Trials@uspto.gov
`571-272-7822
`
`
`Paper 21
`Date: September 8, 2023
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CPC PATENT TECHNOLOGIES PTY LTD.,
`Patent Owner
`__________
`
`IPR2022-00600
`Patent 8,620,039 B2
`__________
`
`RECORD OF ORAL HEARING
`Held: July 18, 2023
`__________
`
`
`
`
`BEFORE: SCOTT A. DANIELS, AMBER L. HAGY and
`FREDERICK C. LANEY, Administrative Patent Judges.
`
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 21
`Date: September 8, 2023
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CPC PATENT TECHNOLOGIES PTY LTD.,
`Patent Owner
`__________
`
`IPR2022-00600
`Patent 8,620,039 B2
`__________
`
`RECORD OF ORAL HEARING
`Held: July 18, 2023
`__________
`
`
`
`
`BEFORE: SCOTT A. DANIELS, AMBER L. HAGY and
`FREDERICK C. LANEY, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`IPR2022-00600
`Patent 8,620,039 B2
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JENNIFER C. BAILEY, ESQUIRE
`ERISE IP, P.A.
`Kansas City
`7015 College Blvd. Ste. 700
`Overland Park, KS 66211
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`GEORGE SUMMERFIELD, ESQUIRE
`K&L GATES LLP
`70 W Madison St # 3100
`Chicago, IL 60602
`
`
`
`
`The above-entitled matter came on for hearing on July 18, 2023,
`commencing at 1:00 p.m., via video teleconference.
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`P R O C E E D I N G S
`- - - - -
`JUDGE DANIELS: Good afternoon, everyone. It’s Tuesday, July
`18th, and we have this afternoon our final hearing for IPR202200600, Apple
`versus CPC Patent Technologies. Welcome. I’m Judge Daniels. Today
`with me here are Judges Hagy and Laney. If we could get the parties’
`appearances, please, and let’s start with Petitioner, Apple?
`MS. BAILEY: Good afternoon, Your Honor. My name is Jennifer
`Bailey. I have here with me today my co-counsel, Adam Seitz, and we are
`from the law firm of Arise IP. Also with us today is in-house counsel from
`Petitioner Apple, Inc., Garrett Sakimae.
`JUDGE DANIELS: Thank you. Ms. Bailey, are you doing all of
`the presentation?
`MS. BAILEY: Yes, Your Honor.
`JUDGE DANIELS: Okay, great. And for CPC, who do we have?
`MR. SUMMERFIELD: Good afternoon, Your Honor. George
`Summerfield. I’ll be arguing on behalf of the patent owner. With me are
`Darlene Ghavimi and Jonah Heemastra, and we have a summer associate
`joining us today, Sydney Duncan. We are all with the firm of K&L Gates.
`JUDGE DANIELS: Great. And Mr. Summerfield, you’re going
`to do the whole presentation?
`MR. SUMMERFIELD: Yes, Your Honor, I will.
`JUDGE DANIELS: All right. Great. So good afternoon to
`everybody, and let’s just talk about the procedure real quickly, and then
`we’ll get on with the oral arguments. Each party has 45 minutes of total
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`IPR2022-00600
`Patent 8,620,039 B2
`time to do their arguments. You can allocate your time however you choose.
`Just tell me how much time you want to reserve for rebuttal. Just as a
`caveat, please refer to any of the exhibits, when you bring it up -- or
`whatever you’re referring to, I guess. We’re not going to see what you bring
`up. We have your demonstratives in front of us, so we just want to make
`sure we’re on the same page as you all.
`So I think -- you know, I think we can just go ahead and get
`started. Petitioner has the burden, so Ms. Bailey, you’ll go first, and then
`Mr. Summerfield, you can present your response. Both parties can reserve
`some rebuttal time, so let me know what that is, Ms. Bailey, and I will keep
`track of it on my -- I’d urge you all to keep track of it too, but I’ll keep track
`of it on my phone, and I’ll let you know. And the panel is also usually open,
`if we ask a lot of questions -- and we do have some questions today. We’ve
`had some good discussions about your really good briefs. So if we need to,
`we can give everybody a little more time, and we’ll be fair about it if
`necessary. All right. Ms. Bailey, how much time would you like to reserve?
