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`Paper No. 65
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`INGENICO INC.,
`Petitioner,
`v.
`IOENGINE, LLC.,
`Patent Owner.
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`IPR2019-00879 (Patent 9,059,969 B2)
`IPR2019-00929 (Patent 9,774,703 B2)
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`Record of Oral Hearing
`Held: June 24, 2020
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`Before ELIZABETH M. ROESEL, SHEILA F. McSHANE, and
`SCOTT B. HOWARD, Administrative Patent Judges.
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`IPR2019-00879 (Patent 9,059,969 B2)
`IPR2019-00929 (Patent 9,774,703 B2)
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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
`ROBERT M. ASHER, ESQ.
`LENA M. CAVALLO, ESQ.
`Sunstein Kann Murphy and Timbers, LLP
`100 High Street
`Boston, Massachusetts 02110
`617-443-9292
`rasher@sunsteinlaw.com
`lcavallo@sunsteinlaw.com
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`ON BEHALF OF THE PATENT OWNER:
`MICHAEL A. FISHER, ESQ.
`NOAH M. LEIBOWITZ, ESQ.
`JACOB R. PORTER, ESQ.
`Dechert, LLP
`1900 K Street, NW
`Washington, DC 20006
`202-261-3300
`michael.fisher@dechert.com
`noah.leibowitz@dechert.com
`jacob.porter@dechert.com
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`The above-entitled matter came on for hearing on Wednesday, June 24,
`2020, commencing at 1:00 p.m. EDT, by video/by telephone.
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`P-R-O-C-E-E-D-I-N-G-S
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`1:00 p.m.
`JUDGE McSHANE: Good afternoon, everyone. We're here to
`conduct a hearing in Ingenico v. Ioengine, LLC. These are IPRs 2019-
`00827 and 00929.
`I am Judge McShane, and Judges Howard and Roesel
`should be visible to the parties at this point.
`For the record, these cases will be conducted in this -- in this
`common hearing, but the cases remain separate and unconsolidated.
`If we could have appearances, please. Who do we have for
`Petitioner, and -- and who else is attending or may be presenting from the
`Petitioner's side?
`Petitioner, can you hear me?
`PTO TECH: Please unmute your microphone.
`JUDGE McSHANE:
`I believe Mr. Asher has been representing
`Petitioner in the past.
`Is he -- can he hear me?
`PTO TECH: I can see that his microphone is muted -- are -- on his
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`side.
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`Sir, you're going to have to unmute your microphone.
`Let me see if I can override it.
`MR. ASHER: Hello? Can --
`JUDGE McSHANE: We can hear you now. Yes.
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`IPR2019-00929 (Patent 9,774,703 B2)
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`MR. ASHER: Very good. Thank you. Well, welcome to my
`home. Luckily, there's no landscaping stuff today.
`Yes, Robert Asher and Lena Cavallo will be speaking for the
`Petitioner, Ingenico, Inc. On the line listening are Ward Ewins with
`Ingenico and my co-counsel, Kerry Timbers and Tim Murphy.
`JUDGE McSHANE: Thank you.
`And who do we have representing Patent Owner?
`MR. FISHER: Michael Fisher of Dechert, LLP, representing the
`Patent Owner. With me on the line, also on behalf of Ioengine, are Noah
`Liebowitz and Jacob Porter, who will be -- both of whom will be presenting.
`Mr. Porter is going to be participating as a LEAP practitioner.
`And
`also, I believe we have listening Greg Chuebon, Derek Brader, Jacob Porter,
`and Michael Joshi. And I believe we have Scott McNulty also on the line
`for the client.
`JUDGE McSHANE: Okay. Thank you very much.
`Well, we thank you all for your flexibility in conducting this oral
`video hearing today.
`I'm going to have a few comments because this -- this
`is a departure from our typical practice, so we wanted to just clarify a few
`things.
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`Our primary concern is that you be heard, and that -- that occurs by
`unmuting. And everybody forgets to unmute, by the way.
`I do it all the
`time.
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`If at any time during the proceeding you encounter technical or other
`difficulties, please let us know or contact the team members who helped to
`set -- set up this connection for you.
`Second, when you're not speaking, please do try to mute, and then
`unmute. Please identify yourself each time you speak. This helps the
`court reporter prepare an accurate transcript.
