RPX Corporation
`
`v.
`
`Macrosolve, Inc.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`§
`§
`§
`§
`§
`§
`§
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`Declaration of Dr. A.L. Narasimha Reddy
`
`Petition for Inter Partes Review
`of U.S. Patent No. 7,822,816
`
`Issued: October 26, 2010
`
`Title: “System and Method for Data
`Management”
`
`Under 37 C.F.R. § 1.68
`
`I, Dr. A.L. Narasimha Reddy, do hereby declare:
`
`1.
`
`I am making this declaration at the request of RPX Corporation, in the
`
`matter of the Inter Partes Review of U.S. Patent No. 7,822,816 (“the ’816 Patent”)
`
`to Payne.
`
`2.
`
`I am being compensated for my work in this matter. My
`
`compensation in no way depends upon the outcome of this proceeding.
`
`3.
`
`In the preparation of this declaration, I have studied:
`
`a) the ’816 Patent, RPX-1001;
`
`b) the prosecution history of the ’816 Patent, RPX-1002;
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`c) the file history to date of the pending ex parte reexamination of the
`
`’816 Patent, RPX-1003;
`
`d) Dodgen, U.S. Patent No. 6,453,329, RPX-1011;
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`e) Debra Sancho & Ivan Phillips, THE OFFICIAL PENDRAGON
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` RPX-1004
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`Unified Patents v. Fall Line
`IPR2018-00043
`Unified EX1025
`
`
`
`v.
`
`Macrosolve, Inc.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`§
`§
`§
`§
`§
`§
`§
`
`Declaration of Dr. A.L. Narasimha Reddy
`
`Petition for Inter Partes Review
`of U.S. Patent No. 7,822,816
`
`Issued: October 26, 2010
`
`Title: “System and Method for Data
`Management”
`
`Under 37 C.F.R. § 1.68
`
`I, Dr. A.L. Narasimha Reddy, do hereby declare:
`
`1.
`
`I am making this declaration at the request of RPX Corporation, in the
`
`matter of the Inter Partes Review of U.S. Patent No. 7,822,816 (“the ’816 Patent”)
`
`to Payne.
`
`2.
`
`I am being compensated for my work in this matter. My
`
`compensation in no way depends upon the outcome of this proceeding.
`
`3.
`
`In the preparation of this declaration, I have studied:
`
`a) the ’816 Patent, RPX-1001;
`
`b) the prosecution history of the ’816 Patent, RPX-1002;
`
`c) the file history to date of the pending ex parte reexamination of the
`
`’816 Patent, RPX-1003;
`
`d) Dodgen, U.S. Patent No. 6,453,329, RPX-1011;
`
`e) Debra Sancho & Ivan Phillips, THE OFFICIAL PENDRAGON
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`FORMS FOR PALMOS STARTER KIT (2000) (“Sancho”), RPX-
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`1012;
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`f) Richards, U.S. Pub. No. 2002/0147850, RPX-1014;
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`g) Porter, U.S. Patent No. 6,163,811, RPX-1015;
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`h) Desai, U.S. Patent No. 6,618,746, RPX-1016; and
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`i) Jeter, WO 00/57976, RPX-1017.
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`4.
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`In forming the opinions expressed below, I have considered:
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`a) the documents listed above,
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`b) the additional documents and references cited in the analysis below,
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`c) the relevant legal standards, including the standard for obviousness
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`provided in KSR International Co. v. Teleflex, Inc., 550 U.S. 398
`
`(2007) and any additional authoritative documents as cited in the body
`
`of this declaration, and
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`d) my knowledge and experience based upon my work in this area as
`
`described below.
`
`Qualifications and Professional Experience
`
`5. My qualifications are set forth in my curriculum vitae, a copy of
`
`which is submitted as exhibit RPX-1005.
`
`6.
`
`I am currently the J.W. Runyon Professor of Electrical and Computer
`
`Engineering at Texas A&M University in College Station, Texas. I have over 20
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`years of experience in a wide variety of technologies and industries relating to data
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`communications, storage systems, distributed systems, including development of
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`tools for retrieving data from web servers and development of metasearch engines
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`and research into mobile operating systems.
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`7.
