UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`DISH NETWORK L.L.C.,
`Petitioner,
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`v.
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`WISTARIA TRADING LTD.,
`Patent Owner
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`IPR2019-01449
`PATENT 9,021,602
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`PATENT OWNER PRELIMINARY RESPONSE TO PETITION
`PURSUANT TO 37 C.F.R. § 42.107(a)
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`DISH NETWORK L.L.C.,
`Petitioner,
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`v.
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`WISTARIA TRADING LTD.,
`Patent Owner
`
`
`
`
`IPR2019-01449
`PATENT 9,021,602
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`PATENT OWNER PRELIMINARY RESPONSE TO PETITION
`PURSUANT TO 37 C.F.R. § 42.107(a)
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`Table of Contents
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`IPR2019-01449
`U.S. Patent 9,021,602
`
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`I.
`II.
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`1
`INTRODUCTION
`1
`THE ’602 PATENT
`1
`A. Overview of the ’602 Patent
`2
`B.
`Person of Ordinary Skill in the Art
` 2
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`C.
`Claim Construction
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`III. THE PETITION SHOULD BE DENIED BECAUSE PETITIONER HAS
`FAILED TO MEET ITS BURDEN
`IV. CONCLUSION
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`6
`21
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`ii
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`IPR2019-01449
`U.S. Patent 9,021,602
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`Table of Authorities
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`Cases
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`In re NuVasive, Inc., 841 F.3d 966 (Fed. Cir. 2016) ................................................. 7
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`Statutes
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`35 U.S.C. § 103 .......................................................................................................... 7
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`35 U.S.C. § 316(e) ..................................................................................................... 6
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`iii
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`IPR2019-01449
`U.S. Patent 9,021,602
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`Table of Exhibits
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`1006
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`1007
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`1008
`1009
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`Exhibit Description
`1001
`United States Patent No. 9,021,602 to Moskowitz et al. (“’602 Patent)
`1002
`Declaration of Dr. Vijay K. Madisetti
`1003
`Curriculum Vitae of Dr. Vijay K. Madisetti
`1004
`File History for United States Patent No. 9,021,602
`1005
`File History for Reexamination Request No. 90/014,137 of United
`States Patent No. 9,021,602
`File History for United States Patent No. 9,104,842 (“parent ’842
`Patent”)
`File History for Reexamination Request No. 90/014,138 of United
`States Patent No. 9,104,842
`United States Patent No. 5,757,907 to Cooper et al. (“Cooper”)
`First Amended Complaint for Patent Infringement, Blue Spike LLC v.
`DISH Network Corporation, Civil Action No. 1:19-cv-00160-LPS-
`CJB (filed Mar. 29, 2019) (“District Court Litigation”)
`Complaint, Blue Spike LLC v. DISH Network Corporation et al., Nos.
`6:18-CV-00333-RWS-KNM (E.D. Tex.), 1:18-CV-01512-LPS-CJB
`(D. Del.) (the “Prior Litigation”)
`Order Granting Joint Motion to Transfer to the District of Delaware
`and Stay All Deadlines, 6:18-CV-00333-RWS-KNM, ECF No. 19,
`entered in Prior District Court Litigation
`Notice of Voluntary Dismissal Without Prejudice, served in Prior
`District Court Litigation
`File History for United States Patent No. 6,598,162
`Software Authorization Systems, Paul A. Suhler et al., IEEE Software
`(1986).
`Designing Software to be Used Up and Protecting it from Pirates,
`Bryon K. Ehlmann, ACM SIGSMALL/PC Notes, vol. 11, issue 3
`(Aug. 1985)
`
`1010
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`1011
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`1012
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`1013
`1014
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`1015
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`iv
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`IPR2019-01449
`U.S. Patent 9,021,602
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`I.
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`INTRODUCTION
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`Patent Owner Wistaria Trading Ltd. submits this Preliminary Response to
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`the Petition for Inter Partes Review of United States Patent No. 9,021,602 (“the
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`’602 Patent”) filed by Petitioner DISH Network L.L.C. (“Petitioner”) (the
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`“Petition” or “Pet.”).
