UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`APPLE INC.,
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`Petitioner,
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`v.
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`FINTIV, INC.,
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`Patent Owner.
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`
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`
`
`Case No. IPR2022-00976
`U.S. Patent N o 9,892,386
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`PATENT OWNER’S SUR-REPLY
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`TABLE OF CONTENTS
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`PATENT OWNER’S EXHIBIT LIST ..................................................................... ii
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`I.
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`II.
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`INTRODUCTION ........................................................................................... 1
`
`DILL FAILS TO SHOW OR SUGGEST A TRANSACTION
`WHERE THE SENDER AND THE RECIPIENT ARE ONE AND
`THE SAME (CLAIMS 1 AND 2) ................................................................... 1
`
`III. THE PETITION HAS FAILED TO DEMONSTRATE THAT DILL
`“CONTEMPLATES” A WITHDRAWAL TRANSACTION
`(CLAIM 2) ....................................................................................................... 9
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`IV. PETITIONER HAS FAILED TO ARTICULATE ITS OWN
`CONSTRUCTIONS FOR DISPUTE TERMS AS REQUIRED BY
`THE BOARD’S TRIAL PRACTICE RULES ..............................................10
`
`A.
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`“Auditing Financial Transactions” ...........................................12
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`B.
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`C.
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`“Handling Errors” .....................................................................13
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`“Logging” Platform Objects .....................................................16
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`V. DILL FAILS TO TEACH THE CLAIMED BUSINESS PROCESS
`SERVICES (CLAIMS 1-3) ...........................................................................17
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`A. Dill Fails To Teach “Auditing Financial Transactions” ...........17
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`B.
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`C.
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`Dill Fails To Teach “Handling Errors” .....................................18
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`Dill Fails To Teach Logging Platform Objects ........................19
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`VI. CONCLUSION ..............................................................................................20
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`i
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`PATENT OWNER’S EXHIBIT LIST
`PATENT OWNER’S EXHIBIT LIST
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`
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`Ex. 2001|Declaration of Dr. Michael I. Shamos, Ph.D., dated August 24, 2022
`Ex. 2001 Declaration of Dr. Michael I. Shamos, Ph.D., dated August 24, 2022
`
`Ex. 2002|First Amended Complaint for Patent Infringement, Dkt. 20, Fintiv,
`Ex. 2002 First Amended Complaint for Patent Infringement, Dkt. 20, Fintiv,
`Inc. v. PayPal Holdings, Inc, Civil Action No. 6:22-cv-00288-ADA,
`Inc. v. PayPal Holdings, Inc, Civil Action No. 6:22-cv-00288-ADA,
`dated June 24, 2022 (“FAC”)
`dated June 24, 2022 (“FAC”)
`
`Ex. 2003|Plaintiff Fintiv, Inc.’s Initial Disclosure of Asserted Claims, Accused
`Ex. 2003 Plaintiff Fintiv, Inc.’s Initial Disclosure of Asserted Claims, Accused
`Instrumentalities, and Infringement Contentions, dated June 23, 2022
`Instrumentalities, and Infringement Contentions, dated June 23, 2022
`(“Fintiv’s Preliminary Infringement Contentions’’)
`(“Fintiv’s Preliminary Infringement Contentions”)
`
`
`Ex. 2004|Fintiv’s Preliminary Infringement Chart for U.S. Patent No.
`Ex. 2004 Fintiv’s Preliminary Infringement Chart for U.S. Patent No.
`9,892,386 — Exhibit C to Plaintiff Fintiv, Inc.’s Initial Disclosure of
`9,892,386 – Exhibit C to Plaintiff Fintiv, Inc.’s Initial Disclosure of
`Asserted Claims, Accused Instrumentalities, and Infringement
`Asserted Claims, Accused Instrumentalities, and Infringement
`Contentions, dated June 23, 2002
`Contentions, dated June 23, 2002
`
`Ex. 2005|Resume of Michael Ian Shamos
`Ex. 2005 Resume of Michael Ian Shamos
`
`Ex. 2006|U.S. Court, Statistics and Reports, U.S. District Court for the
`Ex. 2006 U.S. Court, Statistics and Reports, U.S. District Court for the
`Eastern District of Texas, Judicial Caseload Profile (March 2022),
`Eastern District of Texas, Judicial Caseload Profile (March 2022),
`available at https://www.uscourts.gov/statisticsreports/federal-court-
`available at https://www.uscourts.gov/statisticsreports/federal-court-
`management-statistics-march-2022
`management-statistics-march-2022
`
`Ex. 2007|Joint Motion to Enter Agreed Scheduling Order, Dkt. 28, Fintiv, Inc.