`That
`We do have the complete record here on our computer screen.
`is, the Judges have that, and that includes the demonstratives.
`Please --
`when you refer to the demonstratives or any of the other exhibits, please
`identify those by the exhibit number, the slide number, the page number,
`what have you.
`Please also, if you wouldn't mind, if you're -- if you're switching
`around in the slide deck in particular, if you're going from like slide 25 to
`125, please give us a moment here to try to -- to scroll to where your -- your
`slide is. This will -- the identification of the exhibits and the like will help
`to prepare -- help -- help the court reporter to prepare an accurate transcript.
`We note today that the Patent Owner's slide presentation totals 267
`slides. The Board -- we note the Board will only consider the arguments
`presented today. Please be aware that members of the public may be
`listening to this oral hearing, and please do not interrupt the other party
`while that party is presenting its arguments.
`If you have an objection,
`please raise it during your own arguments.
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`Now, turning to this specific hearing, in the hearing order we
`permitted a total of 90 minutes of argument per party. That is for the total -
`- the total hearing. And then the LEAP requests were made by both parties,
`so the adjusted time per party is now one hour and 45 minutes.
`As we also noted in the hearing order, there was a previous oral
`argument in IPR 2019-00416, and the same Judges are on the -- on the panel
`here as were on the panel in the 416 case.
`So you may refer to arguments
`you -- you presented in that previous oral hearing so that we can have this --
`this hearing conducted a little bit more efficiently.
`A few other things. As we indicated in the general order of
`arguments, the Petitioner will go first and may reserve rebuttal time.
`Owner may argue its opposition and may reserve sur-rebuttal time.
`then we're going to go forward to rebuttal and sur-rebuttal.
`I will be keeping time and will try to inform you when you have five
`minutes left in the argument time. No guarantees on that, however. So
`sometimes we get caught up in the moment, and we lose track.
`And
`apologies for that in advance.
`We likely -- given the length of the hearing, we likely will have a
`short break somewhere in the course of arguments, and if somebody has a
`suggestion for that, that would be fine. But, likely, it will be at the point
`where you both have already conducted your primary arguments or your
`cases in chief, so to speak.
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`Patent
`And
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`Petitioner, Mr. Asher, if you could please proceed. And do you
`wish to reserve rebuttal time?
`MR. ASHER: Yes. We'd like to reserve at least 15 minutes for
`rebuttal.
`JUDGE McSHANE: Thank you.
`MR. ASHER: So the issues surrounding anticipation by Iida,
`including an interactive user interface, communicating through and user
`interaction with an interactive user interface, have been addressed at the
`earlier hearing, IPR 2019-416.
`I don't understand why.
`And your pictures just went off the screen.
`All right. And they're back on. Thank you.
`To conserve time, I will use my time to address the new issues.
`course, if you have any remaining questions, I am more than happy to
`respond to them either now or later.
`So the first new issue I would address is, in our demonstrative
`So
`exhibits or demonstratives or -- where -- is it 1046, 1048 -- slide 24.
`here's a representative claim 93 in the '703 patent.
`Its argument and issue
`relates only to the '703 patent and the 929 IPR.
`It deals with the
`independent claims and the fact that the claims recite first program code,
`which is configured to affect the presentation of an interactive user interface
`by the terminal output component. And the control unit in Iida of the
`terminal can clearly affect the presentation of the interactive user interface.
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`I'm just getting different pictures on the screen. Either I get the
`Judges, I don't get the Judges. The Judges don't want to appear.
`JUDGE McSHANE: All right. Let's just go off the record for a
`minute.
`(Whereupon, the above-entitled matter went off the record at 1:09
`p.m. and resumed at 1:09 p.m.)
`MR. ASHER: Yes. So a certain -- the -- the -- the control unit in
`the terminal of Iida certainly controls what is -- what is the presentation of
`the IUI by the terminal output component. And I think the only dispute has
`to do with the interpretation of the claim.
`As we look at the claim, it's configured to affect the presentation of
`an IUI by the terminal output component. The presentation's being used to
`track what is happening at the terminal output component.
`It is presenting
`the interactive user interface, and that is what is happening.
`It is not -- the
`claim does not read as Patent Owner would like it, to say affecting the
`interactive user interface.
`It is not affecting interactive user interface.
`affecting the presentation by the terminal output component.