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`I received a Bachelor’s of Technology degree in Electronics and
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`Electrical Communications Engineering from the Indian Institute of Technology,
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`in Kharagpur, India, in August 1985. I also received a Masters of Science and a
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`Ph.D. degree in Computer Engineering from the University of Illinois at Urbana-
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`Champaign in May 1987 and August 1990, respectively.
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`8.
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`I am currently the J. W. Runyon Professor in the Department of
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`Electrical and Computer Engineering at Texas A & M University. My research
`
`interests are in Computer Networks, Storage Systems, Multimedia systems, and
`
`Computer Architecture. During 1990-1995, I was a Research Staff Member at the
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`IBM Almaden Research Center in San Jose, California, where I worked on projects
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`related to disk arrays, multiprocessor communication, hierarchical storage systems
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`and video servers.
`
`9.
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`I am listed as an inventor on five patents, and was awarded a technical
`
`accomplishment award while at IBM. I received an NSF Career Award in 1996. I
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`was a faculty fellow of the College of Engineering at Texas A&M during 1999-
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`2000. My honors include an outstanding professor award by the IEEE student
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`branch at Texas A&M during 1997-1998, an outstanding faculty award by the
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`department of Electrical and Computer Engineering during 2003-2004, a
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`Distinguished Achievement award for teaching from the former students
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`association of Texas A&M University, and a citation “for one of the most
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`influential papers from the 1st ACM Multimedia conference.”
`
`10.
`
`11.
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`I am a Fellow of the IEEE Computer Society, and a member of ACM.
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`I have been an author or co-author of over a hundred papers. I have
`
`also written other technical reports.
`
`12. My recent presentations include the Keynote speech at International
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`Conference on Information Technology-New Generations in 2013, the Keynote
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`speech at IEEE International Symposium on Computers and Communications
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`2010, several invited talks including Georgia Tech (2013), COMSNETS
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`Conference (2013), Int. Conf. on Networking and Communications (2012),
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`Samsung (2011), Korea University (2011), Aijou University (2011), Catedra
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`Series talk at University of Carlos III, Madrid (2009) , Thomson Research, Paris
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`(2009), Telefonica Research, Barcelona (2009) and a Distinguished seminar at
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`IBM Austin Research Lab (2008).
`
`13. My research is focused on high-performance storage and delivery
`
`over networks. It includes (a) systems research to better support storage, (b)
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`network research to provide high-performance delivery of data, and (c) protecting
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`such network and systems infrastructure. Previous and current projects are listed in
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`my CV.
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`14.
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`I currently teach and/or have taught courses including, but not limited
`
`to, the following areas: computer communications and networking, computer
`
`architecture, multimedia systems and networks, topics in networking security,
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`multimedia storage and delivery, as well as networking for multimedia
`
`applications.
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`15.
`
`I have worked on implementing an “Information Retrieval Assistant”
`
`(IRA) around 1998. IRA took input from a user on his/her interests and retrieved
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`relevant documents from the web automatically. IRA was designed to learn user
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`interests and was able to distinguish the context of user interests. For example, IRA
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`could distinguish between “Apple” computer and the fruit “Apple”. IRA also
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`served as a personal newspaper, retrieving news articles of interest to user from
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`various newspapers.
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`16.
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`I also worked on implementing a metasearch engine for airline tickets
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`around 1998. This engine presented one interface to the user to obtain user
`
`information, and contacted multiple web sites in the background to search for
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`tickets at multiple websites and presented the obtained information to the user in
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`one form. This was designed as a tool for a user, but provided much similar service
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`as current sites such as kayak.com.
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`Relevant Legal Standards
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`17.
`
`I have been asked to provide my opinions regarding whether the
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`claims of the ’816 patent are anticipated or would have been obvious to a person
`
`having ordinary skill in the art at the time of the alleged invention, in light of the
`
`prior art. It is my understanding that, to anticipate a claim under 35 U.S.C. § 102,
`
`a reference must teach every element of the claim. Further, it is my understanding
`
`that a claimed invention is unpatentable under 35 U.S.C. § 103 if the differences
`
`between the invention and the prior art are such that the subject matter as a whole
`
`would have been obvious at the time the invention was made to a person having
`
`ordinary skill in the art to which the subject matter pertains. I also understand that
`
`the obviousness analysis takes into account factual inquiries including the level of
`
`ordinary skill in the art, the scope and content of the prior art, and the differences
`
`between the prior art and the claimed subject matter.
`
`18.
