Trials@uspto.gov Paper: 21
`571-272-7822 Date: January 15, 2021
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`
`RECORD OF ORAL HEARING
`
`U.S. PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR 2019-01377
`Patent 7,136,999 B1
`____________
`
`Oral Hearing Held: October 21, 2020
`____________
`
`Before JENNIFER S. BISK, MIRIAM L. QUINN, and CHRISTOPHER C.
`KENNEDY, Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`LARISSA S. BIFANO, ESQUIRE
`JAMES M. HEINTZ, ESQUIRE
`JONATHAN HICKS, ESQUIRE
`DLA Piper, LLP
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`
`
`
`

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`IPR 2019-01377
`Patent 7,136,999 B1
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`ON BEHALF OF THE PATENT OWNER:
`
`
`BRETT MANGRUM, ESQUIRE
`Etheridges Law Group
`2600 E. Southlake Blvd Suite 120-324
`Southlake, Texas 76092
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`October 21, 2020, commencing at 1:38 p.m. EDT, by video/by telephone.
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`Trials@uspto.gov Paper: 21
`571-272-7822 Date: January 15, 2021
`
`
`P R O C E E D I N G S
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`MR. HICKS : (in progress) the security key is not going to always be
`updated every time the two devices are in each other, and that’s quoted by
`other disclosures in the Varad reference which refer to example, the key
`update routine being implemented manually. Moving on, so as to the key
`update routine, specifically that is the crux of Patent Owner’s argument.
`Under that interpretation, there’s the requirement that the security key has to
`always be updated because if there is a single incident of where this key is
`not updated. Varad discloses using the phone’s key for both the short-range
`link, its infrared link, and it’s modem link because as noted in the institution
`decision and in other papers, Varad expresses disclosures that (inaudible)
`update the (inaudible) of this modem (phonetic).
`JUDGE BISK: Can you point me to the portion of Varad that
`describes the key update procedures performed manually?
`MR. HICKS: Yes, it’s in column 5, that same paragraph, beginning at
`column 4, paragraph 62 to column 5, lines approximately 31, and that
`specific disclosure is (inaudible) into that paragraph.
`JUDGE BISK: Say it again. Where is the manual update in that
`paragraph? That’s a long paragraph.
`MR. HICKS: I apologize. It’s at the very end. It looks like
`(inaudible) lines 30 and (inaudible).
`JUDGE BISK: Okay, so, yes. So I’ve read that, and I understand that
`that portion of Varad is describing how you can have the key update routine
`implemented, but it doesn’t say that it is optional to not do it; it just says
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`each time. So you’re saying that because there is a description that you
`could do it manually that you could then not do it at all?
`MR. HICKS: I think the inference is that for -- consistent with
`Varad’s expressed disclosures that a security key is updated (inaudible) as
`opposed to -- or at the time the two devices are in communication of the
`direct communication’s link. That the key update routine does not always
`update over expressed to (inaudible) the security key as Patent Owner
`alleges.
`JUDGE BISK: I have a question. Even if this does -- let’s say it does
`update the security key every time it’s in direct communication, it says,
`though, that it uses that key again when it’s in the second communication
`link, right?
`MR. HICKS: That’s correct. So even in the scenario, and to be clear
`Petitioner does not dispute Varad’s disclosures updating its security keys
`consistent with the language as suggestion by Varad so very frequently, but
`what --
`JUDGE BISK: So do you -- I’m just trying to make sure the
`Petitioner is pointing to the right thing. So does the Petition include that
`updated security key as the authentication information in the claim?
`Because it seems to me that what this portion from column 4:62 through,
`you know, wherever that paragraph ends, what it’s talking about is a
`particular embodiment where first in a direct connection there may be like a
`temporary pin that was manually put in by the user, but then (inaudible) for
`like an initial authentication, then after that if it satisfies that authentication,
`it’s at base and refreshes a new key. But what we need to know is, what is
`the Petition pointing to as the first authentication information that’s
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`exchanged? Are you talking about the very first maybe temporary
`authentication that happens with the manually put in pin, or are you talking
`about the key that’s then refreshed, and then used over and over? And does
`the Petition make that clear?