`Joint Motion to Enter Agreed Scheduling Order, Dkt. 28, Fintiv, Inc.
`Ex. 2007
`v. PayPal Holdings, Inc, Civil Action No. 6:22-cv-00288- ADA,
`v. PayPal Holdings, Inc, Civil Action No. 6:22-cv-00288- ADA,
`dated August 17, 2022
`dated August 17, 2022
`
`Ex. 2008|U.S. Patent No. 9,892,386 Claims Appendix
`Ex. 2008 U.S. Patent No. 9,892,386 Claims Appendix
`
`Ex. 2009|Declaration of Dr. Michael I. Shamos, Ph.D., dated February 10,
`Ex. 2009 Declaration of Dr. Michael I. Shamos, Ph.D., dated February 10,
`2023
`2023
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`Ex. 2010|Definition of “commit” from Techopedia
`Ex. 2010 Definition of “commit” from Techopedia
`
`Ex. 2011|Definition of auditing from Auditing: Principles and Techniques,
`Ex. 2011 Definition of auditing from Auditing: Principles and Techniques,
`Pearson Education, 2006
`Pearson Education, 2006
`
`Ex. 2012|Definition of error handling from Kingsley-Hughes, Adrian, et al.,
`Ex. 2012 Definition of error handling from Kingsley-Hughes, Adrian, et al.,
`VBScript Programmer’s Reference, United Kingdom, Wiley, 2007
`VBScript Programmer’s Reference, United Kingdom, Wiley, 2007
`
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`ii
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`Ex. 2013 Definition of logging from Concise Oxford English Dictionary:
`Luxury Edition, United Kingdom, OUP Oxford, 2011
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`IPR2022-00976
`U.S. Patent No. 9,892,386
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`Ex. 2014
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`IETF RFC 2935, published September of 2000
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`Ex. 2015 Fintiv, Inc. v. Paypal Holding, Inc., 6:22-CV-00288-ADA (W.D.
`Tex. 2022), Dkt. 60 (Claim Construction Order)
`
`Ex. 2016 U.S. Application No. 13/964,707, Response to Office Action dated
`December 14, 2014
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`Ex. 2017 Technical Standard “Data Management: Structured Query Language
`(SQL) Version 2, p. 28
`
`Ex. 2018 Deposition Transcript of Dr. Houh, dated June 13, 2023
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`iii
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`I.
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`INTRODUCTION
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`Petitioner has failed to meet its burden with respect to Claims 1-3
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`(“Challenged Claims”) of U.S. Patent No. 9,892,386 (“’386 Patent,” Ex. 1001).
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`Among other deficiencies, Petitioner has failed to demonstrate that Dill teaches any
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`embodiment where the sender and recipient are one and the same. This defect is fatal
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`to the challenges to Claims 1 and 2. The Petitioner has also failed to carry its burden
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`of demonstrating that the cited references teach or suggest a system where the
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`“business process services [is] operable to implement ... auditing financial
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`transactions, ... , handling errors, and logging platform objects,” as recited in all of
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`the Challenged Claims.
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`II.
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`DILL FAILS TO SHOW OR SUGGEST A TRANSACTION WHERE
`THE SENDER AND THE RECIPIENT ARE ONE AND THE SAME
`(CLAIMS 1 AND 2)
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`Petitioner does not dispute that Claim 1 recites a transaction where a
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`subscriber deposits funds into the subscriber’s own account, or that Claim 2 recites
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`a transaction where a subscriber withdrawals funds from the subscriber’s own
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`account. In contrast to Claims 1 and 2, Dill discloses a transaction where one party
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`(labeled “Sender” (blue box) in Fig. 5 of Dill (below)) sends money to a different
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`party recipient (labeled “Recipient” (red box)), rather than a deposit/withdrawal
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`transaction where a subscriber deposits/withdrawals money into his/her own
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`account, as claimed.
