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`IPR2018-01079
`U.S. Patent No. 8,213,970
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`
`
`GOOGLE LLC,
`Petitioner,
`
`
`v.
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`Patent Owner.
`
`
`Patent No. 8,213,970
`Filing Date: November 26, 2008
`Issue Date: July 3, 2012
`
`Inventor: Malcolm K. Beyer, Jr.
`Title: METHOD OF UTILIZING FORCED ALERTS FOR INTERACTIVE
`REMOTE COMMUNICATIONS
`
`
`
`__________________________________________________________________
`
`PATENT OWNER’S SUR-REPLY TO
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`Case No. IPR2018-01079
`__________________________________________________________________
`
`
`
`
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`IPR2018-01079
`U.S. Patent No. 8,213,970
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`TABLE OF CONTENTS
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`Page(s)
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`I.
`
`II.
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`III.
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`INTRODUCTION ........................................................................................... 4
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`THE BOARD SHOULD REJECT PETITIONER’S PROPOSED
`CONSTRUCTION OF THE TERM “PACKET” ........................................... 5
`
`PETITIONER HAS NOT PROVEN BY A PREPONDERANCE OF
`THE EVIDENCE THAT THE CHALLENGED CLAIMS ARE
`OBVIOUS OVER GROUNDS 1-3 ................................................................. 7
`
`A.
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`The Prior Art does not disclose or suggest the claimed “forced
`message alert” ....................................................................................... 7
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`IV. PETITIONER HAS NOT PROVEN BY A PREPONDERANCE OF
`THE EVIDENCE THAT THE CHALLENGED CLAIMS ARE
`OBVIOUS OVER GROUNDS 2-3 ...............................................................15
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`V.
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`CONCLUSION ..............................................................................................17
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`i
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`Cases
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`IPR2018-01079
`U.S. Patent No. 8,213,970
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cuozzo Speed Techs., LLC v Lee,
`136 S. Ct. 2131 (2016) .......................................................................................... 5
`
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) .......................................................................... 16
`
`Trivascular, Inc. v. Samuels,
`812 F.3d 1056 (Fed. Cir. 2016) ............................................................................ 5
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`ii
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`IPR2018-01079
`U.S. Patent No. 8,213,970
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`LIST OF EXHIBITS
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`
`Document
`Appendix 1 to P.R. 4-3 Joint Claim Construction and Pre-
`Hearing Statement in AGIS Software Development LLC v.
`Huawei Device USA, Inc., et al. – Parties’ Proposed
`Constructions and Supporting Evidence, filed in AGIS Software
`Development LLC v. Huawei Device USA, Inc., et al., Case No.
`2:17-cv-000513-JRG-RSP (Dkt. 149-1)
`P.R. 4-3 Joint Claim Construction and Pre-Hearing Statement,
`filed in AGIS Software Development LLC v. Huawei Device
`USA, Inc., et al., Case No. 2:17-cv-000513-JRG-RSP (Dkt. 149)
`Appendix 1 to P.R. 4-3 - Updated Joint Claim Construction and
`Prehearing Statement in AGIS Software Development LLC v.
`Huawei Device USA, Inc., et al. – Parties’ Updated Proposed
`Constructions and Supporting Evidence, filed in AGIS Software
`Development LLC v. Huawei Device USA, Inc., et al., Case No.
`2:17-cv-000513-JRG-RSP (Dkt. 162-1)
`P.R. 4-3 - Updated Joint Claim Construction and Pre-Hearing
`Statement, filed in AGIS Software Development LLC v. Huawei
`Device USA, Inc., et al., Case No. 2:17-cv-000513-JRG-RSP
`(Dkt. 162)
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`Declaration of Jaime G. Carbonell, Ph.D.
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`Curriculum Vitae of Jaime G. Carbonell, Ph.D.
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`Transcript of March 21, 2019 Deposition of David Hilliard
`Williams
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`Transcript of July 24, 2019 Deposition of David Hilliard
`Williams
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`Exhibit No.
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`2001
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`2002
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`2003
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`2004
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`2005
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`2006
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`2007
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`2008
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`I.