`And the very existence of the IUI on the display depends on control
`unit 60 of the terminal in Iida. Thus that claim language is satisfied.
`I'm going to move to the other issue that deals with the independent
`claims. This is the communication nodes. There's program code to
`provide a communication node in the respective devices.
`This relates to
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`both patents, the independent claims, and both patents of both IPRs are
`indicated.
`The question of providing communication nodes on the terminal and
`on the portable device is pertinent to the claims in both of the IPRs.
`So in
`CFRD Research, the Federal Circuit states the standard for anticipation.
`Anticipation is established when one skilled in the art would reasonably
`understand or infer from the prior art reference's teachings that every plan
`limitation was disclosed in that single reference.
`The communications are clearly set up in Iida between the respective
`devices. As set forth on slide 28, that's where Mr. Geier, our expert,
`testified that the standard has been met and that one of ordinary skill would
`have understood from reading Iida that code for performing -- for setting up
`these communication nodes is present.
`If we look at slide 30,
`Patent Owner's expert did not dispute that.
`his expert explains that a communication node is a node capable of
`communication. He further explains it's clear that there would need to be
`some code on the Iida phone in order to establish that.
`Patent Owner's argument is that disclosing the function as readily
`understood by a person of ordinary skill in the art is not enough.
`They
`argue that there needs to be a showing of some actual code.
`Now, if we turn to slide 29, we see how the McNulty patent
`addresses this issue. Counsel in their sur-reply pointed to software
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`modules. They didn't point to any specific code. A module is just a
`nonce term for their software there.
`And they pointed out at the top of this slide 29, to the portion that
`says the TCAP module enabling access of information between nodes.
`And that's where they left it, leaving -- leaving out the portion of this
`sentence which indicates that the module may be developed by employing
`standard development tools, such as, . . . and they name a bunch. The
`software may be developed, the software may be written, and that's how the
`patent, the McNulty patent, deals with disclosure of a communication node.
`So the -- the function of communicating is disclosed and the code is
`understood.
`Patent Owner raised another issue with respect to the communication
`node section in the claim. Patent Owner further chooses -- chooses to
`interpret the claims as requiring a communications node separately
`identifiable from the device or terminal.
`But the McNulty patent explains that a computer, other device,
`software, or combination thereof that facilitates processed information, et
`cetera, is commonly referred to as a node. And an example of a node that
`they give in the patent is a TCAPS. That's a server, a server computer.
`When it comes to communication nodes on an access terminal, turn
`to slide 27. There is really no description in the text of such nodes, nor is
`there illustration on the patent as the Patent Office would require to be
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`shown within a claim. But as you can see in slide 27, the access terminal is
`just that, a computer. The nodes that they say are on the terminal are not
`disclosed, are not illustrated, not described.
`We understand from the McNulty patent that the terminal is set up as
`a communication node with a TCAP and with servers on the network.
`So
`the communication node limitations are just as easily met by the Iida patent.
`So those claims are all anticipated.
`JUDGE McSHANE: Mr. Asher, might I interject and just ask a
`question?
`MR. ASHER: Of course. I'm here for your questions.
`JUDGE McSHANE: Thank you. I know you discussed claim
`construction extensively in the 416 case, and we kind of indicated that we
`didn't want to hear repeats of arguments. But I would just like to back up
`with -- and maybe this'll come later in your presentation.
`If that's -- and if
`that's the case, just tell me -- tell me so.
`But there is one issue related to the IUI construction that is
`implicated in the cases that we have before us, and I would like to ask a
`specific question in that regard. So, are you going to be addressing that
`later in your discussion?
`I think all of the
`MR. ASHER: No, I'll answer your question.
`issues related to IUI are probably relevant to this proceeding today.
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`JUDGE McSHANE: All right. Okay. Well -- yeah. Okay.
`Well, let me just -- I've raised it, so let me just ask the question.
`So, with regard to the interactive user interface, right, in your papers
`-- and -- and for the sake of the argument, I'll refer to the -- let's see, to the
`IPR 2019-00879 case -- in that case, you -- you -- you've indicated that your
`claim construction -- and this is consistent through all the cases -- that -- that
`you -- you want to have the term of -- of a computer in there.
`That is that
`the -- it is the -- a computer that is responsive.
`And in -- in your papers in a -- in another place, you say that what is
`responsive is you contend that the -- it can be either the terminal or the
`portable device that is responsive, correct? If you recall.
`MR. ASHER: It can be the terminal or the -- yes. Correct.
`JUDGE McSHANE: Right.
`MR. ASHER: A computer response -- a computer response to -- to
`the actions of the user.
`JUDGE McSHANE: Right. So -- so let me -- let me get to the
`question about claim construction. So you want to have the term computer
`in there. But let me ask the question, what would be the issue with letting
`the claim language speak for itself as to how the IUI operates?
`MR. ASHER: So the claim language itself has the portable device
`responding to the actions of the user, which is fine with us as well.
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`JUDGE McSHANE: Or the terminal. So you defer to the -- to the
`-- to the claim language yourself.
`MR. ASHER:
`In -- in -- in general, the interactive user interface
`has a computer responding to user interaction.
`In these particular claims,
`there's additional language in the claim which specifies that the portable
`device is having a -- a reaction to being a user interaction.
`And so that satisfies the claim, and that shows specifically for that
`claim language that -- that it's the portable -- that's another limitation on the
`claim, right? That it's the portable device that is the particular computer
`that's responding.
`JUDGE McSHANE: Right. Okay. All right.
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`I just wanted to -
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`-- other language in the claim, or
`MR. ASHER: If you see that
`does IUI by itself -- does IUI by itself mean portable device?
`I think it just
`means generally computer, but in the claims, it's -- it's certainly the portable
`device.
`JUDGE McSHANE: All right. Okay. But -- but basically, what
`you're doing by you choice of the term computer, in a more general sense, is
`to -- is to cover a portable device in general.
`I mean, that's -- I'm trying to
`get to the rationale as to why you chose the term computer rather than
`another term.
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`MR. ASHER: Because interactive user interface is an interface that
`can be anywhere.
`I mean, if it's on a -- if it's on a display or if it's -- it's
`interactive, so there needs to be some processor responding to what the user
`is doing. And where that computer is -- is -- is not particular to the term
`interactive user interface.
`It's particular to the terms -- the other terms in
`the claim.
`I think we referred to the dictionary definitions to get computer.
`JUDGE McSHANE: Right. So within the claims, though, they
`specify the interaction. The claims themselves specify the interaction.
`Yes.
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`MR. ASHER: Yes, but in the -- in the particular case of the claims,
`it's the portable device that's responding to the user interaction.
`JUDGE McSHANE: Right. Okay. All right.
`I appreciate that.
`Thank you. And sorry if I threw you off track.
`MR. ASHER: You're very welcome.
`JUDGE McSHANE: All right.
`MR. ASHER: No problem.
`I'm here for your questions.
`repeating what we already said in the brief, so -- okay.
`The next issue I would like to deal with is the portable device
`identifier information and verification of the portable device.
`This relates
`to both IPRs, and I will turn to slide 31 to start.
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`I'm just
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`Slide -- slide 31 has representative claims from the '703 patent, 56
`and 75. There are also a few others that are -- are -- are included. And
`slide 32 illustrates claim 3 of the ’703 patent, which is also indicated by
`these claim times. These claims recite a communication caused by the
`fourth program code to be transmitted. The communication contains
`portable device identifier information or it facilitates verification of the
`portable device.
`If we turn to slide 33, at the bottom, paragraph 113 of Iida, this
`action is performed by the control unit 52 in the portable device.
`As seen
`in the highlighted portion at the bottom, the control unit 52 accesses the
`image server 18 by designating the URL of the image server. And it
`transmits the user ID and password stored in the built-in memory 48 to the
`image server.
`And if you look at the top of that slide, you'll see the precursor to
`that is that the shop owner is delivering the camera with the user ID and
`password stored in the memory of the digital still camera.
`So this is entirely different from what I might do on my iPhone or
`my electronic device.
`If I were to enter a user ID and password that I have
`remembered and kept secret, that password that I type in is identifying me
`when it's used so that I can get access to my phone or to some service.
`It's quite different from the camera in Iida, in which the user ID and
`password is information that is stored in the built-in memory. As a result --
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`Because only the
`so why is it we say that the camera is being verified?
`specific camera that has stored within it the user ID and password can -- can
`send that verification information to the server.
`The server does not know who is holding the camera and is it a
`renter or a friend or a relative. All the server learns is whether it is
`receiving a communication from the camera whose ID and password was
`provided to it by the shop. We're only addressing --
`JUDGE McSHANE: Yes, but -- but -- but, Mr. Asher, might I
`interrupt? But if you look down on slide 33, right? And you've pointed
`us to the yellowed-in portion at the bottom, right?
`There, the -- right after
`that where the yellowing ends, it says, thus the user renting the digital still
`camera 12 is authenticated.
`So it refers to the -- to the user being authenticated.
`how I read that, anyway.
`MR. ASHER: But what is really happening? The user didn't put
`in that -- that password. Password was in the memory of the camera.
`So
`how do you know who's holding the camera? And you -- you could say --
`and I can also explain why Iida says the user is being authenticated, because
`it expects that the user who you rented the camera to is the one who is using
`the camera.
`So it's -- it's identifying the camera and, by implication, the user who
`was assigned to that camera. So you --
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`Is that -- that's
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`IPR2019-00929 (Patent 9,774,703 B2)
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`JUDGE ROESEL: Mr. Asher, can I interrupt for one second?
`MR. ASHER: Absolutely.
`JUDGE ROESEL: So if -- if we expand our time frame to
`encompass the time frame over which, you know, that camera is rented to
`multiple users, then in that case, the user ID and password are not
`identifying the camera, because multiple user IDs are -- are used to identify
`the very same device in Iida.
`Isn't that true? And doesn't that defeat --
`MR. ASHER: No.
`-- the anticipation?
`JUDGE ROESEL:
`MR. ASHER: No, not at any given time. There would only be
`one user ID and password in the camera. Otherwise, the server wouldn't --
`otherwise, how would you know which one to send out? The claim doesn't --
`(Simultaneous speaking.)
`JUDGE ROESEL: But what in the claim permits us to consider
`this only at one given point in time rather than in general, that, you know,
`the -- the verification or identification pertains to a particular device?
`MR. ASHER: The -- the -- the -- the server -- the one managing the
`server -- only knows that it's received a list of user IDs and passwords from
`the shop and that those have been assigned to various cameras.
`They're -- they're -- they've been assigned and are loaded into one
`camera. So we're only identifying that camera. We can't identify the user.
`The user's not inputting the password. All we know is the -- all the -- all
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`IPR2019-00929 (Patent 9,774,703 B2)
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`that the manager of the server knows is that it has received a user ID and
`password from a particular camera.
`That is all that it -- it -- it can know because it is the camera that is
`responsible for sending that user ID and password. That user ID and
`password is ingrained in the camera. And -- and -- and so that camera by --
`is necessarily being the one that is being identified and being -- being
`verified.
`And as long as that camera is being carried by the user who was
`assigned to it, it -- it -- it -- it justifies the language in this patent that the user
`is being authenticated. But --
`JUDGE ROESEL: It's -- in Iida --
`(Simultaneous speaking.)
`MR. ASHER: But, at -- it is the camera that is being verified and
`identified.
`If a particular user turns in his camera one day
`JUDGE ROESEL:
`and then rents another camera the next day and uses the same user ID and
`password, does that user ID and password identify the camera or does it
`identify the user?
`It necessarily identifies the camera because the shop
`MR. ASHER:
`owner is going to provide new information. The -- the shop owner knows
`which -- the shop owner -- they're ingrained in the camera.
`They're
`ingrained. The user ID and password are in the camera.
`So they only
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`identify that camera. They can't identify another camera, because they're --
`they're not in another camera at any given time.
`Given that they are ingrained in the camera and not input by the user,
`they can't be used to -- they can't be used to identify the user because it's the
`camera that contains this information. And so -- I'm repeating myself.
`Sure, it can be used to identify the user over time, but -- but that's not
`what this claim is about, and that's not what it takes to satisfy the claim.
`I
`think what you were -- notice the function. The function that happens is
`that the -- the manager of the server is able to interact with this camera.
`- a communication line is set up with this camera, and -- and login
`information is determined for whether this communication line is going to be
`set up with the camera.
`And all that the manager of the server knows is that the user ID and
`password match that which it was provided by the shop. And so that
`communication with the camera can take place.
`So the function of the
`claim is being performed.