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`1
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`Pet., at 50-51 (annotations to figure added by Patent Owner).
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`As Patent Owner’s Expert, Dr. Shamos, has unequivocally explained:
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`“Nowhere does Dill disclose or suggest that the ‘sender’ and ‘receiver’ or ‘recipient’
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`can be the same party in the same transaction.” Ex. 2009, ¶73. While Petitioner’s
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`Expert, Dr. Houh, submitted a Reply Declaration (Ex. 2018) in this matter,
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`Dr. Houh’s Reply Declaration is silent on whether Dill discloses or suggests that the
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`“sender” and “receiver” or “recipient” can be the same party in the same
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`transaction. Accordingly, with respect to this issue, the Reply is based on attorney
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`argument rather than expert testimony.
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`However, “Attorney argument is no substitute for evidence.” (Enzo Biochem
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`v. Gen-Probe, Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005). In fact, the Federal Circuit
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`2
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`expressly holds that “a party’s unsworn attorney argument . . . is not evidence and
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`thus cannot rebut record evidence.” Wasica Fin. GmbH v. Cont'l Auto. Sys.,
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`853 F.3d 1272, 1284-85 (Fed. Cir. 2017). Yet, in the present case, the Petitioner is
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`trying to use their unsworn attorney argument to rebut the sworn expert testimony
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`of Dr. Shamos.
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`For example, as shown in the Petitioner’s Reply (quoted below), the
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`underlined attorney arguments are devoid of any citations to either of Petitioner’s
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`Expert’s Declarations (which are Exhibits 1003 and 1017):
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`Dill discloses that “the names sender and recipient are used only
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`to illustrate a particular entity’s and/or device’s function at a given
`time.” Pet. 48; APPL-1005, ¶52. This language expressly relates to
`“time”; not a “transaction,” contrary to Patent Owner’s assumption.
`Moreover, the names sender and recipient in Dill “are not intended to
`imply any limitations on the functions that can be performed by a given
`entity and/or device.” APPL-1005, ¶52. Any entity and/or device
`associated with that entity “can alternately act as sender or recipient.”
`Pet. 48; APPL-1005, ¶52. Taken together, an entity and/or device
`associated with that entity may act as a “sender” at a first time in the
`transaction and a “recipient” at a second time in the same transaction.
`(Reply at 21)(underlining provided by Patent Owner, other emphasis in
`original).
`
`* * *
`As explained in the Petition, Dill discloses that “the names
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`sender and recipient are used only to illustrate a particular entity’s
`and/or device’s function at a given time.” Pet. 97; APPL-1005, ¶52.
`Any entity and/or device associated with that entity “can alternately
`act as sender or recipient.” Pet. 48; APPL-1005, ¶52. Taken together,
`an entity and/or device associated with that entity may act as a
`“sender” at a first time in the transaction and a “recipient” at a second
`time in the same transaction. (Reply, at 24) (underlining provided by
`Patent Owner, other emphasis in original).
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`3
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`Dill does not include or imply the phrase “in the same transaction” in the
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`quoted sentences. That is a gloss added by Petitioner’s counsel that lacks support
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`from Petitioner’s own expert.1 As Patent Owner’s expert has testified, the language
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`“alternately” means that a party to a transaction is either a sender or receiver, but not
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`both and “Dill restricts its transactions [as] taking place between unrelated entities.
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`This precludes the sender and the receiver in Dill from being the same party.”
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`Ex. 2009, ¶¶73, 75 (emphasis added).