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`The Board should dismiss the Petition in its entirety at least because, as
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`Patent Owner shows below, dispositive claim elements are entirely missing from
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`the combination of references asserted in each of the Grounds of the Petition.
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`II. THE ’602 PATENT
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`A. Overview of the ’602 Patent
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`The ’602 Patent is titled “DATA PROTECTION METHOD AND
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`DEVICE.” The ʼ602 Patent describes an “apparatus and method for encoding and
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`decoding additional information into a digital information in an integral manner.
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`More particularly, the invention relates to a method and device for data
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`protection.” EX1001, Abstract. The apparatus and method stores application
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`software in non-transient memory of a computer. The application software stores,
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`in a personalization data resource, computer configuration information of a
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`computer as well as a license code entered as a result of prompting the user of the
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`computer. EX1001, 16:3–13. The application software then generates a proper
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`1
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`U.S. Patent 9,021,602
`decoding key using the license code. Id. at 16:14–16. The application software
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`cannot access at least one encoded code resource of the application software unless
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`the license code is stored in the personalization data resource. Id. at 17–20.
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`B.
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`Person of Ordinary Skill in the Art
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`Petitioner submits that a person of ordinary skill in the art (“POSA”) would
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`have “a bachelor’s degree in computer science, electrical engineering, or a related
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`technology field, and at least two to three years of experience related to secure
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`distribution of digitized information or a related technology field, such as data
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`integrity and security. Alternatively, a POSA in the relevant timeframe would have
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`an advanced degree, such as a master’s degree, in computer science, electrical
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`engineering, or a related technology field, and at least one year of experience
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`related to secure distribution of digitized information or a related technology field,
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`such as data integrity and security. A person with less education but more relevant
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`practical experience, or more relevant education but less practical experience, may
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`also qualify as a POSA.” Pet. at 17–18. For the purposes of determining whether
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`to institute the Petition, Patent Owner does not dispute Petitioner’s characterization
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`of the level of ordinary skill in the art, as it is not dispositive.
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`C. Claim Construction
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`i.
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`“Personalization Information”
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`2
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`U.S. Patent 9,021,602
`To the extent that “personalization information” is not expressly defined in
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`the ’602 Patent, Patent Owner submits that the term “personalization information”
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`should be interpreted under its plain and ordinary meaning.
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`Petitioner argues that “personalization information” should be construed as
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`“information that uniquely identifies the user, including a license code.” Pet. at
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`18. Patent Owner respectfully submits that Petitioner’s proposed construction is
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`unnecessary and not commensurate with the scope of the challenged claims.
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`Specifically, challenged independent claim 1 recites “prompting a user to enter into
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`said computer personalization information,” as well as “said application software
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`storing . . . a license code entered in response to said prompting.” EX1001 at 16:7–
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`13. Thus, challenged independent claim 1 recites two separate claim elements—
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`“personalization information” and “a license code.” Petitioner’s proposed claim
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`construction attempts to improperly conflate these two elements, thus reading out
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`the “license code” limitation. Challenged independent claim 10 recites similar
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`limitations. Id. at 16:47–55. For at least these reasons, Petitioner’s proposed
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`construction is improper and the Board should therefore reject Petitioner’s
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`proposed construction.
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`ii.
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`“License Code”
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`U.S. Patent 9,021,602
`To the extent that “license code” is not expressly defined in the ’602 Patent,
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`Patent Owner submits that the term “license code” should be interpreted under its
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`plain and ordinary meaning.
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`Petitioner argues that “license code” should be construed as “a code required
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`to be entered into the software application to activate the application, to enable the
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`application to provide its specified functionality.” Pet. at 18. Patent Owner
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`respectfully submits that Petitioner’s proposed construction impermissibly limits
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`the plain and ordinary meaning of a “license code.” For example, Petitioner’s
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`proposed construction would exclude examples from Petitioner’s own cited art,
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`which does not limit “specified functionality,” but rather limits the amount of time
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`for which a user may have access to all functionality of a software application.
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`See, e.g., EX1008 at 8:39–43. Petitioner’s proposed construction would also
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`exclude situations in which a license is required to obtain support for a software
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`application rather than to enable specific functionality. For at least these reasons,
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`Petitioner’s proposed construction is improper and the Board should therefore
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`reject Petitioner’s proposed construction.
