UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`APPLE INC.,
`Petitioner
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`v.
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`FINTIV, INC.,
`Patent Owner
`
`———————
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`IPR2022-00976
`U.S. Patent No. 9,892,386
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`———————
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`SUPPLEMENTAL DECLARATION OF DR. HENRY HOUH
`IN SUPPORT OF PETITIONER’S REPLY
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`1
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`APPLE INC.,
`Petitioner
`
`v.
`
`FINTIV, INC.,
`Patent Owner
`
`———————
`
`IPR2022-00976
`U.S. Patent No. 9,892,386
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`———————
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`SUPPLEMENTAL DECLARATION OF DR. HENRY HOUH
`IN SUPPORT OF PETITIONER’S REPLY
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`Supplemental Houh Declaration
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`I, Henry Houh, do hereby declare as follows:
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`Inter Partes Review of U.S. 9,892,386
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`I.
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`INTRODUCTION
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`1.
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`I am making this supplemental declaration at the request of Apple, Inc.
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`in the matter of the Inter Partes Review of U.S. Patent No. 9,892,386 (“the ’386
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`patent”) to Michael A. Liberty.
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`2.
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`I am being compensated for my work in this matter at my standard
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`hourly rate. I am also being reimbursed for reasonable and customary expenses
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`associated with my work and testimony in this investigation. My compensation is
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`not contingent on the outcome of this matter or the specifics of my testimony.
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`3.
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`I have been asked to provide my supplemental opinions as to the proper
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`construction of certain claim terms recited in claims 1-3 (the “Challenged Claims”)
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`of the ’386 patent. It remains my opinion that the terms do not require a specific
`
`construction beyond the plain and ordinary meaning as would have been understood
`
`by a POSITA.
`
`4.
`
`In preparing this Supplemental Declaration, I have reviewed:
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`a. the ’386 patent, APPL-1001;
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`b. the prosecution history of the ’386 Patent (“’386 File History”), APPL-
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`1002;
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`c. U.S. Patent Publication No. 2009/0265272 to Dill et al. (“Dill,” APPL-
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`1005);
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`d. U.S. Patent Publication No. 2010/0133334 to Vadhri (“Vadhri,” APPL-
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`1006);
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`e. U.S. Patent Publication No. 2009/0217047 to Akashika et al.
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`(“Akashika,” APPL-1007);
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`f. U.S. Patent Publication 2004/0230527 (“Hansen,” APPL-1008); and
`
`g. U.S. Patent No. 7,865,141 to Liao et al. (“Liao,” APPL-1009).
`
`5.
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`In forming the opinions expressed below, I have considered:
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`a. the document listed above;
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`b. the relevant legal standards;
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`c. my own knowledge and experience based upon my work in the field of
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`software and telecommunications as described below; and
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`d. the following materials:
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`• G. Winfield Treese et al., “Designing Systems for Internet
`
`Commerce,” Second Edition, Addison-Wesley, 2003 (“Treese”)
`
`(excerpt), APPL-1012;
`
`• H. Newton, “Newton’s Telecom Dictionary,” 17th Edition, CMP
`
`Books, 2001 (excerpt, p. 52), APPL-1014;
`
`• T. Thai et al., “.Net Framework Essentials,” Third Edition, O’Reilly
`
`& Associates, Inc., 2003 (excerpt, pp. 1-10), APPL-1015;
`
`• Patent Owner’s Response (“Response”) in IPR2022-00976;
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`• Declaration of Michael I. Shamos, Ph.D., Ex.2009;
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`• Distributed Transaction Processing: Reference Model, Version 3,
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`Ex.2010;
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`• Auditing: Principles and Techniques, Pearson Education, 2006,
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`Ex.2011;
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`• Kingsley-Hughes, Adrian, et al., VBScript Programmer’s
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`Reference, United Kingdom, Wiley, 2007, Ex.2012;
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`• Concise Oxford English Dictionary: Luxury Edition, United
`
`Kingdom, OUP Oxford, 2011, Ex.2013;
`
`• Technical Standard “Data Management: Structured Query
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`Language (SQL) Version 2,” 1996, Ex.2017;
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`• Deposition of Michael Shamos, Ph.D (May 9, 2023), APPL-1018;
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`• U.S. Patent No. 9,147,184, APPL-1019; and
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`• Any other documents cited in this analysis.
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`The materials I have reviewed and studied, including those listed in this
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`paragraph, are the type of evidence an expert in the field of software and mobile
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`application development would consider in reaching conclusions.