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`In addition to his silence on the issue in Dr. Houh’s Reply Declaration
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`(Ex. 1017), it bears noting that, in his original Declaration (Ex. 1003), Dr. Houh
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`never said that, in Dill, the “sender” and “receiver” or “recipient” can be the same
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`party in the same transaction. While, in his original Declaration, Dr. Houh quotes
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`the portion of Dill at ¶52 which states that any entity “can alternatively act as sender
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`or recipient,” Dr. Houh stops short of interpreting that statement to mean that the
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`“sender” and “receiver” or “recipient” can be the same party in the same transaction,
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`1 In addition to lacking support in the text of Dill or from Petitioner's expert,
`this attorney argument makes little sense in the context of the deposit transaction
`recited in Claim 1. Even if the subscriber in the deposit transaction of Claim 1 were
`analogized to a “sender” as a result of the subscriber providing the funds that are
`going to be deposited, the subscriber could not also be analogized as a “recipient“
`in the same deposit transaction because the subscriber is not “receiving” funds as
`part of the transaction.
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`4
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`as Petitioner now argues. Reviewing the relevant portions of Dr. Houh’s original
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`Declaration reveals this omission. From Dr. Houh’s original Declaration:
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`[1.9.1] wherein the monetary transaction system is implemented to
`deposit funds at an agent branch,
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`130. Dill discloses limitation [1.9.1]. First, Dill discloses that the
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`monetary transaction system is implemented…at an agent branch. For
`example, Dill discloses that a sender may “complete the transfer by
`visiting an Agent location and paying the transfer amount.” APPL-
`1005, ¶33; see also APPL-1005, ¶51 (“[T]he agent 135 provides a
`channel by which entities can access the services of the money transfer
`facilitator 140.”).
`
`131. Second, Dill teaches a deposit transaction. Dill discloses
`that one of the types of transactions that may be performed in its money
`transfer facilitation system is “delivering funds to a funds withholding
`system.” APPL-1005, ¶101; see also APPL-1005, ¶ 15 (same
`disclosure). Dill’s disclosure of “delivering
`funds”
`teaches
`“deposit[ing] funds” because funds are transferred to an account.
`APPL1005, ¶101 (delivery options include “delivering funds to a bank
`account”); see also APPL-1005, ¶3 (explaining that when a sender
`transfers money (e.g., “wiring” or money order), the money is
`“deposited with the third party.”).
`
`132. Further, Dill explains that its system is not limited to
`“sender” and “receiver” transactions. For example, Dill explains that
`“the names sender and recipient are used only to illustrate a particular
`entity’s and/or device’s function at a given time and are not intended to
`imply any limitations on the functions that can be performed by a given
`entity and/or device. That is, any given entity and/or device associated
`with that entity can alternately act as sender or recipient.” APPL-1005,
`¶ 52.
`133. Thus, Dill discloses the monetary transaction system is
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`implemented to deposit funds at an agent branch, as recited in limitation
`[1.9.1]
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`* * *
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`5
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` [1.10.3] the communication message indicating that the subscriber
`desires to deposit a specified amount of funds into the subscriber’s
`account;
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`143. Limitation [1.10.3] is disclosed by Dill. As shown in Figure
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`5 below, the sender’s mobile wallet initiates a transaction by sending a
`request to the mobile application (step 515). APPL-1005, ¶77. Dill
`discloses that the sender may specify the amount of a desired
`transaction with the request 125. APPL-1005, ¶77 (“This request can
`include, for example, information identifying the sender 105,
`information identifying the recipient 110, transaction information, e.g.,
`amount, etc. and/or other information.”). This request constitutes a
`communication message indicating that the subscriber (e.g., sender
`105) desires to authorize a transaction for a specified amount of funds.
`
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`[Image of Fig. 5 omitted]
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`144. As described above with respect to limitation [1.9.1], Dill
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`teaches that a sender deposits funds in her account. APPL-1005, ¶101
`(“delivering funds to a funds withholding system.”).
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`145. Thus, Dill discloses “the communication message (request
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`in step 515 of Dill’s Figure 5) indicating that the subscriber (sender)
`desires to deposit a specified amount of funds into the subscriber’s
`account,” as recited in limitation [1.10.3].
