UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ADVANCED MICRO DEVICES, INC.
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`Petitioner
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`v.
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`AQUILA INNOVATIONS INC.
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`Patent Owner
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`Case IPR2019-01526
`U.S. Patent No. 6,895,519
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`PATENT OWNER’S SUR-REPLY
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ADVANCED MICRO DEVICES, INC.
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`Petitioner
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`v.
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`AQUILA INNOVATIONS INC.
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`Patent Owner
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`Case IPR2019-01526
`U.S. Patent No. 6,895,519
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`PATENT OWNER’S SUR-REPLY
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`PATENT OWNER’S EXHIBIT LIST
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`2002
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`2003
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`Exhibit No. Description
`2001
`Joint Claim Construction Statement dated May 17, 2019
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`Revised Joint Claim Construction Statement dated November 1,
`2019
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`Markman Order re Infineon Technologies AG and Infineon
`Technology North America Corp. v. Atmel Corporation
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`Email Correspondence with Board re Sur-Replies
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`2004
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`Pursuant to the Board’s email of January 20, 2020, Exhibit 2004, Patent
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`Owner Aquila Innovations Inc. submits this sur-reply to Petitioner’s reply.
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`Petitioner sought and obtained leave to address the purported printed publication
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`status of Exhibit 1005, a reference on which the petition relies in Ground 2 to
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`challenge claims 2 – 6. Paper 1 at 2.
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`The preliminary response showed that Petitioner failed to establish that
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`Exhibit 1005 was reasonably likely to be a printed publication. Stung by the
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`criticism, Petitioner sought and obtained leave to file a reply addressing the printed
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`publication status of Exhibit 1005. The totality of the circumstances does not
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`support the conclusion that it is reasonably likely that Exhibit 1005 was publicly
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`available before the priority date of the ’519 patent.
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`Hulu, LLC v. Sound View Innovations, Inc., IPR2018-01039, Paper No. 29
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`(PTAB Dec. 20, 2019), stands for the proposition that Petitioner bears the burden
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`of showing that it is reasonably likely that an asserted reference is a printed
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`publication. The “totality of the evidence,” including Petitioner’s new arguments,
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`does not establish a “reasonable likelihood” that Exhibit 1005 was “‘disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.’”
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`Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016)
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`-1-
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`(quoting Kyocera Wireless Corp. v. Int'l Trade Comm’n, 545 F.3d 1340, 1350
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`(Fed. Cir. 2008)).
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`Petitioner argues that the Board, in an unrelated case, has “endorsed” four
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`types of evidence that can establish a reference is publicly accessible:
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`(1) indicia on the document itself—i.e., a copyright
`notice and the release date of the printed version;
`(2) a declaration from the office manager of the Internet
`Archive;
`(3) a declaration from an expert stating she located and
`obtained a copy of the reference before the patent’s filing
`date; and
`the
`to
`information relating
`(4) publicly available
`document—i.e., metadata information from the reference
`on the company’s website.
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`Reply at 2 (citing Syncro Soft SRL v. Altova GmbH, IPR2018-00660, Paper 6, 8-10
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`(P.T.A.B. Sept. 5, 2018)). Petitioner’s challenge in establishing Exhibit 1005 as a
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`printed publication is apparent from its arguments and the deficient evidence filed
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`with the Petition.
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`Petitioner argues that the purported copyright date and revision date found
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`on Exhibit 1005 are “indicia” of public accessibility. But the “indicia” on Exhibit
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`1005 on which Petitioner relies is inadmissible hearsay not subject to any
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`exceptions, and in any event are “accorded little weight to prove public
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`-2-
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`accessibility.” Smart Microwave Sensors GmbH v. Wavetronix LLC, 2017 Pat.
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`App. LEXIS 11318 (P.T.A.B. July 17, 2017). Neither the revision date nor the
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`copyright marking date printed on Exhibit 1005, taken together or alone, is
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`evidence that Exhibit 1005 was publicly accessible. “The fact that a date is printed
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`on the face of a reference, without more, is not enough to establish that the
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`reference was publicly accessible on that date.” Hewlett-Packard Co. v. U.S.
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`Philips Corp., et al., Case IPR2015-01505, Paper 16, 8 (PTAB Jan. 16, 2016); see
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`also Hulu, Paper 29 at 19 (citing In-Depth Geophysical, Inc. v. Conocophillips Co.,
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`IPR2019-00849, Paper 14, 4–13 (PTAB Sept. 6, 2019)) (“a copyright date of 2012
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`and including a date of September 2012 on its cover, was insufficient to show that
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`the paper had been disseminated prior to the conference”); see also Google Inc. v.