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`INTRODUCTION
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`Patent Owner AGIS Software Development LLC (“AGIS” or “Patent
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`Owner”) submits this sur-reply to Petitioner’s Reply (Paper 22, “Pet. Reply”) to
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`Patent Owner’s Response (Paper 17, “PO Resp.”) to the Petition (Paper 2,
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`“Petition” or “Pet.”) filed by Google LLC (“Google” or “Petitioner”) requesting
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`inter partes review (“IPR”) of claims 1 and 3-9 of U.S. Patent No. 8,213,970 (Ex.
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`1001, “the ’970 Patent”). Inter partes review has been instituted as to claims 1 and
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`3-9 (the “Challenged Claims”) and all grounds raised in the Petition (Paper 9).
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`Patent Owner respectfully submits that the arguments presented herein and the
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`additional evidence submitted herewith, such as the testimony from Petitioner’s
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`expert witness, Mr. David Hilliard Williams (Ex. 2008, Transcript of July 25, 2019
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`Deposition of David Hilliard Williams, “Second Williams Dep.”) demonstrate that
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`the Challenged Claims are not unpatentable in view of the grounds authorized for
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`trial.
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`As noted in Patent Owner’s Response (Paper 17 at 2), the prior art does not
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`disclose or suggest a forced message alert and the claim limitations relating to the
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`implementation of the forced message alert. Instead, the prior art is limited to
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`(1) ordinary e-mail applications that require users to manually open e-mail,
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`(2) conventional read receipts and priority flags, and (3) data structures for storing
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`receipts on a server. Ex. 2005, ¶ 22. Petitioner’s expert Mr. Williams confirmed
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`U.S. Patent No. 8,213,970
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`that forced e-mails are not a configurable or known feature of any e-mail message
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`application. Ex. 2008 at 34:15-24. Petitioner is thus unable to show any teaching
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`or motivation to support e-mail messages being forced.
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`Accordingly, Patent Owner respectfully requests that the Board affirm the
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`validity of the Challenged Claims.
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`II. THE BOARD SHOULD REJECT PETITIONER’S PROPOSED
`CONSTRUCTION OF THE TERM “PACKET”
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`Patent Owner reiterates that the claim terms, including the term “packet,”
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`should be given their “broadest reasonable construction” consistent with the
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`specification. Cuozzo Speed Techs., LLC v Lee, 136 S. Ct. 2131, 2142 (2016).
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`“Under a broadest reasonable interpretation, words of the claim must be given their
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`plain meaning, unless such meaning is inconsistent with the specification and
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`prosecution history.” Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir.
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`2016).
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`The Board should reject Petitioner’s proposal that the term “packet” should
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`be construed as “a unit of information,” because the proposal is not consistent with
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`the term’s use in the claims and the specification of the ’970 patent or otherwise
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`supported by sufficient evidence. First, Petitioner and its expert, Mr. Williams,
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`cite to no supporting disclosure of the ’970 Patent or its file history. See Paper 22
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`at 1-2 and Ex. 1023 at ¶ 3. Meanwhile, Petitioner ignores the intrinsic evidence in
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`the ’970 Patent’s disclosure which includes multiple recitations of the term
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`“packet,” including disclosure regarding the contents and uses (i.e., attachable,
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`separable, and transmittable) of the “packet.” ’970 Patent at 2:7-35, 8:16-36,
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`claims 1, 4, 5, 6, 8, 9, 10, 12, and 13. Second, Petitioner and Mr. Williams rely
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`solely on extrinsic evidence: an excerpt (see Paper 22 at 1-2 and Ex. 1023 at ¶ 3,
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`citing Ex. 1024, 3) which was provided to Mr. Williams by Petitioner’s attorneys.
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`Mr. Williams admits that he did not consider any other sources in support of the
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`construction, including the ’970 Patent, other third-party sources, and the
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`knowledge of a person of ordinary skill in the art. See, e.g., Ex. 2008, Second
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`Williams Dep. at 8:15-9:7, 9:10- 9:25. Petitioner cannot be the sole source of
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`evidence in support of a proposed construction of a Challenged Claim. Third, Mr.