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`iii.
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`“Personalization Data Resource”
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`To the extent that “personalization data resource” is not expressly defined in
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`the ’602 Patent, Patent Owner submits that the term “personalization data
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`resource” should be interpreted under its plain and ordinary meaning.
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`U.S. Patent 9,021,602
`Petitioner argues that “personalization data resource” should be construed as
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`a “non executable file that stores personalization information.” Pet. at 18. Patent
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`Owner respectfully submits that Petitioner’s proposed construction unnecessarily
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`limits the plain and ordinary meaning of “personalization data resource.” For
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`example, Petitioner’s construction unnecessarily limits “personalization data
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`resource” to a single “file,” rather than any appropriate data structure. Further,
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`Petitioner’s construction unnecessarily limits a personalization data resource to
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`storing only personalization information. For at least these reasons, Petitioner’s
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`proposed construction is improper and the Board should therefore reject
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`Petitioner’s proposed construction.
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`iv.
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`“Encoded Code Resource of Said Software Application”
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`To the extent that “encoded code resource of said software application” is
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`not expressly defined in the ’602 Patent, Patent Owner submits that the term
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`“encoded code resource of said software application” should be interpreted under
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`its plain and ordinary meaning.
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`Petitioner argues that “encoded code resource of said software application”
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`should be construed as a “portion of executable code that has been removed and
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`stored separately from the other portions of the executable code of the software
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`application.” Pet. at 18. Patent Owner respectfully submits that Petitioner’s
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`5
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`U.S. Patent 9,021,602
`proposed construction unnecessarily limits the plain and ordinary meaning of
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`“encoded code resource of said software application.”
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`For example, Petitioner’s construction unnecessarily requires the encoded
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`code resource to be “removed and stored separately from the other portions of the
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`executable code of the software application.” Id. at 18, 23–25. Petitioner argues
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`that an “encoded code resource” must necessarily be “removed and stored
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`separately” because the specification of the ʼ602 Patent states that “essential code
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`resources” may be “stored as encoded information in data resources.” Id. at 24
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`(citing EX1001 at 13:14–20). Nothing in Petitioner’s cited portions of the ʼ602
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`Patent, however, requires that any “code resource” be removed. “Necessary ‘parts’
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`or code ‘resources’” may be hidden in “digitized sample resources,” EX1001 at
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`12:26–28, but the ʼ602 Patent does not disclose that any portion of an application
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`be removed. Petitioner’s proposed construction, therefore, adds unnecessary
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`limitations that are inconsistent with the plain and ordinary meaning of the claim
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`language.
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`For at least these reasons, Petitioner’s proposed construction is improper and
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`the Board should therefore reject Petitioner’s proposed construction.
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`III. THE PETITION SHOULD BE DENIED BECAUSE PETITIONER
`HAS FAILED TO MEET ITS BURDEN
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`
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`Petitioner has the burden to show that the challenged claims are
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`unpatentable. 35 U.S.C. § 316(e). When a Petitioner argues that a claim is
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`U.S. Patent 9,021,602
`unpatentable as obvious under 35 U.S.C. § 103, the Petitioner must show that each
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`and every element of the challenged claims is rendered obvious by the combination
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`of Petitioner’s cited art. The Board may not craft new grounds of unpatentability
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`not advanced by the petitioner. In re NuVasive, Inc., 841 F.3d 966, 971–72 (Fed.
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`Cir. 2016).
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`Petitioner challenges independent claims 1 and 10 of the ’602 Patent and
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`dependent claims 5 and 8 of the ’602 Patent as being obvious over U.S. Pat. No.
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`5,757,907 to Cooper et al. (“Cooper”). See Pet. at 25. Petitioner has failed to meet
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`its burden to demonstrate that the challenged independent claims (i.e., claims 1 and
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`10) are obvious under 35 U.S.C. § 103.
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`A. Petitioner Relies on Improper Claim Constructions Throughout the
`Petition and the Petitioner Should Therefore Be Dismissed
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`Petitioner proposed claim constructions for four terms that are present in
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`both independent claims 1 and 10 of the ʼ602 Patent. As detailed in Section II
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`above, all of Petitioner’s proposed constructions improperly attempt to add
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`unnecessary limitations that are inconsistent with the plain and ordinary meaning
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`of the claims when read in light of the specification as a whole.