`MR. HICKS: Yes, Your Honor. So the Petition does align disclosure
`at 4:13 through 21 that that refers to that initial first key exchange, you
`know, for example as at page 17 of the Petition. You know, to answer your
`question as to whether it also relies on that subsequent (inaudible)
`Petitioner’s position (inaudible) that even that initial security key is not
`necessarily updated, but if the Board disagrees otherwise, Petitioner does
`cite to the disclosures where that key is updated and then that subsequent
`security key is going to be used for the modem link, and then at any point
`when entering time, for example, it’s assuming that the update routine does
`not run then that same security authentication information is going to be
`used.
`
`JUDGE BISK: Can you show me where in the Petition that it points
`to that, using that refreshed or updated key where -- because I see it’s
`pointing to -- on page 17 of your Petition, I see it pointing to 4:62 to 67, and
`4:13 to 21, and I’m just trying to see where you point to the other disclosure.
`MR. HICKS: Your Honor, I am not seeing -- that same question,
`pages 17 and 18, are in the (inaudible) authentication that that was certainly
`explained. The citation starts at column 4, lines (inaudible) to 21 are raised.
`I don’t think this is the citation only to (inaudible) at column 4, line 67. You
`know, with that, Your Honor, I realize -- I apologize, but we are at 22
`minutes, I believe now --
`JUDGE BISK: Oh. Yes.
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`MR. HICKS: -- so, you know, at 17 and 18 is the best I can refer to at
`the moment.
`JUDGE BISK: Okay, can I ask you a question about ground 3 before
`you go? So ground 3 relates only to claim 13, but claim 13 is also included
`in ground 1 and (inaudible), so do we need to reach ground 3? If we agreed
`with you on grounds 1 and 2, would we have to go to ground 3?
`MS. BIFANO: Oh, no. This is Larissa. I’ll be handling ground 3,
`and, no, you would not have to address the Hind ground if you’ve already
`validated the Patent in grounds 1 and 2.
`JUDGE BISK: Even if we went with Patent Owner and said that the
`two links have to be different types, grounds 1 and 2 would cover that, right?
`MS. BIFANO: Yes, they would.
`JUDGE BISK: Okay.
`MS. BIFANO: And I’ll just cover a couple of high-level issues on
`ground 3, and please ask questions, interrupt me, so we get through it
`(inaudible) quickly. I think that the main issue on ground 3 is what a second
`link is. You know, is it required to be a different type of link; is it required
`to be a link that is outside of the initial link that the other claims -- other
`independent claims require other types of limitations?
`Yes, and if you look at their demonstrative on (inaudible) on slide 27,
`it is clear that the Patent Owner is requiring it to be a different type of link in
`their arguments, and also to address their point earlier about the objections to
`the slides, you know, we don’t think that the claims meet -- I mean, besides
`the interpretation we provided in view of the file history, if the Board
`doesn’t want to construe the terms in view of the file history, it should just
`be their plain and ordinary meaning which is a first link and a second link
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`that are -- you know, they are just -- we’re not saying there are two links.
`We’re not saying that there is only one link.
`We’re just saying that you’re going to have the first link which would
`be the first time or one-time that the two devices are communicating, and the
`second link would be a later time when they’re communicating, and we
`would (inaudible) the certificate --
`JUDGE QUINN: Hello, this is Judge Quinn. Is there any support in
`the specification for what you’re asking us to do (inaudible) the plain and
`ordinary meaning?
`MS. BIFANO: Sure. Yes, so if you look at slide 31 that’s
`(inaudible)) where the Patent, the ‘999 Patent refers to the Bluetooth link
`which are -- so the Hind reference yields the authentication (inaudible)
`devices like authenticating your phone with your headset or your computer
`with your phone using Bluetooth, and that’s what the Hind reference is
`talking about that (inaudible) of the mobile link, and the Patent, the ‘999
`Patent also refers to Bluetooth as having initial links and then subsequent
`links. So you have a first link which would be your initial link and second
`link which would be your subsequent link. So we do think that there is a
`reason to in view of the specification of the Patent to say that those types of
`links can be a first and a second link.
