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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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`GOOGLE LLC,
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`Petitioner,
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`v.
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`HAMMOND DEVELOPMENT INTERNATIONAL, INC.,
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`Patent Owner.
`
`
`
`Case No. IPR2020-00411
`U.S. Patent No. 9,420,011
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`____________________
`
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`DECLARATION OF STUART J. LIPOFF
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`
`GOOGLE EXHIBIT 1021
`GOOGLE v. HAMMOND
`IPR2020-00411
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`Page 1 of 135
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`I.
`II.
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`TABLE OF CONTENTS
`INTRODUCTION ......................................................................................11
`....................................................................................................................12
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`III. MATERIALS CONSIDERED ....................................................................14
`IV. LEGAL STANDARDS ..............................................................................16
`V.
`LEVEL OF ORDINARY SKILL IN THE ART .........................................19
`VI. CLAIM CONSTRUCTION ........................................................................20
`VII. BACKGROUND OF THE ’011 PATENT ..................................................22
`VIII. GROUNDS OF UNPATENTABILITY ......................................................27
`IX. CLAIMS 1-30 ARE ANTICIPATED OR RENDERED OBVIOUS
`BY THE PRIOR ART ................................................................................28
`A.
`[Ground 1] Claims 11, 13, 16, and 17 Are Anticipated by
`Gilmore .............................................................................................28
`1.
`Overview of Gilmore ..............................................................28
`2.
`Independent Claim 11 .............................................................32
`a.
`[11Preamble] “A non-transitory computer-readable
`storage medium having stored thereon a
`computer-executable application software program
`that, when executed on a communication system,
`enables one or more communication devices to
`remotely execute and to provide services to an
`application, the application software program
`causing the one or more application servers to
`perform the method of:” ................................................32
`[11a1] “establishing a first communications link to
`one or more communication devices,” ..........................36
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`b.
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`3.
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`c.
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`d.
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`e.
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`f.
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`g.
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`[11a2] “the first communication link comprising a
`data connection,” ..........................................................39
`[11a3] “at least one of the one or more application
`servers adapted to establish a communication
`session with the communication device;” ......................40
`[11b1] “receiving a request from at least one of the
`one or more communication devices to establish
`the communication session, the at least one
`communication device residing at a location
`remote from the one or more application servers,” ........44
`[11b2] “wherein the at least one application server
`is operable to receive, or have previously received,
`the application over a second communication
`link,” .............................................................................45
`[11b3] “wherein the at least one application server
`is further operable to execute the received
`application remote from the communication device
`and to establish the communication session with
`the communication device; and” ...................................47
`[11c1] “sending, to the at least one communication
`device, a request for a processing service at the
`communication device,”................................................48
`[11c2] “wherein the request for the processing
`service is communicated to the communication
`device over the data connection, and” ...........................49
`[11c3] “wherein the request for the processing
`service comprises one or more queries for
`information from a user.” ..............................................50
`[Claim 13] “wherein the one or more communication
`devices is a mobile device.” ....................................................52
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`4.
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`[Claim 16] “wherein the one or more queries comprise a
`preliminary communication session to acquire unique
`identification information about the user.” ..............................52
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`5.
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`[Claim 17] “wherein the identification information is
`processed by the at least one application server, a
`repository, or the communication device.” ..............................53
`[Ground 2] Claims 1, 2, 4-24, and 26-28 Are Rendered Obvious
`by Gilmore and Dodrill .....................................................................54
`1.
`Overview of Dodrill ................................................................54
`2.
`Independent Claim 11 .............................................................57
`a.
`[11c1] Dodrill renders obvious the “request for
`processing service” in element [11c1] being
`executable .....................................................................57
`(a) Motivation to combine ..............................62
`(b) Expectation of Success .............................65
`Independent Claim 1 ...............................................................66
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`3.
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`a.
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`b.
