Trials@uspto.gov
`571-272-7822
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`Paper 30
`Date: September 8, 2023
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`__________
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CPC PATENT TECHNOLOGIES PTY, LTD.,
`Patent Owner
`__________
`
`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`__________
`
`
`Held: June 29, 2023
`__________
`
`
`
`BEFORE: SCOTT A. DANIELS, BARRY L. GROSSMAN, and
`AMBER L. HAGY, Administrative Patent Judges.
`
`
`
`
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`
`
`571-272-7822
`
`
`Paper 30
`Date: September 8, 2023
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`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CPC PATENT TECHNOLOGIES PTY, LTD.,
`Patent Owner
`__________
`
`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`__________
`
`
`Held: June 29, 2023
`__________
`
`
`
`BEFORE: SCOTT A. DANIELS, BARRY L. GROSSMAN, and
`AMBER L. HAGY, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`JENNIFER C. BAILEY, ESQUIRE
`Erise IP, P.A.
`7015 College Blvd., Ste. 700
`Overland Park, KS 66211
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`DARLENE GHAVIMI-ALAGHA, ESQUIRE
`K&L Gates LLP
`2801 Via Fortuna, Suite #650
`Austin, TX 78746
`
`
`The above-entitled matter came on for hearing on June 29, 2023,
`commencing at 10:00 a.m., via video teleconference.
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
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`P R O C E E D I N G S
`- - - - -
`JUDGE GROSSMAN: This is Judge Grossman from the Patent
`Trial and Appeal Board, and with me are Judges Daniels and Hagy. I
`assume everyone can hear me. If not, try and wave or give me some signal
`that you can’t. This is a hearing for two related cases. It’s IPR2022-00601
`and IPR2022-00602, involving the petitioner, which is Apple, versus the
`patent owner, CPC Patent Technologies.
`And before we go over some of the basic administrative matters,
`what I’d like to do is have counsel for each of the parties formally to make
`their appearance, and I’ll ask Counsel for Petitioner to go first.
`MS. BAILEY: Thank you, Your Honor. This is Jennifer Bailey.
`With me is my co-counsel, Adam Seitz. We are from the law firm of Arise
`IP. I also have with me today in-house counsel from Petitioner, Apple,
`Garret Sakimae.
`JUDGE GROSSMAN: Okay. And will you be making the
`presentation this morning, Ms. Bailey?
`MS. BAILEY: Yes, Your Honor.
`JUDGE GROSSMAN: Okay. Thank you. And for Patent
`Owner? Patent Owner may be muted. At least I’m not hearing the patent
`owner. And Patent Owner, if you could just formally make your
`appearance, and state your name and what -- who will be making the
`presentation this morning?
`MS. GHAVIMI: Good morning, Your Honor. This is Darlene
`Ghavimi from K&L Gates, representing the patent owner, Mr. George
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`Summerfield. You see in the other picture; I believe they’re having
`technical difficulties. With us is Jonah Heemstra, from K&L Gates, and
`George Summerfield will be presenting today.
`JUDGE GROSSMAN: Okay.
`MR. SUMMERFIELD: And Your Honor, just to make sure that
`the microphone is now working?
`JUDGE GROSSMAN: If this is Mr. Summerfield, I can hear you,
`
`yes.
`
`MR. SUMMERFIELD: Thank you, Your Honor. It is.
`JUDGE GROSSMAN: Okay. And my understanding is you’ll be
`making the presentation on behalf of the patent owner, Mr. Summerfield?
`MR. SUMMERFIELD: Yes, Your Honor. I will be doing that.
`JUDGE GROSSMAN: Okay. I just wanted to go over some of
`the basic ground rules. I’m sure you are both familiar with them. They were
`set out in our hearing order. Petitioner and Patent Owner each requested 45
`minutes for the total presentation concerning the two cases, and that’s what
`we’ve allocated. You can allocate your time as to how you discuss one or
`the other of the cases, but it’ll be 45 minutes to cover both cases, in any way
`you’d like to organize it or present it.