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`Throughout the Petition, Petitioner relies on its improper construction. For
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`example, Petitioner relies on its improper constructions for the argument that
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`Cooper discloses “personalization information,” Pet. at 34–42, “personalization
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`IPR2019-01449
`U.S. Patent 9,021,602
`data resource,” id. at 42–49, “license code,” id. at 50–53, and “encoded code
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`resource of said software application,” id. at 54–63. All of Petitioner’s arguments
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`rely on Petitioner’s faulty, improper constructions. For at least this reason,
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`Petitioner has failed to meet its burden and the Board should reject the Petition.
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`B. Petitioner Fails to Provide a Prima Facie Case of Obviousness With
`Respect to Independent Claims 1 and 10 and the Petition Should Therefore Be
`Dismissed
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`Patent Owner respectfully submits that an inter partes review of the ’602
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`Patent should not be instituted because Cooper, whether alone or in combination
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`with the knowledge of one of ordinary skill in the art, fails to disclose or suggest
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`each and every element of independent claims 1 and 10 of the ’602 Patent.
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`Therefore, there is no likelihood that independent claim 1 of the ’602 Patent is
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`obvious over Cooper. Claim 1 of the ’602 Patent recites (emphasis added for
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`missing element):
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`1. A computer based method for accessing functionality provided by an application
`software comprising:
`storing said application software in non transient memory of a computer;
`said application software in said computer prompting a user to enter into
`said computer personalization information;
`said application software storing, in said non transient memory, in a
`personalization data resource, both computer configuration information
`of said computer, and a license code entered in response to said
`prompting;
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`8
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`IPR2019-01449
`U.S. Patent 9,021,602
`said application software in said computer generating a proper decoding
`key, said generating comprising using said license code; and
`wherein said application software, in said computer, cannot access at least
`one encoded code resource of said application software, unless said
`license code is stored in said personalization data resource.
`EX1001, 16:2–20.
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`Cooper, alone or in combination with the knowledge of one of ordinary skill
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`in the art, fails to disclose or suggest at least: (1) said application software storing,
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`in said non transient memory, in a personalization data resource, computer
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`configuration information of said computer, and (2) wherein said application
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`software, in said computer, cannot access at least one encoded code resource of
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`said application software, unless said license code is stored in said personalization
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`data resource, as recited in challenged independent claim 1. Challenged
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`independent claim 10 recites similar elements. EX1001 at 16: 46–62.
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`Cooper Fails To Disclose Storing Computer Configuration Information, As
`Recited by Independent Claims 1 and 10
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`Independent claim 1 recites “said application software storing, in said non
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`transient memory, in a personalization data resource, both computer configuration
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`information of said computer, and a license code entered in response to said
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`prompting.” EX1001, 16:10–13 (emphasis added). Patent Owner respectfully
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`submits that Cooper does not disclose application software storing computer
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`configuration information of said computer, as recited by independent claim 1.
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`9
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`IPR2019-01449
`U.S. Patent 9,021,602
`Petitioner argues that Cooper discloses this limitation, stating Cooper’s
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`“machine identification corresponds to the claimed ‘computer configuration
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`information’ at least because the machine identification is based on the
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`configuration of the user’s computer.” Pet. at 44–45 (citing EX1002, ¶ 113).
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`Petitioner’s argument fails at least because (1) a “machine identification” is not
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`“computer configuration information,” and (2) any computer configuration
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`information included in a “machine identification” is not stored by the application
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`software, as recited by independent claim 1.
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`First, a “machine identification” is not “computer configuration
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`information.” Cooper itself distinguishes “machine identification” and
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`“configuration information” by the explicit terms Petitioner relies on: “The user-
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`specific attributes of the data processing system are derived in step 353, and
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`provided as an input to machine identification 355, which is preferably a random
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`number generator which receives a plurality of binary characters as an input, and
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`generates a pseudo-random output which is representative of machine
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`identification 357.” EX1008, 14:37–45 (emphasis added). Thus, the “attributes of
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`the data processing system” are not equivalent to the machine identification.