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`[1Preamble] “A non-transitory computer-readable
`storage medium having stored thereon a
`computer-executable device software program
`that, when executed on a communication device,
`causes the communication device to perform a
`method for remotely executing an identified
`application, the method comprising:” ............................67
`(a) Motivation to Combine .............................71
`(b) Expectation of Success .............................71
`[1a1] “coupling the communication device to a
`first communication link, the communication
`device adapted to communicate a request to
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
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`c.
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`d.
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`e.
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`f.
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`g.
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`h.
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`i.
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`establish a communication session over the first
`communication link,” ....................................................72
`[1a2] “wherein the first communication link
`comprises a data connection;” .......................................75
`[1b] “providing processing services to the
`identified application, wherein a substantial
`portion of the identified application is executed at
`a location remote from the communication
`device;” .........................................................................76
`[1c1] “transmitting the request to an application
`server coupled to the first communication link,” ...........76
`[1c2] “wherein, if the identified application is not
`already present on the application server, the
`request may cause the application server to
`communicate with one or more repositories over a
`second communication link,” ........................................77
`
`[1c3] “the repositories having access to one or
`more applications maintained in a database
`coupled to the one or more repositories,” ......................78
`(a) Motivation to Combine .............................81
`(b) Expectation of Success .............................81
`[1c4] “the one or more repositories adapted to
`communicate the identified application over the
`second communication link to the application
`server,” .........................................................................82
`[1c5] “wherein the application server is adapted to
`execute the substantial portion of the identified
`application remote from the at least one
`communication device;” ...............................................83
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`4.
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`5.
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`6.
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`7.
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`l.
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`j.
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`k.
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`[1d] “establishing a communication session with
`the application server; and” ...........................................83
`[1e1] “receiving a request for a processing service
`from the application server over the data
`connection,” ..................................................................84
`[1e2] wherein the request for processing service
`comprises one or more queries for information
`from a user.” .................................................................84
`[Claims 2 and 20] “wherein the device software program
`is downloaded or previously installed on the
`[communication device/one or more communication
`devices] and facilitates communication between the user
`and the application server via the [communication
`device/one or more communication devices].” ........................85
`(a) Motivation to Combine and
`Expectation of Success .............................86
`
`[Claims 4 and 13] “wherein the [communication
`device/one or more communication devices] is a mobile
`device.” ...................................................................................87
`[Claims 5 and 14] “wherein the request for processing
`service comprises one or more instructions to the
`[communication device/one or more communication
`devices] to retrieve content from a source located remote
`from the [communication device/one or more
`communication devices].” .......................................................87
`(a) Motivation to Combine and
`Expectation of Success .............................89
`[Claims 6 and 15] “wherein the request for processing
`service comprises one or more instructions to the
`[communication device/one or more communication
`devices] to send content to a destination located remote
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`from the [communication device/one or more
`communication devices].” .......................................................90
`a. Motivation to Combine and Expectation of
`Success .........................................................................91
`[Claims 7 and 26] “wherein the [communication
`device/device software program] communicates a
`response to the one or more queries for information back
`to the application [server] over the data connection.” ..............92
`[Claim 8] “wherein the device software program
`executing on the communication device communicates a
`response to the one or more queries is selected from a
`group consisting of a voice input, a stylus input, a
`keyboard input, and a touch input,” and [Claim 27]
`“wherein the response to the one or more queries is
`selected by the device software program from the group
`consisting of a voice input, a stylus input, a keyboard
`input, and a touch input.” ........................................................93
`[Claims 9 and 23] “wherein the request for processing
`service comprises one or more instructions to present
`information to the user.” .........................................................95
`[Claims 10 and 24] “wherein the information presented
`to the user via the device software program, including
`information prompting a response to the one or more
`queries or information associated with said response to
`the one or more queries, is comprised of one or more data
`elements selected from a group consisting of audio,
`voice, text, video, and image.” ................................................95
`[Claim 12] “wherein any information input by a user of a
`communication device during a connection to the system
`is stored in a database.” ...........................................................96
`[Claim 16] “wherein the one or more queries comprise a
`preliminary communication session to acquire unique
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`8.
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`9.
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`10.
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`11.
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`12.
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`13.
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`b.
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`15.