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`Williams confirmed that the proposed construction “unit of information” would
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`effectively import numerous limitations into the claims that were not contemplated
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`by the patentee. See, e.g., Ex. 2008, Second Williams Dep. at 19:20-20:1-3, 20:16-
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`25, 22:15-23:1. For example, Mr. Williams testified that the “unit” is a “piece of
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`digital information” which is in turn made up of bits or bytes, and that a single bit
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`can be a “packet” under Petitioner’s construction. Ex. 2008 at 22:5-9 , 22:21-23:3.
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`Under Mr. Williams’ interpretation, the claimed “packet” can be a mere single
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`digit, 0 or 1, in isolation and need not be formatted, addressed, or encapsulated in
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`any manner. Indeed, Mr. Williams confirmed that under Petitioner’s construction
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`“potentially anything is possible [] in the digital world.” See, e.g., Ex. 2008,
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`Second Williams Dep. at 24:7-24. Mr. Williams’ proposal of “packet” being an
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`unstructured bit or flag is not consistent with the ’970 Ppatent. It is clear that
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`Petitioner attempts to improperly broaden the meaning of the term to bolster its
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`mapping of the “packet” to Kubala’s flag 216. In order to do so, Petitioner and Mr.
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`Williams base their proposal in their subjective belief “as a matter of
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`straightforwardness and simplicity” (Ex. 2008 at 27:20-28:2) rather than the
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`interpretation of the ’970 Patent’s specification as it would be understood by a
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`person of ordinary skill in the art. Accordingly, the proposed construction is
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`improper and unsupportable, and the Board should reject the proposed
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`construction.
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`III. PETITIONER HAS NOT PROVEN BY A PREPONDERANCE
`OF THE EVIDENCE THAT THE CHALLENGED CLAIMS
`ARE OBVIOUS OVER GROUNDS 1-3
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`A. The Prior Art does not disclose or suggest the claimed
`“forced message alert”
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`Kubala and Hammond, as presented in Ground 1 of the Petition, do not
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`disclose or suggest the claimed forced message alert. See, e.g., Paper 17 at 14-18.
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`Petitioner’s attempts to reframe AGIS’ contentions are unavailing.
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`U.S. Patent No. 8,213,970
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`First, the term forced message alert appears throughout the Challenged
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`Claims. Petitioner incorrectly states that AGIS has not challenged “claim 1,
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`limitations 1.1, 1.2 , 1.3, 1.4 , 1.8 , the preamble of claim 6, or limitations 6.1 , 6.3,
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`6.4, 6.6 , and 6.7” in an attempt to limit the dispute to a certain instance of the
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`forced message alert limitation. Paper 22 at 2. This wholesale disregarding of
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`claim limitations is legally unsupportable. Petitioner must show that each and
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`every element for all claim limitations is found in the prior art. Claims 1 and 6
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`require numerous limitations with respect to forced message alert. For example,
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`Claim 1 recites:
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` a forced message alert software application program including a list
`of required possible responses to be selected by a participant recipient
`of a forced message response loaded on each participating PDA/cell
`phone
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` means for attaching a forced message alert software packet to a voice
`or text message creating a forced message alert that is transmitted by
`said sender PDA/cell phone to the recipient PDA/cell phone, said
`forced message alert software packet containing a list of possible
`required responses and requiring the forced message alert software on
`said recipient PDA/cell phone to transmit an automatic
`acknowledgment to the sender PDA/cell phone as soon as said forced
`message alert is received by the recipient PDA/cell phone,”
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` means for receiving and displaying a listing of which recipient
`PDA/cell phones have automatically acknowledged the forced
`message alert and which recipient PDA/cell phones have not
`automatically acknowledged the forced message alert
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` means for periodically resending said forced message alert to said
`recipient PDA/cell phones that have not automatically acknowledged
`the forced message alert; and
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`U.S. Patent No. 8,213,970
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` means for receiving and displaying a listing of which recipient
`PDA/cell phones have transmitted a manual response to said forced
`message alert and details the response from each recipient PDA/cell
`phone that responded.