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`Ex. 1003, ¶130-131, 143-145. In ¶144 of his Declaration, Dr. Houh refers back to
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`his analysis of limitation [1.9.1] as allegedly supporting the notion that “Dill teaches
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`that a sender deposits funds in her account;” however, as shown above, his analysis
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`of limitation [1.9.1] (at ¶¶130-133 of his Declaration) makes no such statement.
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`The Reply (at p. 20) points to Dill at ¶101 (see also, Ex. 1003, ¶144) as
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`allegedly disclosing the claimed deposit transaction. Both Petitioner and Dr. Houh
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`6
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`quote out of context the phrase “delivering funds to a funds withholding system”
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`from ¶101 of Dill. That statement is set forth in the context below:
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`As illustrated here, the money transfer facilitator system 140 can
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`additionally or alternatively comprise one or more interfaces 136-138
`for conducting money transfer transactions and a transfer options
`module 145 communicatively coupled with the one or more interfaces
`136-138. For example, the one or more interfaces 136-138 can
`comprise at least one of an Interactive Voice Response (IVR) interface
`136, a web interface 137, as well as or instead of an interface to an agent
`system 135, a telephone interface to a customer service representative,
`or other interfaces 138. The transfer options module 145 can be adapted
`to receive transaction information for a money transfer transaction
`from a sender 105 through at least one or the interfaces 136-138,
`provide a notification of the transaction to a recipient of the
`transaction, and select one or more delivery options for completing the
`money transfer transaction. For example, the delivery options can
`comprise at least one of delivering funds to a bank account of a
`recipient such as destination account 175 of the recipient’s financial
`institution 170, delivering funds to a pre-paid account, delivering funds
`to a funds withholding system, delivering funds to a third party,
`delivering a draft check, delivering funds through an Automated Teller
`Machine (ATM), making funds available for pick up at an agent
`location. Ex. 1005, ¶105 (emphasis added).
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`The aspect of this passage relied on by Petitioner and Dr. Houh teaches that,
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`in the context of a transaction between a sender 105 and a recipient, the transferred
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`funds can be delivered to a funds withholding system. The passage does not state or
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`even imply that the sender and receiver are the same party, and it clearly fails to
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`teach the deposit transaction of Claim 1, where a subscriber deposits funds into the
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`subscriber’s own account, or the corresponding withdrawal transaction of Claim 2.
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`7
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`The Reply (at 21-22) acknowledges that ¶57 of Dill describes the sender and
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`receiver as “unrelated entities,” but then minimizes this statement, asserting that it
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`relates only to an “example.” However, Dill does not preface its characterization of
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`the sender and receiver as “unrelated entities” with language such as “in one
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`embodiment” or “by way of example.” Instead, Dill’s characterization of the sender
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`and receiver as “unrelated entities” is directed generally to “system 100,” and “the
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`sending mobile wallet 125 and receiving mobile wallet 130” of Dill. Petitioner’s
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`attempt to trivialize Dill’s sentence that the sender and receiver are “unrelated
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`entities” is belied by Dr. Houh’s numerous citations to the same sentence in Dill for
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`the purpose of mapping at least five aspects of Claim 1 to Dill. See, POR, at note 4.
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`Even if Dill’s characterization of the sender and receiver as “unrelated
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`entities” was just an “example” (it is not), the Reply mischaracterizes the issue. “In
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`an inter partes review, the burden of persuasion is on the petitioner to prove
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`“unpatentability by a preponderance of the evidence ... and that burden never shifts
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`to the patentee.” (Dynamic Drinkware, LLC v. Nat'l Graphics, Inc., 800 F.3d 1375,
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`1378-79 (Fed. Cir. 2015)). It was Petitioner’s burden to show at least one case where
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`Dill affirmatively teaches that the “sender” and “receiver” or “recipient” are the
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`same party in the same transaction. Petitioner failed to meet that burden.
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`8
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`THE PETITION HAS FAILED TO DEMONSTRATE THAT DILL
`“CONTEMPLATES” A WITHDRAWAL TRANSACTION (CLAIM 2)
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`III.