`
`It is my understanding that the Supreme Court has recognized several
`
`rationales for combining references or modifying a reference to show obviousness
`
`of claimed subject matter. Some of these rationales include the following:
`
`combining prior art elements according to known methods to yield predictable
`
`results; simple substitution of one known element for another to obtain predictable
`
`results; use of a known technique to improve a similar device (method, or product)
`
`in the same way; applying a known technique to a known device (method, or
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`product) ready for improvement to yield predictable results; choosing from a finite
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`number of identified, predictable solutions, with a reasonable expectation of
`
`success; and some teaching, suggestion, or motivation in the prior art that would
`
`have led one of ordinary skill to modify the prior art reference or to combine prior
`
`art reference teachings to arrive at the claimed invention.
`
`The ’816 Patent
`
`19. The ’816 Patent relates to a “method for the management of data
`
`collected from a remote computing device.” RPX-1001, Abstract. The patent
`
`describes using computerized questionnaires to allow a user to complete a form
`
`and then transmit the answers back to a server wirelessly. For example, the
`
`questionnaire might be used by a mystery shopper to evaluate a restaurant. RPX-
`
`1001, col. 10, ll. 28-37.
`
`20. The ’816 Patent provides a specific example in which a “handheld
`
`computer” is used to gather data from the field. RPX-1001, col. 8, ll. 5-37. A
`
`client designs a questionnaire by creating a list of questions and indicating for each
`
`question what type of response is expected. RPX-1001, col. 8, ll. 32-43. The
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`client can assign tokens to the questionnaire, for example, to ask different
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`questions depending on response given to another question. RPX-1001, col. 8, ll.
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`40-51.
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`21. When the questionnaire is complete, the questions and tokens are
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`transmitted to a handheld device. RPX-1001, col. 8, ll. 57-64. A user initiates the
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`questionnaire and provides responses to each question. The responses are stored
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`on the handheld device and transmitted to a server, either immediately or at a later
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`time. RPX-1001, col. 9, ll. 44-60. The server stores the received data in a
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`database. RPX-1001, col. 9, ll. 61-63.
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`22. Fig. 2 illustrates a system used to create a form:
`
`RPX-1001, Fig. 2
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`
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`23. Fig. 3 illustrates a system used to collect and review information:
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`RPX-1001, Fig. 3
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`24. Claim 1 provides a basic overview of the teachings of the ’816 Patent:
`
`1. A method for managing data including the steps of:
`(a) creating a questionnaire comprising a series of questions;
`(b) tokenizing said questionnaire; thereby producing a plurality of
`tokens representing said questionnaire;
`(c) establishing a first wireless modem or wireless LAN network
`connection with a remote computing device;
`(d) transmitting said plurality of tokens to a remote computing device
`via said first wireless modem or wireless LAN network connection;
`(e) terminating said first wireless modem or wireless LAN network
`connection with said remote computing device;
`(f) after said first wireless modem or wireless LAN network
`connection is terminated, executing at least a portion of said plurality of
`tokens representing said questionnaire at said remote computing device to
`collect a response from a user;
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`(g) establishing a second wireless modem or wireless LAN network
`connection between said remote computing device and a server;
`(h) after said second wireless modem or wireless LAN network
`connection is established, transmitting at least a portion of said response
`from the user to said server via said second wireless modem or wireless
`LAN network connection; and
`(i) storing said transmitted response at said server.
`
`Background of the ’816 Patent
`
`25. Laptops and other mobile computing devices had been available for
`
`many years before the ’816 Patent application was filed in 2002. The fact that these
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`mobile devices may not always be connected to the network and some of the
`
`programs may need to continue functioning even without a network connection
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`was also well recognized. For example, researchers at Carnegie Mellon University
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`designed the Coda File System for mobile computers that allows a user “to
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`continue accessing critical data during temporary failures of a shared data
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`repository.” RPX-1018, Abstract. The researchers called this capability
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`“disconnected operation,” and they noted the need to support “the detachment of a
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`portable client from the network.” RPX-1018 at 4. The Code File System allowed
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`a user to make changes to files stored on a mobile computer and later synchronize
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`those changes (that is, make the files on the file server consistent with the files on
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`the mobile computer) when a network connection is reestablished.
