Trials@uspto.gov
`571-272-7822
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`Paper No. 19
`Entered: February 3, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
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`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2020-00023
`Patent 6,467,088 B1
`____________
`
`Record of Oral Hearing
`Held Virtually: January 15, 2021
`
`
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`SCOTT RAEVSKY, Administrative Patent Judges.
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`571-272-7822
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`Paper No. 19
`Entered: February 3, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2020-00023
`Patent 6,467,088 B1
`____________
`
`Record of Oral Hearing
`Held Virtually: January 15, 2021
`
`
`
`
`Before SALLY C. MEDLEY, MIRIAM L. QUINN, and
`SCOTT RAEVSKY, Administrative Patent Judges.
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`IPR2020-00023
`Patent 6,467,088 B1
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`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DERRICK W. TODDY, ESQ.
`Klarquist Sparkman, LLP
`One World Trade Center
`121 S.W. Salmon Street
`Suite 1600
`Portland, Oregon 97204
`(503) 595-5300
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`BRETT MANGRUM, ESQ.
`Etheridge Law Group
`2600 E. Southlake Boulevard
`Southlake, Texas 76092
`(817) 470-7249
`
`
`
`
`The above-entitled matter came on for hearing on Friday, January 15,
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`2021, commencing at 10:59 a.m. EST, by video/by telephone.
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`P R O C E E D I N G S
`- - - - -
` JUDGE QUINN: Okay. Let's get on the record now
`then. This hearing is for Microsoft Corporation v. Uniloc
`2017, LLC, Case number IPR 2020-23 concerning patent number
`6,467,088. With me are Judges Sally Medley and Scott Raevsky.
`And I am Judge Miriam Quinn. Today's hearing provides for
`each party to have argument for 45 minutes. Each may
`reserve time for rebuttal. Let's start with petitioner. Can
`you please state your appearance for the record?
` MR. TODDY: Good morning, Your Honor. Derrick
`Toddy here on behalf of petitioner Microsoft Corporation.
` JUDGE QUINN: Welcome Mr. Toddy. Do you have
`anybody else on your side?
` MR. TODDY: No one else appearing, Your Honor.
` JUDGE QUINN: Okay. Thank you. And now for patent
`owner?
` MR. MANGRUM: Good morning, Your Honors. This is
`Brett Mangrum. I will be speaking for patent owner Uniloc
`today. With your permissions also I will present in a seated
`position today so that I could stay on camera frame. And I would
`also --
` JUDGE QUINN: Yes, that's fine.
` MR. MANGRUM: Okay. I would also like to announce
`that Steve Peterson, in-house counsel for patent owner, is
`also listening on the line, just in a listening function.
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` JUDGE QUINN: Okay. Also, too, we want to alert
`the parties that we were informed that this hearing also is
`available to the public and we may have also members of the
`public attending. If there's any issues with that I would
`need to hear that right now before we begin. Is there any
`issue with that, Mr. Toddy?
` MR. TODDY: No objection from petitioner, Your
`Honor.
` JUDGE QUINN: Okay.
` MR. MANGRUM: None from patent owner.
` JUDGE QUINN: Okay.
` MR. MANGRUM: None from patent owner, Your Honor.
` JUDGE QUINN: All right. So, Mr. Toddy, you have
`45 minutes and I just need to know before we start your timer
`how many minutes would you like for your rebuttal?
` MR. TODDY: Your Honor, we would like to reserve 15
`minutes.
` JUDGE QUINN: Okay. Fifteen. All right. You may
`start whenever you're ready.
` MR. TODDY: Thank you, Your Honor. May it please the
`Board, Derrick Toddy here on behalf of petitioner Microsoft
`Corporation. We're here today to discuss the 088 patent which
`is directed to a reconfiguration manager for software updates.
`This reconfiguration manager as described in the abstract,
`which you can find on Slide 4, at a high level receives a
`request, from that request determines components that are
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`needed, and determines from information in the request
`identifiers for additional components that are currently
`implemented on a user's device.