`And then just quickly moving back to 528. So 528 shows the
`amendment that was made, claim 17, to overcome the Hind reference during
`prosecution, and you’ll see here that the Patent Owner knew how to claim
`different types of links. It knew how to add a wherein clause that said:
`Wherein the first communication link and that second communications link
`are different types of links. They didn’t do it for claim 13. They simply did
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`not make that amendment to claim 13, and they now can’t say that somehow
`claim 13 recites that when they knew how to do it. They did it during
`prosecution, and they didn’t add that language to claim 13.
`And I guess that -- those are I think all the issues. Is there any other
`question on ground 3? I think positively, you know, we have, based on the
`two embodiments of (inaudible) link and the certificate you have an initial
`exchange and the citation and then you have a re-authentication of that same
`information later, so I think really the only dispute here is what that second
`link means.
`JUDGE BISK: Okay
`MS. BIFANO: And with that, we’ll reserve the rest of our time for
`rebuttal.
`JUDGE BISK: Okay, thank you. Patent Owner?
`MR. MANGRUM: Yes, can you hear me okay? This is Brett
`Mangrum for Patent Owner.
`JUDGE BISK: I can hear you.
`MR. MANGRUM: Great. I also, depending on how questions go,
`would like to reserve, let’s say five minutes, for a surrebuttal.
`JUDGE BISK: Okay.
`MR. MANGRUM: In view of Your Honors questions, I think that the
`best place to start would be Patent Owner’s slide at his slide 3. And at slide
`3 what we’ve done is shown claim language of two independent claims side
`by side, claims 1 and 17, where we’ve attempted to color or highlight in the
`way that you can kind of see analogous claim language. Claim 1 you have
`exchanging authentication information, and then later in a different step
`exchanging the authentication information, so we’ve colored those green to
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`emphasize the entity reference enhancing the word “the” for the term the-
`authentication of remission. Also --
`JUDGE BISK: I have a question about this term “the Authentication
`information”. Do you agree that that means they can’t be totally different
`information; and you agree with that, right?
`MR. MANGRUM: Yes, we’ve -- yes (inaudible) --
`JUDGE BISK: You don’t necessarily think they have to be exactly
`the same, but you do agree they can’t be totally different. So I think both
`parties agree with that.
`MR. MANGRUM: Yes, I think Your Honor brings up a good point,
`and I think probably that the two (inaudible) is that -- as you just heard from
`Petitioner again today, they rely on the theory where they say the Varad
`reference uses the same key. We refer to it in our briefing as the same key
`theory. So independent of the scope of the claim, their theory relies on
`(inaudible) of Varad that uses the same key, so in our papers in rebuttal, we
`explained why Varad doesn’t use the same key and (inaudible) that it’s
`absolutely just the opposite. So in that sense, the theory for the Petition kind
`of set up the backdrop for the dispute. So I think it’s important to keep that
`in mind.
`Clearly the use of antecedent reference, it can’t be something totally
`unrelated. But I think the more salient point here in the brief is that it’s
`easier to wrap your head around, is what’s emphasized as point 1 on slide 3,
`and we go into greater detail in subsequent slides, and that is that the first
`communications link and second communications link are decided as
`distinct elements, and this distinction is also recited as an alternate
`communications link in claims 1, and I believe 13. And so the important
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`point here, where the rubber meets the road, and we see the subsequent
`(phonetic) characterization of the record by Petitioner --because we think it’s
`a scheme, and that’s in slide 4 we emphasize this in red text.
`So again today, Petitioner misrepresented the record and exceeded the
`proper scope of a reply by attacking a strawman claim construction
`argument not raised in Patent Owner’s reply --
`JUDGE BISK: Are we -- I’m sorry. Are we talking about claim 13
`here, the third ground, or are we -- I’m confused about what claim
`construction issue we’re talking about here. I think the claim only makes
`sense for claim 13, right?