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`26. Equipping laptops and other mobile computing devices with wireless
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`communication capabilities was also well known in 2002. Wireless modems
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`existed to connect computers to other computers over cellular wireless networks,
`
`and wireless network interface cards existed to connect computers to wireless local
`
`area networks. Early wireless communication data speeds were generally low
`
`(much slower and less reliable than contemporaneous wired networking
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`technologies), and various techniques were employed to reduce the amount of data
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`that needed to be transferred. Employing codebooks and encoding frequently used
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`symbols with a few bits are examples of such techniques. Data encoding and
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`compression techniques for reducing network bandwidth needs were well known
`
`to someone skilled in the art in 2002.
`
`27. Computers and related devices can be programmed by various
`
`programming languages. These languages can be broadly classified as compiled or
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`interpreted languages. A program is normally compiled to a specific hardware
`
`architecture platform and may make use of specific operating system constructs or
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`interfaces. An interpreted language (such as Java) can normally run on any
`
`hardware and operating system platform. Higher layer languages such as HTML
`
`(hypertext markup language) and SGML (standard generalized markup language)
`
`are examples of interpreted languages that employ tags to provide directives, for
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`example, to format a given page. One of skill in the art in 2002 would have been
`
`familiar with interpreted and compiled languages.
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`File History
`
`28. The ’816 Patent issued from U.S. Patent Application No. 10/643,516
`
`(“the ’516 Application”) filed on August 19, 2003. The ’816 Patent claims the
`
`benefit of U.S. Provisional Application No. 60/404,491 filed on August 19, 2002.
`
`The ’516 Application was filed with claims 1-11.
`
`29.
`
`In a first Office action issued August 10, 2006, the Examiner rejected
`
`all of claims 1-11. The Examiner cited four references in rejecting the claims as
`
`anticipated or rendered obvious:
`
` US 2004/0210472 to Lew, et al.;
`
` US 2003/0198934 to Sendowski, et al.;
`
` US 2001/0056374 to Joao; and
`
` US 2004/0117244 to Scott.
`
`RPX-1002 at 383.
`
`30.
`
`In response the applicants amended claim 1 to further recite
`
`“tokenizing said questionnaire for reducing bandwidth requirements….”
`
`RPX-1002 at 339. Applicants also amended claim 9 to recite “said first site and
`
`said second site being connected by a loose network.” RPX-1002 at 341.
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`31. Applicants argued that in contrast to amended claim 1, the Lew
`
`reference “teaches tokenizing for the purpose of encrypting survey information.”
`
`RPX-1002 at 344. Applicants also argued that Sendowski failed to teach a
`
`“loosely networked computer” because Sendowski’s computers are all “coupled to
`
`the Internet.” RPX-1002 at 345.
`
`32.
`
`In a final Office action mailed May 22, 2007, the Examiner continued
`
`to reject all claims. The Examiner additionally cited U.S. 6,163,811 to Porter,
`
`which teaches tokenizing for the purpose of reducing bandwidth. RPX-1002 at
`
`325.
`
`33.
`
`In response the applicants requested continued examination and
`
`submitted an affidavit from named inventor J. David Payne declaring that he had
`
`conceived of the claimed subject matter before January 1, 2002 and worked
`
`diligently until the filing of the provisional application on August 19, 2002.
`
`RPX-1002 at 303-05. The applicants also amended claim 1 to remove the
`
`limitation that had been previously added (“for reducing bandwidth
`
`requirements”). RPX-1002 at 293. New claims 12-16 were also added. RPX-
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`1002 at 296.
`
`34.
`
`In the next Office action, the Examiner again rejected all of the
`
`claims. RPX-1002 at 275. The applicants’ attempt to swear behind certain
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`references failed because the affidavit failed to “clearly explain which facts or data
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`applicant is relying on to show completion of his or her invention prior to the
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`particular date.” RPX-1002 at 287.
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`35. The Examiner also responded to the applicants’ argument that “Lew
`
`does not recite, ‘tokenizing said questionnaire,’” the Examiner disagreed and stated
`
`that “Encrypting survey information is nothing more than tokenizing said
`
`questionnaire.” RPX-1002 at 288.
`
`36.
`
`In response, the applicants supplemented the previously filed affidavit
`
`of named inventor J. David Payne with a “Technical Design” document dated
`
`August 30, 2001. RPX-1002 at 199. Applicants stated that “tokenizing” was
`
`described on pages 12, 13, and 14 of the Technical Design. RPX-1002 at 229.