` Then it compares those with two lists. Looking at Slide
`5 and Figure 1 of the 088 patent, those lists are described
`within the patent -- within the claims as known acceptable or
`known unacceptable configurations while Figure 1 refers to
`them as known good or known bad configurations. And the
`figure there shows a dashed line for known bad configuration
`and a solid line for known good configurations.
` Based on the comparison of this information that was
`provided in the requests with these two lists, the known good
`list and the known bad list, the reconfiguration manager then
`generates information and sends it back either approving or
`denying a request for an upgrade. That quite simply, as shown
`on Slide 6, is reflected in the independent claims of the 088
`patent. Shown on Slide 6 is Claim 1.
` And the only element that's really at issue here is the
`highlighted Element 1.4 that involves the comparison of the
`determined component, which again is the component that is
`determined to be needed for the upgrade, and the information
`specifying at least one additional component. Those are
`components that are already on the user's computer, the user's
`existing configuration, with again at least one of a lists of
`known acceptable and known unacceptable configurations. Those
`are again the known good and the known bad lists. That's the
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`crux of the issue between the parties.
` JUDGE QUINN: So, let me ask you something that we
`-- we've read the briefs and it seemed like a lot of the
`arguments, if not all of the arguments, are directed to what
`is a known acceptable configuration or a known unacceptable
`configuration. I think both parties agree that known is
`construed as previously determined. But it seems like now
`there is a lot of gloss as to what is an acceptable or an
`unacceptable configuration in addition to what does it mean
`to be previously determined. Have you taken a position
`either way?
` MR. TODDY: I think our position has been
`consistent on what it means to be acceptable. An acceptable
`configuration is one that's been previously determined to
`work, for lack of a better word, previously determined to be
`acceptable. That's somewhat circular but if you go back to -
`- if you go back to the figure, I think that's the best place
`to look. Again, referring to Figure 1 of the 088 patent on
`Slide 5. That what looks almost like a phone dial shows
`various components and shows various lines between components
`and explains in the supporting description that a solid line
`there indicates a known good configuration.
` So, for example, the example that is provided in
`the specification, and that's at Column 3, lines 52 through
`58, describes what a solid line means in this figure and the
`solid line in an exemplary example (inaudible - audio cuts
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`out) Version 1.1 of Component A, which is in the upper left
`of that figure, and shows that there's a solid line that goes
`between that component and Version 1.5 of Component B. That
`solid line indicates that it has been previously determined
`that those components work well together or are otherwise
`compatible. Those are -- I'm quoting there from the
`specification, again Column 3, lines 52 through 58,
`Components work well together or are otherwise compatible.
` Conversely, turning to the next slide which is
`Slide 46, the specification goes on still referring to Figure
`1 at lines 58 through 63 to explain the meaning of a dashed
`line. A given pair of components in the list indicates that
`the pair corresponds to a known bad configuration, i.e., are
`not compatible. And it gives the example of Version 1.8 of
`Component A, which is the middle top component, and Version
`1.0 of Component C, which is in the third line on the far
`left. There's a dashed line between those two components.
`Again, the specification makes clear that that dashed line
`reflects a prior determination or a determination in advance
`of this line being generated that those two components are
`not compatible with one another.
` So that's very consistent with what the claim says.
`The claim requires one component that you require, at least
`one component that you require for an upgrade, and at least
`one other component that's already on your system. Those
`components, they haven't necessarily analyzed your system.
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`There's nothing about this list that's specific to my
`computer or Your Honor's computer, but this list does reflect
`that someone in the world at some point has determined
`previously that those two components, the first component
`that I need and the second component that is already on my
`computer are incompatible with one another, and that would be
`a dash line, or they are compatible with one another, and
`that would be a solid line.
` So, our position is that that's exactly what is
`described in the primary Apfel reference when it talks about
`determining both downloads that should and should not be
`downloaded. It talks specifically about downloads that
`should not be made because components have been determined to
`be incompatible, and it talks specifically about upgrades
`that may be required for a given user's given computer, and
`those required downloads are ones that take into
`consideration in the request that the user's computer makes
`the current configuration of the computer as well as the
`upgrade that's being requested. Those two pieces of
`information are combined and then a database lookup is
`performed and that database lookup is what's used to provide
`the message back to the user either letting the user know
`that an upgrade is available or that an upgrade is not
`available.