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`6.
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`Unless otherwise noted, all emphasis in any quoted material has been
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`added.
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`II.
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`SUPPLEMENTAL CLAIM CONSTRUCTION ANALYSIS
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`Inter Partes Review of U.S. 9,892,386
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`7.
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`The discussion below provides a detailed analysis of my supplemental
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`opinions relating to the proper construction of certain claim terms recited in the
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`Challenged Claims. These opinions merely supplement my original opinions and do
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`not (and are not intended to) override or invalidate any of my original opinions.
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`8.
`
`As part of my supplemental analysis, I have considered what counsel
`
`has explained to me is the so-called Phillips standard under which claim terms are
`
`given their plain and ordinary meaning as would be understood by one of ordinary
`
`skill in the art in light of the specification and prosecution history, unless the inventor
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`has set forth a special meaning for a term.
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`9.
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`It is my understanding that Patent Owner is arguing that the following
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`terms must be given specific constructions:
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`• “Committing” a pending transaction;
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`• “Auditing Financial Transactions;”
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`• “Handling Errors;” and
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`• “Logging” platform objects.
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`10.
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`I disagree. It remains my opinion that terms recited in the Challenged
`
`Claims, including the terms listed in Paragraph 9 (above), do not require a specific
`
`construction beyond the plain and ordinary meaning as would have been understood
`
`by a POSITA. My supplemental opinions just respond to Patent Owner’s arguments.
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`“Committing” a pending transaction
`
`A.
`11. Patent Owner argues that “committing” a pending transaction should
`
`be construed to mean “saving data permanently after a set of tentative changes, rather
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`than rolling back the tentative changes.” Response at 16. Patent Owner also argues
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`that “committing” a pending transaction requires a “staged commitment process,
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`where the transaction is sequentially committed through various layers of the
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`monetary transaction system during the processing of the transaction.” Response at
`
`9, 33-38. The “staged commitment process” argument is not presented in the claim
`
`construction portion of the Response so I view it as an additional, yet implicit
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`construction. In any case, I disagree with Patent Owner’s proposed construction. It
`
`is my opinion that this term does not require specific construction beyond its plain
`
`and ordinary meaning as would have been understood by a POSITA.
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`1.
`
`The claims and specification do not limit “committing” a
`pending transaction.
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`12. The Challenged Claims recite “committing” a transaction three times.
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`None of these instances limit “committing” a pending transaction to “saving data
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`permanently after a set of tentative changes, rather than rolling back the tentative
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`changes.”
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`13.
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`I have searched the specification, and confirm that the words
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`“committing,” “commit,” and “commitment” are not used. The only time “commit”
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`appears anywhere in the ’386 patent, aside from the claims, is in the phrase “commit
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`transaction” in several drawings. One of those drawings is Figure 20B. But the
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`specification does not explain the details of Figure 20B and certainly does not give
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`any explanation of the phrase “commit transaction.” APPL-1001, 30:14-23 (brief
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`explanation of Figures 20A-20F). This is not surprising because Figures 20A-20F,
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`21A-21I, and 22A-22J and the very high-level introduction to these figures in the
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`specification were added during prosecution of the ’386 patent in an attempt to
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`overcome a Section 101 rejection. APPL-1002, 1380-1382, 1395-1400.
`
`14.
`
`I have also searched the specification for the terms “permanent” and
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`“tentative” because those terms are used in Patent Owner’s proposed construction. I
`
`confirm that those words are not used in the claims or the specification.
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`15. Patent Owner relies on Distributed Transaction Processing: Reference
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`Model, Version 3 (Ex.2010) to support the “saving data permanently after a set of
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`tentative changes, rather than rolling back the tentative changes” portion of its
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`proposed construction. Response at 16-18.
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`16.
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`I note that Patent Owner’s reason for relying on Ex.2010 is tenuous at
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`best. Patent Owner states, without support, that every instance of the term
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`“committing” that is recited in the claims “is a concept from the database art.”
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`Response at 16. Patent Owner even analogizes the recited term “committing” to an
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`SQL commit message. Response at 19 n.2. Patent Owner further states, also without
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`support, that the financial transactions conducted in the ’386 patent are performed
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`using “Distributed Transaction Processing.” Response at 16.