`
`The cited portions of the Technical Design describe the “basic design of the
`
`database tables, relationships between the tables, and detailed definitions of the
`
`table fields.” RPX-1002 at 210.
`
`37.
`
`In an Office action mailed September 4, 2008, the Examiner again
`
`rejected all claims. The Examiner accepted the evidence of prior conception and
`
`withdrew the rejections based on Lew and Sendowski, but entered new rejections
`
`based solely or in part on newly cited references:
`
` US 5842195 to Peters,
`
` US2002/0007303 to Brookler, and
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` US 2002/0160773 to Gresham.
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`RPX-1002 at 189.
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`38.
`
`In response, the applicants canceled some claims and added new
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`claims 17-21. Applicants also amended certain claims to expressly recite steps of
`
`“establishing a first network connection,” “terminating said first network
`
`connection” and “establishing a second network connection.” RPX-1002 at 152.
`
`Applicants stated that the amendment clarified that “the remote computing device
`
`is one that is ‘loosely networked.’” RPX-1002 at 160.
`
`39. The Examiner issued a Final Rejection on June 1, 2009, again
`
`rejecting all claims. RPX-1002 at 126. In the Office action, the Examiner
`
`additionally cited to US 2002/0143610 to Munyer as teaching the establishing,
`
`terminating, and establishing steps. RPX-1002 at 129.
`
`40. The applicants then filed a notice of appeal. RPX-1002 at 119.
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`Subsequently, the applicants requested continued examination and amended the
`
`claims to further recite “a first wireless modem or wireless LAN network
`
`connection” and a “second wireless modem or wireless LAN network
`
`connection.” RPX-1002 at 94-95. Applicants also added new claims 22-24. RPX-
`
`1002 at 103.
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`41. The Examiner then allowed claims 1-4, 6, 9-11, and 17-22. RPX-
`
`1002 at 80. The other pending claims were canceled by an Examiner’s
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`amendment. The Examiner provided the following statement of reasons for
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`allowance:
`
`The cited prior arts fail to disclose or suggest transmitting said
`plurality of tokens to a remote computing device via said first
`wireless modem or wireless LAN network connection,
`terminating said first wireless modem or wireless LAN network
`connection with said remote computing device, after said first
`wireless modem or wireless LAN network connection is
`terminated, executing at least a portion of said plurality of
`tokens representing said questionnaire at said remote computing
`device to collect a response from a user, establishing a second
`wireless modem or wireless LAN network connection between
`said remote computing device and a server, after said second
`wireless modem or wireless LAN network connection is
`established, transmitting at least a portion of said response from
`the user to said server via said second wireless modem or
`wireless LAN network connection in conjunction with all other
`limitations in the claim.
`
`RPX-1002 at 80-81.
`
`42. The ’816 Patent then issued on October 26, 2010.
`
`Level of Ordinary Skill in the Art
`
`43.
`
`I am familiar with the knowledge and capabilities one of ordinary skill
`
`in the computing programming arts in the period around 2002-2003. Specifically,
`
`my work with students, colleagues in academia, and with engineers practicing in
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`industry allowed me to become personally familiar with the level of skill of
`
`individuals and the general state of the art. Unless otherwise stated, my testimony
`
`below refers to the knowledge of one of ordinary skill in the computing
`
`programming arts in the period around 2002 and 2003, the period that includes the
`
`filing date of the ’816 patent.
`
`44.
`
`In my opinion, the level of ordinary skill in the art needed to have the
`
`capability of understanding the scientific and engineering principles applicable to
`
`the ’816 Patent is a bachelor’s degree in computer engineering or computer
`
`science; or equivalent industry or trade school experience in programming
`
`software applications.
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`Claim Construction
`
`45.
`
`It is my understanding that in order to properly evaluate the ’816
`
`patent, the terms of the claims must first be interpreted. It is my understanding that
`
`the claims are to be given their broadest reasonable interpretation in light of the
`
`specification. It is my further understanding that claim terms are given their
`
`ordinary and accustomed meaning as would be understood by one of ordinary skill
`
`in the art, unless the inventor, as a lexicographer, has set forth a special meaning
`
`for a term.
`
`46.
`
`In order to construe the claims, I have reviewed the entirety of the
`
`’816 patent, as well as its prosecution history.