`The petitioner has the burden of proof, and Petitioner will go first,
`and followed by the patent owner. Each party can reserve time for some
`rebuttal. They can reserve up to half of the allocated time. Also, as I
`mentioned at the start, we’re hearing two cases this morning that are very
`closely related, and we will assume that the arguments that you make this
`morning will apply to both cases, unless you specifically tell us otherwise
`that it is a unique argument that only covers the 601 case or the 602 case.
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`Also, notwithstanding the glitch or two we might have had this
`morning, our technology team has done a great job over the past several
`years as we’ve been doing these video hearings. I don’t expect any
`problems. But if at any time you encounter some technical difficulties, or
`you feel that there’s a problem that’s precluding you from adequately
`representing your client, let us know. Wave your hands, hold up a sign, or
`do something so we know that you can’t hear us, or we’ll try and do the
`same to tell you if we can’t hear you.
`Also, please mute yourself when you’re not speaking, so we don’t
`hear any background noise, or we don’t hear any whispers into your co-
`counsel’s ear. I also want to make sure that you’re aware that this is a public
`proceeding. We have a public line that’s available, and it’s my
`understanding that there are some people who have dialed in on that public
`line. I don’t think there’s any confidential information that we’re going to
`be discussing this morning. We don’t have a -- there’s no protective order
`that’s been entered yet in this case. But just be aware that there is a public
`line, in case we get to anything that you might consider to be confidential.
`And finally, one of the things we don’t have on our video
`recordings, which we do have in the courtroom, which is a nice clock that
`had green, yellow, and red lights on it, so you would know how much time
`is left of the allocated 45 minutes. Judge Daniels will be -- has graciously
`agreed to be our timekeeper this morning. He’ll make an effort to remind
`you when you’re getting close. But he does the same thing I usually do
`when I am keeping time, is we’re listening to your arguments, we’re looking
`at the documents, and we’re not always watching the clock. So you may
`want to either set your own time, or have a colleague help you to let you
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`IPR 2022-00602 (Patent 9,665,705 B2)
`know when your time is running out.
`And so, with that -- I did want to also make sure that you
`remember, to the extent that you’re referring to your demonstrative exhibits,
`please make sure you identify them by slide number. We have the entire
`record before us in our computers, but if you’re referring to documents or
`slides, the transcript doesn’t really know what’s on the screen, so please
`make sure that you identify those. With that, unless we -- do we have any
`questions from Mr. Summerfield on behalf of the patent owner?
`MR. SUMMERFIELD: No, Your Honor. We’re ready to proceed.
`JUDGE GROSSMAN: Okay. And Ms. Bailey, any questions on
`behalf of the petitioner?
`MS. BAILEY: No questions, Your Honor.
`JUDGE GROSSMAN: Okay. We’ll let you start when you’re
`ready, but first I’d like to know whether you’re going to reserve any time for
`rebuttal.
`
`MS. BAILEY: Yes, Your Honor. I’m going to reserve 15 minutes
`for a rebuttal.
`JUDGE GROSSMAN: Okay. Thank you. You can proceed when
`
`ready.
`
`MS. BAILEY: Thank you, Your Honors, and may it please the
`Board. Before we begin, if there are particular issues that you would like me
`to discuss first, I’m happy to jump around or go out of order from the
`presentation to make sure that your questions are answered today.
`Turning first to DX2, as Judge Grossman mentioned at the
`opening, there are two IPRs at issue here. They do present substantially
`similar grounds, with a single ground covering all of the challenged claims,
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`IPR 2022-00602 (Patent 9,665,705 B2)
`that relies on Mathiassen, McKeeth, and Anderson. My citations today
`during the discussion and general arguments are going to be with respect to
`the 705 Patent, for your reference.