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`Claim 6 similarly requires:
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` [a] method of sending a forced message alert to one or more recipient
`PDA/cell phones within a predetermined communication network,
`wherein the receipt and response to said forced message alert by each
`intended recipient PDA/cell phone is tracked, said method comprising
`the steps of:
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` accessing a forced message alert software application program on a
`sender PDA/cell phone;
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` creating the forced message alert on said sender PDA/cell phone by
`attaching a voice or text message to a forced message alert application
`software packet to said voice or text message;
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` electronically transmitting the forced message alert to said recipient
`PDA/cell phones;
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` receiving automatic acknowledgements from the recipient PDA/cell
`phones that received the message and displaying a listing of which
`recipient PDA/cell phones have acknowledged receipt of the forced
`message alert and which recipient PDA/cell phones have not
`acknowledged receipt of the forced message alert;
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` periodically resending the forced message alert to the recipient
`PDA/cell phones that have not acknowledged receipt;
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` receiving responses to the forced message alert from the recipient
`PDA/cell phones and displaying the response from each recipient
`PDA/cell phone.
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`Accordingly, for the Challenged Claims (based on Claims 1 and 6, respectively),
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`Petitioner must show that the corresponding element in the alleged prior art
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`discloses or suggests each instance of the claimed forced message alert and apply
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`U.S. Patent No. 8,213,970
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`the prior art element to the claimed element consistently throughout the claim. As
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`shown in Patent Owner’s Response, and further described below, the Petition fails
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`to consistently map a single element of Kubala to the forced message alert.
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`Second, as submitted in the Patent Owner’s Response, Petitioner does not
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`identify or explain whether the claimed forced message alert corresponds to
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`Kubala’s e-mail message 214 or the warning message 1112 shown in Figure 11C
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`or any other element in Kubala. Paper 17 at 15. Petitioner inconsistently maps the
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`two Kubala elements to the claimed forced message alert throughout the Petition.
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`Petitioner’s Reply does not show any consistent mapping in the Petition for forced
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`message alert. In its Institution Decision, the Board did not find any particular
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`mapping for forced message alert and, instead, found that Petitioner mapped
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`Kubala’s e-mail message 214 to the claimed voice or text message (citing Pet. at
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`29), Kubala’s flag 216 to the forced message alert software packet (citing Pet. at
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`28-29), and Kubala’s menu 1120 of Fig. 11C to the claimed list of possible
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`required responses (citing Pet. at 29). It remains unclear whether Petitioner
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`contends that Kubala’s e-mail message 214 or the warning message 1112 (which
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`includes a message and menu 1120) of Fig. 11C. Initially, the Petition submits that
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`Figure 11C alerts the user with warning messages such as warning message 1112.
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`(Pet. at 19-20.) For limitation 1.7, which requires “means for receiving and
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`displaying a listing of which recipient PDA/cell phones have automatically
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`acknowledged the forced message alert and which recipient PDA/cell phones have
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`not automatically acknowledged the forced message alert,” Petitioner maps an
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`“electronic message” in Kubala’s prior art background section without identifying
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`or explaining whether the “electronic message” pertains to Kubala’s e-mail
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`message 214 or the warning message 1112 of Fig. 11C. (Pet. at 32.) For limitation
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`1.8, which requires “means for periodically resending said forced message alert to
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`said recipient PDA/cell phones that have not automatically acknowledged the
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`forced message alert,” Petitioner appears to map Kubala’s e-mail message to the
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`claimed forced message alert. (Pet. at 35-36.) Petitioner’s failure to consistently
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`map the element in Kubala that corresponds to the claimed forced message alert in
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`the Petition is fatal to its challenge.
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`Third, Petitioner does not show or explain how Kubala’s e-mail message
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`214 is forced. Kubala requires the recipient to manually select and open the e-mail
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`message. Ex. 1005, ¶ 0047; Ex. 2007, Williams Dep., at 60:16-21 (“There’s three
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`steps. The first is, recipient selects control to open email message. . .”). In other
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`words, as shown in Fig. 7 below, the e-mail message 214 is voluntary or optional–
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`–not forced. Ex. 2005, ¶¶ 35-37.