` At this -- sorry, Your Honor. Go ahead.
` JUDGE QUINN: In connection with Apfel --
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` MR. TODDY: Yes.
` JUDGE QUINN: -- the argument there is that there
`is no express disclosure of a comparison but it's inherently
`disclosed. I want you to turn your attention to Column 12,
`lines 45 to 48. And it is interesting to me that Apfel
`actually says, wherein the step of determining -- this is
`part of the claims of Apfel --, "whether an
`upgrade package for the software program module component is
`available comprises comparing the database query to a
`database lookup table". It seems to me that
`it's expressly disclosed, not just an inherency thing or a
`suggestion. Why didn't you cite to that?
` MR. TODDY: Your Honor, I agree that that claim
`language is expressed in talking about a comparison. We did
`cite to the database lookup table that -- or the lookup that
`does take place which is described in the specification. I
`can't recall if this language is used outside the claims or
`if it's not, but I do agree with Your Honor that regardless
`of whether these are original claims or not there certainly
`is support in the specification for these claims of Apfel and
`that read literally this does require a comparison as part of
`that database lookup.
` But I would direct Your Honor's attention to the fact
`that we have pointed to that database lookup and absolutely
`the database lookup at least inherently describes, if not
`explicitly, a comparison to a known good list and a known --
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`certainly to a known good list and at least renders obvious,
`was our position, comparison to a known bad list. It doesn’t
`specifically explain -- even in this claim it doesn't
`specifically explain what's in the database, what type of
`list or what type of stored representation exists, but Apfel
`does make clear that as a result of this comparison which
`does involve both the information already on the user's
`computer and the information that the user is wanting to
`upgrade, a determination is made and petitioner's position is
`inherently that would require this comparison even if not
`expressly.
` But I agree with Your Honor, taking this claim, if this
`exact language appeared in the specification, we would 100
`percent agree that that expressly teaches some sort of
`comparison. Whether it's exactly the claimed comparison, I
`think that's why we took the inherency position because we
`wanted to make sure that we didn't overstate what the -- what
`Apfel actually teaches.
` JUDGE QUINN: So, starting from the standpoint that
`there is a comparison between the database query and the
`database lookup table, I mean the query is in Apfel what the
`computer sends with regards to it wanting to know if there is
`an update available, right? That's the word of Apfel; is
`that right?
` MR. TODDY: That's correct. It's looking for
`availability of an upgrade. I would say at this point that I
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`believe it's more than just availability. I know patent
`owner in its briefing has made some (inaudible - audio cuts
`out). It's clear in Apfel that the servers are serving both
`functions. The servers are determining whether there is an
`upgrade and whether that upgrade is appropriate given the
`configuration of the user's computer that is provided in that
`query.
` JUDGE QUINN: So, but the query, the query only --
`when it sends out the query, the URL of that, it's shown in
`Column 9, lines 1 through 5, it's just sending information.
`There's no specific request there of any kind. It's just
`understood by the system that when those queries are sent
`you're checking for availability because you're going to do a
`database lookup for any updated versions of what you already
`have; is that right?
` MR. TODDY: I think that's right, Your Honor. The
`query is -- and I'm quoting from Column 8, lines 53 to 55.
`The quote is, The query is structured to identify the
`information needed to determine which upgrade package is
`required by computer. So again, there's that require
`language. Specifically, there is a query or a request sent
`out to determine whether one or more components can be
`upgraded.
` That query also, you know, necessarily, and I'm sure in
`lines 1 through 5 there, is including information about what
`versions of the various components are present on the system.
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`It is that information coupled with the request, the request
`for upgrade information, that is used to determine which
`upgrade, if any, is available, and which upgrade, if any, is
`appropriate for a user with those components currently
`installed. Again, very similar to the 088 which takes
`various components -- first of all, talks about a request and
`talks about providing information about other components on
`the computer, and does so for the exact same reason.