`At DX3 Petitioner’s slides, we just have claim one of the 705
`Patent. We’ve highlighted limitation B2, and then limitations D1 through
`D3 that will be discussed today. So --
`JUDGE GROSSMAN: Ms. Bailey, one thing as we’re starting to
`get into the specific claims. And it’s fine to use the 705 Patent, which is
`involved in the 602 case as an example, but it brings up a question that I’d
`like to get your view on, and that is, do all the claims that are challenged in
`both cases, including both the 705 Patent and also the 208 Patent that’s
`involved in the 601 case -- do they all rise or fall together? So is there
`anything unique about any one of the challenged claims that would call it to
`be treated different than all of the ones that we’re going to be discussing
`today?
`
`MS. BAILEY: Yes, Your Honor. I’m glad you asked that
`question. I was going to get to that. The claims do not rise and fall together.
`Claim 10 of the 208 Patent recites more than two types of access, although it
`does only recite outputting and accessibility attribute. One of the arguments
`that has been raised by CPC is that the Mathiassen reference does not teach
`an accessibility attribute. The proposed ground relies on McKeeth for
`teaching two types of accessibility attributes, namely a duress attribute and
`an alert attribute. And so together, Mathiassen and McKeeth teach more
`than two types of access.
`So we’ll go through what Mathiassen teaches, but claim 10 of the
`208 Patent does have the recitation of more than two types of access. The
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`other independent claims of both the 208 and the 705 all simply recite
`outputting and accessibility attribute, which is taught by either Mathiassen or
`McKeeth.
`JUDGE GROSSMAN: Okay. Thank you.
`MS. BAILEY: Yes, Your Honor. So first I want to discuss what
`has been called a duration limitation. This is turning to DX4 of Petitioner’s
`slides. The durational limitation arises in limitation D1 of the 705 Patent,
`claim one, and the modification to Mathiassen here is a fairly trivial change.
`The claims recite receiving a series of entries of the biometric signal, where
`that series is characterized by a number of each entry and a duration of each
`entry.
`
`Mathiassen, at paragraph 192, teaches receiving a series of
`consecutive fingerprint representations, where that series is received via
`directional finger movements. So the finger is on the fingerprint sensor, and
`the directional finger movements are up, down, left, right, on the fingerprint
`sensor. The proposed modification to Mathiassen is taking Anderson’s
`durational presses, and either substituting them for or adding them to
`Mathiassen’s directional finger movements, so this is a relatively trivial
`change here.
`CPC is not arguing that Anderson fails to teach durational finger
`presses. CPC’s argument is a lack of a motivation to combine. Now, CPC
`has not made any argument that the proposed modification to Mathiassen
`requires a substantial redesign, or changes Mathiassen’s principal of
`operation, or any of the other common arguments that are used to defeat
`obviousness.
`Instead, CPC spends a significant portion of its sur reply arguing
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`that the combination is non-obvious, because there are alleged simpler
`solutions for indicating duress.
`JUDGE GROSSMAN: Ms. Bailey?
`MS. BAILEY: Yes, Your Honor?
`JUDGE GROSSMAN: This is Judge Grossman. And before we
`get into that combination, I have a question for you about Mathiassen, and
`that is the parties seem to characterize Mathiassen for its primary disclosure
`of the key fob that you -- that would have a fingerprint sensor. But towards
`the back of Mathiassen -- I’m looking at I guess column or paragraph 192,
`Mathiassen talks about not only having a fingerprint recognition, but also
`allowing for something to -- what they call a translation means, in the form
`of hardware or software, that would allow that fingerprint to move around
`and create something else other than just a fingerprint.
`So isn’t that a -- isn’t that a second input, so that Mathiassen itself
`already has a disclosure of using two inputs, both the fingerprint sensor and
`then the translation means, in moving their finger around that sensor to
`create something else?