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`Further, according to Cooper, there is no way to reverse the process, i.e.,
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`there is no way to regain the “attributes of the data processing system” from the
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`machine identification. The attributes are subjected to a random number generator,
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`10
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`IPR2019-01449
`U.S. Patent 9,021,602
`which supplies a “pseudo-random output.” Cooper discloses no way to re-generate
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`the “attributes of the data processing system” from the “machine identification.”
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`Cooper’s “machine identification,” therefore, provides no information about the
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`machine itself other than a pseudo-random identification number. There is no
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`information in this number about the configuration of the computer.
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`Second, Petitioner provides no evidence that any of Cooper’s “attributes of
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`the data processing system” are stored by the application software in a
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`personalization data resource. Petitioner argues explicitly that Cooper discloses
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`the claimed “personalization data resource” through Cooper’s “Key File.” Pet. at
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`42–43. Cooper’s “Key File” includes four pieces of data: the product key, the
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`customer key, the clear machine ID, and the trial interval data. E.g., EX1008, FIG.
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`18. None of these pieces of data correspond to Cooper’s “attributes of the data
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`processing system.”
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`Petitioner’s only argument that “computer configuration information” is
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`stored in the “personalization data resource” is that the “Key File” includes the
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`“machine identification.” E.g., Pet .at 44. As detailed above, however, the only
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`“configuration information” in the “machine identification” is a randomized series
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`of bits sourced from “attributes of the data processing system.” EX1008, 14:37–
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`45. Cooper does not teach or disclose that computer configuration information is
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`stored in any personalization data resource.
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`11
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`U.S. Patent 9,021,602
`For at least these reasons, Cooper fails to disclose “said application software
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`storing, in said non transient memory, in a personalization data resource, []
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`computer configuration information of said computer,” as recited in independent
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`claim 1. EX1001, 16:9–12. For analogous reasons, Cooper fails to disclose “said
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`application software code storing, in said non transient memory, in a
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`personalization data resource, [] computer configuration information of said
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`computer system,” as recited in independent claim 10. Id. at 16:51–55; see also
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`Pet. at 75.
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`Therefore, Petitioner fails to establish a prima facie case of obviousness that
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`independent claims 1 and 10 are obvious over Cooper, whether alone or in
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`combination with the knowledge of one of ordinary skill in the art. As claims 5
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`and 8 depend from independent claim 1, Petitioner also fails to establish a prima
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`facie case of obviousness that claims 5 and 8 are obvious over Cooper, whether
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`alone or in combination with the knowledge of one of ordinary skill in the art. The
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`Board should, therefore, dismiss the Petition.
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`Cooper Fails To Disclose Application Software, As Recited by Independent
`Claims 1 and 10
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`According to Petitioner, the “trial mode application including the file
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`management program and a software object disclosed in Cooper corresponds to the
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`claimed application software.” Pet. at 31. Petitioner’s argument fails at least
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`because (1) Cooper’s file management program is part of the operating system, not
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`12
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`U.S. Patent 9,021,602
`application software; and (2) such a combination would be contrary to the plain
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`language of the ʼ602 Patent.
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`First, the ʼ602 Patent describes “applications” as expressly distinct from the
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`operating system. For example, the ʼ602 Patent describes an “executable computer
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`program is variously referred to as an application, from the point of view of a user,
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`or executable object code from the point of view of the engineer. A collection of
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`smaller, atomic (or indivisible) chunks of object code typically comprise the
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`complete executable object code or application which may also require the present
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`of certain data resources.” EX1001, 11, 17–23 (emphasis added). The ʼ602 Patent
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`goes on to state that these “data resources” are separate and apart from the
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`operating system: “When a program is compiled, then, it consists of a collection of
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`these sub-objects . . . Some systems may prefix information to the entry point [in
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`memory of a function or procedure] to the entry point which describes calling
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`return conventions for the code which follows, an example is the Apple Macintosh
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`Operating System (MacOS). These sub-objects can be packages into what are
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`referred to in certain systems as ‘code resources,’ which may be stored separately
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`from the application, or shared with other applications, although not necessarily.”