` The comparison that has to take place in order -- again,
`I keep referring back to Figure 1. The comparison that has
`to take place is what is the component you want to upgrade,
`what are the components -- what are the other components you
`currently have, and will those work together? Have we
`previously determined that -- again, going back to the
`example. For example, Version 1.1 of Component A works with
`Component 1.5 of Version B. That's what's in that list of
`acceptable -- and actually, Your Honor, I would say that
`really Figure 1 kind of reflects two lists all combined into
`one. You know, all the solid lines would be the list of
`known acceptable configurations.
` The claim construction that we have proposed that the
`Board has agreed with and the patent owner hasn't disputed is
`that it can be -- let me quote it so I don't get it wrong.
`And the claim construction is set forth on Slide 16. The
`list can be any stored representation of information
`indicative of component capability. That was adopted for
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`purposes of institution decision at -- that was set forth in
`the petition at 18 to 19 and it's also what Dr. Villasenor in
`his declaration used as the understanding of list. So, the
`lists can be any stored representation. And then known for
`the electronic device, carrying on, previously determined as
`we said.
` So, Figure 1 would essentially show both lists, the
`known good list and the known bad list. And in order to use
`that list, in order for it to be workable, the 088 patent says
`you need information about what you're trying to upgrade, and
`that's provided in the requests in Apfel, and what else is on
`your system, and that's also provided in the requests in
`Apfel. So that's all one needs to do this comparison even
`though -- those three things. You need to know what you
`have, what you want to upgrade, and whether they work
`together or not. And that's -- that is essentially all
`that's required of Claim 1 and that's really what is at least
`inherently -- at least on the known good side is inherent in
`Apfel's disclosure from its requests, what the servers do
`with that request, and then what the servers return after
`processing that information.
` There's a Step 427 where the determination is made
`whether an upgrade is available, and Apfel makes clear that
`at that point the servers have done two things. They have
`determined that there is an upgrade. In other words, if you
`have the most current version you don't need an upgrade. But
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`they've also -- Apfel also makes clear that the servers are
`doing that database lookup. It can be by a comparison as you
`set forth in that dependent claim. And as a result of that
`database lookup the Apfel servers, which are the entity
`responsible in Apfel for making the determination of
`compatibility, have determined whether an upgrade should or
`should not, and it specifically calls out upgrades that
`should not be downloaded.
` And it specifically calls out that certain upgrades
`should not be downloaded for one of two reasons. One is the
`obvious one. You should not download an upgrade if you
`already have the upgrade. But the other one is probably more
`relevant to our discussion today. It says that it should not
`be downloaded if it is incompatible with your computer. And
`again, Apfel says it makes that determination based on
`information received in the query, in the request about other
`components currently installed on the user's computer.
` JUDGE QUINN: So, in light of that explanation
`then, what specifically about Lillich are you relying on in
`the combination of Apfel and Lillich? I know it's for the
`good configurations --
` MR. TODDY: Sure.
` JUDGE QUINN: -- or the known acceptable
`configurations --
` MR. TODDY: Sure.
` JUDGE QUINN: -- but what particular teaching of
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`Lillich do we need to apply to Apfel's method?
` MR. TODDY: Your Honor, I think that the part of
`Lillich that I would refer you to is the compatibility
`ranges. So Lillich provides the how behind the direction in
`Apfel to do the comparison, the direction in Apfel to do the
`database lookup. So Lillich in particular -- and I would
`refer to Slide 25. Lillich in particular determines a
`compatibility range and the compatibility range sets forth
`ranges of acceptable versions, if you will, for a couple of -
`- at least two components that work with one another and so
`that gives details about how to determine what the shorthand
`-- what we've shorthanded today as the known good.
` There's a range of versions set forth in Lillich that
`are compatible with one another. So those provide
`implementation details for an operation that's already set
`forth in Apfel. Apfel says you do a database lookup and you
`determine -- to shorthand it, you determine configurations
`that work and configurations that don't. Lillich on the
`known good side says here's a way -- here's a way that a
`POSITA would have understood to combine that database lookup
`with a specific implementation. How do I know whether
`Version 1.1 of Component A and Version 1.5 of Component B
`work well together? Well, I check this list, this stored
`representation in Lillich, and from that compatibility range
`I determine those are known to be compatible with one
`another. That's a known good configuration.