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`Petitioner argues that the ’970 Patent does not require the forced message
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`alert to be forced to be received and acknowledged. But the Petition itself
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`concedes that forced message alerts “force an automatic acknowledgment of
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`receipt and a manual response.” Pet. at 6 (citing ’970 Patent at 3:22-28).
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`Petitioner similarly argues that the ’970 Patent does not require the forced message
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`alert to be opened or displayed by the forced message alert software. (Paper 22 at
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`4-6.) Petitioner’s interpretation is nonsensical because it reads out the forced
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`requirement and reduces the invention to a conventional e-mail message that can
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`sit unopened and disregarded in an inbox. Petitioner’s allegation that nothing in
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`the specification “mentions how the alert is displayed” is wrong. (Paper 22 at 5.)
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`After receipt of the forced message alert, the forced message alert software
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`performs, in relevant part, at least the following: 1) “prepare and electronically
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`transmits an automatic acknowledgment of receipt,” 2) “takes control of the
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`recipient PC or PDA/cell phone,” and 3) “causes the text message and the response
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`list to be shown on the display of the recipient PC or PDA/cell phone.” (See ’970
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`Patent at 8:16-44.) The required forced display is also shown in Fig. 4, reproduced
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`below, which is cited in the Petition (Pet. at 3) in the context of the forced message
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`alert, and states that, in response to receipt of the forced message alert, the forced
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`message alert software takes control of the recipient’s cell phone . . . and causes
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`the text message to be displayed and a list of responses to be shown on the
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`display . . . .”
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`Accordingly, the ’970 makes clear that the forced message alert software forces the
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`message and list of responses to the display––rather than a user manually opening
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`an e-mail in a conventional manner. Petitioner does not cite to or rely on any
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`additional expert testimony in support of its unsupported interpretation, and Mr.
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`Williams testified that he did not conduct an analysis as to whether the forced
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`message alert required display of the message and acknowledgement of the alert to
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`be forced by the software. Ex. 2008 at 32:14-33:14.
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`Finally, with respect to Grounds 1-3 (each of which appears to rely on an e-
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`mail message being forced), Mr. Williams testified that he has never known an e-
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`mail application configured to automatically open e-mails on the display. Ex. 2008
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`at 34:15-24.
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`According to Petitioner’s own expert, forced e-mails are not a configurable or
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`known feature of any e-mail message application, and Petitioner is thus unable to
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`establish any teaching or motivation to support e-mail messages being forced.
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`Accordingly, the Challenged Claims are valid.
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`IV. PETITIONER HAS NOT PROVEN BY A PREPONDERANCE
`OF THE EVIDENCE THAT THE CHALLENGED CLAIMS
`ARE OBVIOUS OVER GROUNDS 2-3
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`Regarding Grounds 2-3, the Petitioner’s Reply attempts to shoehorn in new
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`mappings that are not present in the Petition.
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`The Petition fails to identify any element in Hammond or Johnson that
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`corresponds to the claimed forced message alert software packet. (Pet. at 60.)
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`However, for the first time in this proceeding, Petitioner adopts new theories,
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`buried in the claim construction section, that Hammond’s “message delivery
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`information” and Johnson’s “persistent reply attribute” correspond to the claimed
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`“forced message alert software packet.” (Paper 22 at 1-2.) Because “[i]t is of the
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`utmost importance that petitioners in the IPR proceedings adhere to the
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`requirement that the initial petition identify ‘with particularity’ the ‘evidence that
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`supports the grounds for the challenge to each claim.’” (citing 35 U.S.C. §
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`312(a)(3)) and that a “reply may only respond to arguments raised in the
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`corresponding opposition or patent owner response,” these late identifications,
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`which could have been presented in the Petition and which are not responsive to
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`the Patent Owner’s Response, should be rejected by the Board as untimely and
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`improper. Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,
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`1369 (Fed. Cir. 2016) (“Once the Board identifies new issues raised for the first
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`time in reply, neither this court nor the Board must parse the reply brief to
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`determine which, if any, parts of that brief are responsive and which are improper.