`MS. BAILEY: Mathiassen’s translation means -- and it does
`discuss that it’s hardware or software -- is for the purposes of receiving and
`registering the directional finger movements on the fingerprint sensor. So
`we have a fingerprint sensor, and it’s going to recognize the fingerprint, the
`fact that there is a fingerprint and taking the images of the fingerprint, but
`Mathiassen also has -- its translation means that it is going to register the
`movement of the fingerprint, the finger with the fingerprint, on the
`fingerprint sensor. So Mathiassen already has software or hardware to
`register the directional finger movements. Does that answer your question,
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`IPR 2022-00602 (Patent 9,665,705 B2)
`Your Honor?
`JUDGE GROSSMAN: Yes. Yes. Thank you.
`MS. BAILEY: Thank you. So I believe we were on DX5, and
`talking about CPC’s arguments with respect to a simpler solution, instead of
`the proposed modification limitation. So CPC’s proposed simpler
`modification to Mathiassen is either adding a mechanical push button to
`Mathiassen to indicate duress or indicating duress via a second fingerprint.
`The problem with CPC’s argument is even if it is correct -- in other
`words, even if CPC’s alternative proposed modifications are simpler than
`modifying Mathiassen to include the durational finger presses, it does not
`and should not change the Board’s obviousness finding, and there are two
`reasons for this. First, federal circuit law is very clear and very consistent
`that a finding of obviousness does not require the combination be the
`simplest solution, or the most optimal solution, or the most preferable
`solution.
`And now I want to be clear here. Apple does disagree that CPC’s
`proposed simpler solutions are actually simpler, but even presuming that
`CPC is correct, and for the sake of argument, it does not change the Board’s
`decision of obviousness, which kind of leads us to the second reason why
`CPC’s simpler proposed combinations must fail. The evidence here shows
`that the proposed modification of adding or substituting Anderson’s
`durational presses has an improvement, and this is evidence that CPC has
`wholly ignored in its briefing -- and I really stress that. They do not respond
`to it. They do not cite to it. And so, let’s turn to DX6 to discuss this.
`In the petition and the supporting declaration, Dr. Sears, which is
`Apple’s expert, opined that there are known problems with registering
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`IPR 2022-00602 (Patent 9,665,705 B2)
`directional finger movements on a fingerprint sensor. And this is at Exhibit
`1003, paragraph 223. Dr. Sears had a factual basis for his opinion in citing
`to Exhibit 1053, which goes into detail on known problems with registering
`the directional finger movements. This includes the skin distortion that
`happens when you’re swiping or sliding your finger across the fingerprint
`sensor. This ends up requiring stitching of the fingerprint images, which has
`an increased complexity. And you have to compensate for varying shift of
`data skew in the finger position.
`And so, Dr. Sears opined that if the directional finger movements
`are replaced with simply a duration of the finger press, that we don’t have
`these known problems. This is evidence that has not been rebutted by CPC.
`Again, as I stressed earlier, CPC does not respond to this evidence. Instead,
`we have problems with CPC’s mechanical push button. First of all -- and
`CPC has made clear in its briefings that it’s proposing adding a mechanical
`push button to Mathiassen’s portable control.
`So now we have two entry points on the portable control that have
`to be addressed by the user, and as noted by Dr. Sears in his supplemental
`declaration and as discussed in the petitioner reply, when there is a
`mechanical push button, it is not receiving a fingerprint, and this foregoes
`Mathiassen’s discussion of providing authorized access. And I refer for
`example to paragraph 151 of Mathiassen, although Mathiassen is replete that
`it is all about using fingerprints to authorize access to a control device.
`In CPC’s sur reply, it cites a number of cases at pages five through
`six, and these cases are essentially being argued by CPC that adding the
`durational fingerprint to Mathiassen is redundant. That’s not the term that
`CPC uses, but that’s the gist of why CPC is citing these cases. Apple
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`actually already had addressed the redundancy issue in its Petitioner reply, at
`pages 17 through 18, but because these cases are newly cited in the sur
`reply, I’d like to just quickly go through them, because they are each easily
`distinguishable.
`Here, as a reminder, we have unrebutted improvements to
`Mathiassen of the directional finger movements being replaced with the
`durational finger presses. The first case cited by CPC is R.J. Reynolds. It is
`a Board decision. What CPC fails to tell the Board with respect to this case
`is that that panel had decided that the proposed motivation changes the
`principle of operation of the primary reference, which CPC does not mention
`in its briefing.