`MS. BAILEY: Fifteen minutes, Your Honor.
`JUDGE DANIELS: All right. You can start when you’re ready.
`MS. BAILEY: Thank you, Your Honors, and may it please the
`Board. Thank you for indicating that you do have questions today. I always
`like to begin argument stating that if there are particular issues that you
`would like me to discuss first, please just let me know. I’m happy to jump
`around and out of order from the demonstratives. Moving first to
`Petitioner’s demonstrative two, there are 4 claims challenged, claims 1
`through 2 and 19 through 20. The claims do rise and fall together.
`We also have a single ground for all 4 claims, of Bradford, Foss,
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`IPR2022-00600
`Patent 8,620,039 B2
`and Yamane. There are two proposed, relatively simple modifications to
`Bradford. First, Foss is used to retrieve a user record using card information
`during an enrollment process. Bradford already teaches retrieving a user
`record using card information during a verification process, so Foss is used
`just to explain for an enrollment process. And then Yamane is used to
`utilize a flag indicating the binary presence or absence of fingerprint data
`stored in memory.
`Turning to demonstrative 3, it is claim 1 of the 039 Patent, and I
`want to note a couple of things right out of the gate here. The claim requires
`receiving hard information, but note that the claim doesn’t say how the card
`information is received. And indeed, the 039 Patent has embodiments where
`the card is swiped, or where the -- I should say the card information is
`received by swiping the card, or the card information is received wirelessly
`from a key fob. I refer the Board to the 039 Patent, column 7, lines 30
`through 31. The claim also doesn’t recite that this claim step of receiving
`the card information is the first time the card information is received by the
`system. The claim merely requires that the card information is received, and
`it’s that that is defining the memory location, dependent on that received
`card information.
`JUDGE DANIELS: So Ms. Bailey, the reason you’re asserting
`that is because of Patent Owner’s argument that these claims, that this -- that
`claim 1 has a specific order; is that correct?
`MS. BAILEY: Not quite, Your Honor. So let me talk about the
`order, and then let me explain our argument.
`JUDGE DANIELS: Okay.
`MS. BAILEY: We do agree that the defining limitation says
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`Patent 8,620,039 B2
`defining dependent upon the received card information. So Petitioner agrees
`that the card information has to be received prior to the step of defining --
`dependent upon the received card information and memory location. Okay?
`So the defining step is performed responsive to receiving the card
`information. What we do disagree with from CPC’s argument is that this
`has to be the first time that the card information is received by the system,
`because in Bradford, which is our primary reference that relies and teaches
`the receiving and the defining step, a player ID record or entry is created.
`And Bradford talks about how this includes a unique identifier, which
`Bradford calls the first identifier data, which is mapped to the received card
`information, and this player ID entry also stores the biometric signature for
`the user.
`
`JUDGE DANIELS: So let me just interrupt you for a second. So
`what you’re talking about here, if I’m understanding you correctly, is this is
`where, for instance, the attendant in Bradford might enter the data that is
`also going to be on the card that is used later for entry. Is that correct?
`MS. BAILEY: That is correct. And if it would be helpful, I could
`go through the process with Bradford. I was going to discuss it later, but I’m
`happy to discuss it now, if that would be helpful.
`JUDGE DANIELS: Keep going. Let’s see if any of the other
`judges want to -- we’ll get to that.
`MS. BAILEY: All right. Well, just let me know, because I do
`have a slide that talks through the going to the attendant, getting the card
`with the card information --
`JUDGE DANIELS: Yes. Actually, why don’t we do that now?
`Let’s look at that now.
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`MS. BAILEY: Okay. Great. So turn please then to DX14. So
`DX14 shows fig 6 of Bradford. This gives a nice kind of general overview
`of the process going on in Bradford that is mapped in the petition. So,
`customer goes to a casino. Customer wants to get a player ID card. I’m
`going to call the customer the player now. So the player goes to the
`customer service counter at step 600, which is in the top left. The casino
`then provides the customer, at step 603, a first authenticator. And Bradford
`talks about how this first authenticator is the same as the first authenticator
`data, which is unique data that is stored on card information, like a unique
`serial number for that particular user. So at this point, the player has a card.
`That card is associated with the player, and that card stores the first
`authenticator data, which is the unique serial number. So that is the card
`information in the claim.
`From step 603, we’re then going to go through a training process
`of training the player on how to use the casino machine. So the attendant
`and the casino move from 604 to step 610, on the right side of fig 6. And
`you can see it says at 610, go to the game -- in other words, the casino
`game -- with the fingerprint system. The attendant then brings up a set of
`privilege screens that are specific to the attendant, but these privilege screens
`allow for a couple of things. One, and importantly, including storing the
`user’s second authenticator data, which is the biometric data for the user in
`the user’s player ID record, the one that was created over at step 603. Any
`questions so far? Okay.
`So we know at 612, then, the user, the player, inputs their
`fingerprint, and then at 614, you’re going to explain to the player how to use
`the system, and you’re going to show them an example transaction with a
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`IPR2022-00600
`Patent 8,620,039 B2
`new database entry. And I know it says BD there. That’s a typo. It
`means -- it should be database, and that’s actually clear from a prior
`discussion, or from the discussion at DX16.
`So at 614, the user is shown how to use the casino machine. They
`have input their second authenticator data, their fingerprint, into the player
`record. And if you look at DX16, there’s some text there from Bradford that
`talks about in box 614, the one that we’re just talking about, the attendant
`makes use of the newly created entry. And this use can include simply the
`user identifying themselves to the system. So the user is being trained how
`to identify themselves to the system, at some later stage when the user wants
`to play the game. The casino will choose which training scenario to present
`to the newly enrolled player. So at this point we have a database entry. That
`database entry has the stored fingerprint information, and per the petition’s
`mapping, that database entry is retrieved using card information. I’m going
`to pause there and see if I have -- if you have any questions, if I’m kind of
`getting to your question that you asked earlier.
`JUDGE DANIELS: You did. I think -- so the last part of the step
`is once the player is -- once there’s a data entry and their biometric
`information, what the machine -- what’s happening is that they’re being
`authorized, correct? They’re just checking a new -- the player’s input
`biometric data to whatever is stored within the database.
`MS. BAILEY: Not yet, Your Honor. There’s a two --
`JUDGE DANIELS: Oh, you haven’t gotten there yet? Okay.
`MS. BAILEY: You haven’t gotten there yet. There’s a two-stage
`process that’s described in Bradford. And also, I actually think it says it in
`the abstract. It calls it -- first sentence, a two-stage. There is an enrollment
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`IPR2022-00600
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`stage, where you have to store their biometric template, and then there’s a
`later verification stage, when the user wants to come play the casino
`machine. Their database entry is in there, and now they’re just verifying
`themselves with the fingerprint data. Everything that we just discussed in
`fig 6 on step 610, 612, 614, that’s all the enrollment stage, where the system
`is receiving the second fingerprint data during the enrollment process.
`JUDGE DANIELS: Has the user -- has the user or the customer,
`or player at this point, used their card?
`MS. BAILEY: So this is where we bring in Foss, to say that
`during the enrollment process, the database entry retrieved for that user is
`retrieved using the card information. So in Bradford, Bradford teaches for
`the verification stage -- not for the enrollment, for the verification stage --
`that when the user wants to go play the casino machine, they’re going to
`swipe their card that has the card information, and it’s going to retrieve their
`information. They’re going to verify themselves with the second
`authenticator data, i.e. the biometric signature. Okay? So Bradford teaches
`verification -- I want to emphasize that -- using card data to retrieve the
`database entry.
`Bradford does not teach using card data to retrieve a database entry
`during that enrollment stage. It doesn’t expressly state that, and we know
`that in the petition. So what the petition’s mapping does, with respect to the
`obviousness argument, is it uses Foss, and says, well, Foss teaches that
`during an enrollment process, card data is going to be used to retrieve a
`partially completed record. And so, the proposed combination is that the
`same would happen, and Bradford would be modified so that during the
`steps 610 through 616, the card information is used to pull up the database
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`entry.
`
`JUDGE DANIELS: Okay.
`MS. BAILEY: And I can get into that mapping and that
`discussion, if you would like. It’s a pretty trivial -- I mean, you’re swiping
`your card to pull up a record. That’s --
`JUDGE DANIELS: I’m not -- at this point, I’m not particularly --
`I know Patent Owner has arguments with respect to your combinations,
`but --
`
`MS. BAILEY: Mm-hmm.
`JUDGE DANIELS: -- I think that -- I think you’ve explained it
`here and in your briefing pretty well, what your combination arguments and
`evidence has. So --
`MS. BAILEY: Okay. All right. Any questions on that, then?
`JUDGE DANIELS: I would like to hear at some point -- and I
`know you’re going to get to this, because I think it’s back on your -- where
`we -- where you were discussing, as you get to slides 3 and 4 -- I mean, the
`panel’s very interested in the words of the claim --
`MS. BAILEY: Mm-hmm.
`JUDGE DANIELS: -- and what’s in the specification as far as --
`as far as defining and defined and pointer, the pointer system. So I’ll direct
`you back probably to where you were when we interrupted you.
`MS. BAILEY: Okay. Well, it sounds like the Board has really
`delved into our briefing, so I might skip over some of this, just to, you know,
`move things along. I think you understand Apple’s construction at this
`point, and CPC’s construction, that CPC is arguing that defining an equal
`setting are establishing. Apple’s construction is that defining equals
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`IPR2022-00600
`Patent 8,620,039 B2
`pointing to a memory location. And I do want to note that this was mapped
`in the petition, so I’m referring to DX --
`JUDGE LANEY: Could I just interrupt? One -- initially on that
`
`point?
`
`MS. BAILEY: Yes.
`JUDGE LANEY: You just gave a construction of what the patent
`owner said, and what Petitioner says for defined. And Petitioner, in the
`opening, in the petition, says plain and ordinary meaning.
`MS. BAILEY: Yes, Your Honor.
`JUDGE LANEY: Can you help me understand how it is that the
`definition that Apple is relying upon is a plain and ordinary meaning, and
`where your support for that is? In other words, it seems to me that you’re
`asking for a very specific meaning that you’re trying to tie specifically to the
`specification, versus what the plain meaning would be. And if I’m right,
`doesn’t that mean that you haven’t carried your burden, or haven’t complied
`with our rules, by setting forth what exactly the meaning is, and explaining
`how you got to that meaning?
`MS. BAILEY: So Your Honor, I’m going to strongly disagree
`with your last statement that we didn’t comply with the rules, and I have
`some case law to support that, because Petitioner does argue this. First of
`all, we have not changed our theory or our mapping. It has been consistent
`throughout all of the briefing. The mapping uses the language from the
`specification of access and memory reference to point to, and I can refer the
`Board -- I have a long list of citations, including the petition, 13, 18 through
`20, 23 through 24, 30, and Exhibit 1003, paragraphs 80 through 83.
`JUDGE LANEY: Show me -- let’s pull up your best one, or give
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`IPR2022-00600
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`me your best two. Because when I went through yours, I just don’t see
`anything that supports your construction for the claim. And so, I’d like you
`to help me see it your way, so if you could pull out the top two, and help me
`better understand how you feel that supports what you believe -- or Apple
`believes is the plain meaning?
`MS. BAILEY: Yes, Your Honor. If you could turn to DX7, I have
`a couple of the citations there.
`JUDGE LANEY: Well, just tell me the column and line, because I
`have the patent up in front of me.
`MS. BAILEY: Sure. It’s column 7, lines 31 through 35.
`JUDGE LANEY: Okay.
`MS. BAILEY: I also note column 7, lines 39 through 42, and then
`figure 4 itself of the patent, too. I also want to --
`JUDGE LANEY: That --
`MS. BAILEY: Go ahead, Your Honor.
`JUDGE LANEY: Hold on. So we’re going through the two. So
`you have 31 to 35. That reads, “The card data 604 acts as the memory
`reference, which points, as depicted by the arrow 608, to a particular
`memory location at an address, 607, in the local database 124, in the
`verification station 127 of figure 3.” Now, I don’t see anything where
`defined is being used in there. And then it goes down, where defined is used
`when it’s actually talking about the initial enrollment phase and verification
`phase, yes, the term is defined, but I don’t see anything in that particular one
`that helps me understand how defined, the plain meaning is consistent with
`what Apple suggests.
`MS. BAILEY: Your Honor, I would also rebut that there is
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`nothing that supports CPC’s construction that defined equals setting or
`establishing. The 039 Patent uses the word defining, defined by -- go ahead,
`Your Honor.
`JUDGE LANEY: Well, the plain meaning of defined means to
`create, to -- in fact, Mirriam-Webster suggests, under the particular for
`computers, creating by establishing a set of rules. Something generally like
`that. I don’t have it exactly. But my point being, defining ordinarily means
`creating, to establish something, to establish the meaning of something. And
`so, that to me is much more in line of what I would understand the plain and
`ordinary meaning. Now, I understand we look at it in the context of
`everything, and that’s what I’m trying to do. But I also disagree with you,
`because it says at column 7, lines 47 through 48, the card data 604 defines
`the location 607 in the memory 124, where the unique biometric signature is
`stored. So I guess I disagree with your proposition that there’s nothing to
`support the patent owner’s position, because to me, that clearly does say you
`need the data in order to define the location in memory. It doesn’t just say
`define in memory. It says the location in memory where the biometric is
`stored. So it seems very much more consistent with this notion that defines
`Patent Owner’s plain meaning, to create something.
`MS. BAILEY: Your Honor, the section that you just cited from
`the 039 Patent doesn’t tell us what defines means. It simply repeats the
`claim language. That is unhelpful to understanding what the meaning
`should be, whereas there is --
`JUDGE LANEY: No, but does that repeat the claim language? I
`just want to make sure I’m -- let me pull up the -- it seems --
`MS. BAILEY: The claim --
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`JUDGE LANEY: It seems like the claim says something different.
`Let me just make sure. So the claim says “defining dependent upon the
`received prior information, a memory location in a local memory external to
`the card.” This says, “The card data 604” -- so it’s describing the figure --
`“defines the location 607 in the memory 124, where the unique biometric
`signature is stored.” I mean, that doesn’t seem like it’s just repeating the
`claim language.
`MS. BAILEY: It’s repeating the defining term, or a variant
`thereof, and it does not inform the reader of what defines means with respect
`to that sentence, defining the location in the memory. There’s nothing -- you
`mentioned a dictionary definition, Your Honor. First of all, that’s not
`evidence of record, and should the Board entertain that, I request additional
`briefing on it. Otherwise, the Federal Circuit has reversed Boards when they
`have come to a claim construction reliant on evidence in the final written
`decision. With respect --
`JUDGE LANEY: Okay. I don’t --
`MS. BAILEY: And then I also want to come back to your point,
`Your Honor, with respect to Apple’s arguments in its Petitioner reply. But
`going to the creating and the dictionary definition, there’s nothing in the 039
`Patent that sets any parameters for what the location is. There’s no
`discussion of that. Instead, the 039 Patent talks about locating the memory
`location, associating the memory location with the card data, and pointing to
`the memory location. The first two discussions that I just mentioned are at
`column 12, lines one through nine of the 039 Patent, and then we also have
`the points two language that’s cited in our briefing, and column 12 is also
`cited in our briefing. With respect to your statement that the plain and
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`ordinary meaning --
`JUDGE LANEY: Real quick, what about column 3, where it says
`around -- we can look at the 4, to I think 12 --
`MS. BAILEY: Mm-hmm?
`JUDGE LANEY: But it talks about all future uses of the particular
`verification station by someone submitting the aforementioned card, requires
`the card user to submit both the card to the card reader, and a biometric
`signature to the biometric reader, which is verified against the signature
`stored at the memory address defined by the card information, thereby
`determining if the person submitted the card is authorized to do so. So once
`again, it’s saying the card data defined the memory address.
`MS. BAILEY: Your Honor --
`JUDGE LANEY: And that seems, once again, much more
`consistent with Patent Owner’s position, that you have this card data that is
`creating -- that is establishing an address for this biometric information. In
`other words, the card data, as I -- just on a general level, as I understand it,
`the card data is the pointer, whereas in Bradford, in the prior art that Apple
`relies upon, yes, you have pointers within the database system. So if I
`provide my card, my casino card that has my name, yes, that database will
`have pointers within the database that link my information to other
`information about me, not limited to but including biometric data. But
`Bradford doesn’t suggest anything that has a pointer on the card that would
`be linked to -- that would point to my biometric data. You would always
`have to go through a look up table, or use a pointer that’s associated with me
`personally. That pointer is used to go to the biometric data.
`MS. BAILEY: We discussed that -- I’m sorry. I didn’t mean to
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`cut you off, Your Honor.
`JUDGE LANEY: Yes. No, no. I’m sorry. Go.
`MS. BAILEY: I apologize. I thought you were done. We
`discussed that in the petition’s mapping and declaration, with respect to the
`pointers of Bradford. That argument has not been made. The argument that
`you are discussing, CPC has not said anything regarding that, and has not
`disputed up to this point that Bradford includes information that would point
`to a memory location. Instead, it disputes the claim construction. I also note
`that fig 4 of the 039 Patent uses the phrase “points to,” along with an arrow
`that is visually and literally pointing to the memory address. With respect to
`column 3, lines 4 through 12 that you just discussed on the 039 Patent,
`again, it is simply repeating the claim language of defines, defining, or
`defined by. There is nothing in that, unless you read it into it, Your Honor,
`that says that it equals setting or establishing. There’s also no disclosure in
`the 039 Patent about what that setting or establishing would encompass.
`Additionally --
`JUDGE LANEY: Well, what is the plain and ordinary meaning of
`defining? I mean, what’s the plain and ordinary meaning, then? Because I
`feel like you’re saying -- I feel like you’re saying the patent, although it’s
`using it in a way to -- it uses the word defined, and it’s using it in a context
`which is consistent with the idea of creating or establishing --
`MS. BAILEY: Mm-hmm.
`JUDGE LANEY: -- you’re somehow faulting that, and suggesting
`that’s improper use of that word in that context, to establish that the plain
`meaning is establish or define. I guess -- or establish, or to create. And then
`you cite me to other parts of the specification that don’t talk about defined at
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`all, and say somehow that is what I should understand the plain and ordinary
`meaning to mean. And that’s where I get -- that’s where I’m having
`complication or difficulty being persuaded by Apple’s argument.
`MS. BAILEY: Okay. I want to break this down in a couple of
`things. One, the construction that we put in in the Petitioner reply is
`responsive to CPC’s construction, and that is permissible. I’ll refer the
`Board to a recent case of Google v. Ikorongo, IPR 202100204, the final
`written decision, page 40 -- paper 40, pages 11 through 12, and the Federal
`Circuit cases that are cited in that.
`It is permissible for a petitioner to respond to a Patent Owner’s
`claim construction in the Petitioner reply. And here, like in that decision,
`Apple’s discussion in the petitioner reply for defining is within the proper
`scope of a reply as a proper rebuttal argument. CPC has had notice of
`Apple’s position, and could discuss it in the sur reply. And most
`importantly, Apple has not changed its mapping from the petition. CPC also
`has not filed a motion to strike, or sought additional briefing, presumably
`because it had the opportunity to discuss in the sur reply. So I emphasize to
`Your Honor that it is perfectly permissible for Apple to present this claim
`construction in its Petitioner reply.
`Now, you were concerned with the plain and ordinary meaning
`discussed in the petition, but there is nothing that supports CPC’s
`construction. All the language of defines, defined by, or defining that is
`used in the specification doesn’t tell us anything else. When you read in
`setting or establishing from a dictionary definition, you are reading in a
`construction that is not supported in the intrinsic specification, and is
`inconsistent with the claim language. Our briefing talks about the
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`inconsistent and illogical claim language that happens. I would question
`back to Your Honor, how do we synthesize and rectify claim 2, where the
`card data is defined by the subsequently presented card, using CPC’s
`construction? So I’m going to pause there, because we’re having a
`discussion. I want to see if you have any comments to that. I’m happy to
`talk about why we see that there is an inconsistent claim construction here.
`JUDGE LANEY: Help me understand what you’re saying,
`because I didn’t read it as being inconsistent.
`MS. BAILEY: Sure.
`JUDGE LANEY: And just help me understand if what you’re
`suggesting makes it inconsistent.
`MS. BAILEY: Okay. Well, let’s move to DX12. It has claims
`one and two on it. I think the big emphasis that we want to make here on
`claim 2 is it’s talking about a verification stage with subsequently presented
`card information, and I emphasize the subsequently here. So what this claim
`2 is reciting is the verification, not the enrollment. We know this from the
`preamble of claim 2. So the user is subsequently presenting their card
`information. So they have the card, presumably the same card that they got
`through the enrollment process, but now they have their card, and they want
`to verify themselves to the system.
`So they swipe their card, or somehow get their card information
`into the system. And then the claim says it’s going to verify the
`subsequently presented card information, and at the end, it’s the last
`highlight we have there, defined by the subsequently presented card
`information. It’s the card information that is taken off that card that is
`presented during the verification stage -- I’m sorry. Go ahead, Your Honor.
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`I see you have a question.
`JUDGE LANEY: Well, this is why I don’t find that inconsistent.
`Because this is building off of claim 1, and the first one is in the affirmative,
`so it’s defining, and then down, because you’re talking about a subsequent
`step, you’re now referring to what has been defined. So to me, that makes
`complete -- that’s quite the opposite of illogical. To me, that’s extremely
`logical.
`
`MS. BAILEY: Okay.
`JUDGE LANEY: It makes complete sense.
`MS. BAILEY: Let me ask you this, Your Honor. How does the
`card information define the location? Is it somehow stored on there after the
`fact, after the memory location has been defined? Is there some discussion
`in the 039 Patent of going back and now storing that memory location?
`There isn’t, Your Honor. I’m asking a rhetorical question, because there
`isn’t.
`
`JUDGE LANEY: Well, the card --
`MS. BAILEY: In other words --
`JUDGE LANEY: Well, in fact, the spec of the patent, the 039
`Patent, says that the card has data that defines a memory address for where
`the biometric information’s going to be stored. So I guess it doesn’t seem to
`be a rhetorical question, because it seems like the spec answered that.
`MS. BAILEY: The spec answers that it has card information that
`points to a memory address, but there’s nothing that says it’s going to define,
`i.e. set or establish what that memory address is. Your Honor, respectfully,
`that is just making it up. CPC is just making it up that there is any
`discussion of setting or establishing a memory address. What are those
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`parameters, if it is set or established? How do we know what the memory
`address should be? Where should it be located in the database record?
`None of these answers are explained in t
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