited in Claim 1.
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`6
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`IPR2017-01291
`U.S. Patent 6,728,766
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`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed.Cir.2008). Inherent
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`anticipation requires that the missing descriptive material is “necessarily present,”
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`not merely probably or possibly present, in the prior art. Trintec Indus., Inc. v. Top-
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`U.S.A. Corp., 295 F.3d 1292, 1295 (Fed. Cir. 2002) (citing In re Robertson, 169 F.3d
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`743, 745, 49 USPQ2d 1949, 1950–51 (Fed.Cir.1999) (citing Continental Can Co.
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`USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749
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`(Fed.Cir.1991))). Furthermore, “[i]nherency, however, may not be established by
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`probabilities or possibilities. The mere fact that a certain thing may result from a
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`given set of circumstances is not sufficient. If, however, the disclosure is sufficient
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`to show that the natural result flowing from the operation as taught would result in
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`the performance of the questioned function, it seems to be well settled that the
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`disclosure should be regarded as sufficient.” Finnigan Corp. v. Int'l Trade Com'n,
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`180 F.3d 1354, 1365 (Fed. Cir. 1999) (citations omitted).
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`Here, there is no argument or even suggestion by the Petition that any
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`disclosure of Olsen shows that it is “necessarily present” that the request is received
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`“from a user at a client” and that “availability” in that context refers to whether a
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`license is available for that user.4 It is just as plausible, for example, that the request
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`4 The user-focused perspective of the “license availability” term is further
`emphasized by the recitation “determining the license availability … for the user”
`(as opposed to for the client device in general).
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`7
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`IPR2017-01291
`U.S. Patent 6,728,766
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`applies to, and is automated by, the client device in general in a manner that is not
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`user specific. The possibility that Olsen associates its license availability requests
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`with the client device in general is supported by certain block quotations submitted
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`in the Petition:
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`• “receiving requests from clients 106” (Pet. at 12-14., citing
`EX1002, 3:54-61);
`• “client 106 may request licenses for access to applications”
`(id., citing EX1002, 3:54-61);
`• “LSP 110 receives the request for a number of license units
`from client 106” (id., citing EX1002, 3:54-61);
`• “To request an application, the client assembles a request
`having the desired license criteria, (step 810)” (id., citing
`EX1002, 2:3-47).
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`Other counter examples exist, though even one example is sufficient to defeat
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`the inference that the exact claim language is “necessarily present” as opposed to
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`“merely probably or possibly” present. Finnigan Corp., 180 F.3d at 1365. For
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`example, as possible alternative to the supposed inference, (i) the license availability
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`may be associated with seats for a particular company or entity; (ii) the license
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`availability may be associated with seats for a particular region or regions
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`geographically; (iii) the license availability may associated with seats for a particular
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`office or set of offices within a corporation; (iv) the license availability may be
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`associated with seats for a particular department or departments within an
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`8
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`IPR2017-01291
`U.S. Patent 6,728,766
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`organization; and so on and so forth. None of those alternative possibilities anticipate
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`precisely what is recited. Each may be implemented without a license availability
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`request associated with and received from a specific user.5
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`As shown by the at least by the myriad of alternative possibilities above, there
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`is no record evidence in support of a conclusion that the claim language is
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`“necessarily present” as opposed to “merely probably or possibly” present.
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`Finnigan Corp., 180 F.3d at 1365; see also Trintec Indus., Inc. v. Top-U.S.A. Corp.,
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`295 F.3d 1292, 1295–96 (Fed. Cir. 2002) (reversing the district court and holding
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`that while the difference between a printer and a photocopier may be minimal,
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`“[n]evertheless, a color printer is not a color photocopier” and no reasonable jury
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`could conclude that the prior art reference either expressly or inherently discloses a
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`color photocopier).
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`Accordingly, claims 1 and 3 are patentable because nothing in Olsen discloses
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`or suggests the license management server receiving a request for a license
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`availability from the user at a client, as expressly required by the claim language.
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`5 The ’766 Patent specification provides instructive examples of user-based license
`availability requests. In one embodiment, “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.” EX1001, 14:6-
`12 (emphasis added). Thus, according to the teachings of the ’766 Patent, the
`outcome of a license availability request may be different depending on which
`authorized user makes the request, even if the same machine is used.
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`9
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`IPR2017-01291
`U.S. Patent 6,728,766
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`And because there are a multitude of equally plausible possibilities that are each
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`distinguishable from the claim language, there can be no inherent anticipation. Net
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`MoneyIN, Inc., 545 F.3d at 1371; Finnigan Corp., 180 F.3d at 1365; Trintec Indus.,
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`Inc., 295 F.3d at 1295–96.
