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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`BITDEFENDER INC.
`Petitioner
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`v.
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`UNILOC USA, INC.
`Patent Owner
`____________
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`Case IPR2017-01315
`Patent 6,510,466
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`Transmittal of Corrected Copy of Exhibit 1008
`(Thomas A. Day Declaration)
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`Transmitted herewith is a corrected copy of Exhibit 1008 (Thomas A. Day
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`Declaration) in size 14 font. Please replace the previously-filed copy of
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`Exhibit 1008 with the attached corrected copy.
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`42.6(e) CERTIFICATE OF SERVICE
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`I hereby certify that, on April 24, 2017, a true and correct copy of the
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`following materials:
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`• Exhibit 1008 (Corrected) to Petition for Inter Partes Review
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`was served via Priority Mail Express on the following attorneys of record as
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`listed on PAIR:
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`Myers Bigel, P.A.
`P. O. Box 37428
`Raleigh, NC 27627
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`Date of Service: April 24, 2017
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`42.6(e)(4)(iii)(B) The name and address of every person served are:
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`Myers Bigel, P.A.
`P. O. Box 37428
`Raleigh, NC 27627
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`Signed:
`/Andrei D. Popovici/
`Andrei D. Popovici
`Registration No. 42,401
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`Ex. 1008
`Ex. 1008
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`Declaration of Thomas A. Day
`Declaration of Thomas A. Day
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`(“Day Declaration”)
`(“Day Declaration”)
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`(corrected)
`(corrected)
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`BITDEFENDER INC.
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`Petitioner,
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`v.
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`UNILOC USA INC. and
`UNILOC LUXEMBOURG SA,
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`Patent Owner.
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`IPR Regarding
`Patent № 6,510,466
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`
`DECLARATION OF
`THOMAS A. DAY
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`1.
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`I am Thomas A. Day, principal of Day & Company LLC, a software
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`development and consulting firm. I am a forensic software examiner, intellectual
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`property analyst, and professional software developer with thirty-nine years’
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`experience in the computer industry. In my capacity as an intellectual property
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`analyst, I have served as an expert and given testimony in matters including
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`software and other technology patents, copyrights, trade secrets, and licensing. In
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`my capacity as a forensic software examiner, I have served as an expert and given
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`Declaration of Thomas A. Day
`Bitdefender v. Uniloc
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`testimony in matters including digital forensics and electronic evidence
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`Page 2
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`preservation, recovery, and spoliation.
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`2.
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`I have been retained by outside counsel for Petitioner in this matter,
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`Bitdefender, Inc. (Petitioner or Bitdefender), to form an opinion on issues of claim
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`construction and prior art concerning Inter Partes Review for United States Patent
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`№ 6,510,466 to Cox, et al. (the ’466 Patent) with a priority date of December 14,
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`1998 and a publication date of January 21, 2003. A copy of my curriculum vitae is
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`attached to this Declaration as Exhibit A. I have agreed to be bound by any
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`confidentiality or protective order on file and of record in the above-entitled
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`matter, and to return or destroy as requested all documents submitted for my
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`review, and to keep all opinions and conclusions confidential without disclosure
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`other than to the parties and the Court in the above-referenced Review.
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`3. With respect to this Declaration, I have been asked by counsel for
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`Petitioner whether certain United States patents constitute invalidating prior art for
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`’466 Patent Claims 1, 2, 7–9, 15–17, 22–24, 30, and 35–37 under 35 USC § 102,
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`Novelty; and 35 USC § 103, Obviousness; with particular deference to KSR Int’l
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`Co. v. Teleflex Inc., 550 U.S. 398 (2007) (KSR). I am being compensated in this
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`matter at a rate of US$350.00 per hour, with compensation not dependent on
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`outcome.
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`Declaration of Thomas A. Day
`Bitdefender v. Uniloc
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`Page 3
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`4.
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`In preparation for this Declaration I have reviewed the ’466 Patent,
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`along with additional patents referenced infra; the prosecution history for the ’466
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`Patent; in Uniloc v. Bitdefender, Eastern District of Texas (E.D. Tex. Litigation),
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`the complaint filed by Uniloc against Bitdefender (E.D. Tex. Complaint); proposed
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`claim constructions in the E.D. Tex. Litigation; and a declaration by Leonard Laub
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`relative to IPR № 2017-00184, Unified Patents v. Uniloc. I have also reviewed the
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`user manuals for Bitdefender Total Security 2016, Bitdefender Antivirus for Mac,
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`and Bitdefender Mobile Security.1 Exs. 1018, 1019, 1020. These products are
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`client-resident applications (where “client” refers to an end-user’s computer),
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`designed to be executed an indefinite number of times once installed at the client. I
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`have reviewed additional documents and exhibits as cited elsewhere herein.