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`17. But Ex.2010 is not cited or referenced in the ’386 patent or its file
`
`history. And the ’386 patent does not state or even suggest that it is using
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`“Distributed Transaction Processing.” It only states, in passing, that embodiments
`
`disclosed in it “may also be practiced in distributed system environments.” APPL-
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`1001, 5:32-40. This reference to a distributed environment, however, does not
`
`provide any detail or context. It certainly does not suggest that financial transactions
`
`of the ’386 patent are performed using a specific form of distributed transaction
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`processing described in Ex.2010, as Patent Owner contends.
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`18. Patent Owner appears to be adopting the “rolling back” portion of its
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`proposed construction from Figures 20C and 20E. Response at 19. The ’386 patent
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`describes these figures as showing “embodiments” of communications within a
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`monetary transaction system. APPL-1001, 3:28-39. These figures, however, do not
`
`support defining the claims to recite “rather than rolling back” tentative changes, as
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`Patent Owner proposes. I have reviewed the ’386 patent, its specification, and file
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`history and I see no indication that the applicants intended to limit the claims as
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`Patent Owner suggests.
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`2.
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`The structure of the claims does not support Patent
`Owner’s proposed construction.
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`19. The structure of the Challenged Claims also does not support Patent
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`Owner’s proposed construction. The term “committing” a pending transaction is first
`
`used in what the Petition refers to as limitation [1.10.5]. This limitation recites
`
`“committing a pending transaction through the business process services.”
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`20. Then, in limitation [1.10.7], the business process services returns
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`“confirmation…that the pending transaction has been committed.” According to
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`limitation [1.10.7], the transaction has now been committed. Patent Owner’s
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`proposed construction would then require “saving data permanently after a set of
`
`tentative changes.”1 And, if Patent Owner’s reliance on Ex.2010 were appropriate,
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`limitation [1.10.7] would also end the transaction because Ex.2010 states that
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`“commitment is the act that ends a transaction.” Ex.2010 at 7. But this is not what
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`happens in the claims at all. The process of the Challenged Claims proceeds.
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`21. Limitations [1.11.1]-[1.11.8] recite how a pending transaction is
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`committed by the business process services. And, separately, limitation [1.10.9]
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`1 Patent Owner’s expert, Dr. Shamos, testified that “committing” a pending
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`transaction results in permanently saving data to a disk drive. APPL-1018, 44:18-
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`25. Dr. Shamos did not and could not support this testimony by any disclosures in
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`the ’386 patent. APPL-1018, 50:4-10.
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`again recites committing “the pending transaction.” A POSITA would have
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`understood these limitations to mean that the transaction that is the subject of the
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`claims remains pending and any changes made by that transaction remain tentative.
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`As such, contrary to Patent Owner’s proposed construction, any changes made by
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`the transaction have not yet been permanently saved. Instead, claim 1 continues to
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`refer to the transaction as a “pending transaction” until the end in limitation [1.10.9].
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`There, the pending transaction is again committed, but this time to the database
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`services, and not the business process services as recited earlier in the claim. The
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`structure of the claims is inconsistent with Patent Owner’s proposed construction.
`
`3.
`
`The claims and specification do not support Patent Owner’s
`implicit “staged commitment process” construction.
`
`22.
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`I mentioned in Paragraph 11, above, that Patent Owner also proposes
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`an implicit construction of the term. That construction would limit “committing” a
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`pending transaction to a “staged commitment process, where the transaction is
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`sequentially committed through various layers of the monetary transaction system
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`during the processing of the transaction.” Response at 9, 33-38. This is because,
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`according to Patent Owner, the pending transaction is sequentially committed
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`through various communication tiers. Response at 9, 33. I disagree with Patent
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`Owner’s proposed implicit construction.
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`23. The Challenged Claims do not recite a staged, sequential commitment
`
`process. The claims only require “committing” a pending transaction through the
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`business process services and to the database services in separate steps. Limitations
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`[1.10.5], [1.10.9], [1.11.1]. These separate steps do not require or even suggest a
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`staged or sequential process.
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`24. The specification of the ’386 patent also does not help Patent Owner
`
`because it does not even state the word “commit” (or its variants) at all. See
`
`Paragraph 13, above. Patent Owner therefore relies on Figures 20-22 that Patent
`
`Owner claims provide examples of a staged commitment process. Response at 9-11.
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`The figures do not help Patent Owner at least because the specification provides only
`
`a high-level description of the figures without any discussion of a staged
`
`commitment process. The figures only show that the commitment request is
`
`communicated through various tiers. But this does not show or even suggest a staged
`
`or sequential commitment process which, according to Patent Owner’s proposed
`
`construction, requires a very specific set of operations.
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`“Auditing Financial Transactions”
`
`B.