`In that invention that was discussed, the goal in the primary
`reference was transporting liquid from a device. There was a discussion
`about papillary action. And the Board had said that that goal of transporting
`liquid was “reliably met.” And it was unclear any detriment in the primary
`reference of transporting liquid, but as discussed here, we do have a known
`problem with the improved solution.
`The next case is Kinetic Concepts. It’s a Federal Circuit case.
`There, no motivation combined was provided, and there was also evidence
`of teaching away. The Court said, “The record is devoid of any reason
`someone would combine these references,” and that’s at page 1369 of the
`case. Here, we have a very detailed record, and once again, the established
`improvement to the proposed modification.
`The third case cited by CPC is an Apple decision from the Board,
`where the decision was that the modification was a “wholesale modification,
`with only a conclusory motivation to combine,” and again, changing the
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`basic principles of operation. And then the last case, Norman, which is also
`a Board decision, the Board found that there was no improvement with the
`modification. So each of the cases that CPC is citing are easily
`distinguishable for either lacking a motivation to combine whatsoever or
`changing principles of operation.
`The other, simpler solution that CPC argues is enrolling an
`additional fingerprint to indicate duress. Now, what is interesting here is
`that -- and I want to just quickly refer the Board back to DX5. What is
`interesting here is that there’s four issues with this argument, but it also
`shows that CPC has conflated limitation B2 with limitation D1, so I want to
`explain all of that.
`So the first issue with CPC’s argument with respect to enrolling a
`second fingerprint to indicate duress, is that this is what we mapped. For
`limitation B2, it recites outputting an accessibility attribute. Now, the claims
`are -- the independent claims, I should say, do not recite a duress
`accessibility attribute. They simply recite outputting an accessibility
`attribute. Now, the --
`JUDGE GROSSMAN: Ms. Bailey, is there anything special about
`an accessibility attribute, other than it’s a single signal that gets sent based
`on an input? You put your finger on the Mathiassen fob, and it reads your
`fingerprint, and it then sends that someplace, likely to the car door in
`Mathiassen, as a signal, saying that this fingerprint is registered in our
`database, and it’s okay to open the door? Is the accessibility attribute
`something more than just a signal?
`MS. BAILEY: The accessibility attribute itself is a signal. I agree
`with that. And the 705 Patent talks about how a bit is entered into the signal
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`to indicate the type of access. Your question is getting to Mathiassen, and
`the argument with respect to whether Mathiassen teaches the accessibility
`attribute. If you’d like, we can jump to that section and discuss that further.
`JUDGE GROSSMAN: No. Just go on to just proceed with where
`you were going. You mentioned the accessibility attribute, and it was -- I
`just wanted to see if your understanding was consistent with what I
`understood the accessibility attribute to be, as well.
`MS. BAILEY: I do agree that the accessibility attribute itself is
`outputting of a signal, and that signal is indicating the type of access to be
`given to the user.
`JUDGE GROSSMAN: Okay. Thank you.
`MS. BAILEY: Okay. Just quickly kind of going back to the
`enrolling additional fingerprints, limitation B2 recites outputting an
`accessibility attribute. That does not require any duration. It just simply
`requires a biometric signature. The duration limitation doesn’t come until
`D2, so it’s actually two different entries of the biometric signature going on
`in the claims.
`And so, the petition did map that the biometric signature of
`limitation B2, that it would be obvious that to indicate duress, or to indicate
`alert, via -- and I’ll concentrate on duress, because that’s what CPC is
`arguing -- via a second fingerprint, or via the series of entries of the
`consecutive fingerprint representations already disclosed in Mathiassen.
`The second issue with CPC’s additional fingerprint argument is
`that even if simpler, it once again does not negate obviousness of
`improvement to substitute directional finger movements with duration.