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`Legal Standards
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`5.
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`I understand that a claim is obvious if the differences between the
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`prior art and the claim are such that the claimed subject matter as a whole would
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`have been obvious at the time the claimed invention was made to a person having
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`ordinary skill in the art to which the subject matter pertains (POSA). Obviousness
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`takes into account the scope and content of the prior art, the differences between
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`the prior art and the claim, the level of ordinary skill in the art, and, if they exist,
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`1 With particular attention to Bitdefender Total Security 2016 User Manual § 15.2, “How Do I Remove
`Bitdefender?” at 74 – 75; Bitdefender Antivirus for Mac User Manual § 1.3, “Removing Bitdefender Antivirus for
`Mac” at 8; and Bitdefender Mobile Security User Manual § 2, “Getting Started” at 2.
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`Declaration of Thomas A. Day
`Bitdefender v. Uniloc
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`secondary considerations of non-obviousness. Secondary considerations must have
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`a sufficient nexus (link) to the claimed invention, as opposed to other factors such
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`as prior art features.
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`6. My understanding is that any relevant differences between the subject
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`matter of a claim and the prior art are to be analyzed from the standpoint of a
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`POSA at the time of the invention. My opinions below regarding a POSA refer to
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`the time of the invention, even if stated in the present tense or otherwise not
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`explicitly linked to the time of the invention.
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`7.
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`I understand that the obviousness of a claim must be determined
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`prospectively, and not using hindsight.
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`8.
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`I understand that in judging the obviousness of a claim, I must
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`consider the claim as a whole, and not merely one or more parts of the claim.
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`9. My understanding is that a POSA faced with a problem can use his or
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`her experience and also look to any available prior art in order to solve the
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`problem.
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`10.
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`I understand that proving obviousness requires a clear articulation or
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`statement of one or more reasons that the subject matter of a claim would have
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`been obvious. Such a reason can originate from multiple sources, including:
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`a. Combining prior art elements according to known methods to yield
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`predictable results;
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`b. Simple substitution of one known element for another to obtain
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`predictable results;
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`c. Use of a known technique to improve similar devices (methods or
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`products) in the same way;
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`d. Applying a known technique to a known device (method or product)
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`ready for improvement to yield predictable results;
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`e. Choosing from a finite number of identified, predictable solutions, with a
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`reasonable expectation of success (“obvious to try”);
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`f. Known work in one field of endeavor may prompt variations of it for use
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`in either the same field or a different one based on design incentives or
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`other market forces if the variations would have been predictable to one
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`of ordinary skill in the art; or
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`g. Some teaching, suggestion, or motivation in the prior art that would have
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`led one of ordinary skill to modify the prior art reference or to combine
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`prior art reference teachings to arrive at the claimed invention.
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`11.
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`I understand that a reason for modifying or combining references may
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`originate from explicit statements in the prior art, from the knowledge of a POSA,
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`or from the nature of any problem known in the field at the time, even if different
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`from the particular problem addressed by the inventor(s).
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`Bitdefender v. Uniloc
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`12. My understanding is that a POSA generally would not have had a
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`reason to make a modification that would have rendered the prior art inoperable or
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`otherwise unsuitable for its intended purpose.
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`13.
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`I understand that an element in a claim for a combination may be
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`expressed as a means or step for performing a specified function without the recital
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`of structure, material, or acts in support thereof, and such claim shall be construed
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`to cover the corresponding structure, material, or acts described in the specification
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`and equivalents thereof.
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`14.
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`I have been informed that a general-purpose computer, by itself, may
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`be sufficient as corresponding structure for general computing functions such as
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`storing, which can be achieved by any general-purpose computer without special
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`programming.
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`15.
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`I have also been informed that, for other functions, when the disclosed
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`structure is a computer programmed to carry out an algorithm, the disclosed
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`structure is not the general-purpose computer, but rather the now special-purpose
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`computer programmed to perform the disclosed algorithm. In the description
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`below, wherever I refer to certain code as structure corresponding to a given
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`function, it is understood that I am referring to a processor or computer configured
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`according to that code, and/or a computer-program product storing the code, as
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`applicable.