`MR. MANGRUM: No, no, no. There’s an issue as to whether or not
`-- the correct phrase used is whether or not the claim requires distinct
`elements in terms of links, and we say there is. Now whether or not the
`links are the same type is irrelevant. That’s the (inaudible) --
`JUDGE BISK: But for the Varad reference grounds, those clearly
`have two different links, so we don’t really need to get into that claim
`construction except for the third ground which only is relevant to claim 13,
`right?
`MR. MANGRUM: No, no. That’s a -- no, that’s a disputed point,
`and I’m glad Your Honor gave us the option to address that. If it wasn’t
`clear enough briefing, please let me take a moment to do so. So added to the
`problem with grounds 1 and 2, is that the Varad reference -- there’s no proof
`in the record that the Varad reference uses two distinct links. Now
`regardless of whether or not the same package used is irrelevant. The point
`is the claim language requires two distinct links. That’s expressed in claims
`1 and 14 and added to claim 13. (inaudible)
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`JUDGE BISK: What is -- (inaudible) that this is because I thought
`this was only in ground 3.
`MR. MANGRUM: No, no. We can transfer it in the claim -- well,
`first of all, (inaudible) general --
`JUDGE BISK: Show me in your briefing where this is.
`MR. MANGRUM: When first addressed it is in 24 to 26 of our
`Patent Owner response.
`JUDGE BISK: Okay.
`MR. MANGRUM: And then in our reply -- it’s been added in our
`surreply -- sorry. It’s --
`JUDGE BISK: Where is -- in 24 to 26 you’re talking only about Hind
`which is the third ground in claim 13. You have nothing about talking about
`Varad doesn’t show this.
`MR. MANGRUM: But we’re addressing the understanding that’s
`applicable to all claims that are --
`JUDGE BISK: I want you to show me in your briefing where you
`talk about Varad not showing two different links. I have not read that in the
`briefing.
`MR. MANGRUM: Well, we offer a -- when we go to the surreply --
`this is at the Table of Contents in the surreply.
`JUDGE BISK: The Table of Contents. Okay.
`MR. MANGRUM: Yes. And what we have -- with the interest of
`more (inaudible) in view of Patent Owner’s reply, and just keep in mind, this
`is what Patent Owner first started injecting claim construction is just by
`offering its own claim construction positions, that therefore opened the door
`for us to respond in kind by addressing the very claim construction issues
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`that they’ve raised. And here, in section 2B of our surreply we address that
`the first link and second link have esteemed elements, and also that there’s
`antecedent reference for the authentication information. And then --
`JUDGE BISK: Okay. Now where in the surreply do you say that
`Varad does not show the two different links?
`MR. MANGRUM: Well, we start getting into ground 1 -- at first we
`address the first claim construction which is on page 5, and then -- scrolling
`down --
`JUDGE BISK: Okay. So let’s just assume for the moment that you
`did argue this. Can you explain to me what two distinct links means,
`especially in the context of the third ground in the Hind reference where you
`say they don’t have to be two different types of links, but they have to be
`two distinct links. How do you ever show that?
`MR. MANGRUM: Well, first of all --
`JUDGE BISK: What does that mean? I don’t know what two distinct
`links are. So let’s say I have a phone and a computer and they’re in the
`same room, so I don’t know, they’re using Bluetooth or whatever to have a
`direct -- they have a short-range connection, and they do a bunch of stuff,
`and then a few minutes later, they connect again. How do I know if that’s a
`new link or if it’s the same one? I don’t even know what this means, and
`where is this -- where is your evidence for this?
`MR. MANGRUM: Okay, well, the evidence is in the claim language
`itself, and in the caselaw supporting the same, and so what you have in the
`claim language is two ordinal modifiers, one being the first and one being
`the second. So the claim language itself has two different elements, and
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`they’re distinguished by these ordinal modifiers, and what we would be
`producing in slide 5 (inaudible) --
`JUDGE BISK: But what does it mean to be two different links? I
`don’t know what that means.