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`identification information about the user;” and [Claim
`17] “wherein the identification information is processed
`by the at least one application server, a repository, or the
`communication device.”..........................................................97
`14. Claim 18 .................................................................................97
`a.
`[18a] “wherein the one or more communication
`devices comprise a device software program
`capable of executing and providing services to the
`application,”..................................................................97
`[18b] “wherein a substantial portion of the
`application is executed at a location remote from
`the one or more communication devices, on one or
`more application servers, each containing
`application content.” .....................................................98
`[Claim 19] “wherein the device software program cause
`the one or more communication devices to: store
`information about the one or more communication
`devices and/or store a record of any interaction between a
`user and the system, to a database.” ........................................98
`(a) Motivation to Combine ........................... 100
`(b) Expectation of Success ........................... 100
`[Claim 21] “wherein the device software program is
`specifically suited to operate in conjunction with a
`specific application having content contained on one or
`more application servers.” ..................................................... 101
`(a) Motivation to Combine ........................... 102
`(b) Expectation of Success ........................... 103
`[Claim 22] “wherein the device software program
`comprises a portion of the application’s logic.” .................... 104
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`16.
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`17.
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`C.
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`D.
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`18.
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`(a) Motivation to Combine and
`Expectation of Success ........................... 105
`[Claim 28] “wherein the device software program
`enables the one or more communication devices to:
`collect information from and present information to the
`user.” .................................................................................... 105
`[Ground 3] Claims 3 and 25 Are Rendered Obvious by
`Gilmore, Dodrill, and Dhara ........................................................... 106
`1.
`[Claim 3] “wherein the communication device comprises
`one or more of the following capabilities: a display
`capable of presenting text, video, and image information
`to the user, a speaker capable of playing audio
`information to the user, and input devices capable of
`receiving voice input, stylus input, keyboard input, and
`touch input.” ......................................................................... 106
`(a) Motivation to Combine ........................... 109
`
`(b) Expectation of Success ........................... 109
`[Claim 25] “wherein the device software program is
`capable of converting text data to speech.” ........................... 109
`(a) Motivation to Combine ........................... 112
`(b) Expectation of Success ........................... 113
`[Ground 4] Claims 12, 19, 29, and 30 Are Rendered Obvious
`by Gilmore, Dodrill, and Ladd ........................................................ 114
`1.
`Claims 12 and 19 .................................................................. 114
`(a) Motivation to Combine ........................... 115
`(b) Expectation of Success ........................... 115
`[Claim 29] “wherein the device software program causes
`the one or more communication devices to: access
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`2.
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`2.
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`services provided by a plurality of additional application
`servers having additional application content.” ..................... 116
`(a) Motivation to Combine ........................... 117
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`3.
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`(b) Expectation of Success ........................... 119
`[Claim 30] “wherein the plurality of additional
`application servers receives application code from one or
`more repositories.” ................................................................ 121
`(a) Motivation to Combine ........................... 122
`(b) Expectation of Success ........................... 123
`CONCLUSION ........................................................................................ 124
`X.
`XI. QUALIFICATIONS ................................................................................. 125
`A.
`Education ........................................................................................ 125
`B. Work Experience ............................................................................ 125
`XII. SIGNING.................................................................................................. 134
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`I.
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`INTRODUCTION
`I have been retained Google LLC (“Google” or “Petitioner”) as an
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`independent expert consultant in this proceeding before the United States Patent
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`and Trademark Office.
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`I am over 21 years of age and, if I am called upon to do so, I would be
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`competent to testify as to the matters set forth herein.
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` My compensation is in no way contingent on the nature of my
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`findings, the presentation of my findings in testimony, or the outcome of any
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`proceeding.
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`I understand that this proceeding involves U.S. Patent No. 9,420,011
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`(“the ’011 patent,” attached as Ex-1001). The application for the ’011 patent was
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`filed on December 19, 2015, as U.S. Patent Application No. 14/975,747 (“the ’747
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`application”). The ’011 patent claims priority as a continuation application to U.S.