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`questionnaire comprising a series of questions
`
`47. This term appears in claim 1. The claim term itself provides that a
`
`questionnaire includes a series of questions. The specification of the ’816 Patent
`
`further provides the following description of a questionnaire:
`
`According to the preferred arrangement, data may be gathered
`by prompting the user via the handheld 28 with a series of
`questions or statements, each of which calls for a response. This
`series of questions or statements will have been constructed on
`computer 22 and reduced to tokenized form for transmission to
`the handheld 28. For purposes of the instant disclosure, the
`series of questions/statements will collectively be referred to as
`a questionnaire. As will be discussed in greater detail below,
`the questionnaire is actually designed to include internal
`branching logic which is implemented by the OIS. Hence, with
`regard to the present invention, the terms "program" and
`"form" are used interchangeably with questionnaire.
`
`RPX-1001, 8:12-24 (emphasis added).
`
`48. The ’816 Patent expressly states that the term questionnaire is
`
`interchangeable with the terms “program” and “form.” The ’816 Patent generally
`
`uses the word “program” to refer to software that may be executed by a computer.
`
`See, e.g., RPX-1001, 2:61-3:3 (“To develop software for a handheld computer, a
`
`custom program is typically developed and tested on a larger system.”). The ’816
`
`Patent generally uses the word “form” to refer to a paper or electronic document
`
`
`
`– 18 –
`
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`that must be filled out by a human, for example, to respond to questions. See RPX-
`
`1001, 9:66–10:20 (comparing “a prior art system built around paper forms” to “the
`
`present system” where “a form may be entered on-line”).
`
`49.
`
`In co-pending litigation, the Patent Owner asserts that questionnaire
`
`means “a request for information, whether collected automatically or manually.”
`
`RPX-1006 at 4. The Patent Owner noted that the specification states that “at least
`
`some of the information that is responsive to the designed questionnaire may be
`
`collected automatically rather than entered manually, e.g., time and date, position
`
`information if the device includes a GPS receiver, etc.” RPX-1006 at 5 (quoting
`
`RPX-1001, col. 5, ll. 35-37).
`
`50. Considering all of this evidence, it is my opinion that a person of
`
`ordinary skill in the art would understand the broadest reasonable interpretation of
`
`questionnaire comprising a series of questions in view of the specification to refer
`
`to any collection of questions or statements that call for responses. The collection
`
`of questions or statements may be part of a program or form.
`
`token(s)
`
`51. This term appears in claim 1 and various dependent claims. The
`
`claim itself provides that tokens can represent a questionnaire. RPX-1001, 13:30-
`
`31 (“a plurality of tokens representing said questionnaire.”). The claim itself also
`
`provides that at least some tokens can be executed by a computer. RPX-1001,
`
`
`
`– 19 –
`
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`IPR2018-00043
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`13:40-42 (“executing at least a portion of said plurality of tokens representing said
`
`questionnaire at said remote computing device”).
`
`52. The specification of the ’816 Patent further provides the following
`
`descriptions of tokens as indices that point to questions, responses, or operations:
`
`As the client enters questions and selects response types, server
`24 builds a stack of questions and responses, and assigns
`indices, or tokens, which point to each question or response.
`Each token preferably corresponds to a logical,
`mathematical, or branching operation and is preferably
`selected and made a part of the questionnaire through a
`graphical user interface.
`
`RPX-1001, 8:40-46 (emphasis added).
`
`In addition, server 24 sends the operating logic for that
`questionnaire, which is simply a list of tokens which point to
`the questions and responses to each question as well as
`tokens for program control or math operations.
`
`RPX-1001, 8:60-64 (emphasis added).
`
`53. The specification of the ’816 Patent also uses tokens to refer to
`
`instructions or commands:
`
`The operating system provided in each computer device allows
`the use of a common instruction set in any such device,
`regardless of compatibility issues between the devices, wherein
`"instruction set" is used herein to mean the commands,
`
`
`
`– 20 –
`
` RPX-1004
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`Unified Patents v. Fall Line
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`tokens, etc., that are recognized by the operating system as
`valid instructions.
`
`RPX-1001, 5:12-17 (emphasis added).