`25. Patent Owner argues that “auditing financial transactions” should be
`
`construed to mean “performing retrospective inspection and verification of financial
`
`transactions.” Response at 21-22. I disagree. It is my opinion that this term does not
`
`require specific construction beyond its plain and ordinary meaning as would have
`
`been understood by a POSITA.
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`26. The Challenged Claims recite the term “auditing financial transactions”
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`only once and do not suggest that “auditing” requires a “retrospective inspection” or
`
`“retrospective…verification.” I note that Patent Owner’s expert, Dr. Shamos,
`
`testified that the word “retrospective” in Patent Owner’s proposed construction
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`modifies both “inspection” and “verification.” APPL-1018, 96:4-14.
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`27. The specification does not support Patent Owner’s proposed claim
`
`construction either. It only repeats the term and does not describe it or its functions.
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`APPL-1001, 13:25-29. I have searched the specification, and confirm that the words
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`“retrospective,” “inspection,” and “inspect” are not used.
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`28. Patent Owner’s reliance on Auditing: Principles and Techniques,
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`Pearson Education, 2006 (Ex.2011) does not support its construction either. I first
`
`note that Ex.2011 is not cited or referenced in the ’386 patent. The portions of
`
`Ex.2011 that Patent Owner cites do not use the word “retrospective” and do not state
`
`or suggest that an audit must be “retrospective.” While Ex.2011 discusses auditing,
`
`it does not require that “auditing” requires both an “inspection” and a “verification.”
`
`29. There is no need for an audit to be retrospective, as Patent Owner
`
`suggests. It is my opinion that a POSITA would have understood the concept of
`
`auditing and, as a result, would have known that an audit of a financial transaction
`
`in an electronic payment system may not be retrospective at all. As an example, U.S.
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`Patent No. 9,147,184 explains that an audit may be performed as part of a transaction
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`before it is completed:
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`Payment authorization may involve an audit, which may
`include comparing data from one or more of a buyer-based audit,
`seller-based audit or an audit based upon a third party operating
`the central/integrated processor. The results of the audit can be
`provided to the selected networks and used, for example as
`indication that the transaction can go forward (e.g., validation
`regarding the transaction amount and source).
`
`APPL-1019, at 5:27-34
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`30. This is the opposite of “retrospective,” as Patent Owner would require.
`
`31. There is no reason to limit the term “auditing financial transactions” as
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`Patent Owner proposes. The term should be given its plain and ordinary meaning.
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`“Handling Errors”2
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`C.
`32. Patent Owner argues that error handling should be construed to mean
`
`“procedures for responding to and recovering from errors.” Response at 22. I
`
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`2 Patent Owner argues about the construction of “error handling” but that phrase is
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`not recited in the challenged claims or the specification of the ’386 patent. The
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`phrase “handling errors,” however, is recited in the claims. I address this phrase.
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`disagree. It is my opinion that this term does not require specific construction beyond
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`its plain and ordinary meaning as would have been understood by a POSITA.
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`33. The Challenged Claims do not require that “handling errors” must
`
`include “responding” to or “recovering” from errors. In fact, the Challenged Claims
`
`do not give this phrase special functionality, aside from the words on the page.
`
`34. The specification of the ’386 patent does not offer any additional insight
`
`either because the phrase appears in the specification in the same context as it is
`
`recited in the claims. APPL-1001, 13:25-29 (“Business process services 104 are
`
`configured to implement business workflows, including…handling errors….”). I
`
`have searched
`
`the specification, and confirm
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`that
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`the words “respond,”
`
`“responding,” “recover,” and “recovering” are not used.
`
`35. Patent Owner’s Response appears to suggest that “handling errors” is
`
`somehow analogous to the “rollback process” in Figure 20C of the ’386 patent.
`
`Ex.2009, ¶51 (cited in Response at 22); APPL-1018, 107:18-108:11. I disagree.
`
`Figure 20C does not state or suggest that the rollback process must be part of
`
`handling errors, as claimed. The specification is similarly silent. Moreover, neither
`
`Figure 20C nor the specification indicate that “handling errors” must include
`
`“recovering” from the errors, as Patent Owner suggests. I also note that Patent Owner
`
`has already suggested that the “rollback process” is somehow a part of the
`
`“committing” a pending transaction process. The language of the Challenged Claims
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`shows that “committing” a pending transaction and “handling errors” are unique
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`processes and Patent Owner does not explain why it is pointing to the “rollback
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`process” for two separate limitations.