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`Application No. 11/779,722 (“the ’722 application”; now U.S. Patent No.
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`9,264,483), filed July 18, 2007. The ’747 application issued as the ’011 patent on
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`August 16, 2016.
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`I have been asked by Petitioner to provide my opinion whether the
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`claims of the ’011 patent would have been obvious to a person of ordinary skill in
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`the art at the time of the earliest claimed priority date of the ’011 patent. In
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`performing my analysis, I have been asked to assume that the priority date is
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`July 18, 2007, the filing date of U.S. Application No. 11/779,722.1 My opinions
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`are set forth below.
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`Throughout this declaration, I refer to specific pages, figures, and/or
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`line numbers of various exhibits. These citations are illustrative and are not
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`intended to suggest that they are the only support for the propositions for which
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`they are cited.
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`II.
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`1 I have also been informed that Patent Owner has asserted a conception date of
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`May 20, 2006. My opinions do not change whether they are considered from the
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`person of ordinary skill in the art on May 20, 2006, or July 18, 2007.
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`2
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`III. MATERIALS CONSIDERED
`In forming my opinions, I have reviewed the following documents,
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`and any other document cited in this declaration:
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`Description
`Exhibit
`Ex-1001 U.S. Patent No. 9,420,011 (“the ’011 patent”)
`Ex-1002 File History of U.S. Patent No. 9,420,011
`Ex-1005 U.S. Patent Pub. No. 2003/0216923 A1 to Gilmore et al.
`(“Gilmore”)
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`Ex-1006 U.S. Patent No. 6,766,298 B1 to Dodrill et al. (“Dodrill”)
`Ex-1007 U.S. Patent Pub. No. 2006/0256950 A1 to Patel et al. (“Patel”)
`Ex-1008 U.S. Patent Pub. No. 2005/0276391 A1 to Ibbotson et al.
`(“Ibbotson”)
`Ex-1009 U.S. Patent Pub. No. 2003/0202504 A1 to Dhara et al. (“Dhara”)
`Ex-1010 U.S. Patent Pub. No. 2004/0122941 A1 to Creamer et al.
`(“Creamer”)
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`Ex-1011 U.S. Patent No. 5,561,705 to Allard et al. (“Allard”)
`Ex-1012 U.S. Patent Pub. No. 2004/0120479 A1 to Creamer et al.
`(“Creamer II”)
`Ex-1013 Voice Extensible Markup Language (VoiceXML) Version 2.0,
`available at
`https://www.w3.org/TR/2004/REC-voicexml20-20040316/ (W3C
`Mar. 16, 2004)
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`Description
`Exhibit
`Ex-1014 Voice Extensible Markup Language (VoiceXML) VoiceXML
`Version 1.0, available at
`https://www.w3.org/TR/2000/NOTE-voicexml-20000505/ (May 5,
`2000)
`Ex-1016 U.S. Patent No. 6,269,336 to Ladd et al. (“Ladd”)
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`I have also relied on my education, experience, research, training, and
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`knowledge in the relevant art, and my understanding of any applicable legal
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`principles described in this declaration.
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` All of the opinions contained in this declaration are based on the
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`documents I reviewed and my knowledge and professional judgment. My opinions
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`have also been guided by my understanding of how a person of ordinary skill in the
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`art would have understood the claims of the ’011 patent at the time of the alleged
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`invention. For purposes of this declaration, I have been asked to assume that the
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`date of the alleged invention is the earliest claimed priority date: July 18, 2007.
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`I reserve the right to supplement and amend any of my opinions in
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`this declaration based on documents, testimony, and other information that
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`becomes available to me after the date of this declaration.
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`IV. LEGAL STANDARDS
` For purposes of this declaration, I have been asked to opine only on
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`issues regarding obviousness under 35 U.S.C. § 103. I have been informed of the
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`following legal standards, which I have applied in forming my opinions
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`I have been asked to provide my opinions as to whether the cited prior
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`art teaches or renders obvious claims 1-30 of the ’011 patent from the perspective
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`of a person of ordinary skill in the art at the ’011 patent’s priority date in 2007, as
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`described in more detail below.
