Trials@uspto.gov
`571-272-7822
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`Paper No. 53
`Entered: March 17, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE, INC.,
`Petitioner,
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`v.
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`KOSS CORPORATION,
`Patent Owner.
`_______________
`
`IPR2021-00255
`Patent 10,298,451 B1
`_______________
`
`Record of Oral Hearing
`Held Virtually: March 3, 2022
`_______________
`
`
`
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`Before DAVID C. MCKONE, GREGG I. ANDERSON, and
`NORMAN H. BEAMER, Administrative Patent Judges.
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`571-272-7822
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`
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`Paper No. 53
`Entered: March 17, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`_______________
`
`IPR2021-00255
`Patent 10,298,451 B1
`_______________
`
`Record of Oral Hearing
`Held Virtually: March 3, 2022
`_______________
`
`
`
`
`Before DAVID C. MCKONE, GREGG I. ANDERSON, and
`NORMAN H. BEAMER, Administrative Patent Judges.
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`
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`
`
`IPR2021-00255
`Patent 10,298,451 B1
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`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`W. KARL RENNER, ESQ.
`Fish & Richardson P.C.
`1000 Maine Avenue SW
`Washington, D.C. 20024
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`LAUREN MURRAY, ESQ.
`K&L Gates LLP
`210 Sixth Avenue
`Pittsburgh, PA 15222
`412-355-6500
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, March 3,
`
`2022, commencing at 11:00 a.m. EST, by video/by telephone.
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`IPR2021-00255
`Patent 10,298,451 B1
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`P R O C E E D I N G S
`- - - - -
` (Proceedings begin at 11:00 a.m.)
` JUDGE BEAMER: Good morning, this is Judge
`Beamer. With me are Judges McKone and Anderson. We have
`two IPR matters before us. The first one is IPR 2021-
`00255, Apple, Inc., versus Koss Corporation.
` Could counsel for Petitioner make an appearance?
` MR. RENNER: Yes, Your Honor. This is Karl
`Renner from Apple on behalf of Petitioner. And I'm joined
`today by several people: David Holt and Ryan Chowdhury and
`Garrett Sakimae.
` JUDGE BEAMER: Thank you.
` Patent Owner?
` MS. MURRAY: Hello. This is Lauren Murray for
`Koss, and I'm joined today by Mark Knedeisen, Regge
`Gabriel, and Brian Bozzo.
` JUDGE BEAMER: Thank you.
` During opening remarks, since this is a video
`hearing, first priority is to make sure everyone can be
`heard. If, at any time, anyone has difficulties or is
`disconnected, please speak up. Or if you are disconnected,
`you may need to contact the team who originally provided
`you with the connection information. If you do drop off,
`try to note where things were being discussed at the time
`so we can pick up at the proper point. Anyone who's not
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`speaking, please mute your mic and only unmute when you are
`speaking. And identify yourself when you speak so that the
`transcript reflects the speaker correctly.
` When referring to an item on the record or a
`slide in your presentation, please specify the slide number
`or the citation so the Panel can follow along and so the
`transcript is clear. I understand this is a public line.
`There may be members of the public listening in.
` So with that, Petitioner, you have 60 minutes for
`your presentation. Do you want to reserve any time for
`rebuttal?
` MR. RENNER: Yes, Your Honor. We'd like to
`reserve 20 minutes, please.
` JUDGE BEAMER: Okay. So that's 40 minutes for
`your opening, and you may begin when ready.
` MR. RENNER: Slide 2, if I may?
` Your Honors, five grounds were instituted in this
`proceeding, as you're well aware, and Koss, with respect to
`them, did not challenge the sufficiency of the grounds
`themselves and the combination to meet any of the claim
`limitations that were challenged in any of the claims.
`Additionally, there are grayed-out combinations that are
`shown here in this slide, and the secondary references
`added by those grayed-out combinations were not at issue,
`either. They weren't challenged for combination or
`otherwise. Koss' sole dispute is over whether or not the
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`Patent 10,298,451 B1
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`Brown and Scherzer reference combination is an appropriate
`one that can be made and obvious held up for it.