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`2.
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`The Petition does not prove requesting “a license” anticipates
`requesting, instead, “license availability”
`The Petition also injects a claim construction dispute over whether the word
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`“availability” can be read out of the claims, such that requesting “a license” and
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`requesting “license availability” are indistinguishable. Patent Owner submits that
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`reading “availability” out of the claims invites reversible error. One of the bedrock
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`principles of claim construction is that every word in a claim should be given effect.
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`See, e.g., Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372
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`(Fed.Cir.2005) (“A claim construction that gives meaning to all the terms of the
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`claim is preferred over one that does not do so.” (citations omitted)).
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`The Institution Decision states that:
`“Further, with regard to “license availability,” we are not
`persuaded by Patent Owner’s argument that Olsen can be
`distinguished
`because Olsen
`does
`not
`request
`“availability,” but instead requests “a license.” Prelim.
`Resp. 11. Patent Owner has failed to show at this
`juncture that the intrinsic record supports a reading of
`“license availability” that excludes a user’s requests for a
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`10
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`IPR2017-01291
`U.S. Patent 6,728,766
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`license.”
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`Institution Decision at 14-15 (emphasis added). Because the burden rests with
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`Petitioner to prove unpatentability, it would be reversible error to shift the burden to
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`Patent Owner to prove a distinction between what the claim language recites
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`(requesting “license availability”) and what the Petition addresses instead
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`(requesting “a license”). Rather, under controlling authority, Petitioner has the
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`burden to defend its fundamental rewrite of the claim language—i.e., that Olsen’s
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`request for a license from the client device in general inherently anticipates, instead,
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`a request for license availability for a user. Net MoneyIN, Inc., 545 F.3d at 1371; see
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`also 37 C.F.R. § 42.104(b)(4); 35 U.S.C. § 316(e).
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`As explained above, the explicit user perspective of the request is informative
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`as to the meaning of “license availability.” The intrinsic evidence unambiguously
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`confirms that the claimed user perspective of the “license availability” request is
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`significant and meaningfully limiting. For example, the ’766 Patent specification
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`expressly disparages systems that are tied to client devices. See e.g., EX1001, 3:8-
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`11. In addition, the specification differentiates between requests from users and
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`request from client devices, teaching that certain users may be exempt from license
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`count limits (see e.g., id., 14:6-12). In other words, requesting “license availability”
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`by a user is not the same as a client device requesting a license.
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`11
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`IPR2017-01291
`U.S. Patent 6,728,766
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`The prosecution history of the ’766 Patent also provides insight as to the
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`significance of the “license availability” limitation. Applicants successfully
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`distinguished this claim language, among other limitations, from a cited reference
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`that “receives a request for a license from one of the ‘client computer systems’,
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`determines whether the license is ‘available to [the requesting one of the] computer
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`systems’.” EX1005, p. 136 (emphasis added, bracketed text original). Similarly,
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`another cited reference was successfully distinguished because it “manages licenses
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`by determining whether an application is allowed for a computer on a network
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`within an enterprise.” Id. (emphasis added). In contrast to those machine-specific
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`requests, Applicant argued, and the Examiner ultimately agreed, the claim language
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`associates availability requests with users. Id.; see also Pet. at 7 (acknowledging that
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`during prosecution Applicants successfully “argued that the Examiner’s references
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`‘appear to relate to management of licenses based on requesting clients or computers
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`or applications, not based on requesting users.’”).
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`Accordingly, the Petition invites reversible error by overlooking the
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`unambiguous “license availability” limitations and compounds that error by failing
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`to provide any explanation or argument as to why the claim language should be
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`ignored.6 Under such circumstances, Petitioner has not and cannot meet its burden
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`6 The Petition merely offers: “Olsen discloses that server 104 receives a request for
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`12
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`IPR2017-01291
`U.S. Patent 6,728,766
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`to prove unpatentability. Net MoneyIN, Inc., 545 F.3d at 1371; see also See 35 U.S.C.
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`§ 316(e).
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`To the extent Petitioner may attempt to newly advance arguments in support
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`of an inherency theory, notwithstanding the failure to explicitly do so in the Petition,
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`there can be no inherent anticipation here for similar reasons as discussed above.
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`First, as discussed above, and as the Institution Decision confirms, Olsen limits its
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`disclosure to license requests sent by the client device. There is no support for an
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`inherency theory that request, instead, is from a user for “license availability,” as
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`required by the claim language.
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`Second, as the Institution Decision also confirms, Olsen merely discloses
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`“[t]he license certificate object suitably determines whether the license units
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`corresponding to the license record are available to the requesting client”. Institution
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`Decision at 16.