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`16.
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`I have further been informed that a structure corresponds to a function
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`only if the specification or prosecution history clearly links or associates that
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`structure to the function.
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`A Person Having Ordinary Skill in the Art
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`17.
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`I considered a person having ordinary skill in the art at the time of the
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`alleged invention of the ’466 Patent to have held a Bachelor of Science or higher
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`degree in electrical engineering or computer science, and at least three years of
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`experience with client-server architecture. Additional education may compensate
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`for less experience and vice-versa. The relevant field of the ’466 Patent is
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`The Problems and The State of the Art in 1998
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`18. From 1990 to 1996 I was under contract to Southern California
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`Edison Company and to other clients to solve, among other things, the problem
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`faced by their technology departments of managing the mix of applications on the
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`organization’s many, heterogenous workstations. I was responsible for designing,
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`architecting, and implementing application management systems governing more
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`than ten thousand workstations, and thus have personal as well as theoretical
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`Declaration of Thomas A. Day
`Bitdefender v. Uniloc
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`experience in the art, and the inevitable limitations that constrained possible
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`solutions at the time.
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`19. The growth of the Internet, and of networking generally, during the
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`mid to late 1990s led to a number of significant changes in computing. For
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`example, ubiquitous availability of network connectivity and increasing connection
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`speeds led a number of vendors, including Oracle, Sun Microsystems, IBM, and
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`others, to promote thin clients and/or network computers. Such client computers
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`had limited local storage space in the form of a relatively limited disk drive or no
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`disk drive at all. Limiting local storage would save manufacturing costs and allow
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`computing to be standardized on the server side in enterprise environments. The
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`machines could compensate for limited local storage space by downloading
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`resources on-demand, when needed.
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`20.
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`In 1995, Sun Microsystems released Java, a group of technologies
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`intended to facilitate cross-platform software development. Sun’s slogan for Java
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`was “Write Once, Run Anywhere.” With Java, any application compiled to run
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`within the Java Virtual Machine (JVM) operating environment would run on any
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`machine so-equipped, regardless of underlying operating system, thus facilitating
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`the deployment of software in heterogeneous networks. Such an application, in the
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`case where the host JVM was running on a client workstation, was commonly
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`called an applet. A Java applet could be launched from a webpage displayed by a
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`Bitdefender v. Uniloc
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`Web browser, and, after launching, could appear within the browser window or
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`within a separate window. The applet was normally executed within a task separate
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`from that of the browser itself.
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`21. By 1998, online distribution of software, including Java applets, was
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`well known. Associating applications to users rather than merely to client
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`machines was also known. In addition, the individual elements of the challenged
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`claims were known, and within the level of skill of a POSA at the time. See, e.g.,
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`Ex. 1009 (Kasso), Ex. 1010 (Raduchel), and Ex. 1013 (IBM On-Demand
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`Handbook).
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`Opinions Regarding Each of the Grounds
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`22. Having reviewed the above-referenced materials, and having
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`considered the mechanisms that I and other persons having skill in the art would
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`likely have employed to the claimed ends, my opinions are as follows.
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`Ground 1: Claims 1, 15, and 16 Are Obvious over Kasso in View of Raduchel
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`23. Kasso in view of Raduchel describe [A method] (Claim 1)/[an
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`application program management system] (Claim 15)/[a computer program
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`product] (Claim 16) for management of application programs on a network
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`including a server and a client. The host (network computer) 200 of Kasso
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`corresponds to the claimed client, while at least the HTTP server 208 of Kasso
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`Bitdefender v. Uniloc
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`corresponds to the claimed server. Ex. 1009 (Kasso) 4:46–5:7, 5:60–62. The
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`described Java applets implement programs such as an electronic mail program. Id.
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`6:3–4, 6:10–12. “Application program” is defined by the ’466 Patent as “code
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`associated with underlying program functions.” Ex. 1001 (’466) 14:24–26. The
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`Java applets described by Kasso include code associated with underlying program
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`functions, and constitute application programs as recited in the ’466 claims.
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`24. Kasso in view of Raduchel describe the computer program product
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`having computer-readable program code means embodied in said medium (Claim
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`16). Kasso describes code (instructions) stored on a computer-readable storage
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`medium at 4:34–38. A POSA would have understood that Kasso’s description of
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`computer-readable media applies to the subsequent description of system
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`functionality.