`Third, I would also note that this is a new sur reply argument that CPC did
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`not make in its Patent Owner response, and therefore it should not be
`considered, according to the Trial Practice Guide, page 74.
`And fourth, just from a kind of motivation to combine, even
`though it’s kind of odd what CPC is arguing with respect to a different
`proposed modification of Mathiassen, but adding an additional fingerprint to
`indicate duress is going to remove the ability for authorization that is
`described -- and remove, I should say, the additional safety feature that is
`described in Mathiassen at paragraph 192.
`Turning now to DX7, I do want to quickly note two other
`arguments with respect to the motivation to combine on the duration
`limitation that CPC raises. One of them is with respect to Anderson, that
`Anderson does not teach collecting the fingerprint with the durational finger
`press. We disagree with this. We have there the text of Anderson, where it
`says that thermal sensor for collecting an image of the user’s fingerprint as
`the pressure code is entered. That notwithstanding, Mathiassen already has
`the teaching of the series of fingerprint representations being received, in
`conjunction with the directional finger movements that are replaced with
`duration. So we don’t actually need to rely on Anderson’s teaching here.
`Yes, Your Honor?
`JUDGE GROSSMAN: Yes. Let me just interrupt you for a
`second, Ms. Bailey. I want to make sure our record is clear. When we’re
`looking at your demonstrative slide DX7 --
`MS. BAILEY: Right, Judge.
`JUDGE GROSSMAN: -- and you mentioned the Anderson
`disclosure, on the slide you’ve got a citation, and I just want to make it clear
`what we’re looking at in Anderson. And my understanding is you’re
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`directing us to column seven of Anderson, lines one through eight?
`MS. BAILEY: Yes, Your Honor. I’m sorry if that was not clear
`with our notation of semicolon one through eight.
`JUDGE GROSSMAN: It’s clear on the slide.
`MS. BAILEY: Oh.
`JUDGE GROSSMAN: And I just want to make sure it’s going to
`be clear in the record what we’re talking about, exactly what part of
`Anderson --
`MS. BAILEY: Yes, Your Honor. Thank you.
`JUDGE GROSSMAN: -- that you’re relying on.
`MS. BAILEY: Thank you for that reminder. I’ll be sure to note
`next time. The other argument that CPC makes with respect to Anderson is
`that Anderson allegedly denigrates fingerprint representations in accepting
`the fingerprint. Anderson actually has an embodiment that includes a
`fingerprint sensor, so Anderson -- there is no denigration.
`Anderson does reference that using fingerprints requires
`specialized hardware and software, which it does. But Mathiassen already
`includes that specialized hardware and software, because Mathiassen is
`replete with teaching fingerprint sensors. So again, we don’t need to rely on
`Anderson’s fingerprint sensor. Anderson is only being used for its
`durational finger presses.
`The next argument, at DX8, is CPC’s computer art theory. CPC
`argues that a skilled person would not use Anderson or McKeeth to modify
`Mathiassen, because they allegedly relate to computer art. CPC originally
`presented this argument kind of as an analogous argument. Even though it
`did not use the term analogous, CPC clarified in its sur reply that it was not
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`referring to analogous art, I believe. And so, the references here, though,
`regardless of whether CPC’s trying to make an analogous argument or not --
`which is inappropriate, given the recent Federal Circuit precedential case
`that we cited -- here, we have all three references. Mathiassen, McKeeth,
`and Anderson are all directed to accessing an electronically secured item,
`and providing authorized access.
`And CPC even agrees that Mathiassen is directed to security
`issues. I’ll refer the Board to the sur reply, page 19. CPC’s expert admits
`that both Mathiassen and McKeeth are fingerprint recognition references. I
`refer to Exhibit 2015, paragraph 60. So all we have from CPC to support
`this kind of computer art argument is conclusory opinion from -- testimony
`from Dr. Easttom where he simply just had a statement at paragraph 76 of
`Exhibit 2013, that a POSITA just wouldn’t have turned to personal computer
`art.