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`Id. at 11:51–66; see also id. at 14:65–15:4 (“Once the code resources of a program
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`are loaded into memory, they typically remain in a fixed position, unless the
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`computer operating system finds it necessary to rearrange certain portions of
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`U.S. Patent 9,021,602
`memory during ‘system time,’ when the operating system code, not application
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`code, is running.”). Thus, the ʼ602 Patent makes a clear delineation between
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`“application software” and the operating system.
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`In Cooper, the “file management program” on which Petitioner relies so
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`heavily, is part of the operating system. EX1008, 8:23–25 (“The file management
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`program is resident in the user-controlled data processing system and becomes a
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`part of the operating system in the user’s computer.”). Thus, the “file
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`management program” cannot be properly equated with any portion of the claimed
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`“application software” of the ʼ602 Patent. Petitioner attempts to salvage its
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`argument by noting that Cooper discloses that “‘the products being previewed
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`during the trial interval of operation can only be run from within a customer shell,’
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`such as the file management program.” Pet. at 30 (citing EX1008, 12:15–17).
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`Petitioner’s argument only states what Cooper already acknowledges—that an
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`operating system of some sort is necessary to access software applications. The
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`fact that a trial application of a word processing program can only be accessed
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`from within a computer’s operating system only serves to show the very basic fact
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`that the word processing program is software, not that the operating system itself
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`should be deemed a part of that software.
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`Further, Petitioner attempts to justify its position by noting that “Cooper’s
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`trial mode application is consistent with the description of an ‘application’
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`U.S. Patent 9,021,602
`provided in the specification of the ʼ602 Patent, which describes an ‘application’ as
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`including multiple components.” Pet. at 30 (citing EX1001, 11:19–23). Petitioner
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`cites to the portion of the ʼ602 Patent cited above, which notes that, while an
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`application may indeed include multiple components, all of those components are
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`distinct and apart from the operating system. Petitioner’s argument therefore fails
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`to establish that Cooper’s underlying “file management program,” which is part of
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`the operating system, can be properly equated with the claimed “application
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`software.”
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`For at least these reasons, Petitions has failed to establish that Cooper
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`discloses the “application software” recited by challenged claims 1, 5, 8, and 10.
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`Therefore, Petitioner has failed to establish a prima facie case of obviousness for
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`challenged claims 1, 5, 8, and 10, and the Board should dismiss the Petition.
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`Cooper Fails To Disclose An Encoded Code Resource That Cannot Be
`Accessed By Said Application Software Unless Said License Code Is Stored In
`Said Personalization Data Resource, As Recited by Independent Claims 1 and 10
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`Independent claim 1 recites “wherein said application software, in said
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`computer, cannot access at least one encoded code resource of said application
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`software, unless said license code is stored in said personalization data
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`resource.” EX1001, 16:17–20 (emphasis added). As detailed in Sections II and
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`III.A above, Petitioner relies on faulty, improper claim constructions to argue that
`
`Cooper discloses this element of challenged independent claims 1 and 10. As
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`detailed directly above, Petitioner fails to establish that Cooper discloses the
`
`recited “application software” of challenged independent claims 1 and 10. Even
`
`under Petitioner’s improper constructions and Petitioner’s flawed arguments,
`
`however, Petitioner still has not shown how Cooper discloses the claimed
`
`“encoded code resource of said application software.”
`
`Petitioner argues that a portion of Cooper’s “encrypted software program
`
`that has been displaced, substituted, and stored in another location in a separate
`
`side file” discloses the claimed “encoded code resource.” Pet. at 55. According to
`
`Petitioner, Cooper discloses a process whereby “a ‘first portion of the encrypted
`
`software product’ that ‘ordinarily would comprise part of the encrypted software
`
`product’ is ‘substituted’ out and an ‘encryption header’ is ‘provided in [its] place.’”
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`Id. (citing EX1008, 16:47–49, 17:13–25). Petitioner then argues at length about
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`Cooper’s disclosure of the process whereby the encryption header is removed
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`from, and reattached to, an encrypted software file. E.g., Pet. at 56–58.