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`25. Kasso in view of Raduchel describe [means for] (Claim 15)/[computer
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`readable program code means for] (Claim 16) installing a plurality of application
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`programs at the server (Claims 1, 15, 16). For this limitation, I have considered the
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`specification structure(s) corresponding to the recited function (installing a
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`plurality of application programs at the server) to include a programmed processor,
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`computer-readable medium, and/or network drive accessible to the server. Ex.
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`1001 (’466) 12:1–24, 20:60–21:9, 3:39–54, 4:24–27. Kasso describes installing a
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`plurality of Java applets, which include code associated with underlying program
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`functions and which are thus application programs, at HTTP server 208. Ex. 1009
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`(Kasso) 4:62–5:4. Kasso states that server 208 has a mass storage device (Id. 4:62–
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`65), and/or is associated with a mass storage device 212 (Id. 6:60–65). Mass
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`storage device 212 is shown in Fig. 2 as storing a plurality of applications (apps).
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`A POSA would have deemed the mass storage device 212 of Kasso to include
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`network drives accessible to server 208. In addition, a POSA would have deemed
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`the arrangement formed by the HTTP server 208 of Kasso and the attached or
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`associated mass storage device 212 to constitute or to be part of a particular server.
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`Furthermore, even if mass storage device 212 were deemed to not be part of a
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`server, since HTTP server 208 does deliver application programs to requesting
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`clients (Ex. 1009 (Kasso) 6:1–7), HTTP server 208 does store the application
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`programs by whatever means in order to effectuate the delivery. Additionally, a
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`POSA would have understood that Kasso’s description of the delivery of an
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`exemplary, single MailView application to a host applies to other applications
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`installed at the server, and thus describes the delivery of multiple applications
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`installed at HTTP server 208. See Ex. 1009 (Kasso) Fig. 5, multiple application
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`icons 404, 406.
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`26. Kasso in view of Raduchel render obvious [means for] (Claim
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`15)/[computer readable program code means for] (Claim 16) receiving at the server
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`a login request from a user at the client (Claims 1, 15, 16). I have considered the
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`specification structure corresponding to the stated function to include code
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`configured to receive at the server from the client user credentials including user
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`identification and password. Kasso describes receiving at a Network Information
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`Server (NIS) 230 a request to verify the validity of a username and password
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`entered by a user on a host computer (client) 200. Ex. 1009 (Kasso), 5:34–40. In
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`the exemplary embodiments described by Kasso, the NIS server 230, which
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`receives login requests from clients, is distinct from the HTTP server 208, which
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`delivers applications to clients. Nevertheless, it would have been obvious to
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`implement the authentication functionality described for the NIS server 230 on the
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`HTTP server 208 of Kasso, so that the HTTP server 208 would have received
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`authentication requests. Such an approach would have been particularly suitable
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`for smaller networks. Alternatively, it would have been obvious to receive
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`authentication requests at HTTP server 208, which would then offload the
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`authentication functionality to NIS server 230. Such an approach would have been
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`suitable for larger networks. Each approach is treated below in turn.
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`27. A POSA would have had at least three reasons for incorporating
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`authentication functionality on a delivery server such as the HTTP server 208 of
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`Kasso. First, Kasso explicitly suggests the possibility of implementing his
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`invention on a single computer system 100, described with reference to Fig. 1. Ex.
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`1009 (Kasso) 4:1–43. Specifically, Kasso states that “Execution of the sequences
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`of instructions contained in memory 104 causes processor 102 to perform the
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`process steps that will be described hereafter.” Id. 4:36–38. The process steps
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`described hereafter include both the authentication and installation/delivery
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`functions described by Kasso.
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`28. Second, a POSA would have known that implementing two functions
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`such as authentication and delivery on the same server, as opposed to separate
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`dedicated servers, would have saved costs and potentially simplified the system
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`architecture. A single-machine implementation would have been particularly
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`desirable on a system of limited scale, which would not have required the
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`additional processing power of a dedicated authentication server.
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`29. Third, implementing authentication and delivery functionality on the
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`same server, as opposed to distinct servers, involves the simple substitution of one
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`known element for another (a server implementing two functions for two servers
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`implementing the functions separately) to obtain predictable results, applying a
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`known technique (authentication) to a known device (delivery server) ready for
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`improvement to yield predictable results, and choosing from a finite number of
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`identified, predictable solutions (single server and multi-server implementations
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`for authentication and application delivery), with a reasonable expectation of
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`success.