` Slide 3, if I may? The table of contents here,
`we show -- lists a few items that are not surprisingly
`centered on the Brown reference, the Scherzer reference,
`and their combination. We'll take some time to review
`those together just to make sure we're all speaking from
`the same slate before hitting the topics for discussion
`enlisted as one, two, and three, and those are arguments
`that were offered by Koss to suggest that that combination
`is not a fair one, teaching away, hindsight, and indicia of
`non-obviousness.
` If we go to slide 7, please? Here, we look at
`Brown, and the next slide, we'll look at Scherzer. This
`slide, we talk about Brown as a means of permitting
`cellular incapable devices, an iPad, for instance, access
`to the internet through secured access points. In greater
`detail, and as you can see in the upper left-hand side,
`quote, Brown as described as 'enabling access -- automatic
`access of a first mobile electronic device -- a device 101
`is how it's depicted -- to at least one network, the
`internet, for instance. And it's done -- it's made
`accessible by a second mobile electronic device, device
`105, and that might be a smartphone or something that has a
`cellular connection, by sending wirelessly to the first
`device credentials that are needed for leveraging an access
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`Patent 10,298,451 B1
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`point to that network.
` Now, in doing so, Brown addresses a problem that
`was well known at the time, and it talks about that.
`Devices having no cellular capability; those devices rely
`on wireless access points to get in connectivity. But
`those devices are limited in how they can figure out what
`the credentials are to a secured access point through which
`they might want to connect. Conventionally, they can be
`plugged into that device, or those credentials could be
`manually entered, potentially, into the interface. But
`those are time-consuming and cumbersome ways of doing
`things.
` So Brown offers that instead of doing that, we
`can do it wirelessly, conveniently. And in doing so, the
`device 101, which lacks, conventionally, any connectivity,
`the iPad in this case, that it leverages a smartphone or
`some other device that has a cellular connection, and it is
`aware of the access credentials for a secured wireless
`access point. Now, it leverages that because it has a
`Bluetooth connection that's talked about by Brown with that
`device, and over that Bluetooth connection, it can solicit
`and receive those credentials. And that's shown here, just
`as an exemplary figure 2, as depicted on slide 7 here.
` On the right, you see the device 105. In this
`case, that's the smartphone, the device that has the
`cellular access. But more importantly, the one that knows
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`about the credentials, those access credentials of the
`access point. And on the left, you have the device that is
`unaware of them, the one that's seeking those credentials.
`In this process, Steps 201 and 203, performed by each
`respected device, is to establish a Bluetooth connection
`between them, says Brown.
` Next, in Steps 205 and 207, which work in tandem,
`there's a request made for those credentials that request
`as it received and it's honored. It's -- there's a
`transmission made by the device 105 of those credentials
`back. And after that, you can get a connection through 101
`to the internet through the access point. It's a fairly
`basic process. It's important to note a few things that
`are not said by Brown, and this is going to become
`important as we get deeper into our conversation. Brown
`doesn't impose limits on the connections that are made
`between the devices in 201 and 203. It doesn't speak to
`that.
` It doesn't speak to whether or not to share
`credentials -- to request to use this without limitation.
`Again, it's leaving this to those of skill. It's not
`saying that you can't. It's not saying you shouldn't.
`It's not saying you should. It's just not addressing that
`issue. It's silent as to that issue. So it's not clear
`from Brown that you'd leave anything open or anything just
`completely unavailed (sic) to any kind of limitation.
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` Now, when we look at slide 8, please, we can look
`at the Scherzer reference; spend a few minutes on that.
`Like Brown, Scherzer's also concerned with enabling access
`to devices to the internet through secured wireless access
`points. Even those that are unfamiliar, and particularly,
`those that are unfamiliar, access points, that is, to the
`device that's seeking access.
` But rather than focusing on a device like the 101
`device of Brown, which had no cellular access, Scherzer is
`all about enabling a device that has cellular to use a
`wireless access point instead of cellular access. And in
`that sense, it reroutes the traffic. Now, indicated in the
`top left box, Scherzer offers those types of devices the
`ability to share, through a server, credentials used to
`access each other's access points.
` If a community of users, each of which
`register access information for their wireless access
`points with the server, and because each one registers that
`information, they have access to one another's credentials.
`And in that sense, users can solicit credential information
`for a wireless access point that is unknown or unfamiliar
`to them when they get close to it.
` In doing so, as the second text box indicates,
`Scherzer permits each user to access the internet through
`access points that it's not familiar with and from an
`increased number, therefore, of locations and devices. The
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`Patent 10,298,451 B1
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`location is where the access points are secured by others,
`but the credentials for which are hosted are made available
`to Scherzer's -- its 105 device through its server. Now,
`Dr. Cooperstock, we think, captures this pretty well in the
`lower left text box. He says, and I'll quote from it -- or
`I'll read from it, generally.
` The client enables a user to obtain access
`information for a location where the user is not able to
`use their own access point. So this is a location where I
`either don't have an access point or the access points,
`somehow, are just not available to me. And it's going to
`allow that user to leverage the access information that's
`made available through Scherzer, of course, server, to gain
`access to the internet using the corresponding access point
`of another party.
` In greater detail, we see that Scherzer describes
`that the server stores access information for its secured
`access points. Now, why would a user register its private
`-- its secured access point information to the server? Why
`would it make it available? This is kind of the magic, one
`of the pieces of Scherzer that's important. Scherzer --
`according to Scherzer, each user that registers, as
`mentioned before, by that active registration, it gains
`access to the credentials that allow it to access the
`internet through other parties who also register its access
`point. It's a community.
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` And in this way, Scherzer encourages users to
`make their access credentials known and available on that
`server. In doing so, it offers each party the ability to
`expand the access, as mentioned, and enjoy access beyond
`that, which is provided by its own access points. Now, it
`addresses an issue that's been left open, you can see, with
`Brown. And that is, how does a device 105 in Brown gain
`access to the access point of another when moved to a new
`location? It's give to get. That's what Scherzer's really
`about. It can answer that question by a give-to-get
`scenario.
` If the 105 user has or does register its
`credentials of an access point that it has with the server,
`it will avail itself of the access credentials of others
`who have done the same. And so as it's moved to a new
`location where it is unfamiliar with an access point that's
`local, it can gain access by Scherzer's system in that
`sense. But I'm getting ahead of myself. I want to get to
`the combination in a minute.
` Before I get there, I do want to say a few things
`about what Scherzer doesn't do. Much like we talked about
`how Brown doesn't do a few things, it's important to see
`what Scherzer does not do. Scherzer proposes no
`limitations. It's much like Brown in a sense. No
`limitations on the use of credentials that have been
`granted by and disseminated by its server to a requesting
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`user.
` Once its server determines that a user is
`able to access credentials, that it's a registered user, it
`hands that user credentials and that user has full
`discretion over what to do with those credentials. There's
`no limitation, and there's no process imposed by Scherzer
`that controls what that user does with those credentials.
` JUDGE BEAMER: Counsel?
` MR. RENNER: Please, Your Honor.
` JUDGE BEAMER: On figure 4, which you have on
`slide 8, as I understand it, this is a flow chart of steps
`that are done by the software that's installed on a client
`interacting with a search or a server. So, for example,
`selecting an access point, Step 404 is done by the software
`attempting a connection that's done by the software;
`determining whether the connection is successful is done by
`software.
` So my question is, does the user, knowing that
`he's hoping going to get a connection that works, but does
`the user have any access to the credentials, or is the --
`or is this entirely internal to a software client that
`arguably is not making the credentials available at all to
`the user? Otherwise, how can they -- how can the
`Scherzer system track usage can allocate bandwidth in a
`fair way as Defendant has, you know, pointed out? The
`corroborative -- community corroboration aspects of
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`Scherzer.
` MR. RENNER: That's a great question. I'm glad
`you asked. We were about to move to figure 4, in fact, in
`this flow diagram. So I'm glad we're there now, thank you.
` The user, as it's interfacing with the wireless
`access point, it is submitting, of course, the credentials
`it has received from the server. And if those access -- if
`the access information that it has, and as a client, that
`if you see -- well, we'll go to that later on. There's a
`client that gets put into the combination on the device.
`In fact, let's go ahead and look at slide 10, for instance.
`You can see there's a client there, an application, that's
`laid into the 105 type device we've been talking about, and
`that allows you to store access credentials. But more than
`that, it allows you to go get them from the server.
` And once you're in possession of these access
`credentials, much like any exchange between a device that
`possesses access information and a device that needs the
`access information, the credentials, in order to grant
`access, you submit those credentials to the device that is
`the wireless access point. So in the example that you
`mentioned in the figure 4 example, there's a submission
`that goes on from the client on that device or the device
`itself to the host.
` I want to mention something that's really
`important about your question, and that is the question
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`talks about the fairness aspect about the equity and about
`how much usage or how much control, and that's a theme
`that's been promoted by the Patent Owner. And we
`appreciated they referred to that theme, but that theme in
`their -- in the papers that is the Scherzer reference is
`specific to particular embodiments of that reference.
` And if you look, for instance, at paragraph 20
`describing figure 1 -- actually, if you look, for instance,
`at -- well, before that, if you look, for instance, at the
`brief description of the drawings just to set this up,
`paragraph 7 through 10, for instance, each of these figures
`is described by the Scherzer author as a different
`embodiment. Each one of these describes a different
`embodiment. That's just how Scherzer described this
`application. He's got some language in here that tells you
`that. It says figure 1, for instance, is a block diagram
`illustrating an embodiment of the system.
` Figure 2 is a flow diagram illustrating an
`embodiment. It goes on; each one is done this way. And
`when you receive the information later on, paragraph 20,
`for instance -- and this will happen in each one of the
`figure discussions, you'll see that figure 1 is a block
`diagram illustrating an embodiment again. And in this
`example shown, you've got a lot of qualifications in
`various embodiments, things that go on beyond that.
` But in figure 1, which is an embodiment, there is
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`no discussion, none, of any sort of access control, any
`sort of account. There is discussion of how this works,
`and it's a reference to registration. When a user
`registers, that's the give if you gave your credentials,
`and in response, you get the opportunity to access. And
`once you get the access, you can do with the credentials --
`well, Scherzer just doesn't tell us what you do, nor does
`it speak to the equity in this embodiment, nor in the next
`embodiment, figure 2.
` So the first two embodiments, the second
`embodiment actually speaks to an account that is said to be
`set up after registration, but that account is not detailed
`in terms of how it's used, what kind of limitations, if
`any, are imposed as a consequence. Is it just tracking?
`What is there for? It's not until you get to the third
`embodiment that you start talking in this reference; that
`this reference starts teaching, in terms of its
`embodiments, that you need to limit things to tracking
`usage or otherwise surveying what users are doing.
` So --
` JUDGE BEAMER: Counsel, was there any point in
`the process that clearly discloses that you can just take
`the access credentials and put them in a memory location
`that's then accessible to the user, you know, for the rest
`of their life? And, you know, at any -- to continue to use
`it, you know, anyway they want?
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` MR. RENNER: Your Honor, we submit that the first
`and second examples are exactly such disclosure. By not
`limiting, they're telling us that it's not limited. And by
`actually introducing that concept, later in a third
`embodiment, we see that that concept is not necessarily
`imparted on those first two embodiments, for instance.
`And, again, we're not suggesting that you can't. This is
`really an important point here.
` We're not suggesting that it's impossible to, in
`fact, limit Scherzer this way, or to apply its figure 3
`embodiment, or to do things that it does disclose at
`various parts. What we're suggesting is that Scherzer
`offers a broader teaching, and that broader teaching is
`that a quid pro quo can be achieved by just looking at the
`registration process. If I give access credentials, I get
`them. Beyond that, there's a whole host of user choices or
`designer choices that could come in, on what level, if any,
`that you're going to regulate the access by parties.
` And they do describe it in figure 3, one
`possibility there, and that would be to use certain
`accounts and regulate in that way. But it's also possible
`that simply the act of requiring a user to give its
`credentials, because that's a give, is what justifies the
`get. And this is a close community of people, in theory.
`That's what's been promoted by Koss. So that group of
`people, if they're concerned about security, you would
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`think they would self-administer. And if that's not
`sufficient, well, then you go to step 2, and they could
`start to impose things like encryption. But we don't see
`any discussion of that.
` And when you look at the figure 4 figure and the
`discussion around it and the wireless access point, I think
`it's telling that there's no description about how a
`wireless access point is doing anything other than looking
`at the use -- the credential, the information that has been
`provided to it. There's registration information discussed
`in this -- in the Scherzer reference, and it includes a
`variety of things. There's -- additionally, that there's a
`user information -- to access information, sorry, that is
`discussed in it. And it's the access information that's
`being referenced in reference to figure 4.
` That access information, when you look into the
`Scherzer specification, paragraph 25, it shows you that the
`access information -- it gives you examples of it, and
`those examples are peculiar to the wireless access point,
`the SSID; the WEP; the WPA security credential. These are
`things that are (indiscernible). That's what you provided.
`It doesn't tell us anything about the user. Doesn't tell
`us anything about the user's device. So if you possess the
`credential and you give it to them, according to figure 4,
`you get your access.
` And, again, it's possible to layover that; it's
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`just the question is, is that necessary? Is that a
`necessary part of Scherzer? Could a person of skill look
`at Scherzer and say, well, that's detail, and I could
`choose to enhance, or not, the security provided on those
`access credentials. But that detail is just some
`embodiments. Figure 3, for instance. And what I have in
`Scherzer is the means by which I allow a user that lacks
`credentials to go get them. And to share its credentials
`in that process with others to allow them to go get them.
`That's the broadest teaching we believe of Scherzer.
` JUDGE BEAMER: Okay. Thank you.
` MR. RENNER: Certainly, Your Honor. Certainly.
` So at slide 10, let's stay there for just a
`moment and talk about the combination and maybe how we saw
`this as a motivated combination by the references
`themselves. And what we really have here is, in the top
`left, we've talked about the client in this situation, has
`a -- the 105 device, has a client installed in it, and that
`allows it to talk with the server to go request
`credentials. And so you know that the requester itself,
`it's a user that's registered because it got that client by
`registering.
` Once it receives those credentials, what does it
`do? In the combination, it shares them. It shares them if
`it has established a Bluetooth connection with a device
`local to it. And therefore, there's got to be a
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`Patent 10,298,451 B1
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`decisioning there, but Brown isn't really too concerned
`with that decisioning. But before you make that
`combination, what you have to appreciate, we believe, in
`slide 12, is that if you just move the device, if you have
`a pairing -- and this is what our combination really was.
`This is what the hypothetical was that was provided, and it
`was demonstrated in the petition, as well as in the
`declaration.
` If you have a smartphone and an iPad, for
`instance, and a user has those two devices, Brown tells us
`that it's foreseeable that they get moved. It foreshadows
`that. So if you move those devices to an area where that
`particular user doesn't have access to an access point, the
`access points there, that is secured. If what you have is
`just Brown, you're stuck because neither of device 101 or
`device 105 is able to discern what those credentials for
`that access point are without doing the things that Brown
`criticizes. Plugging in, typing in, those kinds of things.
`They don't get wireless access. After all, 105 doesn't
`know what it is, and 105 is what's going to give 101 its
`access.
` But similarly, if you look at Scherzer, Scherzer
`only deals with a device like 105. And it allows you,
`perhaps, to go to the -- from a client up to the server to
`get the credentials for its own use, but Scherzer has no
`means of giving those credentials to a device like 101 of
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`Brown. So this combination of Scherzer and Brown is the
`means by which you allow users to move their devices in
`tandem, in pairs, from one location to another. And even
`to a location where they personally don't have a wireless
`access point. You can't do that with either --
` JUDGE BEAMER: Counsel, why wouldn't this person
`register both devices at his home base before he went to
`this new location that didn't -- you know, that the --
`where he needed to use somebody else's access point?
` MR. RENNER: That's an excellent question, but
`we're all forgetful, and we're all in a hurry, and
`sometimes we just don't have time, energy, or otherwise.
`It's possible they could do that, and that would solve some
`class of problem. But that class of problem is where the
`devices are familiar in some way with the wireless access
`point that they now encounter. It might even go to a place
`where you didn't know you were going, and you can't
`possibly download things ahead of getting to that place.
` They argued -- this is an argument that was made
`in the surreply. We disagree with this argument because it
`only addresses a class of the problems. There's still left
`open the class of problems where when you get to where
`you're going, it didn't do that for whatever reason. And
`one of those reasons is you didn't even know you'd be where
`you're going. Now, you're near access points that are just
`unfamiliar to you, and you're -- again, you're stuck.
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` The solution that's solved by the combination is
`to never leave you in a situation where you even have to
`contemplate preloading, nor do you have to be worried about
`landing in a place when you're not near a familiar device.
` JUDGE BEAMER: Okay. Thanks.
` MR. RENNER: Sure.
` Okay. So I think we've got the bullet points on
`the combination done pretty well here, but by leveraging
`these together, the credentials of the unfamiliar access
`point can be secured by that smartphone and then passed
`along. And so you end up, through Scherzer's opportunity,
`you can get the credentials you don't have access to if you
`hadn't downloaded and hadn't been planning ahead, or you
`land someplace you don't know. And then, through Brown,
`you're able to pass them along.
` Again, neither reference, when I go back to the
`very first comments I made in either reference, tell us
`whether or not to secure things, whether or not to impose
`restrictions on the Bluetooth, for instance. But both are
`open to this. There's no -- there's nothing in these
`references that says -- Brown doesn't say you can't do
`that. And so when you're bringing Scherzer to bear, if you
`do have these kinds of concerns, if this is of interest to
`you, then, by all means, it's possible for you to bring
`that into the combination. But that will be additive, and
`we'll talk more about that as we go forward.
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` Now, if we could, please, we'll go to slide 14.
`And it does mention that everything I'm talking about is in
`the petition and the evidence that we're talking about
`here. This is the combination we started with. The
`hypothetical that we went through, it's laid out in gory
`detail. This is all material that Your Honors saw, and
`frankly, the arguments that are before us, about teaching
`away and hindsight, these also were before you, before you
`got to the institution decision. And I hesitate always
`referencing institution decisions because these are
`preliminary decisions; they're not our final decision.
` And -- but when I see in the writing that isn't
`about the decision made in them, but instead, is about the
`impressions gained of prior art or combinations or whatnot,
`I like to bring those and draw some attention to them. So
`slide 14 is an opportunity to do just that. And here,
`after considering the combination, and I thought fairly
`carefully because it was rewritten in ways, it was deemed
`to be reasonable and appropriate.
` And I'll quote here, The example where one device
`makes use of a cellular capability -- that is to get the
`credentials it lacks, and a second device not having
`cellular access makes use of what's been obtained by the
`Brown transfer technique. It's that that was thought to be
`realistic and appropriate, and that's exactly the
`combination that we had set forth in the petition.
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` Looking at slide 16, please. We also offered
`another example. I won't call it a second example because
`it's ironically identified as the first example in the
`papers to avoid confusion. In this example, it reiterates,
`effectively, that the combination, it doesn't destroy what
`Brown has made available. And if the 105 device does
`happen to have preloaded, for instance, in your example,
`you know, the credentials of a wireless access point that
`it's close to, or it just, otherwise, is familiar, the
`combination works just fine. It works just fine, just like
`Brown did. And that's what this example helps us to
`understand.
` Now, before turning to the arguments in specific
`that were made by Koss, I just want to review the billings
`here for a minute. We see no dispute at this point. We've
`talked about the combination; we see no dispute. Over the
`foreseeability of the connections and the issues that are
`involved in the connections that we talked about in the
`example, we see no dispute over the fact that the
`combination that we brought to bear solves or addresses
`that problem. And we see no dispute still over any of the
`elements being met by that combination in the claim.
` And we submit to you that's a prima facie case of
`obviousness, and it's not one that's motivated in any way
`at all by the patent. This is all about what use cases are
`seen to be foreseeable, and how complications arise, and
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`how they can be solved. Before I move into the arguments
`made, were there any other questions about the combination?
`I want to make sure we've got a really solid underpinning
`there before we move in.
`
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