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` For purposes of this declaration, I have been informed and understand
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`certain aspects of the law as it relates to my opinions.
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`I have been advised and understand that there are two ways in which
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`prior art may render a patent claim unpatentable. First, I have been advised that the
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`prior art can “anticipate” a claim. Second, I have been advised that the prior art can
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`make a claim “obvious” to a person of ordinary skill in the art. I understand that for
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`an invention claimed in a patent to be patentable, it must not be anticipated and
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`must not be obvious based on what was known before the invention was made.
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`I have been advised and understand the information used to evaluate
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`whether an invention was new and not obvious when made is generally referred to
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`as “prior art.” I understand that prior art includes patents and printed publications
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`that existed before the earliest priority date of the patent (which I have been
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`informed is called the “effective filing date”). I have been informed and understand
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`that a patent or published patent application is prior art if it was filed before the
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`effective filing date of the claimed invention and that a printed publication is prior
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`art if it was publicly available before the effective filing date.
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`I have been advised and understand that a dependent claim is a patent
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`claim that refers back to another patent claim. I have been informed and
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`understand that a dependent claim includes all of the limitations of the claim to
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`which it refers.
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`I have been advised and understand that a patent claim may be invalid
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`as obvious under 35 U.S.C. § 103 if the differences between the subject matter
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`claimed and the prior art are such that the claimed subject matter as a whole would
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`have been obvious to a person of ordinary skill in the art at the time the invention
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`was made. I have also been advised that several factual inquiries underlie a
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`determination of obviousness. These inquiries include (1) the scope and content of
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`the prior art, (2) the level of ordinary skill in the field of the invention, (3) the
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`differences between the claimed invention and the prior art, and (4) any objective
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`evidence of non-obviousness (which I have been informed may also be called
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`“secondary considerations”).
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`I have also been advised and understand that, where a party alleges
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`obviousness based on a combination of references, that party must identify a
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`reason why a person skilled in the art would have been motivated to combine the
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`asserted references in the manner recited in the claims and to explain why one
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`skilled in the art would have had a reasonable expectation of success in making
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`such combinations.
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`I have been advised and understand that the law permits the
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`application of “common sense” in examining whether a claimed invention would
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`have been obvious to a person skilled in the art. For example, I have been advised
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`that combining familiar elements according to known methods and in a predictable
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`way may suggest obviousness when such a combination would yield nothing more
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`than predictable results. I understand, however, that a claim is not obvious merely
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`because every claim element is disclosed in the prior art and that a party asserting
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`obviousness must still provide a specific motivation to combine the references as
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`recited in the claims and explain why one would have reasonably expected to
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`succeed in doing so.
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`I have been advised and understand that two references are considered
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`to be in the same field of art when the references are either (1) in the same field of
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`endeavor, regardless of the problems they address, or (2) reasonably pertinent to
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`the particular problem being solved by the inventor in his patent.
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`I am not aware of any evidence of secondary considerations that
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`would support a determination of non-obviousness of the claimed subject matter in
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`the ’011 patent.
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` I have been informed that in inter partes review proceedings, such as
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`this one, the party challenging the patent bears the burden of proving
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`unpatentability by a preponderance of the evidence. I understand that a
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`preponderance of the evidence means “more likely than not.”
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`V. LEVEL OF ORDINARY SKILL IN THE ART
`In rendering the opinions set forth in this declaration, I have been
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`asked to consider the ’011 patent’s claims and the prior art through the eyes of a
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`person of ordinary skill in the art. I considered factors such as the educational level
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`and years of experience of those working in the pertinent art, the types of problems
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`encountered in the art, the teachings of the prior art, patents and publications of
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`other persons or companies, and the sophistication of the technology.
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`I have been instructed to assume a person of ordinary skill in the art is
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`not a specific real individual, but rather a hypothetical individual having the
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`qualities reflected by the factors discussed above.