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` So, we've already taken the position that there is
`inherent disclosure of comparison to a known good list in
`Apfel even without reference to Lillich. Lillich provides
`additional implementation details about at least one way that
`list could be set forth and a way that clearly would satisfy
`the claims, namely looking at known acceptable ranges of
`components that work well together.
` JUDGE QUINN: So, you really are taking a position
`that Apfel alone teaches all of the elements of the claim; is
`that it?
` MR. TODDY: Your Honor, our position has been that
`Apfel inherently teaches the comparison but that Lillich
`provides the detail of what's being compared to.
` JUDGE QUINN: Okay.
` MR. TODDY: So Apfel teaches doing a database
`lookup but it doesn't specifically say what's in the database,
`what are you looking up, what are you comparing to, and
`Lillich provides the details of one way that a POSITA would be
`motivated to set that up.
` JUDGE QUINN: Okay. So, let's walk this through.
`The combination in the known acceptable configurations would
`have Apfel's request or the one that's shown in Figure 9 --
`in Column 9, for example, where it sends out “I have Word Version
`8.0 and IE Version 3.0 and English language preferred.” And it
`goes to the server in Apfel and Apfel does a database lookup
`and using the teaching of Lillich then this database has these
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`compatibility ranges for Word 8.0 and it knows which versions
`of IE it's compatible with? That level of detail, I want to
`know what is -- how does that look like?
` MR. TODDY: I mean in the simplest implementation
`of Claim 1 it would just be two components, right. It would
`be -- in your example Word would be one component and IE would
`be another component. And yes, in Apfel it would have ranges
`of compatibility for those components. So, Word Versions --
`I'm making this up -- but Word Versions 1 through 3 work with
`IE 8.0 to 10.0, but if you upgrade to 11 you might need a new
`version of Word, something like that. That's what
`compatibility ranges express on a one-to-one, which again
`looking back at Figure 1 again, that's how those
`compatibilities are setup in Apfel, I'm sorry, in the 088 as
`well. They're a one-to-one. Does this component work with
`this other component?
` Now you might have to, you know, extrapolate those out to
`an entire system, but the claim doesn't require that. The
`claim simply requires comparing compatibility between at least
`one component that you want to upgrade and at least one
`component that you already have and determining whether those
`are compatible. So that's exactly what Lillich would do in
`the context of what we just described. It's a compatibility
`between one component and another component and it does that
`using a range.
` JUDGE QUINN: So, the reason I wanted to walk
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`IPR2020-00023
`Patent 6,467,088 B1
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`through this is because logically it makes sense that you
`would not do a comparison until you have determined that there
`is some version of software that is more current than the ones
`you already have because if there is no more current software
`versions there is no need for a comparison. So, it makes
`sense to me that Apfel will first say do we have a higher
`version of IE, or whatever component it is, than the one you
`have, and, if we do have that, then that means there is an
`upgrade available. Now whether you should download it or not,
`that's another question, right. That's when you would do the
`compatibility check, or you already have it so there's -- or,
`you know, in that situation that wouldn't work because it's
`been determined that you already have it -- that there is one
`available.
` So, I'm not sure how that fits with your theory there
`because you could read it both ways. First you have to
`determine that there is a later version of something in order
`to determine whether it is compatible with what you already
`have in your computer or we're going to make a comparison
`beforehand and then tell you whether it's available or not. I
`think you're taking the position that the second of those
`scenarios is what is going on in Apfel, that there is first a
`compatibility check and then you'll get displayed, oh, there
`is -- there is an upgrade available for you. Is that right?
` MR. TODDY: Your Honor, I would -- I think I would
`make a slight revision to that. Apfel does both. It both
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`IPR2020-00023
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`determines availability and it determines compatibility. And
`I agree with Your Honor it's only logical -- and Apfel
`describes doing both. It's only logical to first determine
`whether there's anything even to compare. So, if there's
`nothing available, if there are no upgrades for your system,
`there's nothing for Apfel to compare. But Apfel does
`specifically say even if there is something available we're
`going to do this check to make sure it's compatible with your
`system. It is that check, it is that database lookup, that we
`are combining with Lillich on the known good side. So,
`there's no need to reference Lillich if there's no upgrade
`available. If there's no upgrade available Apfel is just
`going to send you back a message and say no upgrade available.