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`30. Such a single-machine implementation would have involved a change
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`in the entities involved in intercommunication, but would not have fundamentally
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`altered the functioning of the authentication or delivery functionalities.
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`31. Additionally, a POSA would have had at least three reasons for
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`receiving login requests at a delivery server such as the HTTP server 208 of Kasso,
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`rather than directly at an authentication server such as the NIS server 230 of Kasso.
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`32. First, a POSA would have had a reason to use such an arrangement to
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`simplify communications on the client side, by having all client requests (including
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`login and application selection) be directed to a single server (HTTP server 208).
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`33. Second, a POSA would have had a reason to direct all client
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`communications (including login and application selection) to a single server to
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`enhance security by minimizing the number of servers directly exposed to external
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`communications.
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`34. Third, receiving login requests and application selections at the same
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`server and then forwarding the login requests onward, as distinct from directly
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`receiving login requests at one server and application selections at a different
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`server, involves choosing from a finite number of identified, predictable solutions
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`(direct v. indirect communication with a server), with a reasonable expectation of
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`success.
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`35. Such a login-forwarding implementation would have involved a
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`change in the entities involved in intercommunication, but would not have
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`fundamentally altered the functioning of the system’s authentication or delivery
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`functionalities.
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`36. Kasso in view of Raduchel describe [means for] (Claim 15)/[computer
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`readable program code means for] (Claim 16) establishing a user desktop interface
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`at the client associated with the user responsive to the login request from the user,
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`the desktop interface including a plurality of display regions associated with a set
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`of the plurality of application programs installed at the server for which the user is
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`authorized (Claims 1, 15, 16). I have considered the structures corresponding to the
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`stated function to include: a Java-enabled Web browser or desktop that provides an
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`operating environment for network-client applications (Ex. 1001 (’466) 11:52–55),
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`an application launcher implemented as a Java applet downloaded to the client and
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`executed to establish a user desktop interface (Id. Fig. 3 at 226, Fig. 6 at 270,
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`12:37–45), and/or code implementing each display region as an icon (Id. 14:55–
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`58).
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`37. First, the Selector application (Selector) and/or the JavaOS described
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`by Kasso provide a desktop that provides an operating environment for network-
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`client applications. Ex. 1009 (Kasso) 5:23–53, 5:60–62.
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`38. Second, the Selector application described by Kasso is an application
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`launcher, and in particular a launcher implemented as a Java applet, downloaded to
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`the host (client) 200. Id. 5:45–53, 5:60–62. Selector is launched responsive to the
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`login request from the user. Id. 5:41–49.
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`39. Selector establishes a user desktop interface, shown at 402 in Kasso’s
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`Fig. 5, that includes a plurality of display regions (icons 404, 406) associated with
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`a set of the application programs installed at the server for which the user is
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`authorized. Id. 5:63-6:4. Kasso states that the user can run the represented
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`applications after logging in, and thus that the represented applications are
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`applications for which the user is authorized. Id. 6:4–12. Kasso also states that the
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`application icon pane 410 remains visible at all times. Id. 6:9–10.
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`40. To the extent that Claims 1, 15, and 16 are deemed to require that the
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`user desktop interface be configured according to an individualized list of
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`applications for which the user is authorized (rather than simply configured to
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`display applications for which the user is authorized), it would have been obvious
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`to modify the system of Kasso to incorporate Raduchel’s teachings on user-
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`selective application access to arrive at a user desktop interface so configured.
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`41. Raduchel describes a system in which an authentication manager
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`authenticates a user, and returns a token that identifies the services that the user
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`may use. Ex. 1010 (Raduchel) 5:20–27. This token may contain a profile of a
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`user’s access rights, and when the token is returned to the local computer, it would
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`be included in all further requests from the local computer. Id. 5:28–30. The token
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`includes a profile, and not merely a Boolean (yes/no) flag. A browser then displays
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`icons indicating each of these services, and the user may select the icons, causing
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`applets to be downloaded to the browser and run. Ex. 1010 (Raduchel) 3:38–44.
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`Fig. 5 depicts a browser screen 300 with three icons. The icons are representative
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`of the services that the user may use, as indicated in a token received from the
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`authentication manager. Id. 5:47–51. Fig. 6 depicts the browser screen 300 with
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`four icons. This display is generated when an authentication token returned to the
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`local computer indicates that the user can utilize all the available services on the
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`local computer. Id. 6:12–14, 6:23–24.
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`42.