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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` Taking these factors into consideration, it is my opinion that a person
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`of ordinary skill in the art of the ’011 patent as of its filing date, would have been
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`someone knowledgeable in IVR systems and applications. In my opinion, that
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`person of ordinary skill in the art of the ’011 patent would have at least a
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`bachelor’s degree in Computer or Electrical Engineering, Computer Science, or
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`equivalent engineering discipline, and approximately three years of experience
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`working on remotely-processed applications and data networking, including
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`voice-related applications and voice-over packet technologies.
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` By July 18, 2007, I was at least a person of ordinary skill in the art, as
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`shown by my qualifications and work experience above.
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`In this declaration, and for all of my opinions herein, I have applied
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`the knowledge of a person of ordinary skill in the art as of July 18, 2007.
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`VI. CLAIM CONSTRUCTION
`I have been instructed that the words of a claim are given their
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`ordinary and customary meaning, as they would have been understood by a person
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`of ordinary skill in the art (discussed below) at the time of the invention, in view of
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`the intrinsic record (also discussed below). In this case, I have been instructed to
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`assume that the “time of the invention” for purposes of claim construction is July
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`18, 2007, which is the earliest priority filing date for Hammond’s patent. The
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`opinions herein pertain to that time frame, except where expressly stated otherwise.
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`I have been instructed that the “intrinsic record” of the patent itself,
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`including the claims, description, and figures, and the patent’s prosecution
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`history—i.e., the record of proceedings at the U.S. Patent and Trademark Office
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`(“Patent Office”) concerning the patent. Like the claims and written description,
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`the prosecution history provides evidence to a person of ordinary skill in the art of
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`how the inventor intended his patent to be understood, and how the Patent Office
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`understood the patent. I understand that the inventor is permitted to apply a special
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`definition to the terms or to limit the scope of claim terms in his patent claims,
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`which may differ from the term’s plain and ordinary meaning. That special
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`definition or limitation on scope may be provided in the patent’s written
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`description, the patent’s prosecution history, or both.
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`I understand that claim interpretation may also be informed by
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`“extrinsic evidence” (that is, evidence outside of the patent record itself). I have
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`been informed that extrinsic evidence may include dictionaries, technical treatises,
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`and other materials evidencing the meaning of a claim term and the understanding
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`held by a POSITA in the relevant time period.
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`I have been asked for purposes of this declaration to apply the plain
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`and ordinary meaning of the claim terms as they would have been understood by a
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`person of ordinary skill in the art at the time the ’722 application, to which the ’011
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`patent claims priority on its face, was filed (July 18, 2007).
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`I have also been asked to apply the plain and ordinary meaning of the
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`claim terms as they would have been understood by a person of ordinary skill in
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`the art in May 2006. My opinions set forth below do not change whether the
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`relevant date is July 18, 2007, May 2006, or any time in between since the
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`technology had not changed significantly during that period of time.
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`I understand that no claim term’s construction is in dispute at this
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`time. Based on my review of these materials and my personal knowledge and
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`experience, I have considered each term of the ’011 patent as it would have been
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`understood by one skilled in the art as of July 18, 2007.
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`VII. BACKGROUND OF THE ’011 PATENT
` The ’011 patent application was filed December 19, 2015, and claims
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`priority as a continuation application to July 18, 2007, filing of U.S. Application
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`No. 11/779,722 (now U.S. Patent No. 9,264,483).
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` The ’011 patent describes a communications system, depicted in
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`annotated Figure 1D below.
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`Declaration of Stuart J. Lipoff
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`IPR2020-00411
`U.S. Patent No. 9,420,011
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`Ex-1001, FIG. 1D (annotated).
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` A user’s “communication device” 18 (orange), e.g., PC, PDA, or
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`cellular phone, exchanges information with an “application server” 24 (yellow)
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`over a network 12 (light blue). Ex-1001, Abstract, FIG. 1D. Communication
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`device 18 requests a communication session with application server 24, which
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`requests a voice application 28 from “repository” 20 (green) over a
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`“communication link.” Ex 1001, Abstract, 5:12-24, 6:27-32. Repository 20
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