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`ART+COM Innovationpool GmbH, Case IPR2015-00788, Paper 7, 8 (PTAB Sept.
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`2, 2015) (“[T]his bare date, without more, does not provide any information about
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`the date [the reference] was publicly accessible.”).
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`Second, the declaration of the office manager of the Internet Archive does
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`not show that Exhibit 1005 was publicly accessible. See Exhibit 1016. As
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`explained in the preliminary response, the Butler declaration shows, at best, that
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`the Microsoft website hosted a ZIP file at the web addresses identified in the
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`declaration. Mr. Butler’s declaration does not connect the contents of the ZIP file
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`with Exhibit 1005. Petitioner attempts to address these failures with Exhibit 1020,
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`-3-
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`a purported screenshot of a Microsoft page, but Petitioner failed to provide any
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`evidence that Exhibit 1020 was also publicly accessible at the relevant time. The
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`statement on Exhibit 1020 that the ZIP file contains a RTF file is inadmissible
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`hearsay not subject to any exceptions. Markings on Exhibit 1020 also indicate that
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`it was created in March of 2019, and does not show that Exhibit 1020 or Exhibit
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`1005 were available before the priority date of the ’519 patent.
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`Third, unlike in Syncro, there is no declaration from an expert (who may or
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`may not be one of ordinary skill in the art) stating that he or she located and
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`obtained a copy of the document that is Exhibit 1006 before the critical date.
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`Unlike the expert testimony found sufficient in Synchro, Dr. Albonesi does not
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`testify that he actually accessed Exhibit 1006 prior to the critical date of the
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`challenged claims. Instead, Dr. Albonesi merely speculates that a person of skill in
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`the art “would have known” to look at the hardware development section of the
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`Microsoft hardware development site. Dr. Albonesi’s conclusory speculation about
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`the state of mind of a person of skill in the art at the time is not relevant to the
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`public accessibility issue. Dr. Albonesi also does not testify that Exhibits 1020 and
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`1016 were publicly available before the priority date, or that a person of skill in the
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`art who “would have known” to look for Exhibit 1005 would have been able to
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`locate or access them. The asserted widespread adoption of Microsoft Windows is
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`“sheds virtually no light” on whether Exhibit 1005 was publicly accessible.
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`-4-
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`Petitioner offers no evidence or argument connecting the adoption of Windows to
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`the accessibility of Exhibit 1005.
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`Lastly, the information contained in Exhibit 1020 fails to support
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`Petitioner’s contention that Exhibit 1005 was publicly available. Petitioner
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`attempts to rely upon dates printed on Exhibit 1020 and purported metadata from
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`the PDF printout of Exhibit 1020. Petitioner theorizes that Exhibit 1020 represents
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`the web page that links to the ZIP file that contains Exhibit 1005. But Petition does
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`not provide any evidence that Exhibit 1020 was available before the priority date
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`of the ’519 patent. Indeed, the markings on Exhibit 1020, if anything, show that the
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`PDF was created in March of 2019. Exhibit 1020 fails to show that it is reasonably
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`likely that Exhibit 1005 was publicly available.
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`Petitioner’s reply does not sufficiently correct the petition’s failure to show
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`the reasonable likelihood that Exhibit 1005 is a printed publication. Looking at the
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`totality of the evidence, Petitioner cites to (1) hearsay dates that are not evidence of
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`public accessibility; (2) an affidavit attesting to nothing; (3) an expert speculating
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`on the irrelevant mindset of a person of skill in the art; and (4) “public”
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`information in a PDF created in March of 2019, with no further evidence showing
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`the public accessibility of the PDF at the relevant time. Petitioner cannot satisfy its
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`burden of showing that it was reasonably likely that Exhibit 1005 is a printed
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`publication.
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`-5-
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`Date: February 5, 2020
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`/Jing H. Cherng/
`Jing H. Cherng
`Reg. No. 68,144
`Counsel for Patent Owner
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`-6-
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`CERTIFICATE OF SERVICE
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`It is certified that a copy of the foregoing has been served on Petitioner via
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`electronic mail transmission addressed to the person(s) at the address below:
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`Daniel S. Block
`dblock-PTAB@sternekessler.com
`Michael B. Ray
`mray-PTAB@sternekessler.com
`Jonathan Tuminaro
`jtuminar-PTAB@sternekessler.com
`Michael D. Specht
`Mspecht-PTAB@sternekessler.com
`PTAB@sternekessler.com
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`Date: February 5, 2020
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`/Jing H. Cherng/
`Jing H. Cherng
`Reg. No. 68,144
`Counsel for Patent Owner
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`-7-
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