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`Third, as discussed above,7 the ’766 Patent differentiates requests from the
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`user and the client and teaches that in one embodiment, “users associated with the
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`headquarters operations or network management department could be made exempt
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`from license count limits while everyone else is subject to license count limits.”
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`a license to a specified application program.” Pet. at 12 (emphasis added).
`7 See, e.g., note 4, supra, and accompanying arguments.
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`13
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`IPR2017-01291
`U.S. Patent 6,728,766
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`EX1001, 14:6-12 (emphasis added). In other words, the ’766 Patent specifically
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`teaches that certain users may be exempt from license count limits, regardless of
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`what region, office, or facility they may be traveling to, even though their co-workers
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`in that same region, office, or facility are subject to license count limits. By way of
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`contrast, Olsen specifically teaches associating its license requests with the client
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`device generally. Accordingly, there can be no inherency at least because the myriad
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`of alternative possibilities discussed above apply equally here.
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`For the foregoing reasons, there is no anticipation (either express or inherent)
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`of “receiving at the license management server a request for a license availability
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`receiving at the license management server a request for a license availability of a
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`selected one of the plurality of application programs from a user at a client,” as
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`recited in all challenged claims.
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`IV. THE SUPREME COURT IS CURRENTLY REVIEWING THE
`CONSTITUTIONALITY OF INTER PARTES REVIEW
`PROCEEDINGS
`The Supreme Court is currently considering the constitutionality of inter
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`partes review proceedings. Oil States Energy Servs., LLC v. Greene’s Energy Grp.,
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`LLC, 137 S. Ct. 2239 (2017). The constitutional challenge is primarily based on the
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`argument that adversarial challenges to an issued patent—like inter partes
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`reviews—are “Suits at common law” for which the Seventh Amendment guarantees
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`a jury trial. U.S. Const. amend. VII; Markman v. Westview Instruments, Inc., 517
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`14
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`IPR2017-01291
`U.S. Patent 6,728,766
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`U.S. 370, 377 (1996). Further, because patents are private property rights, disputes
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`concerning their validity must be litigated in an Article III court, not before an
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`executive branch agency. McCormick Harvesting Mach. Co. v. C. Aultman & Co.,
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`169 U.S. 606, 609 (1898). Out of an abundance of caution, Patent Owner hereby
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`adopts this constitutional challenge now to preserve the issue pending the Supreme
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`Court’s decision.
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`V. CONCLUSION
`For the forgoing reasons, Patent Owner respectfully submits that the Petition
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`fails to meet its burden to prove unpatentability. Consequently, all challenges against
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`the ’766 patent should be dismissed.
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`Date: December 4, 2017
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`Respectfully submitted,
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`By: /s/ Brett A. Mangrum
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`Brett A. Mangrum
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`Attorney for Patent Owners
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`Reg. No. 64,783
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`Ryan Loveless
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`Attorney for Patent Owners
`Reg. No. 51,970
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`15
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`IPR2017-01291
`U.S. Patent 6,728,766
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to 37 C.F.R. § 42.24(d), we certify that this Response to Petition
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`complies with the type-volume limitation of 37 C.F.R. § 42.24(b)(1) because it
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`contains less than 14,000 words as determined by the word-processing program used
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`to prepare the brief, excluding the parts of the brief exempted by 37 C.F.R. §
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`42.24(a)(1).
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`Date: December 4, 2017
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`Respectfully submitted,
`By: /s/ Brett A. Mangrum
`Brett A. Mangrum
`Attorney for Patent Owners
`Reg. No. 64,783
`Ryan Loveless
`Attorney for Patent Owners
`Reg. No. 51,970
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`i
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`IPR2017-01291
`U.S. Patent 6,728,766
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e), we certify that we served an electronic
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`copy of the foregoing PATENT OWNER’S RESPONSE PURSUANT TO 37
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`C.F.R. § 42.107(a) along with the accompanying exhibits via the Patent Review
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`Processing System (PRPS) to Petitioner’s counsel of record at the following
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`address:
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`PETITIONER’S COUNSEL:
`Eric A. Buresh (Reg. No. 50,394) (LEAD)
`eric.buresh@eriseip.com
`Mark C. Lang (Reg. No. 55,356) (Back-up)
`mark.lang@eriseip.com
`Kathleen D. Fitterling (Reg. No. 62,950) (Back-up)
`kathleen.fitterling@eriseip.com
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`Date: December 4, 2017
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`Respectfully submitted,
`By: /s/ Brett A. Mangrum
`Brett A. Mangrum
`Attorney for Patent Owners
`Reg. No. 64,783
`Ryan Loveless
`Attorney for Patent Owners
`Reg. No. 51,970
`
`
`
`ii
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