`MR. MANGRUM: The inner-connecting medium -- well, first of all
`the term “link” itself is not a -- I’m willing to make a stab on the fly to
`answer Your Honor’s questions. It’s not something that was raised at
`anyone’s briefing. But the link itself is the inner-connecting medium by
`which two devices communicate. It’s this communication pact, this inner-
`connecting meeting, and there must be a first one and a second one that are
`differentiated in the claim language themselves. We’ve provided caselaw in
`slide 5 (inaudible) --
`JUDGE BISK: So where in the specification does it talk about this? I
`don’t -- I’m very confused by what’s going on.
`MR. MANGRUM: Right. Well, the specification talks about that --
`and not even in the spec, just the claims which was just one part of the
`specification, there’s an express differentiation, a physical differentiation
`between the first and second links. If you look, for example, just to the
`language of claim 14, this is an independent claim --
`JUDGE BISK: But let’s talk not about the language because I don’t
`know what the language means. I don’t know what it means to have two
`different links if they’re of the same type.
`JUDGE QUINN: But perhaps -- this is Judge Quinn. Can you start
`with just “link”? What is a link to you; what do you define it as? You’re
`talking about the communication medium, and I’m not sure if you’re talking
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`about wireless versus wired or communications session number 1 versus
`communication session number 2; what are you talking about?
`MR. MANGRUM: No, it’s not so esoteric as the way in which -- it’s
`like are they using Bluetooth or like the technology. That falls into
`Petitioner’s (inaudible) argument. We would agree certain claims
`specifically call out types of link, but here the link is the actual physical
`communication, so that they are two devices are actually in physical
`communication with one another. They are transmitting signals back and
`forth in a certain -- according with a certain protocol in a certain way, and
`there is one link, this link, this communication path is defined as first in one
`instance; it’s defined as second as another.
`But the Patent Owner could have said “using the first
`communication”, but instead Patent Owner invoked a different one, distinct
`one by using the ordinal second, so we submit the claim (inaudible) is no
`longer meaning a first and second in its context invokes two distinct claim
`elements, and there are --
`JUDGE BISK: Why can’t they just be different in time?
`MR. MANGRUM: So that’s also a good question, and we think -- the
`reason why the Patent Owner has precluded that Patent’s understanding is it
`would read out the temporal limitation expressed in every one of the
`challenged claims, and so every challenged claim uses the word “later,” and
`if their first and second already connoted later, and we submit that it doesn’t,
`and slide 5 has supporting authority to show that it doesn’t inherently
`(inaudible) later use the first and second ordinal modifiers, but the --
`JUDGE BISK: So how does the Varad reference not show two
`different links when it talks about one being short range and one being long
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`range; wouldn’t by definition those be two different links if they’re -- use
`different communication paths?
`MR. MANGRUM: I understand your question. I’m going to -- in our
`briefing for the Varad reference, we focused primarily on the same “T”
`differentiation. Right.
`JUDGE BISK: Correct. But you were just trying to tell me a minute
`ago that Varad doesn’t show two different links, which I cannot find in your
`briefing, but if you’re going to stick with that you need to explain it to me.
`MR. MANGRUM: Well, our position is that -- the problem
`specifically is they don’t even recognize that it’s required, and so they
`haven’t even attempted to prove two different links. That’s the point. The
`burden has been shifted to Patent Owner to defend particularly in the
`instance where Petitioner admittedly has applied the construction it doesn’t
`recognize two different links. Our only point is this, the claim language
`requires two distinct elements recited as first and second links, so we believe
`it does. Then this is not showing the Petition particularly where Petitioner
`says our theory is even understanding that that the same link that’s used
`twice but only -- there’s only a temporal distinction inherent in the words
`first and second. That’s what they say.
`And that certainly cannot be the case for claim 14 which makes an
`explicit contextual differentiation between the different links, one of them
`being short range and one of them not being short range. So --
`JUDGE BISK: Right. Which is what they point to in Varad as short
`range and all, long range.
`MR. MANGRUM: Right. I think our key point of differentiation in
`the briefing, which we emphasize in slides 10, 11, and 12, are -- yes, 10 --
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`let’s see, 9, 10, and 11 is the same key theory, and I could get into that if that
`would be helpful for Your Honors.