`If we were going to get into -- into information -
`- or the fact that it's named the user ID, or the fact that it's named -- now, if
`you called it Bob's camera instead of Bob, all of a sudden Bob's camera is
`identified as the camera and Bob identified the user.
`It -- it -- there's no distinction there. You -- you're getting into
`information contact that has no patentable weight.
`The only reason we're
`addressing these claims is because they serve a function, and that function is
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`to identify the camera so that a communication line can be set up between
`the camera and the server at -- at the image server.
`It can -- it
`So I think that's how it works.
`It can identify the user.
`only identifies the user insofar as the user is -- is the one who was assigned
`this camera. But the action, the function, to set up this communication
`between the camera and the server is only performed if that information has
`been stored in the built-in memory of the camera.
`It shouldn't make any difference if they called it the -- the camera
`verification, if they used, like, a camera code and coded the camera to -- to
`the user. That would -- that would just be information that has no
`patentable weight.
`Okay. I'm dealing with a screen that goes black every once in a
`while, but I'm fine.
`So the same concept goes to my next issue, which -- relates to the
`’703 patent, and that's the IPR 929, where we've presented obviousness of
`Iida and Davis. And that is at slide 47, and again, it deals with the user ID
`and password, but the interchangeability of using a user ID and password or
`a digital certificate. Those are two different authentication methods.
`And we have cited Davis because it demonstrated for our benefit that
`persons of ordinary skill in the art well knew that user ID and password and
`digital certificates were well-known alternatives.
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`IPR2019-00929 (Patent 9,774,703 B2)
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`At slide 48, at the top, in the background of the invention, Davis
`describes authentication using a user name and password and then points out
`that another authentication method utilizes digital certificates.
`At the bottom later on in the patent -- the bottom excerpt is from
`Davis -- Davis is discussing certificates, and Davis notes, alternatively, the
`server may request the user to submit his/her name and a password.
`So you
`can use a certificate instead of a username ID and password. You can use a
`password -- user ID and password instead of a certificate.
`They're
`interchangeable. A digital certificate merely offers some additional
`enhanced security.
`Referring to -- now, the certificate can be used to compare a name of
`an individual user with authorized names on an access control list, an ACL.
`That's exactly like the list of user IDs and passwords that an Iida shop owner
`provides to the company managing the image server.
`Referring to slide 48, the second excerpt refers to the -- discusses the
`certificate. When the server receives a certificate, it looks at the IP address
`of the client sending the certificate. So a certificate could be used to
`identify the client, or the name of the individual user sending the request, or
`the certificate that you use for an individual user. That information is
`provided in the certificate, and it can be used either way.
`Just like with
`Iida, the user ID and password, as you state, can be used to identify a user or
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`it can be used to identify the camera, being that it's ingrained in -- in a
`particular camera and sent by that -- that software.
`In the third excerpt, slide 48, Davis refers to the holder of the
`certificate.
`It's -- it's talking about a user. And in the fourth excerpt he
`refers to his or her certificate. So certificates can be used in a variety of
`ways.
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`Those
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`The Board, I'm afraid, misunderstood Davis as keeping a digital
`certificate for authenticating a client device apart from having anything to do
`with the user. But Davis in -- in the third excerpt, you know, clearly
`referred to the name and other identifying information of the holder.
`names can be used for authentication by comparing with an -- an ACL.
`Now, Patent Owner's expert made this clear, this dual potential use
`of a certificate in his deposition. And if you can turn to his deposition
`exhibit, 1047 -- it's page 87 of his deposition transcript, 87. At lines 6
`through 18, there was a back and forth of -- he was asked does the -- does
`that indicate that a certificate includes the name of the holder of the
`certificate?
`The answer was the certificate -- he reads -- he reads from Davis, the
`certificate is a securely encoded data structure that includes the name and
`other identifying information about the holder of the certificate.
`Question, that's the user, correct? There's an objection. Answer, it
`could be a user.
`It could be a device. Question, both?
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`So it depends
`Well, a certificate on its own is merely a certificate.
`on what's filled in within the certificate. A certificate's just a certificate,
`and a name and a password is -- is one authentication method that can be
`used to identify a user, can be used to identify the client. A certificate can
`be used to use -- identify the user, used to identify the client.
`We're relying on this interchangeability. This discussion in Davis
`is really the background and what a person of ordinary skill in t
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