`
`I’m going to pause here, see if the panel has any questions before I
`move to the next discussion topic.
`JUDGE GROSSMAN: I have none. It doesn’t look like Judges
`Daniels or Hagy have any --
`MS. BAILEY: All right.
`JUDGE GROSSMAN: -- so you can proceed.
`MS. BAILEY: Okay. Thank you. All right. Let’s move to DX9,
`and switch topics to Mathiassen’s accessibility attribute. So I find
`interesting that this was the opening argument in the Patent Owner response
`by CPC, and then CPC has relegated this argument to a miscellaneous
`section of one paragraph in its sur reply. And I think that’s telling, because
`the evidence shows that Mathiassen’s teaching of an administrator gaining
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`IPR2022-00601 (Patent 9,269,208 B2)
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`access is substantially similar to what is described in the 705 Patent for a
`type of accessibility attribute.
`Mathiassen teaches that a type of user is an administrator, as
`compared to other non-administrator users, and we know this from
`Mathiassen, because Mathiassen discusses enrolling other users at paragraph
`140. An administrator is discussed throughout as having like full privileges,
`for example. So we know that when --
`JUDGE GROSSMAN: Well, let me -- just to make sure I -- it’s
`clear that my understanding of administrator and what’s going on with
`Mathiassen is clear to me, is it’s a fob for getting into your car, is the
`preferred embodiment. And for lots of people, there may be more than one
`driver for that car. You might have a spouse and three kids, all who want to
`use your car, and each of them is going to want to record their fingerprint so
`that they can open the door, and somebody has got to go first.
`So in Mathiassen, I think the first person to record their fingerprint
`becomes the administrator, in some -- and everybody else is then authorized.
`But that -- is that understanding of what’s going on in Mathiassen accurate,
`in your view?
`MS. BAILEY: I agree that Mathiassen teaches that the car owner,
`the first to be enrolled, is the administrator, and Mathiassen does teach that
`that administrator can enroll other users. That’s paragraph 190, I believe, of
`Mathiassen. Does that answer your question, Your Honor?
`JUDGE GROSSMAN: Yes. Thank you. Thank you.
`MS. BAILEY: Okay. So in Mathiassen, when the administrator is
`granted access, the administrator is granted that access under the condition
`of being an administrator. And we discuss this in the petition, pages 18
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`IPR2022-00601 (Patent 9,269,208 B2)
`IPR 2022-00602 (Patent 9,665,705 B2)
`through 19, Exhibit 1003, which is the declaration of Dr. Sears, at
`paragraphs 138, 140 through 142.
`I want to emphasize here that CPC does not disagree with this
`mapping. CPC admits the administrator has broader access than other users,
`and even CPC’s own expert agrees with this. Now I’m going to refer the
`Board to DX10, where Dr. Easttom was asked in his deposition -- and this is
`from Exhibit 1089, page 21 through page 22 -- and he was asked, would an
`administrator be a legitimate user? He answered yes. And if the legitimate
`user is granted access, would this output an accessibility attribute?
`And Dr. Easttom agrees, and he says, under what conditions?
`Well, they’re an administrator, so we’re going to grant them a much broader
`access than a standard user. So yes, an accessibility attribute would be
`output from that process. So even Dr. Easttom -- yes, Your Honor?
`JUDGE GROSSMAN: I’ll let you finish your thought, and then
`I’ll ask you the question I had in mind about accessibility attributes.
`MS. BAILEY: I was just going to quickly say that even Dr.
`Easttom agrees that an administrator has a different -- has a type of access
`that is unconditional, that is broader than perhaps, say, an ordinary user. Go
`ahead, Your Honor.
`JUDGE GROSSMAN: Now, if you only have one user, let’s say
`in Mathiassen, that that user I guess automatically becomes the
`administrator. But why -- what’s the close connection between being an
`administrator and the phrase accessibility attribute, as it’s used in the patents
`and in the claims of the patents? Or what if there’s no administrator? What
`if it’s just
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