`
`36. Patent Owner attempts to support its proposed construction with a
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`discussion of Kingsley-Hughes, Adrian, et al., VBScript Programmer’s Reference,
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`United Kingdom, Wiley, 2007 (emphasis added) (Ex.2012). But this document is
`
`not helpful. First, it is not cited or referenced in the ’386 patent. Second, it is not the
`
`type of document I would expect a POSITA to rely on to obtain a meaning for
`
`technical terms. At best, Ex.2012 is a programmer’s reference for a very specific
`
`programming language; not a definitional document.
`
`37.
`
`I have reviewed the portions of Ex.2012 that Patent Owner cites and
`
`note that Ex.2012 itself does not support Patent Owner’s proposed construction. This
`
`document does not state that “handling errors” requires “recovering” from the error
`
`at all. I have also reviewed the deposition of Patent Owner’s expert, Dr. Shamos,
`
`and note that Dr. Shamos testified that Ex.2012 does not support the “recovering”
`
`portion of Patent Owner’s construction. APPL-1018, 108:12-109:2.
`
`38.
`
`It is not necessary to limit “handling errors” as Patent Owner suggests.
`
`The term should be given its plain and ordinary meaning.
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`“Logging” platform objects
`
`D.
`39. Patent Owner argues that “logging” platform objects should be
`
`construed to mean “storing or recording platform objects in a log.” Response at 23-
`
`24. I disagree. It is my opinion that this term does not require specific construction
`
`beyond its plain and ordinary meaning as would have been understood by a POSITA.
`
`40. The Challenged Claims do not discuss any special functionality for
`
`“logging” platform objects. They certainly do not require or suggest that platform
`
`objects must be logged “in a log.”
`
`41. The specification of the ’386 patent also does not require platform
`
`objects to be stored or recorded “in a log.” This additional requirement, that logging
`
`must be “in a log,” is an unnecessary addition. None of Patent Owner’s references
`
`to the specification mandate that platform objects be stored or recorded “in a log.”
`
`These references are made in the context of transactions, not platform objects. Patent
`
`Owner also ignores where the ’386 patent refers to “log[ging] the transaction”
`
`without providing any specifics where the logging is made into. See, e.g., APPL-
`
`1001, 17:1-5, 17:59-62, 18:22-25, 18:50-53, 19:10-13, 19:28-32, 19:66-20:4, 20:46-
`
`50, 21:26-30, 21:44-49, 22:14-19, 22:38-43, 22:56-60, 23:41-44, 24:9-11, 24:54-47,
`
`25:14-18, 26:20-23; 26:51-56, 27:22-25, 28:3-6 (all describing an action of “logs the
`
`transaction” without specifying that the transaction is logged “in a log”). I do not see
`
`any reason to require that “logging” platform objects must be “in a log.”
`
`
`
`16
`
`EX1017 / IPR2022-00976
`Apple Inc. v. Fintiv, Inc.
`
`APPL-1017 / IPR2022-00976
`
`
`
`Supplemental
`Houh Declaration Inter Partes
`Review of U.S. 9,892,386
`
`42.Patent Owner attempts
`to suppmt its arguments
`with the Concise
`
`Luxury Edition,
`United Kingdom,
`OUP Oxford, 2011
`Oxford English
`Dictionary:
`
`(Ex.2013).
`This document
`is not cited in the '386 patent.
`Also, while it may be true
`
`that logging
`may be "in a log" in some situations,
`neither
`Ex.2013,
`nor the
`
`Challenged
`Claims or specification
`of the '386 patent
`require
`that to be the case.
`
`43.It is not necessary
`to limit "logging"
`platform
`objects
`to logging
`"in a
`
`log." The term should
`be given its plain and ordinary
`meaning.
`
`III.CONCLUSION
`
`44.This declaration
`and my opinions
`herein
`are made to the best of my
`
`knowledge
`and understanding,
`and based on the material
`available
`to me, at the time
`
`of signing
`this declaration.
`I declare
`that all statements
`made herein
`on my own
`
`knowledge
`are true and that all statements
`made on information
`and belief
`are
`
`believed
`to be true, and further,
`that these statements
`were made with the knowledge
`
`that willful false statements
`and the like so made are punishable
`by fine or
`
`imprisonment,
`or both, under Section
`1001 or Title 18 of the United States
`Code.
`
`Henry Houh
`
`17
`
`APPL-l0l7 / I
`PR2022-00976
`Apple Inc. v. Fintiv, Inc.
`
`
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