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`Petitioner’s argument, however, is incorrect at least because Petitioner’s
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`argument relies on inaccessible, encrypted software that cannot meet the other
`
`elements of independent claims 1 and 10.
`
`The claimed “encoded code resource” is “of said application software.”
`
`Independent claim 1 also recites that the application software generates “a proper
`
`decoding key, said generating comprising using said license code.” The
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`IPR2019-01449
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`“application software,” therefore, has access to “said license code.” According to
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`independent claim 1, the application software “cannot access at least one encoded
`
`code resource of said application software, unless said license code is stored in said
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`personalization resource.” The “application software,” therefore, has access to said
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`license code, but cannot access at least one encoded code resource unless said
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`license code is stored in said personalization resource. Cooper does not teach or
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`disclose this limitation at least because Cooper’s “application software,” according
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`to Petitioner, does not have access to said license code because the application
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`software is encrypted and cannot be decrypted without the license code.
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`According to Cooper, any key generation occurs prior to decryption. In
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`other words, Cooper’s encrypted software cannot also generate “a proper decoding
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`key” that is used to decrypt the software. Therefore, any encrypted software in
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`Cooper cannot also be equated with the “application software” recited in
`
`independent claims 1 and 10. Cooper states:
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`If the key is valid, the file management program communicates directly
`with the TSR and enables the trial mode of operation for a particular
`encrypted application. The file management program then kicks off
`the encrypted application. The code which is resident in the operating
`system of the user-controlled data processing system maintains control
`over the operating system. It monitors the use of the trial mode of
`operation keys to allow files to be decrypted and loaded into memory,
`but prevents the encrypted files from being decrypted and copied to
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`media. This is done by using the operating system to determine which
`applications are trying to access the data and only allowing the
`application that have permission to access the data to do so.”
`EX1008, 8:43–56 (emphasis added).
`Cooper’s encrypted software does not decrypt itself. According to Cooper,
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`the operating system is responsible for determining whether or not to decrypt files
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`based on whether a valid key is present. Id. Only when a valid key is present does
`
`the operating system “determine which applications are trying to access the data
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`and only allow[s] the applications that have permission to access the data to do so.”
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`Id.
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`Petitioner attempts to circumvent this flaw in Cooper by arguing that some
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`combination of the “file management program” and a “software object”
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`collectively constitute the claimed “software application.” E.g., Pet. at 31
`
`(“Therefore, the trial mode application including the file management program and
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`a software object disclosed in Cooper corresponds to the claimed application
`
`software.”). Leaving aside whether the “file management program”—which is part
`
`of the operating system—can properly be equated with the claimed “software
`
`application,” Petitioner includes the “software object” as part of the claimed
`
`“software application” only in an attempt to shoehorn the claimed “encoded code
`
`resource” into Cooper.
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`Cooper discloses an operating system that determines whether a valid key
`
`exists prior to activating a software program. If the key exists, then the operating
`
`system may decrypt the software program to make it available to the user. E.g.,
`
`EX1008, 8:43–56. The operating system does all of the work; the “software
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`object” exists simply to be decrypted. As detailed above, the combination of an
`
`operating system feature and a word processing program cannot be properly
`
`equated with the claimed “application software.” However, even if this were
`
`allowed, Petition still has not met its burden. Petitioner does not specifically point
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`to which version of the “software object” discloses the claimed “application
`
`software.” The software object is encrypted until after the operating system
`
`determines that a valid key is present. Petitioner does not make clear whether (1)
`
`the combination of the “file management program” and the encrypted software
`
`object or (2) the combination of the “file management program” and the decrypted
`
`software object are intended to disclose the claimed “application software.” If the
`
`former, then Petitioner does not explain how the encrypted software object aids is
`
`storing a license code in a personalization data resource. If the latter, then
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`Petitioner does not explain how the decrypted software object includes the recited
`
`“at least one encode code resource.” Petitioner cannot have it both ways.
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`As detailed above, Petitioner has not met its burden to show how Cooper
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`discloses or suggests “wherein said application software, in said computer, cannot
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`access at least one encoded code resource of said application software, unless said
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`license code is stored in said personalization data resource,” as recited in
`
`independent claim 1. Petitioner has, there
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