Case IPR2019-00106
`Patent No. 5,699,275
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`IRON OAK TECHNOLOGIES, LLC.,
`Patent Owner.
`
`___________________________
`
`IPR2019-00106
`U.S. Patent No. 5,699,275
`___________________________
`
`PATENT OWNER PRELIMINARY RESPONSE
`
`PURSUANT TO 37 C.F.R. §42.107(a)
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`Patent No. 5,699,275
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`IRON OAK TECHNOLOGIES, LLC.,
`Patent Owner.
`
`___________________________
`
`IPR2019-00106
`U.S. Patent No. 5,699,275
`___________________________
`
`PATENT OWNER PRELIMINARY RESPONSE
`
`PURSUANT TO 37 C.F.R. §42.107(a)
`
`{HD100872.1}
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`Case IPR2019-00106
`Patent No. 5,699,275
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`TABLE OF CONTENTS
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`I.
`II.
`
`2.
`
`INTRODUCTION ........................................................................................ 1
`RELATED INTER PARTES REVIEW CASES ........................................... 2
`A.
`Petitions Based Primarily on Sugita and Ballard ............................... 2
`B.
`Petitions Based Primarily on Hapka .................................................. 3
`III. PATENT OWNER’S RESERVATION OF RIGHTS ................................. 3
`IV. LISTING OF FACTS ................................................................................... 4
`V.
`THE PETITION DOES NOT SHOW A REASONABLE
`LIKELIHOOD OF SUCCESS ON ANY GROUND ................................... 5
`A. Grounds A, B, and C: The Petition Does Not Show That
`Sugita Anticipates or Renders Obvious Claim 1 ............................... 7
`1.
`The Petition Does Not Show That Sugita
`Discloses Selective Patching of First and
`Second Mobile Units ................................................................ 8
`The Petition Does Not Show That Sugita
`Discloses “Merging” A “Patch” With “Current
`Operating Code” .................................................................... 10
`The Petition Does Not Show That
`Sugita Discloses “Switch[ing] Execution”
`To The “Patched Operating Code” ........................................ 12
`Conclusion: Grounds A and B As Presented
`By Petitioner Lack Merit ....................................................... 13
`Ground C: Burson is irrelevant ............................................. 13
`5.
`B. Grounds D and E: The Petition Does Not Show That
`Claim 1 is Rendered Obvious by Sugita and Kirouac
`(with or without Burson), or Rendered Obvious by Sugita
`and Ballard (with or without Kirouac or Burson) ............................ 13
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`3.
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`4.
`
`VI. CONCLUSION ........................................................................................... 15
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`CERTIFICATE OF COMPLIANCE .................................................................... 16
`CERTIFICATE OF SERVICE ............................................................................. 17
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`I.
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`INTRODUCTION
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`As a threshold matter, the Board should note that grounds A and B in this
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`petition for Inter Partes Review are substantively identical to the petitions earlier
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`filed by Samsung Electronics Co., Ltd. (IPR 2018-01552) and Google LLC (IPR
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`2019-01110), and to which Patent Owner has filed preliminary responses. By
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`substantively identical, we mean the identified claim is the same (Claim 1); the
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`identified art is identically the same (Sugita); and the arguments presented are
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`identically the same. From Patent Owner’s detailed review, the only differences
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`relate to the petitioner specific information. See Institution Decision in IPR2018-
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`01554 at 27 – 31.
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`For the reasons presented below, Iron Oak Technologies, LLC (Patent Owner)
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`respectfully requests that the Board exercise its discretion to deny the Petition for
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`Inter Partes Review filed by Microsoft Corporation (Petitioner) concerning U.S.
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`Patent No. 5,699,275 (’275 patent).
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`35 U.S.C. § 314(a) sets forth the standard by which an IPR may be instituted:
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`The Director may not authorize an inter partes review to be instituted
`unless the Director determines that the information presented in the
`petition filed under section 311 and any response filed under section
`313 shows that there is a reasonable likelihood that the petitioner would
`prevail with respect to at least 1 of the claims challenged in the petition.
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`Thus, it is not the Board’s burden or duty to sift through the art relied upon in the
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`Petition to see if a reasonable likelihood of unpatentability could have been shown.
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`Rather, it is the Board’s duty to determine whether the arguments and evidence
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`actually presented in the Petition demonstrate such likelihood by a preponderance
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`of the evidence in the first instance. The Petition does not meet this standard.
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`Each ground advanced in the Petition fails because Petitioner did not establish
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`the content of each reference as would have been understood by a person of ordinary
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`skill in the art (hereafter, POSITA). Graham v. John Deere Co., 383 U.S. 1, 17
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`(1966) (“Under §103, the scope and content of the prior art are to be determined;
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`…”). The properly understood content of the cited art demonstrates that they do not
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`anticipate or render obvious the subject matter of Claim 1 of the ’275 Patent.
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`For at least these reasons, the Petition should be denied in its entirety.
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`II. RELATED INTER PARTES REVIEW CASES
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`IPR Petitions currently pending against the ’275 Patent are listed below. As
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`of this filing, trial has not been instituted against the ’275 Patent.
`
`A.
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`Petitions Based Primarily on Sugita and Ballard
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`As noted above, a petition for inter partes review was earlier filed by Samsung
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`Electronics Co. Ltd (IPR2018-01552) contending that claim 1 of the ’275 patent is
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`anticipated by Sugita; or obvious over Sugita and Wortham; or obvious over Ballard
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`and Shimizu. No institution decision has yet been issued.
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`As noted above, a petition for inter partes review was earlier filed by Google
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`LLC (IPR2019-00110) contending that claim 1 of the ’275 patent is anticipated by
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`Sugita; or obvious over Sugita and Wortham; or obvious over Ballard and Shimizu.
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`No institution decision has yet been issued.
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`B.
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`Petitions Based Primarily on Hapka
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`A petition for inter partes review was earlier filed by Samsung Electronics
`
`Co. Ltd. (IPR2018-01553) contending that claim 1 of the ’275 patent is obvious
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`over Hapka and Parillo; or obvious over Hapka, Parillo and Wortham. No institution
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`decision has yet been issued.
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`A petition for inter partes review was later filed by Google LLC, (IPR2019-
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`0111) contending that claim 1 of the ’275 patent is obvious over Hapka and Parillo;
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`or obvious over Hapka, Parillo and Wortham. It should be noted that this petition
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`by Google is substantially identical, if not absolutely identical, to petition IPR2018-
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`01553 earlier filed by Samsung. No institution decision has yet been issued.
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`III. PATENT OWNER’S RESERVATION OF RIGHTS
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`In this Preliminary Response, Patent Owner has chosen to point out only
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`certain errors in the Petition, and to present only certain arguments why trial should
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`not be instituted on the any of the grounds presented in the Petition. This Preliminary
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`Response is made without prejudice to or waiver of Patent Owner’s rights to present
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`to the Board at a later date the other errors in the Petition and the grounds relied
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`upon, and to present further and different arguments and evidence, as desired or
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`necessary.
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`For example, and not limitation, Patent Owner and Petitioner conducted a
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`Markman claim construction hearing in the underlying litigation on September 20,
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`2018. Patent Owner has disputed the claim constructions proposed by Petitioner in
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`that proceeding, and the parties await the Court’s ruling. See Pet. at 13. For
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`purposes of this Preliminary Response, Patent Owner will not offer its proposed
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`constructions, as Petitioner’s grounds fail even under its proposed constructions.
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`Patent Owner submits that the Board need not construe any claim term in a particular
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`manner in order to arrive at the conclusion that the Petition is substantively deficient.
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`Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“need
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`only be construed to the extent necessary to resolve the controversy”).
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`IV. LISTING OF FACTS
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`The Petition did not include a Statement of Material Facts to be Admitted or
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`Denied.
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`V.
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`THE PETITION DOES NOT SHOW A REASONABLE
`LIKELIHOOD OF SUCCESS ON ANY GROUND
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`Petitioner has the burden of proof to establish through its Petition that trial
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`should be instituted. 37 C.F.R. § 42.108(c). This burden never shifts to Patent
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`Owner. 35 U.S.C. 316(e).
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`To prevail on institution based on anticipation (Ground A), the Petition must
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`provide credible evidence and argument demonstrating to the Board that “each and
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`every element as set forth in [Claim 1] is found, either expressly or inherently
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`described, in a single prior art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of
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`Cal., 814 F.2d 628, 631 (Fed. Cir. 1987); see also Nidec Motor Corp. v. Zhongshan
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`Broad Ocean Motor Co., 851 F.3d 1270, 1274 (Fed. Cir. 2017) (reversing finding of
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`anticipation based on skilled artisan “at once envisage” the claimed subject matter).
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`To prevail on institution based on obviousness (Grounds B, C, D, and E), the
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`Petition must demonstrate to the Board that the differences between the claimed
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`subject matter and the prior art are such that the subject matter of Claim 1, as a
`
`whole, would have been obvious at the time the invention was made to a person
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`having ordinary skill in the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). A demonstration of obviousness involves the following four questions, for
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`which Petitioner bears the burden of proof: (1) the scope and content of the prior art;
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`(2) any differences between the claimed subject matter and the prior art; (3) the level
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`of skill in the art; and (4) where in evidence, so-called secondary considerations.
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`Graham v. John Deere Co., 383 U.S. 1, 17 (1966). The Petition must have a clear
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`articulation of why a POSITA would have been motivated to combine the references
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`in the manner described. In re Magnum Oil Tools Int’l, Ltd, 829 F.3d 1364, 1380
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`(Fed. Cir. 2016.) (holding “a petitioner cannot employ mere conclusory statements.
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`The petitioner must instead articulate specific reasoning, based on evidence of
`
`record, to support the legal conclusion of obviousness). To establish obviousness of
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`Claim 1, all the claim limitations must be taught or suggested by the properly
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`combined prior art. See CFMT, Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342
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`(Fed. Cir. 2003); In re Royka, 490 F.2d 981, 985 (CCPA 1974). Thus, the Petition
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`“must specify where each element of the claim is found in the prior art patents or
`
`printed publications relied upon.” 37 C.F.R. § 42.104(b)(4); see also Arendi S.A.R.L.
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`v. Apple, Inc., 832 F.3d 1355 (Fed. Cir. 2016) (reversing Board obviousness
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`determination based on “common sense” that was conclusory and unsupported by
`
`substantial evidence).
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`As shown below, the grounds presented in the Petition fail to provide the
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`Board with credible evidence or argument concerning several key elements of Claim
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`1.
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`A. Grounds A, B, and C: The Petition Does Not Show That Sugita
`Anticipates or Renders Obvious Claim 1
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`For its anticipation argument (Ground A), Petitioner has the burden of
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`establishing that a POSITA would have understood that the content of Sugita
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`disclosed each element of Claim 1 as ordered and related in Claim 1. Karsten Mfg.
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`Corp. v. Cleveland Golf, 242 F.3d 1376, 1383 (Fed. Cir. 2001) (“To establish
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`anticipation, every element and limitation of the claimed invention must be found in
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`a single prior art reference, arranged as in the claim.”) Even under Petitioner’s
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`improper claim constructions, it has failed this burden. Specifically, Petitioner and
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`its expert have failed to establish that Sugita is configured such that the base station
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`addresses a patch to a first mobile terminal, but not to a second mobile terminal as
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`required by Claim 1.
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`According to Petitioner’s translation, Sugita (Ex. 1005) is a Japanese
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`Unexamined Patent Application entitled “Update Method
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`for Mobile
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`Communications Terminal.”1 A POSITA reading Sugita as of April 12, 1995, would
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`have understood that Sugita was concerned with wirelessly updating all
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`communication terminals in a fleet of vehicles, such as ships, aircrafts, and
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`automobiles. Ex. 1005 at [0002].
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`1 Patent Owner will not challenge the accuracy of the translation for purposes of this Preliminary Response.
`However, Patent Owner reserves its right to challenge the accuracy and content of the translation if trial is
`instituted.
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`1.
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`The Petition Does Not Show That Sugita Discloses Selective
`Patching of First and Second Mobile Units
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`Sugita describes updating every mobile terminal of a plurality of mobile
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`terminals.2 Sugita has no disclosure that a mobile terminal within the plurality of
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`mobile terminals is not sent the update. In other words, all mobile terminals are
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`addressed and sent the update. This is in direct contrast to the subject matter of
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`Claim 1, which is directed to a manager host addressing a “patch message” to a first
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`mobile unit, but not to a second mobile unit (read: selective patching). Note that
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`Claim 1 requires only that the at least one patch message be transmitted by the
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`manager host, and does not that the mobile unit has to receive the patch message.
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`Petitioner and its expert argue that because Sugita discloses a two-stage
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`transmission scheme of a group transmission followed by individual transmission(s)
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`for those group units that failed to update, Sugita necessarily discloses the selective
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`patching required by Claim 1. This is an erroneous argument not supported by
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`Sugita.
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`Sugita notes as background that replacing read-only-memory (ROM) in each
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`of the mobile terminals in a fleet is time consuming, as you typically must wait for
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`2 See, e.g., Abstract (“update each mobile communications terminal…”); Claim 1 (“update of software on
`each mobile terminal of a plurality of mobile communication terminals …”; Paragraph [0017](“Method for
`update of mobile communications terminals when performing updates of software on each mobile terminal
`(m1, m2, m3, m4, …) of multiple mobile communication terminals …” ; Fig. 1 (individual update sent to
`terminals that are part of group ID already sent an update).
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`the vehicle to return to the yard. Ex. 1005 at [0004 -0007]. Rather than physically
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`replacing ROM, Sugita discloses a method whereby the random-access-memory
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`(RAM) in all of the terminals in a fleet of mobile terminals are updated in groups,
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`followed by individual updates for those terminals that failed to update as part of
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`the group(s). Ex. 1007 at [0012] and Fig. 1. For example, a group update may be
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`sent by the base station to all mobile terminals. Those terminals in the yard will
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`receive the update and likely complete the update. Those terminals not in the yard
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`either may not receive the group update or may not complete the update based on
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`the group update. Based on responses from the mobile terminals, which necessarily
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`includes a failure to respond, the base station then resends the update individually
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`to a smaller subset of mobile terminals than were sent the group update. Ex. 1005
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`at [0026] (mobile
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`terminals receive both one-to-one and one-to-multiple
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`communication formats). Thus, every mobile terminal in Sugita is sent the group
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`update by the base station with some receiving a redundant individual update. Sugita
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`never discloses an instance when a mobile terminal is not sent the update
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`transmission. Sugita has no appreciation of selective patching.
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`The Petition does not adequately demonstrate the “selective patching”
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`required by Claim 1.
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`2.
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`The Petition Does Not Show That Sugita Discloses
`“Merging” A “Patch” With “Current Operating Code”
`
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`Claim 1 requires that “operating code” be remotely “patched” to create
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`“patched operating code. Ex. 1001 at Claim 1. Therefore, the “patch” of Claim 1 is
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`separate and different from either the “operating code” or the “patched operating
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`code” that is created. The ’275 Patent discloses that “patching” operating code by
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`“merging” a “patch” with “current operating code” is but one form of “updating”
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`operating code. For example, Col 13, Lines 9-25 of the ’275 Patent begins (emphasis
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`added), “The system and method of remote patching or updating of operating code”
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`and goes to describe updating by patching and merging, and updating by
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`downloading “messages collectively representing new operating code.” Claim 1 is
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`not directed to updating operating code by downloading new code.
