Case IPR2019-00110
`Patent No. 5,699,275
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________________
`
`GOOGLE, LLC.,
`Petitioner,
`
`v.
`
`IRON OAK TECHNOLOGIES, LLC.,
`Patent Owner.
`
`___________________________
`
`IPR2019-00110
`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
`
`___________________________
`
`GOOGLE, LLC.,
`Petitioner,
`
`v.
`
`IRON OAK TECHNOLOGIES, LLC.,
`Patent Owner.
`
`___________________________
`
`IPR2019-00110
`U.S. Patent No. 5,699,275
`___________________________
`
`PATENT OWNER PRELIMINARY RESPONSE
`
`PURSUANT TO 37 C.F.R. §42.107(a)
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`Case IPR2019-00110
`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 ................................. 4
`IV. LISTING OF FACTS ................................................................................... 5
`V.
`THE PETITION DOES NOT SHOW A REASONABLE
`LIKELIHOOD OF SUCCESS ON ANY GROUND ................................... 5
`A. Grounds 1 and 2: The Petition Does Not Show That
`Sugita Anticipates or Renders Obvious Claim 1 ............................... 7
`1.
`The Petition Does Not Show That Sugita
`Discloses Selective Updating 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 1 and 2 As Presented
`By Petitioner Lack Merit ....................................................... 12
`B. Ground 3: The Petition Does Not Show That Claim 1 is Rendered
`Obvious by Ballard and Shimizu ..................................................... 12
`
`3.
`
`4.
`
`VI. CONCLUSION ........................................................................................... 14
`CERTIFICATE OF COMPLIANCE .................................................................... 16
`CERTIFICATE OF SERVICE ............................................................................. 17
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`Patent No. 5,699,275
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`I.
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`INTRODUCTION
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`As a threshold matter, the Board should note that this petition for Inter Partes
`
`Review is substantively identical to the petition earlier filed by Samsung Electronics
`
`Co., Ltd. (IPR 2018-01552), and to which Patent Owner has filed a preliminary
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`response. By substantively identical, we mean the identified claim is the same
`
`(Claim 1); the identified art is identically the same (Sugita, Wortham, Ballard and
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`Shimizu); and the arguments presented are identically the same. From Patent
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`Owner’s detailed review, the only differences relate to the specific petitioners. See
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`Institution Decision in IPR2018-01554 at 27 – 31.
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`The Board also should note that this Preliminary Response is, therefore,
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`substantively identical to the Preliminary response filed by Patent Owner in IPR
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`2018-01552.
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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
`
`Inter Partes Review filed by Google, LLC. (Petitioner) concerning U.S. Patent No.
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`5,699,275 (’275 patent).
`
`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
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`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
`
`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
`
`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
`
`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
`
`IPR Petitions currently pending against the ’275 Patent are listed below. As
`
`of this filing, trial has not been instituted against the ’275 Patent.
`
`A.
`
`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. .
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`A petition for inter partes review was later filed by Microsoft Corporation
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`(IPR2019-0106) contending that claim 1 of the ’275 patent is again anticipated by
`
`Sugita; or obvious over Sugita; or obvious over Sugita and Burson; or obvious over
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`Sugita and Kirouac (with or without Burson); or obvious over Sugita and Ballard
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`(with or without Burson or Kirouac). It should be noted that at least the first two
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`grounds are of this Microsoft petition are substantially identical, if not absolutely
`
`identical, to the subject Petition and to the Samsugn Petition (IPR2018-01552).
`
`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
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`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.
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`A petition for inter partes review was later filed by this Petitioner, Google
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`LLC, (IPR2019-0111) contending that claim 1 of the ’275 patent is obvious over
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`Hapka and Parillo; or obvious over Hapka, Parillo and Wortham. It should be noted
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`that this petition by Google is substantially identical, if not absolutely identical, to
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`petition IPR2018-01553 earlier filed by Samsung.
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`This Preliminary Response addresses only the subject Petition.
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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
`
`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 8. For purposes
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`of this Preliminary Response, Patent Owner will not offer its proposed constructions,
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`as Petitioner’s grounds fail even under its proposed constructions. Patent Owner
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`submits that the Board need not construe any claim term in a particular manner in
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`order to arrive at the conclusion that the Petition is substantively deficient. Wellman,
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`Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“need only be
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`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 to
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`Denied.
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`V.
`
`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 1), the Petition must
`
`provide credible evidence and argument demonstrating to the Board that “each and
`
`every element as set forth in [Claim 1] is found, either expressly or inherently
`
`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 2 and 3), the Petition
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`must demonstrate to the Board that the differences between the claimed subject
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`matter and the prior art are such that the subject matter of Claim 1, as a whole, would
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`have been obvious at the time the invention was made to a person having ordinary
`
`skill in the art. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). A
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`demonstration of obviousness involves the following four questions, for which
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`Petitioner bears the burden of proof: (1) the scope and content of the prior art; (2)
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`any differences between the claimed subject matter and the prior art; (3) the level of
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`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
`
`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
`
`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
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`substantial evidence).
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`As shown below, the Petition fails to provide the Board with credible evidence
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`or argument concerning several key elements of Claim 1.
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`A. Grounds 1 and 2: The Petition Does Not Show That Sugita
`Anticipates or Renders Obvious Claim 1
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`For its anticipation argument (Ground 1), Petitioner has the burden of
`
`establishing that a POSITA would have understood that the content of Sugita
`
`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 an update to a first mobile terminal, but not to a second mobile terminal
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`as required by Claim 1.
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`For its obviousness arguments (Grounds 2 & 3), Petitioner relies on Wortham
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`combined with Sugita should the Board find “that Sugita’s mobile communications
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`terminal does not necessarily disclose the ‘mobile unit’ limitations under Petitioner’s
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`construction …” Pet. at 40. The content of Wortham, as Petitioner noted, was
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`provided to the Examiner during prosecution. Pet. at 4.
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`According to Petitioner’s translation, Sugita (Ex. 1007) 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. 1007 at [0002].
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`1.
`
`The Petition Does Not Show That Sugita Discloses Selective
`Updating of First and Second Mobile Units
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`Sugita describes updating every mobile terminal of a plurality of mobile
`
`terminals.2 Sugita has no disclosure that a mobile terminal within the plurality of
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`mobile terminals is not sent the group update. In other words, all mobile terminals
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`are addressed. This is in direct contrast to the subject matter of Claim 1, which is
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`directed to a manager host addressing a “patch message” to a first mobile unit, but
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`not to a second mobile unit (read: selective addressing).
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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.
`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 …”
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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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`Sugita necessarily discloses the selective addressing of Claim 1. This is an erroneous
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`argument not supported by 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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`the vehicle to return to the yard. Ex. 1007 at [0004 -0007]. Rather than physically
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`replacing ROM, Sugita discloses a method where 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]. For example, a group update may be sent by the
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`base station to all mobile terminals. Those terminals in the yard will receive the
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`update and likely complete the update. Those terminals not in the yard either may
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`not receive the group update or may not complete the update based on the group
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`update. Based on responses from the mobile terminals, which necessarily includes
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`a failure to respond, the base station then resends the update individually to a smaller
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`subset of mobile terminals that were sent the group update. Ex. 1007 at [0026]
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`(mobile terminals receive both one-to-one and one-to-multiple communication
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`formats). Thus, every mobile terminal in Sugita is sent the group update by the base
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`station with some receiving a redundant individual update. Sugita never discloses
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`an instance when a mobile terminal is not sent an update transmission or does not
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`receive an update. Sugita has no appreciation of selective addressing.
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`The Petition does not adequately demonstrate the “selective addressing”
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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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`Petitioner’s translation of Sugita does not use the word “patch” or “patching”
`
`when describing its non-selective method of updating software on the mobile
`
`communication terminals. Petitioner and its expert, therefore, erroneously argue that
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`“Sugita’s disclosure of software updates discloses ‘patching of operating code.’”
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`Pet. at 22. Paragraph 75 of Petitioner’s expert’s declaration is the only citation for
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`support of this conclusion, and that paragraph merely opines that the ’275 Patent
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`uses the word “updating”3 interchangeably with “patching.” Under Petitioner’s
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`faulty logic, since Sugita discloses “updating,” it also discloses “patching.” Id.
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`Patent Owner challenges that reasoning.
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`The ’275 Patent discloses that “patching” operating code by “merging” a
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`“patch” with “current operating code” is but one form of “updating” operating code.
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`As Petitioner admits, the ’275 Patent also discloses “updating” operating code by
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`3 Undeniably, the ’275 Patent uses “update” and “updating” mostly to describe the
`prior art. See Col 1, Lines 13-42.
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`downloading the entire code. Pet. at 13. For example, Col 13, Lines 9-25 of the
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`’275 Patent begins (emphasis added), “The system and method of remote patching
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`or updating of operating code” and goes to describe updating by patching and
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`merging, and updating by downloading “messages collectively representing new
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`operating code.” The Petition’s conclusion that “updating” and “patching” are
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`synonymous in either the ’275 Patent or Sugita has not been adequately supported.
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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 that after “update
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`information [is] completed” (S13), the Sugita method “cop[ies] update information
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`to program area” (S14). Pet. at 32. It is this last step of “copy[ing] update
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`information to program area,” that Petitioner’s expert opines would have disclosed
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`to a POSITA the claimed “merging” a “patch” into “current operating code.” Yet,
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`Petitioner’s expert’s opinion is based solely on Sugita’s disclosure in Figure 6 that
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`the “update information” is copied to the program “area.” That stretches Sugita too
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`far. Copying “update information” to an area in RAM where the program is actually
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`operating cannot disclose “patching” current operating code by “merging” as
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`required by 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 35.
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`4.
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`Conclusion: Grounds 1 and 2 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 adequately
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`demonstrate 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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`B. Ground 3: The Petition Does Not Show That Claim 1 is Rendered
`Obvious by Ballard and Shimizu
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`Petitioner had the burden of establishing that a POSITA would have
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`understood that the content of Ballard and the content of Shimizu, when combined,
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`would have disclosed each element of Claim 1 as ordered and related in Claim 1.
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`Specifically, Petitioner and its expert have failed to establish that Ballard discloses
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`the fundamental elements of “patching” operating code by “merging” a patch with
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`current operating code. Shimizu does not remedy the deficiencies of Ballard, so
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`even if it were legally permissible to combine the references, the combination would
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`not render obvious Claim 1.
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`A POSITA reading Ballard would understand that it discloses downloading
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`“operable” software to one of several RAMS (see Figures 1-3). The operable
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`software is described by Ballard as “partial, for certain functions, or total, for all
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`functions except localization and downloading.” Page 5, Lines 4-7. In other words,
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`the downloaded software is complete, operable software, and not a “patch” for
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`“current operating code.” Ballard nowhere discloses that a “patch” or a “patch
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`message” can be downloaded to RAM, and then “merged” into “current operating
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`code” to create “patched operating code.” It should be noted by the Board that
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`because of this lack of disclosure concerning “patching,” Petitioner cites only to its
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`expert’s opinions as support, which opinion relies on the some of the same erroneous
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`arguments presented for Sugita. See Pet. at 48.
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`In addition, Petitioner admits that Ballard does not disclose downloading of
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`at least one “patch message” defining at least one “patch.” Id. In light of this
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`admitted deficiency, the Petition argues that Shimizu discloses “patching” using
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`“at least one patch message defining at least one patch.” Pet. at 56.
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`Shimizu, however, is not directed to “mobile units” as required by Claim 1.
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`Rather, Shimizu is disclosed in the context of a “printer.” Ex. 1007 at [0002]. But
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`more fundamentally, the Petition erroneously concludes that Shimizu discloses that
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`before “transmitting a patch file, the patch may be ‘segmented into multiple patch
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`commands.’” Pet. at 58 citing to paragraphs [0021-0022] of Shimizu. However,
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`the disclosure relied upon concerns what happens in Shimizu’s “data processing
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`device” (e.g., printer), rather than what happens before or during wireless
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`transmission of data for program modification. See, e.g., Ex. 1007 at [0009 –
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`00011]. In other words, the segmenting relied upon by the Petition to support
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`“patch messages” is post-transmission to the printer.
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`Thus, the Petition does not sufficiently explain why the disclosure of Ballard
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`would be combined with Shimizu, or how that combination would render obvious
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`Claim 1.
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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 15, 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
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`Pursuant to 37 C.F.R. § 42.24(d), I certify that this Preliminary Response to
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`Petition complies with the type-volume limitation of 37 C.F.R. § 42.21(b)(1)
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`because it contains fewer than the limit of 14,000 words, as determined by the word
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`processing program used to prepare the document, excluding the parts of the
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`document exempted by 37 C.F.R. § 42.24(a)(1).
`
`Date: February 15, 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 SERVICE
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`Pursuant to 37 C.F.R. §42.6(e), I certify that an electronic copy of the foregoing
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`PATENT OWNER’S PRELIMINARY RESPONSE was served along with any
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`accompanying exhibits via the Patent Review Processing System to Petitioner’s
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`counsel.
`
`Date: February 15, 2019
`
`Respectfully submitted,
`
`
`By: /Al Deaver/
`Albert B. Deaver, Jr.
`Reg. No. 34,318
`Lead Counsel for Patent Owner
`
`{HD100722.1}
`
`- 17 -
`
`
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