IPR2017-01667
`Petitioners’ Responsive Brief
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`FACEBOOK, INC., WHATSAPP, INC., LG ELECTRONICS, INC. and
`HUAWEI DEVICE CO., LTD.,1
`Petitioner
`
`v.
`
`UNILOC USA, INC. and UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`
`
`Case IPR2017-01667
`Patent 8,724,622
`
`
`PETITIONERS’ RESPONSIVE SUPPLEMENTAL BRIEF
`
`
`
`
`
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`1 LG Electronics, Inc. and Huawei Device Co., Ltd. filed a motion for joinder and
`petition in IPR2017-02090, which were granted, and, therefore, these entities have
`been joined to this proceeding.
`
`
`
`
`Petitioners’ Responsive Brief
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`FACEBOOK, INC., WHATSAPP, INC., LG ELECTRONICS, INC. and
`HUAWEI DEVICE CO., LTD.,1
`Petitioner
`
`v.
`
`UNILOC USA, INC. and UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`
`
`Case IPR2017-01667
`Patent 8,724,622
`
`
`PETITIONERS’ RESPONSIVE SUPPLEMENTAL BRIEF
`
`
`
`
`
`
`1 LG Electronics, Inc. and Huawei Device Co., Ltd. filed a motion for joinder and
`petition in IPR2017-02090, which were granted, and, therefore, these entities have
`been joined to this proceeding.
`
`
`
`
`
`TABLE OF CONTENTS
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`Page
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`CLAIM CONSTRUCTION OF “INSTANT VOICE MESSAGE” .............. 1
`PO’s Narrow Proposal Is Not the Broadest Reasonable Interpretation,
`and Would Improperly Exclude the ’622 Claims. .......................................... 1
`Petitioners’ “Data Structure” Construction Includes Audio Data and
`Encompasses Structured “Data Content.” ...................................................... 2
`ZYDNEY SATISFIES BOTH CONSTRUCTIONS. .................................... 5
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`-i-
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`I.
`A.
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`B.
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`II.
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`I.
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`CLAIM CONSTRUCTION OF “INSTANT VOICE MESSAGE”
`A. PO’s Narrow Proposal Is Not the Broadest Reasonable
`Interpretation, and Would Improperly Exclude the ’622 Claims.
`Patent Owner concedes that its narrow proposed construction of “instant voice
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`message” for ’622 claim 27 and ’433 claim 9 is inconsistent with the meaning of
`
`“instant voice message” in ’622 claims 3-23. (PO Br. at 6-7.) This point alone is
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`dispositive. Patent Owner contends that “instant voice message” in ’622 claims 3-
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`23 has a different meaning than the same term in ’622 claim 27. “It is well-
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`established, however, that claim terms are to be construed consistently throughout a
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`patent.” Phil-Insul v. Airlite Plastics, 854 F.3d 1344, 1359 (Fed. Cir. 2017); Paice
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`v. Ford Motor, 881 F.3d 894, 904 (Fed. Cir. 2018) (“unless otherwise compelled . .
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`. the same claim term in the same patent or related patents carries the same construed
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`meaning”). Patent Owner’s narrow proposal that would exclude numerous ’622
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`claims is not the BRI. Instead, the multiple “uses of the term require a meaning
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`broad enough to apply to each,” especially under the BRI standard. Acromed v.
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`Sofamor Danek Group, 253 F.3d 1371, 1381-82 (Fed. Cir. 2001). Only Petitioners’
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`construction properly encompasses all uses of “instant voice message.”
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`Patent Owner’s discussion of “claim differentiation” is a red herring. (PO Br.
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`at 6.) The claims at issue have various different limitations other than “instant voice
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`message.” But the term “instant voice message” has the same meaning in all claims.
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`B. Petitioners’ “Data Structure” Construction Includes Audio Data
`and Encompasses Structured “Data Content.”
`Patent Owner incorrectly asserts that Petitioners’ construction would cover a
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`“container” without voice data, misleadingly playing off the everyday meaning of a
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`distinct physical container that could be empty and “discarded” after use. (PO Br.
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`at 1, 3, 5.) But Petitioners’ construction requires the inclusion of an audible message:
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`a “data structure that includes a representation of an audible message.” Likewise,
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`Zydney explicitly defines its “voice container” as an object that necessarily includes
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`“voice data.” (Pet. Br. at 5-6.) If an item does not include voice data, then it is not
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`a voice container in Zydney, by definition. Thus the “container” in Zydney is akin
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`to a TCP/IP “envelope.” A “message sent through TCP/IP must be placed ‘inside
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`an envelope,’” but this only means that some data, such as a destination address, is
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`prepended to the message data. (IPR2017-001667, Ex. 1014 at 95.)
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`Patent Owner also raises a false dichotomy of “data structure vs. data content.”
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`(PO Br. at 1.) But a data structure, as defined in Petitioners’ construction,
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`encompasses data content that is structured. If data content includes a representation
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`of an audible message and is structured (e.g., audio data formatted according to a
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`certain protocol), then the data content can also disclose a data structure.
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`Patent Owner ignores the fact that the disclosed and claimed embodiments of
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`an “instant voice message” are data structures. For example, both sides rely on the
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`‐2‐
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`specification’s teaching that an instant voice message can be an “audio file.” Patent
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`Owner apparently assumes that the “audio file” is not a data structure. But both of
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`Patent Owner’s experts confirmed that a “file” that contains “audio data” is a “type
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`of data structure.” (IPR2017-01428, Ex. 2001 (diEuliis), ¶ 66 (“Zydney may
`
`temporarily store the audio data in a file, which is another type of data structure”);
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`IPR2017-01667, Ex. 2001 (Easttom), ¶ 45 (same).) The “instant voice message”
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`transmitted through buffered portions is also a data structure, which is structured
`
`into portions to constitute (and re-constitute) the “instant voice message.”