`JUDGE BISK: Yes.
`JUDGE QUINN: Yes, please.
`MR. MANGRUM: Okay. So the same key theory -- we’ve heard of
`the same key theory (inaudible) in Petitioner’s reply they assert the Varad
`reference discloses two devices (inaudible) security when they first attempt
`to communicate with each other, and that the same key is also used when
`two different devices later authenticate over different alternately. So I’m
`quoting from slide 8 which it in turn quotes from the reply at page 7. And
`our briefing explains why this same key theory is not supported by Varad,
`and, in fact, it’s contradicted by Varad. I want to make sure we have time to
`address slide 10 which is that we heard it yesterday from Petitioner that its
`declarant’s testimony is unrebutted.
`The problem they have, though, is in the reply at page 7, they replied
`to paragraph 74, 75, and 76 of the declaration. If you read those paragraphs,
`there is no opinion directed to use of the same key; in fact, referring to same
`key doesn’t appear. This is really just Petitioner’s attorney argument newly
`presented in its reply, and we submit that the reference itself rebuts
`Petitioner’s new same key attorney argument. Where does it do that? Well,
`then at slide --
`JUDGE QUINN: Mr. Mangrum?
`MR. MANGRUM: Yes?
`JUDGE QUINN: Hi, this is Judge Quinn. What we heard from
`Petitioner was that they’re relying on the one situation in which Varad’s
`portal wall and computer get authenticated the first time, and their keys are
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`never updated such that when there is a subsequent communication between
`them via the Internet, they’re using the key that they already had exchanged
`when they first got authenticated. So in light of that, if that is the way it
`operates, wouldn’t that be the same key?
`MR. MANGRUM: No, it’s not, and if you look at the -- look at what
`it says. Setting aside their attorney’s characterization of the reference, look
`at what it says. In the paragraph they cite to, it says it’s a conditional
`statement and it doesn’t say in some instances, so they tried for lines 65 to
`67 of column 4, but when it reads on, if the portable computer package that
`says the best (inaudible) computer initiates the key update routine. So there
`is always a key update routine that occurs. What we have in slide 11 is other
`contextual (inaudible) throughout -- and (inaudible) added through the Varad
`reference is this key update routine is initiated each time certain
`circumstances occur, and we have highlighted those circumstances here in
`slide 11, and incidentally it’s just a reproduction of surreply (inaudible) --
`JUDGE QUINN: I understand that. I mean, we understand that there
`is a key update routine somewhere in there, but if we -- let’s for purposes of
`discussion assume that somehow you don’t do the update routine because of
`a manual, let’s say, override, the subsequent communication would you say
`then it would be the same key that was used before?
`MR. MANGRUM: No. And what you see -- the reason why I did say
`“no”, is when you look at the circumstances that would instigate a key
`update routine, it includes things such as just hanging up the phone, so, you
`know, so the very first communication you hang up the phone, there’s
`initiation that you update the key, and again I refer you to slide 10. So what
`they’re saying is -- and what you’ve heard today is it’s implicit, I think is
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`what opposing counsel used, it’s implicit or inherent. That’s a pretty
`(inaudible) standard, and when you look at what’s actually disclosed, there is
`no express disclosure that you ever skip a key update routine, and that it --
`for subsequent authentication you don’t use a different update. That’s not a
`disclosure. But what is a disclosure --
`JUDGE BISK: But there is -- excuse me, Mr. Mangrum. There is a
`explicit
`MR. MANGRUM: Yes?
`JUDGE BISK: -- disclosure that the key that it -- say you do the key
`update routine every time. That key is used for a -- that updated key is sent
`between on the short range, the first link, and then that same key is used in
`the long-range link, so isn’t that showing what’s claimed, that --
`MR. MANGRUM: No.
`JUDGE BISK: -- updated key is used for the short-range
`authentication, and then again for the long range?
`MR. MANGRUM: We’re submitting that that statement, what you
`just said, is not even in that, and instead --
`JUDGE BISK: It’s not in what? It’s not in Varad or it’s not in the
`Petition?
`MR. MANGRUM: