`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`KOSS CORPORATION,
`Patent Owner.
`
`
`IPR2021-00600
`U.S. Patent No. 10,298,451
`
`
`
`PATENT OWNER SUR-REPLY
`
`
`
`
`
`
`505742465.8
`
`
`

`

`
`
`
`
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
`TABLE OF CONTENTS
`
`
`C.
`
`3.
`
`
`I.
`INTRODUCTION ............................................................................................... 1
`II. KOSS’S UNREBUTTED POSITIONS .............................................................. 2
`A. McAlexander’s Testimony Regarding a POSITA’s Knowledge of
`Security Features and MAC Address Filtering Is Unrebutted ................... 2
`B. Apple Argued Against “Teaching Away” Arguments Instead of
`Koss’s “References As a Whole” Arguments ............................................ 5
`Problems With The Examples Were Ignored ............................................. 6
`1.
`Scherzer Is Superfluous to the First Example ...................................... 6
`2. A “Snowball-Effect” Results In Widespread, Unfettered
`Dissemination of Scherzer’s Access Credentials ................................ 7
`The Combination Creates a Disincentive to Register with
`Scherzer’s System ................................................................................ 9
`D. Apple Did Not Rehabilitate Cooperstock’s Credibility ........................... 10
`III. FATAL FLAWS IN APPLE’S COUNTERARGUMENTS .............................12
`A.
`Scherzer’s UCAs are Not Limited to Specific Embodiments .................. 13
`1.
`Scherzer’s Use of “In Some Embodiments” Does Not Mean
`UCAs Are Optional ............................................................................ 13
`Exclusion of Scherzer’s UCA Functionality Is Not “Fair” and
`“Equitable” ......................................................................................... 15
`Incorporating Scherzer’s Teachings Related to UCAs Is Not
`Improper Bodily Incorporation .......................................................... 16
`“Unfettered Dissemination of Access Credentials” Results From
`The Combination ...................................................................................... 16
`Scherzer and Subramaniam Are Disparate Systems ................................ 17
`C.
`D. Koss’s Alternative Is Preferable ............................................................... 18
`
`2.
`
`3.
`
`B.
`
`
`
`- i -
`
`

`

`
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
`
`
`IV. THE EVOLUTION OF APPLE’S COMBINATION .......................................19
`A.
`Initial Combination ................................................................................... 20
`B. Revised Combination ............................................................................... 20
`C. Revised Combination Exposes Inconsistencies ....................................... 22
`V. APPLE’S ATTEMPTS TO DISPEL EVIDENCE OF HINDSIGHT ARE
`INSUFFICIENT .................................................................................................23
`VI. COMMERCIAL SUCCESS ..............................................................................25
`VII. CONCLUSION ..............................................................................................28
`
`
`
`
`
`
`
`
`- ii -
`
`

`

`
`
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
` Page(s)
`
`Cases
`Arctic Cat Inc. v. Bombardier Recreational Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017) ............................................................................ 5
`Demaco Corp. v. F. Von Langsdorff Lic. Ltd.,
`851 F.2d 1387 (Fed. Cir. 1988) .......................................................................... 27
`FanDuel, Inc. v. Interactive Games LLC,
`966 F.3d 1334 (Fed. Cir. 2020) .......................................................................... 21
`Fox Factory, Inc. v. SRAM, LLC,
`944 F.3d 1366, 1373 (Fed. Cir. 2019) …………………………….................. 26
`In re Huang,
`100 F.3d 135, 140 (Fed. Cir. 1996) ………………………………………….. 26
`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ……………………………………………….25
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006) ............................................................................ 24
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) ……………..……...........................................10
`In re NTP, Inc.,
`654 F.3d 1279 (Fed. Cir. 2011) ............................................................................ 7
`Rembrandt Wireless Tech., LP v. Samsung Elecs. Co. Ltd.,
`853 F.3d 1370 (Fed. Cir. 2017) ............................................................................ 5
`TriVascular, Inc. v. Samuels,
`812 F.3d 1056 (Fed. Cir. 2016) .......................................................................... 10
`
`
`
`
`
`- iii -
`
`

`

`
`
`
`
`
`
`
`
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
`EXHIBIT LISTING
`
`DESCRIPTION
`EXHIBIT NO.
`KOSS-2001 Docket Report, Koss Corp. v. Apple Inc., Case No. 6:20-cv-
`00665-ADA (W.D. Tex.) (accessed June 15, 2021)
`
`KOSS-2002
`
`Joint Claim Construction Statement, Koss Corp. v. Apple Inc.,
`Case No. 6:20-cv-00665-ADA, Dkt. 68 (W.D. Tex. April 14,
`2021)
`
`KOSS-2003 Docket Report, Apple Inc. v. Koss Corp., Case No. 4:20-cv-
`05504-JST (N.D. Cal.) (accessed June 15, 2021)
`
`KOSS-2004 Order Denying Defendant’s Motion to Transfer, Koss Corp. v.
`Apple Inc., Case No. 6:20-cv-00665-ADA. Dkt. 76
`(redacted/public version) (W.D. Tex. April 22, 2021)
`
`KOSS-2005 Order Granting Motion to Transfer, Apple Inc. v. Koss Corp.,
`Case No. 4:20-cv-05504-JST, Dkt. 72 (N.D. Cal. May 12,
`2021)
`
`KOSS-2006
`
`Joint Motion to Consolidate Cases, Koss Corp. v. Apple Inc.,
`Case No. 6:20-cv-00665-ADA, Dkt. 84 (W.D. Tex. June 8,
`2021)
`
`KOSS-2007 Order Setting Markman Hearing, Koss Corp. v. Apple Inc.,
`Case No. 6:20-cv-00665-ADA, Dkt. 58 (W.D. Tex. March 24,
`2021)
`
`KOSS-2008 Claim Construction Order, Koss Corp. v. Apple Inc., Case No.
`6:20-cv-00665-ADA, Dkt. 83 (W.D. Tex. June 2, 2021)
`
`KOSS-2009 Order Denying Defendant’s Motion to Transfer, Kerr Machine
`Co. v. Vulcan Industrial Holdings, et al., Case 6:20-cv-00200-
`ADA, Dkt. 76 (W.D. Tex. April 7, 2021)
`
`KOSS-2010 Order Governing Proceedings - Patent Case, W.D. Tex., Waco
`Division, Judge Albright, Feb. 23, 2021
`
`- iv -
`
`

`

`
`
`
`
`
`
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
`EXHIBIT NO.
`KOSS-2011
`
`DESCRIPTION
`Petition for Inter Partes Review, IPR2021-00255, November
`25, 2020
`
`KOSS-2012 R. Davis, “Albright Says He’ll Very Rarely Put Cases On Hold
`For PTAB,” Law360, May 11, 2021
`(www.law360.com/articles/1381597/print?section=ip)
`(accessed June 14, 2021)
`
`KOSS-2013 Order, In re Apple, Inc., Case No. 21-147, D.I. 25 (Fed. Cir.
`Aug. 4, 2021)
`
`KOSS-2014
`
`Patent Owner’s Request For Additional Discovery
`
`KOSS-2015
`
`KOSS-2016
`
`“Apple introduces HomePod mini: A powerful smart speaker
`with amazing sound,” Apple Newsroom, Oct. 20, 2020
`(www.apple.com/newsroom/2020/10/apple-introduces-
`homepod-mini-a-powerful-smart-speaker-with-amazing-
`sound/) (last accessed Sept. 9, 2021)
`“HomePod reinvents music in the home,” Apple Newsroom,
`Jun. 5, 2017 (www.apple.com/newsroom/2017/06/homepod-
`reinvents-music-in-the-home/) (last accessed Sept. 9, 2021)
`
`KOSS-2017 D. Curry, “Apple Statistics (2021),” Business of Apps, Aug.
`16, 2021 (www.businessofapps.com/data/apple-statistics/) (last
`accessed August 18, 2021)
`
`KOSS-2018 Apple Inc., Form 10-K, for fiscal year ended September 26,
`2020
`
`KOSS-2019 C. Gartenberg, “Apple drops HomePod price down to $299,”
`The Verge, Apr. 4, 2019
`(www.theverge.com/2019/4/4/18295084/apple-homepod-price-
`cut-299-smart-speaker) (last accessed Sept. 16, 2021)
`
`- v -
`
`

`

`
`
`
`
`
`
`
`IPR2021-00255
`Patent Owner Sur-Reply
`
`DESCRIPTION
`EXHIBIT NO.
`KOSS-2020 A. King, “HomePod Sales Grow 180% After HomePod Mini
`Launch,” Digital Music News, Jul. 30, 2021
`(www.digitalmusicnews.com/2021/07/30/homepod-sales-
`2021/) (last accessed Sept. 9, 2021)
`
`KOSS-2021 G. Rambo, “HomePod set up similar to AirPods, requires
`iCloud Keychain & two-factor auth,” Jan. 24, 2018
`(9to5mac.com/2018/01/24/homepod-setup-process/) (last
`accessed September 16, 2021)
`
`KOSS-2022
`
`“HomePod arrives February 9,” Apple Newsroom, Jan. 23,
`2018 (www.apple.com/newsroom/2018/01/homepod-arrives-
`february-9-available-to-order-this-friday/) (last accessed Sept.
`16, 2021)
`
`KOSS-2023
`
`Sept/Oct 2021 Email chain with Board re filing Motion
`
`KOSS-2024 Reserved
`
`KOSS-2025 Deposition Transcript, Prof. Jeremy Cooperstock, Ph.D.,
`IPR2021-00600, November 5, 2021
`
`KOSS-2026 Declaration by Joseph C. McAlexander III
`
`KOSS-2027 Deposition Transcript, Prof. Jeremy Cooperstock, Ph.D.,
`IPR2021-00600, April 22, 2022
`
`KOSS-2028 U.S. Patent No. 8,751,648
`
`
`
`
`- vi -
`
`

`

`
`I.
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`INTRODUCTION
`Koss submits this Sur-Reply to Apple’s Reply (Paper 36, “Reply”). Apple
`
`failed to show that claims 1-21 (“Challenged Claims”) in U.S. Patent No. 10,298,451
`
`(“the ’451 Patent”) are invalid. The Board should confirm the patentability of the
`
`Challenged Claims.
`
`
`
`Koss’s Patent Owner Response (Paper 20, “POR”) explained that a POSITA
`
`would not attempt to use Scherzer’s access credentials with an unrecognized device
`
`as proposed in Apple’s Scherzer-Subramaniam combination (“the combination”).
`
`Apple’s Reply focused on proving that Scherzer’s user contribution accounts
`
`(UCAs) and associated functionality are optional and would be excluded from the
`
`combination. However, without these features, the combination would lead to
`
`widespread and unfettered dissemination of Scherzer’s access credentials and
`
`corresponding network access by unrecognized devices, which undermines
`
`Scherzer’s collaborative intent and discourages users from registering with
`
`Scherzer’s system. Apple’s arguments fail for at least the following reasons.
`
`
`
`First, many arguments and corroborating evidence in the POR, which show
`
`that a POSITA would not implement the combination, are unrebutted.
`
`
`
`Second, Apple’s counterarguments to Koss’s four criticisms of the
`
`combination misconstrue and/or ignore arguments that are determinative to the
`
`obviousness analysis.
`
`- 1 -
`
`

`

`Third, the combination has evolved to impose limits on the dissemination and
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`
`
`
`use of Scherzer’s access credentials.
`
`
`
`Fourth, Apple attempted to dispel evidence of hindsight with new assertions
`
`of predictability. In addition to being untimely, the new predictability assertions rely
`
`on circuitous reasoning.
`
`
`
`Finally, the commercial success of the HomePods is a direct result of
`
`practicing the Challenged Claims and confirms non-obviousness.
`
`
`
`II. KOSS’S UNREBUTTED POSITIONS
`
`Apple’s Reply and Cooperstock’s Supplemental Declaration failed to rebut
`
`arguments and evidence in the POR that show that the combination would not have
`
`been obvious.
`
`A. McAlexander’s Testimony Regarding a POSITA’s Knowledge of
`Security Features and MAC Address Filtering Is Unrebutted
`Koss presented evidence that a POSITA would be aware of security features
`
`
`
`for safeguarding Scherzer’s access credentials and limiting access to Scherzer’s
`
`wireless access points (WAPs). POR, 27; KOSS-2026, ¶¶61-65. McAlexander
`
`testified:
`
`A POSITA implementing Scherzer’s system would utilize security
`
`features …. For example, the Scherzer software client … could use
`
`access credentials from Scherzer’s server without revealing the access
`
`- 2 -
`
`

`

`
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`credentials to the registered user. The Scherzer software client could
`
`also safeguard the access credentials… and preclude the transfer of
`
`access credentials to other devices.
`
`KOSS-2026, ¶64.1
`
`
`
`Apple did not challenge this testimony. Instead, Apple relied on Scherzer’s
`
`silence with respect to security features as evidence that a POSITA would not
`
`incorporate security features into the combination. Reply, 4-5 (citing APPLE-1028,
`
`¶24) (“there is no prohibition in Scherzer….”; “Scherzer provides no teaching…”;
`
`“Scherzer does not teach…”). Inferring disclosure (e.g., exclusion of security
`
`features) from Scherzer’s silence is logically flawed. Furthermore, the absence of
`
`explicit teachings in Scherzer does not rebut McAlexander’s testimony that a
`
`POSITA would know about these security features. Moreover, Cooperstock
`
`acknowledged that a POSITA would be knowledgeable about security features.
`
`KOSS-2027, 39:3-8 (testifying, “[y]es. A POSITA would be aware of encryption.”)
`
`McAlexander also explained that user identifier information provided during
`
`Scherzer’s registration process allows tracking and managing of network access,
`
`such as MAC address filtering, which was known to a POSITA. KOSS-2026, ¶¶60-
`
`62 (“MAC filtering based on a list of MAC addresses … were techniques known to
`
`
`1 Emphases are added to quotations throughout, unless otherwise indicated.
`
`- 3 -
`
`

`

`
`a POSITA…. Scherzer’s system would implement some means of restricting
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`unregistered users and unrecognized devices … such as by MAC filtering….”).
`
`Neither Apple nor Cooperstock challenged McAlexander’s testimony on MAC
`
`addresses for tracking/restricting network access. Instead, Apple merely asserted
`
`that McAlexander’s testimony on MAC address filtering was “uncorroborated.”
`
`Reply, 9.
`
`Scherzer and Cooperstock both corroborate McAlexander’s testimony.
`
`Scherzer describes that MAC addresses can be collected during registration as
`
`“identifier information.” APPLE-1004, ¶[0016]. Cooperstock acknowledged that a
`
`POSITA, upon reading Scherzer, could utilize MAC addresses for tracking. KOSS-
`
`2025, 49:8-12 (“access point could track the amount of data that was transferred …
`
`by virtue of its MAC address”). Cooperstock also testified about MAC address
`
`filtering, “[i]f a network is configured to not allow access to unknown MAC
`
`addresses, or to MAC address that have not identified themselves as belonging to a
`
`user, then the access of those devices could be limited or could be blocked.” Id.
`
`58:11-17. Therefore, both experts described tracking and filtering by MAC address
`
`as techniques available to a POSITA to track Scherzer’s users.
`
`
`
`A POSITA’s understanding of security features like encryption and
`
`tracking/filtering by MAC address is undisputed. The unrebutted evidence shows
`
`that a POSITA would not ignore these consideration and would not combine
`
`- 4 -
`
`

`

`
`Scherzer and Subramaniam such that an unrecognized device could obtain and use
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`Scherzer’s access credentials to obtain corresponding network access.
`
`B. Apple Argued Against “Teaching Away” Arguments Instead of
`Koss’s “References As a Whole” Arguments
`The Reply disregarded Koss’s arguments that a POSITA would not
`
`
`
`implement the combination upon considering the references as a whole, particularly
`
`Scherzer’s collaboration between registered users for their mutual benefit (which
`
`is incompatible with the dissemination and use of access credentials to unrecognized
`
`devices without such usage being tracked/attributed to a UCA) and Subramaniam’s
`
`teachings that access credentials are confidential (which is incompatible with free
`
`dissemination of Scherzer’s confidential access credentials to unrecognized
`
`devices). POR, 40-41 (citing KOSS-2026, ¶¶42-43, 46, 53, 65). Instead of
`
`addressing the “references as a whole” arguments, Apple argued the references do
`
`not explicitly “teach away” because “[m]ere silence does not amount to teaching
`
`away.” Reply, 2. However, Koss demonstrated that “Scherzer does not contemplate
`
`relaying information to unrecognized devices or to unregistered users.” POR, 19
`
`(citing KOSS-2026, ¶58). A “formal teaching away” is not required to refute
`
`Apple’s combination. Rembrandt Wireless Tech., LP v. Samsung Elecs. Co. Ltd.,
`
`853 F.3d 1370, 1379-80 (Fed. Cir. 2017); Arctic Cat Inc. v. Bombardier
`
`Recreational Prods. Inc., 876 F.3d 1350, 1360 (Fed. Cir. 2017) (no motivation to
`
`- 5 -
`
`

`

`
`make combination even without explicit teaching away).
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`C. Problems With The Examples Were Ignored
`The POR explained specific defects in the examples, which were unaddressed
`
`
`
`in the Reply.
`
`Scherzer Is Superfluous to the First Example
`1.
`Reliance on Scherzer in the First Example is misplaced and extraneous
`
`
`
`because the tablet could acquire the access credentials via Subramaniam alone to
`
`access the Internet and download Scherzer’s software client. POR, 44-47. Neither
`
`the Petition nor the Reply explained (a) why the smartphone is initially registered
`
`with Scherzer’s system or (b) why the access information to the work WAP is
`
`uploaded to Scherzer’s system—despite the POR identifying these defects. Instead,
`
`Cooperstock admitted to employing hindsight:
`
`Broadly speaking, the first example is not just an example
`
`of any usage scenario, but specifically, an example of a
`
`usage scenario involving the Scherzer-Subramaniam
`
`combination. This scenario involves application of the
`
`Scherzer-Subramaniam combination,
`
`so Scherzer’s
`
`teachings would already be understood to be incorporated
`
`into the smartphone ….
`
`APPLE-1028, ¶57. In other words, Cooperstock formulated the combination before
`
`- 6 -
`
`

`

`
`considering the allegedly “predictable scenario” modeled in the First Example. Id.,
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`¶55. The combination exploited hindsight to “combin[e] the right references in the
`
`right way so as to achieve the result of the claims in suit.” In re NTP, Inc., 654 F.3d
`
`1279, 1299 (Fed. Cir. 2011) (internal citations and quotations omitted). Cooperstock
`
`then applied the combination to demonstrate the claim recitation related to access
`
`credentials that are stored on a remote server being transmitted to an electronic
`
`device. This is classic hindsight reconstruction.
`
`
`
`Subramaniam alone provides a simplified solution: a POSITA can “use the
`
`tablet to access the Internet while at work” with Subramaniam’s configuration
`
`technique irrespective of the user registering with Scherzer’s system, irrespective of
`
`the smartphone being a recognized device, and irrespective of access credentials to
`
`the work WAP being stored on Scherzer’s server. POR, 44-47. Apple seemingly
`
`recognized the defects in the First Example and abandoned it in the Reply: Apple
`
`only identified the Second Example as the one in which “specific advantages ...
`
`emerge.” Reply, 13. Logically, therefore, advantages do not “emerge” in the First
`
`Example.
`
`2.
`
`A “Snowball-Effect” Results In Widespread, Unfettered
`Dissemination of Scherzer’s Access Credentials
`Apple alleged, “[n]either Koss nor Mr. McAlexander explain how—or cite to
`
`
`
`any evidence suggesting that—a registered user providing credential information to
`
`- 7 -
`
`

`

`
`a commonly-owned devices leads to ‘unfettered access’ to such information.”
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`Reply, 10 (citing POR, 40-41; KOSS-2026 ¶¶42-43, 46, 53, 65.). Apple’s allegation
`
`is false.
`
`
`
`Koss explained that dissemination of Scherzer’s access credentials to an
`
`unrecognized device is problematic even when the unrecognized device is also
`
`owned by the registered user because it “results in a snowball-effect in which device
`
`upon device can freely circulate Scherzer’s access credentials outside the confines
`
`of Scherzer’s community.” POR, 16, fn. 2 (citing KOSS-2026, ¶46) (“Whether an
`
`unrecognized device is owned by a registered user or not is inconsequential to the
`
`concerns described herein…”).
`
` McAlexander testified, “[e]ven when an
`
`unrecognized device is owned by a registered user, the dissemination of access
`
`credentials is not limited to only one unrecognized device or one registered user in
`
`the Petitioner’s combination.” KOSS-2026, ¶46. This is because “a single
`
`unrecognized device can freely obtain and circulate Scherzer’s access credentials
`
`without any practical constraints outside the confines of Scherzer’s community.” Id.
`
`Though Apple’s examples only contemplate the dissemination of access credentials
`
`to a commonly-owned device, a POSITA would have understood that providing
`
`Scherzer’s access credentials and corresponding network access to a first
`
`unrecognized device (e.g. the tablet) opens a Pandora’s Box with respect to
`
`permitting other unrecognized devices to obtain those access credentials/network
`
`- 8 -
`
`

`

`
`access. Id.
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`
`
`Cooperstock confirmed the snowball-effect of access credential dissemination
`
`from a first unrecognized device (even if owned by a registered user) to other devices
`
`testifying that the only limit to the transfer of access credentials from an
`
`unrecognized device is the device’s physical longevity. KOSS-2025, 58:5-8. Even
`
`when the initial transfer is between two commonly-owned devices of a registered
`
`user, “a nearly limitless number of unrecognized devices can freeload….” POR, 38.
`
`
`
`Apple disregarded that the combination permits Scherzer’s access credentials
`
`to be freely and widely disseminated even when the initial transmission of access
`
`credentials is between two commonly-owned devices, as in the examples.
`
`3.
`
`The Combination Creates a Disincentive to Register with
`Scherzer’s System
`The Reply also failed to sufficiently respond to Koss’s evidence that the tablet
`
`
`
`in both examples receives Scherzer’s access credentials prior to registration, which
`
`creates a disincentive for the user to register the tablet with Scherzer’s system.
`
`KOSS-2026; ¶59. Because network access prior to registration would not be tracked
`
`or attributed to an appropriate UCA, the user of the tablet would have free, unlimited
`
`wireless access without corresponding forfeiture of any of his/her own wireless
`
`access. POR, 31. Cooperstock agreed that registration is not “necessary in any
`
`scenario.” KOSS-2025, 44.
`
`- 9 -
`
`

`

`The Reply ignored the disincentive created by the combination and examples
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`
`
`and, instead, simply relied on the Board’s earlier determination. Reply, 5-6 (citing
`
`Institution Decision, 34). The Board stated that Koss’s concerns may be relieved
`
`because the tablet is ultimately registered with Scherzer’s system. Paper 9 at 34.
`
`However, at the time of the Institution Decision, Cooperstock’s testimony was
`
`unrebutted. Since the Institution Decision, Koss provided compelling evidence from
`
`McAlexander describing why Scherzer’s teachings would not be implemented as
`
`Apple and Cooperstock proposed, and explaining the disincentive created by the
`
`examples. KOSS-2026; ¶59. “[T]he Board has an obligation to assess the question
`
`anew after trial based on the totality of the record” and should “change its view of
`
`the merits after further development of the record, … if convinced its initial
`
`inclinations were wrong.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1377
`
`(Fed. Cir. 2016); see also TriVascular, Inc. v. Samuels, 812 F.3d, 1056, 1068 (Fed.
`
`Cir. 2016). In view of the unrebutted evidence that the examples destroy any
`
`incentive for registering the unrecognized tablet with Scherzer’s system, a POSITA
`
`would not combine Scherzer and Subramaniam such that unrecognized devices can
`
`enjoy the benefits of Scherzer’s system. POR, 25-28.
`
`D. Apple Did Not Rehabilitate Cooperstock’s Credibility
`Cooperstock admitted not considering the references in their entireties,
`
`
`
`testifying that “his analysis did not need to consider the relevance of [Scherzer’s]
`
`- 10 -
`
`

`

`
`tracking.” KOSS-2025, 38:16-17. Cooperstock also failed to follow the Graham
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`framework and ignored an important factor in the analysis—comparing the applied
`
`references to the claimed subject matter—admitting, “I’m not sure how that is
`
`relevant to my analysis.” KOSS-2025, 14:18-22. The Reply ignored Cooperstock’s
`
`self-admitted failings to consider the references as a whole and make a determination
`
`regarding each of the Graham factors. Similarly, Apple ignored parallel deficiencies
`
`in its Reply.
`
`
`
`In addition to botching the obviousness analysis, Cooperstock’s credibility is
`
`undermined by his testimony that Scherzer includes an “explicit” teaching that is, in
`
`fact, absent from Scherzer. POR, 34-36 (citing KOSS-2025, 29-31). McAlexander
`
`subsequently testified that the temporary user account in Scherzer is still an account
`
`that requires registration with Scherzer’s system in order to utilize any of Scherzer’s
`
`WAPs. KOSS-2026, ¶57. Though McAlexander’s testimony directly contradicted
`
`Cooperstock’s unsupported interpretation of Scherzer, neither Cooperstock nor
`
`Apple addressed Koss’s arguments or McAlexander’s testimony on this point.
`
`
`
`Cooperstock also refused to answer questions about the relevant technology,
`
`the proposed combination, and the teachings in the references. POR, 53-54. For
`
`example, Cooperstock refused to provide a definition of “confidential” multiple
`
`times on cross-examination. Id., 53. Despite the problems with Cooperstock’s
`
`testimony, Apple avoided
`
`these problems with Cooperstock’s
`
`testimony.
`
`- 11 -
`
`

`

`
`Accordingly, Cooperstock’s testimony should be afforded little, if any, weight.
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`
`
`Cooperstock’s unwillingness to answer questions on cross-examination
`
`continued in his second deposition (KOSS-2027). For example, his answers
`
`regarding device ownership in the combination were inconsistent. Compare KOSS-
`
`2027, 30-31 and 32 (showing unwillingness to settle whether devices 220 and 240
`
`in his combination could be owned by different users). Cooperstock was not
`
`forthcoming on cross-examination further undermining his credibility.
`
`III. FATAL FLAWS IN APPLE’S COUNTERARGUMENTS
`
`Apple alleged Koss’s criticisms of the combination are “fatally flawed”
`
`because, one, Scherzer’s UCA functionality is only limited to certain embodiments,
`
`two, the two examples do not envision “unfettered dissemination of access
`
`credentials,” three, McAlexander acknowledged that the teachings in Subramaniam
`
`are not explicitly limited to at-home networks, and, four, Koss’s “simpler”
`
`approaches to network connectivity ignore the advantages of the combination.
`
`Reply, 6. None of these counterarguments are determinative or particularly
`
`compelling with respect to the non-obviousness of the Challenged Claims.
`
`Nonetheless, Koss addresses each one in turn.
`
`- 12 -
`
`

`

`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`A. Scherzer’s UCAs are Not Limited to Specific Embodiments
`Apple’s Reply confirmed that the combination does not incorporate
`
`
`
`
`
`Scherzer’s UCA functionality. Reply, 17. Cooperstock similarly testified that the
`
`combination “did not incorporate Scherzer’s teachings of [UCAs].” APPLE-1028,
`
`¶62. It is unsurprising that Apple’s Scherzer-Subramaniam combination excludes
`
`Scherzer’s UCA functionality, which would prevent unrecognized devices (like
`
`device 240) from obtaining and using Scherzer’s access credentials to connect to
`
`Scherzer’s WAPs. Apple’s exclusion of Scherzer’s UCA functionality is
`
`problematic. First, exclusion of Scherzer’s user contribution account functionality
`
`is not justified by Scherzer’s use of “in some embodiments” and similar phrases.
`
`Second, a combination without Scherzer’s UCA functionality results in a system that
`
`is not “fair” or “equitable” to Scherzer’s registered users (to use Cooperstock’s
`
`description of Scherzer’s advantages). APPLE-1028, 10. Third, Koss does not
`
`improperly bodily incorporate Scherzer’s teachings.
`
`1.
`
`Scherzer’s Use of “In Some Embodiments” Does Not Mean
`UCAs Are Optional
`Apple and Cooperstock relied on Scherzer’s use of phrases like “in some
`
`embodiments” to exclude UCA functionality from the combination. Reply, 7-8
`
`(citing APPLE-1028, ¶30). Cooperstock asserted that a POSITA would “conclude
`
`that the user contribution account feature is an optional element of the invention.”
`
`- 13 -
`
`

`

`
`APPLE-1028, ¶18. However, upon reading Scherzer as a whole, a POSITA would
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`understand that Scherzer’s UCA functionality enables sharing of network access for
`
`the mutual benefit of its registered users, which is Scherzer’s goal. KOSS-2026,
`
`¶¶42, 43. Instead of focusing on Scherzer as a whole, Apple pointed to three
`
`“occasions” where teachings related to UCAs and associated functionality are
`
`described in connection with the phrase “in some embodiments.” Reply, 7-8. In
`
`fact, none of the three “occasions” limit the existence of UCAs in general to narrow
`
`embodiments. Rather, each “occasion” simply provides a further implementation
`
`detail.
`
`In the first “occasion,” Scherzer describes that “a collaborative community of
`
`users allows a percentage of bandwidth to be accessed by one or more other
`
`users….” APPLE-1004, ¶[0015]. The following sentence in Scherzer is the second
`
`“occasion” and it describes that a percentage of a user’s bandwidth is not always
`
`shared with other users. Id. The use of “in some embodiments” in Apple’s first and
`
`second “occasions” clearly applies to the “percentage of bandwidth” detail, not to
`
`UCA functionality in general.
`
`In the third and final “occasion,” Scherzer describes, “a user contribution
`
`account is established when a user registers.” APPLE-1004, ¶[0015]. This sentence
`
`describes an implementation detail related to the timeline for establishing the
`
`UCA—when, not if, the account is established. In other embodiments, the UCA
`
`- 14 -
`
`

`

`
`may be established at a different time, such as after registration upon satisfying
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`additional conditions.
`
`None of these “occasions” supports Apple’s assertion that the UCA is an
`
`optional feature in Scherzer. Apple’s focus on these “occasions” distracts from
`
`Scherzer’s comprehensive description of UCA functionality and the many instances
`
`where the UCA is identified as an imperative element. Scherzer uses the phrase
`
`“user contribution account” more than 80 times throughout the six-page Detailed
`
`Description, including in the Abstract. APPLE-1004. The UCA is also recited in
`
`each of the six independent claims. Indeed, claim 1 recites the step of “determining
`
`user contribution account acceptability....” APPLE-1004, Claim 1. Each
`
`independent claim in the corresponding issued patent, U.S. Patent No. 8,751,648
`
`(KOSS-2028), also recites the UCA. Based on Scherzer as a whole, including the
`
`broadest statements of the invention found in the independent claims, Scherzer’s
`
`UCA is clearly a non-optional element in all embodiments.
`
`2.
`
`Exclusion of Scherzer’s UCA Functionality Is Not “Fair” and
`“Equitable”
`Cooperstock testified that Scherzer’s UCA functionality “has certain
`
`advantages, such as ensuring that usage of network resources is fair and equitable
`
`amongst users that are part of Scherzer’s community.” APPLE-1023, ¶18.
`
`Logically, therefore, excluding Scherzer’s UCA and associated tracking results in a
`
`- 15 -
`
`

`

`
`system that is not “fair and equitable” to its registered users. Without tracking and
`
`Case IPR2021-00600
`Patent Owner Sur-Reply
`
`reasonable limits, Scherzer’s access credentials would be freely and widely
`
`disseminated and used by unrecognized devices. POR, 38-39 (citing KOSS-2026,
`
`¶59). “Registered users lose the ability to control their own wireless networks” and
`
`“might even be crowded out of their own network.” Id. A POSITA would not be
`
`motivated to modify Scherzer in a way that is unfair and inequitable to it registered
`
`users.
`
`3.
`
`Incorporating Scherzer’s Teachings Related to UCAs Is Not
`Improper Bodily Incorporation
`Despite Apple’s contrary allegations, Koss did not suggest bodily
`
`incorporation of all Scherzer’s teachings into the combination. However, some way
`
`of managing network access, e.g., Scherzer’s UCA functionality, for the benefit of
`
`its registered users is necessary. KOSS-2026, ¶¶62-63. Successful implementation
`
`of Scherzer requires managing the network access that is provided by and to its
`
`regist