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`Notably Petitioner’s translation of Sugita does not use the word “patch” or
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`“patching” when describing its non-selective method of updating software on the
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`mobile communication terminals. What Sugita discloses is sending “update
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`information that may be either all or some of the above-mentioned mobile
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`communications terminal software.” Ex. 1005 at [0035]. Sugita does not disclose
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`sending an operating code “patch” that must be merged into the operating code. The
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`Petition’s conclusion that Sugita’s “updating” software by sending “software” is the
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`same as Claim 1’s “patching” by merging a patch has not been supported. Indeed,
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`rather than relying on the content of Sugita, Petitioner relies mainly on the
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`conclusions of its expert. Pet. at 38 – 42. Under Petitioner’s faulty logic, since
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`Sugita discloses “updating,” it also discloses the “patching” required by Claim 1 Id.
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`Patent Owner challenges that reasoning.
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`Concerning Claim 1’s requirement that the “patch” be “merged” with current
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`operating code, Petitioner relies on Sugita’s disclosure in Figure 6 (mobile terminal
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`operation) that “update information” is copied to the program area (S14). Pet. at 41.
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`It is this last step of “copy[ing] update information to program area,” that Petitioner’s
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`expert opines would have disclosed to a POSITA the claimed “merging” a “patch”
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`into “current operating code.” Yet, Petitioner’s expert’s opinion is based solely on
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`Sugita’s disclosure in Figure 6 that the “update information” is copied to the
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`program “area.” That stretches Sugita too far. Copying “update information” to
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`an area in RAM where the program is actually operating cannot disclose “patching”
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`current operating code by “merging” as required by Claim 1.
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`Further, Claim 1 requires that the “mobile unit” be operable to “create patched
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`operating code by merging. Ex. 1001 at Claim 1. In other words, once the “patch
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`messages” are received by the mobile unit, the mobile unit, and not the “manger
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`host,” controls the patching process. Ex.1001 at Claim 1. In contrast, Sugita
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`discloses that “processor 11 software operates on RAM 15 to enable updating by
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`remote operation using a wireless circuit.” Ex. 1005 at [0025] (emphasis added).
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`Further, Sugita discloses “[i]n other words, in this Invention, updates of mobile
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`communications terminal software in wireless data communication systems are
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`performed by remote manipulation by way of a base station.” Ex. 1005 at [0013]
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`(emphasis added). Remote control of the updating process by Sugita’s base station
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`is not the same as Claim 1’s mobile unit being operable to create patched operating
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`code.
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`Thus, the Petition does not sufficiently establish that Sugita discloses
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`transmitting a “patch” for operating code, or that Sugita discloses “merging” a patch
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`into current operating code, or that Sugita discloses that the patching process is
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`carried out by the mobile terminal, rather than the base station, all as required by
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`Claim 1.
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`3.
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`The Petition Does Not Show That Sugita Discloses
`“Switch[ing] Execution” To The “Patched Operating Code”
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`Similarly to failing to show “patching” by “merging” in Sugita, Petitioner has
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`failed to show that Sugita discloses “switch[ing] execution” from “current operating
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`code” to “patched [by merging] operating code” as required by Claim 1. Because
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`Sugita has no discernable disclosure of switching execution, Petitioner again relies
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`on the conclusory opinions of its expert. See Pet. at 47-48.
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`4.
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`Conclusion: Grounds A and B As Presented By Petitioner
`Lack Merit
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`Petitioner bore the burden of demonstrating through its Petition the legally
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`correct “content” of Sugita, and bore the burden of demonstrating how that “content”
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`would have rendered Claim 1 unpatentable. Graham v. John Deere Co., 383 U.S.
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`1, 17 (1966). As demonstrated above, Petitioner has failed to demonstrate
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`adequately that the content of Sugita as would have been understood by a POSITA
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`anticipates or renders obvious Claim 1.
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`5.
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`Ground C: Burson is Irrelevant.
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`Petitioner relies on Burson (Ex. 1008) “[t]o the extent one may argue Sugita’s
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`mobile terminal is not a ‘battery-powered-device’…” Because the mobile unit of
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`Claim 1 is not limited to a battery-powered-device, Petitioner’s reliance on Burson
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`is irrelevant.