` But the position that we've taken and the position that
`Dr. Villasenor explained is that when Apfel's server sends a
`message back to the user and says you have an upgrade
`available, that means a little bit more than just it's
`available. Apfel's disclosure makes clear that the servers,
`not the user, not some later decision, but the servers are
`responsible for determining compatibility and that at the time
`that that message is sent back, which is I think Step 433,
`that says you have an update available; the servers have done
`both of those two steps.
` They've first checked to see if there's an upgrade at
`all. If there's no upgrade at all, game is over. I send you
`back saying, sorry, no upgrade at this time, check back later.
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`IPR2020-00023
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`If an upgrade is available it's going to do that comparison to
`see if that upgrade works for you because it doesn't do you
`any good for me as the server to come back and say, hey,
`you've got an upgrade available. It's going to crash your
`computer but it's available.
` That doesn't make any sense. That's not how Apfel
`operates. The Apfel disclosure does not say it leaves it up
`to the user to determine and solve its own problem of
`conflicts. It says Apfel servers do that and they do that
`through a database look up. And one way that they can
`implement that is by using a known good list, which we've
`already talked about, and also using a known bad list, which
`we haven't talked about specifically but which we point to in
`the petition Todd which identifies known conflicts. Again,
`same idea. Those are those dotted lines in the 088. Those
`are components that are previously known, whether they're on
`the user's computer or not.
` This is an agnostic list as we've said. An agnostic list
`as the claim construction that we've offered for known sets
`forth. The list doesn't care where those components are. It
`knows that certain components don't work well together.
`They've been known in the past to cause problems for other
`users. And that's Todd's disclosure.
` Again, Apfel strongly suggests that by saying that there
`are going to be some downloads that are incompatible and
`therefore should not be downloaded. But again, there's
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`IPR2020-00023
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`nothing in Apfel to suggest that those known bad
`configurations, those things that should be down -- I'm sorry
`-- should not be downloaded are nonetheless sent to the
`user. That seems to be patent owner's position but it's
`simply inconsistent with the record and with Apfel's
`disclosure. Thank you, Your Honor.
` JUDGE QUINN: Thank you. I'll pause the timer
`here. 14 minutes and 32 seconds left.
` Mr. Mangrum, it's your turn. If you can please let
`me know first before you start how many minutes would you like
`for rebuttal? You may be muted and that's why we can't hear
`you.
` MR. MANGRUM: Sorry. I always do that. I want to
`-- let's start with reserving ten minutes. So, let's go 35
`minutes for the principal.
` JUDGE QUINN: Okay. I will show you the screen
`with -- when you're -- a screen that has your -- the time left
`that you have left on the clock in green when you're going
`into your rebuttal time if that happens. Okay.
` MR. MANGRUM: Excellent.
` JUDGE QUINN: All right. You may start whenever
`you're ready.
` MR. MANGRUM: Okay. Well, I would like to begin
`with reference to Slide 2. I think that's been part of the
`discussion today and hopefully that will help frame the
`dispute. What we have in patent owner's demonstratives in
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`IPR2020-00023
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`Slide 2 is again Figure 1 and I want to point out some salient
`description of Figure 1 that bears on interpretation and
`understanding of the comparison step that Your Honors have
`been asking about today.
` So, what you have -- I'm going to simplify this a
`little bit because some of it has already been discussed in
`the briefing and then in opposing counsel's presentation, but
`there are some points that I think he didn't touch on that
`bear emphasizing here.
` So, you have the reconfiguration manager shown on
`the right of Figure 1 and the electronic device shown as
`Device X on the left. Now this device wants to upgrade to
`what is shown on the upper left as Version 2.0 of software
`Component A and that's what is the aim of this upgrade
`process. And so, it sends a request. It's defined as Request
`20 to reconfiguration manager to receive something that's not
`resident until full execution of this process, and the
`reconfiguration manager then performs the comparison as
`claimed, and it compares both the needed component, in this
`case A 2.0, and the identified components currently
`implemented in the electronic device with a previously stored
`list
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