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`It would have been obvious to combine Raduchel’s teachings on user-
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`selective application access with Kasso’s teachings on providing a user desktop
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`interface, to arrive at a user desktop interface that does not merely display
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`applications for which the user is authorized (among others), but is configured
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`according to a list of applications (indicated by Raduchel’s token) for which the
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`user is authorized. A POSA would have had a reason to combine the identified
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`teachings of Kasso and Raduchel in order to provide a user with indications of the
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`services that the user is able to utilize, by providing indications and display icons
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`representing the services available to that user. Ex. 1010 (Raduchel) 2:18–22. Such
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` modification would have simplified the user display and reduced error messages
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`caused by user interactions with unavailable applications, thus increasing system
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`usability.
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`43. Kasso and Raduchel are analogous art to the claimed invention
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`because they are both in the same field of endeavor as the ’466 Patent, and because
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`they are reasonably pertinent to problems faced by the ’466 inventors. Kasso
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`relates to computer systems, and more particularly to managing properties of
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`computer program applications. Ex. 1009 (Kasso). 1:8–9. Raduchel relates to data
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`processing systems, and more particularly, to network–based authentication of a
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`computer user. Ex. 1009 (Raduchel) 1:13–15. More specifically, both Kasso and
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`Raduchel describe systems in which authenticated users in a client-server
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`environment access applications, and are reasonably pertinent to problems related
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`to authentication and/or application delivery and management in a client-server
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`environment.
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`44. Kasso in view of Raduchel describe [means for] (Claim 15)/[computer
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`readable program code means for] (Claim 16) receiving at the server a selection of
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`one of the plurality of application programs from the user desktop interface
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`(Claims 1, 15, 16). I have considered the structure corresponding to the stated
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`function to include code configured to receive a Hyper-Text Transfer Protocol
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`(HTTP) client request for a Universal Resource Locator (URL) that points to the
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`location of an applet to be executed. Ex. 1001 (’466) 9:42–43, 9:52–57.
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`45. According to Kasso, when a user clicks the mailbox icon 406,
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`Selector loads the HTML page associated with the icon and which contains the
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`MailView Java applet. Ex. 1009 (Kasso) 6:4–7. Thus, in response to a user clicking
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`on the mailbox icon 406, the HTTP server 208 receives a request to access the
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`HTML page associated with the MailView application icon. The request
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`constitutes a selection of the MailView application. The request is an HTTP
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`request for a URL that points to the location of the MailView applet to be
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`executed. Id. 6:1–3, 5:2–4.
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`46. Kasso in view of Raduchel describes [means for] (Claim
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`15)/[computer readable program code means for] (Claim 16) providing an instance
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`of the selected one of the plurality of application programs to the client for
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`execution responsive to the selection (Claims 1, 15, 16). I have considered the
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`structure corresponding to the stated function to include code configured to
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`transmit an applet to the client in response to processing an HTTP client request
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`for a URL that points to the location of the applet. Ex. 1001 (’466) 9:42–43, 9:52–
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`57.
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`47. As described by Kasso, when a user clicks the mailbox icon 406,
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`Selector loads the HTML page associated with the icon and which contains the
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`MailView Java applet. Ex. 1009 (Kasso) 6:4–7. Thus, the HTTP server 208
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`provides an instance of the selected application, i.e. an instance of the MailView
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`Java applet, to the host. The applet loads itself into RAM of the host, and then
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`executes and runs on the user’s host. Id. 6:9–12. Thus, the MailView Java applet is
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`provided to the host for execution responsive to the selection.
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`48.
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`I understand that the ’466 Patent Applicant distinguished the Rose
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`reference during prosecution by disclaiming the distribution of client-resident
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`programs, which may be repeatedly executed at the client without reinstantiation.
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`Ex. 1002 (File History), Appeal Brief, page 8. Patent Owner now appears to allege
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`that a system that distributes client-resident programs infringes the ’466 Patent
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`claims. (Ex. 1003, E.D. Tex. Complaint).
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`49. To the extent that, notwithstanding Patent Owner’s apparent
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`infringement arguments, Claims 1, 15, and 16 are deemed limited to the
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`distribution of transient programs, as distinguished from client-resident programs,
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`Kasso in view of Raduchel describe such a limitation. In particular, Java applets
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`such as the MailView applet described by Kasso are transient programs, rather than
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`client-resident programs. Such programs are ordinarily downloaded every time
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`they are to be executed. Thus, under either interpretation of the C