`
`The specification of the ’816 Patent also uses tokens to refer to an
`
`intermediate language that can be executed by a runtime package:
`
`To overcome the necessity of compiling a program for a
`particular machine, an application may be written in an
`interpreted language, or a language which can be compiled to
`produce an intermediate language (i.e., a language that falls
`somewhere between source code and object code) such as i-
`code or tokens. In such a scheme, each device is provided with
`a run-time package which can execute the compiled i-code or
`tokens, the runtime package having been written for that
`particular device, thus, only the run-time package needs to be
`modified in order to port a program to a new computing
`environment.
`
`RPX-1001, 2:8-18 (emphasis added).
`
`54.
`
`In the pending ex parte reexamination of the ’816 Patent, the Patent
`
`Owner has emphasized the ability of the claimed tokens to be executed by any
`
`kind of computing platform:
`
`By way of explanation, Patentee clearly indicates that tokens of
`the '816 Patent are designed to be executed "... on any device,
`regardless of hardware differences or native operating system
`
`
`
`– 21 –
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`differences among the plurality of the devices." '816 Patent at
`column 4, lines 55-60 (Hale Declaration, paragraph 19).
`
`RPX-1003 at 53.
`
`55. Responding to the Patent Owner, the Examiner disagreed and noted
`
`that “Tokens are not mentioned” in the cited portion of the specification. RPX-
`
`1003 at 24.
`
`56.
`
`In pending litigation, the Patent Owner has asserted that token means
`
`“any nonreducible textual element in data that is being parsed.” RPX-1006 at 10.
`
`The Patent Owner further explained that “tokens are ‘computer code’” and “they
`
`each have a specific meaning to the parser that is reading them.” RPX-1007 at 6-7.
`
`57.
`
`I disagree with the Patent Owner’s proposed definition because it is
`
`inconsistent with the ’816 Patent specification, which provides examples of tokens
`
`that are not textual elements. For example, the specification indicates that an index
`
`is a token and that executable instructions in compiled code are tokens. RPX-
`
`1001, col. 8, ll. 40-46; col. 2, ll. 8-18. One of skill in the art would recognize
`
`indices and executable instructions in compiled code are nontextual.
`
`58. General reference dictionaries provide the ordinary meaning of token
`
`as something that refers to or represents something else. See RPX-1008 at 1
`
`(“something that is a symbol of a feeling, event, etc.”).
`
`
`
`– 22 –
`
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`IPR2018-00043
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`59. Token is used as a term of art in computer science and programming.
`
`One computer science dictionary defines token as a meaningful unit of a program,
`
`such as a name, constant, reserved word, or operator. RPX-1009 at 3. This
`
`definition is generally consistent with the ’816 Patent specification.
`
`60. Another technical dictionary defines token as either a “distinguishable
`
`unit in a sequence of characters.” This definition is generally consistent with the
`
`’816 Patent specification, as long as “characters” is understood to include both
`
`textual and nontextual (e.g., binary or non-printable) characters. The ’816 Patent
`
`specification indicates that tokens are distinguishable units, since they are
`
`“recognized by the operating system” and “Each token preferably corresponds to a
`
`logical, mathematical, or branching operation.” RPX-1001, col. 5, ll. 16-17 & col.
`
`8, ll. 43-44.
`
`61. Another technical dictionary definition of token is a “single byte that
`
`is used to represent a keyword in a programming language in order to conserve
`
`storage space.” RPX-1010 at 4. This definition is only partially consistent with
`
`the ’816 Patent specification. The ’816 Patent specification indicates that tokens
`
`can represent part of a program, since “Each token preferably corresponds to a
`
`logical, mathematical, or branching operation.” RPX-1001, col. 8, ll. 43-44.
`
`However, the ’816 Patent specification does not indicate that a token may only be
`
`
`
`– 23 –
`
` RPX-1004
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`IPR2018-00043
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`
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`a single byte in length. The Patent Owner has also stated that tokens may serve
`
`purposes other than conserving space. See RPX-1002 at 105.
`
`62. Considering all of this evidence, it is my opinion that a person of
`
`ordinary skill in the art would understand the broadest reasonable interpretation of
`
`a token to be a distinguishable unit of a program, such as an index, an instruction,
`
`or a command. A token can represent something else such as a question, answer,
`
`or operation.
`
`tokenizing said questionnaire
`
`63. This term appears in claim 1 and various dependent claims. The
`
`claim itself provide
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