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`B. Grounds D and E: The Petition Does Not Show That Claim 1 is
`Rendered Obvious by Sugita and Kirouac (with or without
`Burson), or Rendered Obvious by Sugita and Ballard (with or
`without Kirouac or Burson)
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`Petitioner recognizes Sugita’s lack of disclosure concerning the mobile
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`terminal being operable to create patched operating code “by merging the … patch”
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`with current operating code.”3 Ex. 1001 at Claim 1. Petitioner also recognizes
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`Sugita’s lack of disclosure concerning the mobile terminal begin operable to “switch
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`execution to the patched operating code.”4
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` Because of these recognized deficiencies, Petitioner relies on Kirouac (Ex.
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`1007) “[t]o the extent one might argue Sugita does not sufficiently disclose
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`“creat[ing] [a] patched operating code by merging the at least one patch with
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`current operating code,” and on Ballard (Ex. 1006) “[t]o the extent one might argue
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`“switch[ing] execution to the patched operating code” requires two separate
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`memories.” Pet. at 51 & 56.
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`Even if it were true that Kirouac sufficiently discloses patched operating code
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`created “by merging the … patch with current operating code,” and even if it were
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`true that Ballard discloses “switch[ing] execution to the patched operating code,”
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`and even if were true that a POSITA would have been motivated combine Kirouac,
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`Ballard, or both, with Sugita—positions to which Patent Owner does not accede—
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`the resulting combination still would not disclose all of the elements of Claim 1.
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`As presented above, such combination still would not have the “selective
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`patching” element required by claim 1. Specifically, the combination proposed by
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`Petitioner still would lack a “manager host operable to address the … patch message
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`3 As demonstrated above, Sugita has absolutely no disclosure of the mobile terminal “merging” a “patch.”
`4 As demonstrated above, Sugita has absolutely no disclosure of the mobile terminal “merging” a “patch.”
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`such that the … patch message is transmitted to the first mobile unit but not to the
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`second mobile unit. See Section V.A.3.
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`Not surprisingly, this deficiency in the prior art was recognized by the Office
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`when it issued the Notice of Allowance.
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`Ex. 1002 at 110.
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`VI. CONCLUSION
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`For at least the reasons set forth above, Patent Owner respectfully requests
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`that the Board exercise its discretion and deny institution of trial because of
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`deficiencies in the Petition.
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`Date: February 21, 2019
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`Respectfully submitted,
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`
`By: /Al Deaver/
`Albert B. Deaver, Jr.
`Reg. No. 34,318
`Lead Counsel for Patent Owner
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`CERTIFICATE OF COMPLIANCE
`
`Pursuant to 37 C.F.R. § 42.24(d), I certify that this Preliminary Response to
`
`Petition complies with the type-volume limitation of 37 C.F.R. § 42.21(b)(1)
`
`because it contains fewer than the limit of 14,000 words, as determined by the word
`
`processing program used to prepare the document, excluding the parts of the
`
`document exempted by 37 C.F.R. § 42.24(a)(1).
`
`Date: February 21, 2019
`
`Respectfully submitted,
`
`
`By: /Al Deaver/
`Albert B. Deaver, Jr.
`Reg. No. 34,318
`Lead Counsel for Patent Owner
`
`{HD100872.1}
`
`- 16 -
`
`
`
`Case IPR2019-00106
`Patent No. 5,699,275
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. §42.6(e), I certify that an electronic copy of the foregoing
`
`PATENT OWNER’S PRELIMINARY RESPONSE was served along with any
`
`accompanying exhibits via the Patent Review Processing System to Petitioner’s
`
`counsel and email to sidley_microsoft_ironoak_ipr@sidley.com
`
`Date: February 21, 2019
`
`Respectfully submitted,
`
`
`By: /Al Deaver/
`Albert B. Deaver, Jr.
`Reg. No. 34,318
`Lead Counsel for Patent Owner
`
`{HD100872.1}
`
`- 17 -
`
`
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