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`As the Board noted, ‘it will not attempt to sort proper from improper portions of
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`the reply.’”) The Board should refuse the reply brief and the Supplemental
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`Williams Declaration, Ex. 2008 as untimely and improper. Id.
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`Petitioner’s expert, Mr. Williams, confirmed that he did not proffer any
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`opinions with these new mappings regarding Hammond’s “message delivery
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`information” and Johnson’s “persistent reply attribute” in his declaration. Ex.
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`2008 at 17:22-19:4; 14:8-10, 14:15-18. Mr. Williams further confirmed that the
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`Petition does not include any identification of Hammond’s “message delivery
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`information” and Johnson’s “persistent reply attribute” for this limitation. Id.
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`Thus, in addition to the reasons provided in the Board’s Institution Decision
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`(Paper 9) and Patent Owner’s Response (Paper 17 at 28-39), the Board should
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`reject Grounds 2-3 because the Petition failed to identify and explain how each
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`claim element is met by the prior art.
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`V. CONCLUSION
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`For the foregoing reasons, Patent Owner respectfully requests that the Board
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`affirm the validity of Claims 1 and 3-9 of the ’970 Patent.
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`Dated: July 26, 2019
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`Respectfully submitted,
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`/Vincent J. Rubino, III/
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`Vincent J. Rubino, III (Reg. No. 68,594)
`Lead Counsel for Patent Owner
`BROWN RUDNICK LLP
`7 Times Square
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`IPR2018-01079
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`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`Email: vrubino@brownrudnick.com
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`Peter Lambrianakos (Reg. No. 58,279)
`Enrique W. Iturralde (Reg. No. 72,883)
`Backup Counsel for Patent Owner
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Tel: 212-209-4800
`Fax: 212-209-4801
`Email: plambrianakos@brownrudnick.com
`Email: eiturralde@brownrudnick.com
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`IPR2018-01079
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`CERTIFICATE OF WORD COUNT
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`The undersigned hereby certifies that the portions of the above-captioned
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`PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY TO PATENT
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`OWNER’S RESPONSE has 2,734 in compliance with the 5,600 word limit set
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`forth in 37 C.F.R. § 42.24(c)(1). This word count was prepared using Microsoft
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`Word 2010.
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`Dated: July 26, 2019
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`Respectfully Submitted,
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`By:
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` /Vincent J. Rubino, III/
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`Vincent J. Rubino, III (Reg. No. 68,594)
`Lead Counsel for Patent Owner
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`Email: vrubino@brownrudnick.com
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`IPR2018-01079
`U.S. Patent No. 8,213,970
`
`CERTIFICATE OF SERVICE
`
`Copies of PATENT OWNER’S SUR-REPLY TO PETITIONER’S REPLY
`
`TO PATENT OWNER’S RESPONSE and Exhibit 2008 have been served on
`
`Petitioner’s counsel of record at the correspondence of the Petitioner as follows:
`
`Robert E. Sokohl (Reg. No. 36,013)
`Ryan C. Richardson (Reg. No. 67,254)
`Dohm Chankong (Reg. No. 70,524)
`STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.
`1100 New York Avenue,
`N.W., Washington, D.C., 20005,
`Phone: (202) 371-2600
`Facsimile: (202) 371-2540
`rsokohl-PTAB@sternekessler.com
`rrichardsonPTAB@sternekessler.com
`dchankong-PTAB@sternekessler.com
`PTAB@sternekessler.com
`
`
`
`July 26, 2019
`
`
`
`
`
`By:
`
`/Vincent J. Rubino, III/
`
`Vincent J. Rubino, III (Reg. No. 68,594)
`Lead Counsel for Patent Owner
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: 212-209-4800
`Facsimile: 212-209-4801
`Email: vrubino@brownrudnick.com
`
`
`
`
`
`
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