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`The “instant voice message” in ’622 claims 3-23 is also a data structure—a
`
`data structure that contains a digitized audio file and also can contain other fields.
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`Patent Owner cites an embodiment stating that “[t]he content of the object field is a
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`block of data being carried by the message object, which may be, for example, a
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`digitized instant voice message.” (PO Br. at 2, ’433, col. 14:39-42 (emphasis
`
`added).) It also cites uses of “i.e.” in discussing example embodiments, such as
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`“audio files, i.e., instant voice messages.” (PO Br. at 2.) But those discussions of
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`illustrative embodiments do not change the ’622 claims reciting that “the instant
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`voice message includes an object field including a digitized audio file” and other
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`fields. (’622, claims 3-23.) This “instant voice message” with fields corresponds
`
`with the “message object” in the specification, which is a data structure that can
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`‐3‐
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`contain audio data and various non-audio data—much like Zydney’s voice container
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`object. Thus, the patents do not narrowly define “instant voice message” as limited
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`solely to data content as Patent Owner contends. Instead, the patentee chose to use
`
`the same term throughout the claims to broadly encompass various data structures
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`such as message objects and audio files. Acromed, 253 F.3d at 1381-82.
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`Regarding the “attaching” limitations, the parties agree that the specification
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`indicates that files are attached to the “audio file” in an embodiment. (PO Br. at 4-
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`5.) But this only supports Petitioners’ construction. An audio file is a data structure,
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`as both of Patent Owner’s experts confirmed. The specification refers to attaching
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`files to a data structure (audio file), where that data structure (audio file) includes a
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`representation of an audible message (data content). The patents contain no
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`description that files must be attached, somehow, only to the data content contained
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`inside the file, nor is it even clear how that could happen absent making a longer file.
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`Dependent claims that recite “audibly playing” or “recording” the instant
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`voice message do not change the analysis. (PO Br. at 5.) The data structure
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`constituting the instant voice message, such as an audio file or a voice container file,
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`can be played or recorded. Zydney likewise describes “playing a voice container”
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`and refers to “voice containers” and “voice recordings” interchangeably. (Zydney,
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`4:20-21, 21:14-16, 36:4-5, Fig. 8 (items 1.2.5 and 1.2.6), Fig. 9 (1.3.7).) Zydney
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`also describes that the voice container is a “file” and describes that the “voice files
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`can be played and recorded.” (Id., Fig. 8 (item 1.2.4), 21:14-16.)
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`II. ZYDNEY SATISFIES BOTH CONSTRUCTIONS.
`Patent Owner does not dispute Zydney’s disclosure under Petitioners’
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`construction; its experts admit that Zydney’s voice container is a “data structure.”
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`(IPR2017-01428, Ex. 2001, ¶ 68; IPR2017-01667, Ex. 2001, ¶ 47.) And the claimed
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`attachment to an “instant voice message” reads on Zydney’s voice container to the
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`same extent it reads on the patents’ “audio file” embodiment, as discussed above.
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`Under Patent Owner’s incorrect proposal, since Zydney contains the same relevant
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`disclosure as the patents—attaching items to the “instant voice message” file (voice
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`container file or audio file)—the BRI must encompass Zydney. Patent Owner also
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`identifies no deficiency in Zydney’s alternative disclosure of attaching (linking) files
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`to audio content by formatting the voice container with MIME. Patent Owner’s
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`experts did not dispute that MIME satisfies the “attaching” limitations; they only
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`queried about what software performs the attachment, which was irrelevant as the
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`claims do not narrowly limit what client software performs the function, under BRI.
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`(IPR2017-01428, Ex. 2001, ¶¶ 93-94; IPR2017-01667, Ex. 2001, ¶ 75.)
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`Patent Owner’s cited IPRs where Board panels declined to institute IPR on
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`claims of different patents based on Zydney do not change the analysis. Those cases
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`involve different claim language and unique records, and are not controlling here.
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`‐5‐
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`
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`Dated: October 5, 2018
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`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`
`
`
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`
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`By:
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`
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`Respectfully submitted,
`
`
`/Heidi L. Keefe/
`Heidi L. Keefe
`Reg. No. 40,673
`Counsel for Petitioners
`Facebook, Inc. and WhatsApp
`Inc.
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`‐6‐
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`IPR2017-01667
`Petitioners’ Responsive Brief
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`CERTIFICATE OF SERVICE
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`I hereby certify, pursuant to 37 C.F.R. § 42.6, that a complete copy of the
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`attached PETITIONERS’ RESPONSIVE SUPPLEMENTAL BRIEF, are being
`served on the 5th day of October, 2018, by electronic mail on counsel of record for
`the Patent Owner as follows:
`
`Brett Mangrum (Reg. No. 64,783)
`brett@etheridgelaw.com
`Sean D. Burdick (Reg. No. 51,513)
`sean.burdick@unilocusa.com
`James Etheridge (Reg. No. 37,614)
`jim@etheridgelaw.com
`Jeffrey Huang (Reg. No. 68,639)
`jeff@etheridgelaw.com
`
`
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`DATED: OCTOBER 5, 2018
`
`COOLEY LLP
`ATTN: Patent Docketing
`1299 Pennsylvania Avenue NW
`Suite 700
`Washington, D.C. 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`
`
`
`/ Heidi L. Keefe /
`Heidi L. Keefe
`Reg. No. 40,673
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`‐1‐
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