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`Claim 2 is analogous to Claim 1, except the subscriber withdraws funds from
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`the subscriber’s account (instead of depositing funds into the subscriber’s account)
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`using the subscriber’s mobile wallet application. Ex. 1001, 32:52-53, 60-63. It is
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`well understood that, in a withdrawal transaction, the funds being withdrawn go to
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`the party withdrawing the funds. Ex. 2009, ¶108.
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`It is undisputed that the purported motivation for combining Dill and Liao set
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`forth in the Petition was premised on the assertion that Dill “contemplates a
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`withdrawal transaction.” See, Pet., at 96 -97 (“Limitation [2.12.1] is rendered
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`obvious by Dill and Liao.... Second, Dill contemplates a withdrawal transaction”);
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`Pet., at 98 (“A POSITA would have been motivated to modify Dill so that the sender
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`105 (or recipient 110) may withdraw funds into the sender’s (or recipient’s) account.
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`Dill teaches that two types of transactions that may be performed in its money
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`transfer facilitation system include “delivering funds to a bank account of a
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`recipient,” and “making funds available for pick up at an agent location.” Thus, Dill
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`contemplates a withdrawal transaction.”) However, as explained above, Dill does
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`not contemplate a withdrawal transaction because, in Dill, all of the transactions are
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`between a sender and an unrelated recipient. The Petition thus predicates its
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`9
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`argument for combining Dill with Liao on the erroneous foundation that Dill
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`“contemplates a withdrawal transaction.” See, POR, at 43-44; Ex. 2009, ¶¶109-111.
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`The Reply suggests that Patent Owner is attacking the references individually,
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`rather than in combination. Reply, at 25. That is not the case. Rather, Patent Owner
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`is attacking the purported motivation set forth in the Petition for combining the
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`references, i.e., the premise that Dill “contemplates a withdrawal transaction.” See,
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`Pet. at 96-98. For the reasons set forth above, that premise could not be more wrong.
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`IV.
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`ITS OWN
`PETITIONER HAS FAILED TO ARTICULATE
`CONSTRUCTIONS FOR DISPUTE TERMS AS REQUIRED BY THE
`BOARD’S TRIAL PRACTICE RULES
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`Under 37 C.F.R. § 42.104(b)(3), “the petition must set forth: ... [h]ow the
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`challenged claim is to be construed.” The Petitioner has failed to meet that burden
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`with respect to several disputed claim terms including, “auditing financial
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`transactions,” “handling errors,” “logging platform objects,” and “committing [a
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`pending transaction].” Instead of proposing any specific definitions, Petitioner hides
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`behind its statement that “no claim term requires construction beyond its ordinary
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`and customary meaning,” and consistently refuses to articulate definitions
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`corresponding to what Petitioner believes to be the “ordinary and customary
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`meaning” of the terms. During his deposition, Dr. Houh was asked over 40 times to
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`articulate his definitions of the “ordinary and customary meanings” of disputed
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`claim terms. In every case, he failed to provide any specific meaning for the term,
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`often dodging the questions by criticizing Dr. Shamos’s construction while refusing
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`to offer one of his own, or simply repeating the mantra that his construction is just
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`“plain and ordinary meaning.”2
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`In O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
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`(Fed. Cir. 2008), the Federal Circuit made clear that simply stating “that a claim term
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`‘needs no construction’ or has the ‘plain and ordinary meaning’ may be inadequate ...
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`when reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”
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`Where, as here, there is such a dispute, the Board is charged with resolving the
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`dispute. However, the Board’s task is rendered impossible in this case, because
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`Petitioner refuses to articulate definitions of what Petitioner believes to be the
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`meaning of the terms.
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`Petitioner’s
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`failure
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`to articulate definitions
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`for “auditing financial
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`transactions,” “handling errors,” and “logging platform objects,” represents a
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`fundamental gap in the Petition that remains unfilled. As explained below, in the
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`case of each of these claim limitations, it is counter-intuitive that the mapped
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`2 Houh Depo. Transcript (Ex. 2018). With respect to “committing” see : 11:1-
`8; 11:9-14; 11:15-24; 12:12-24; 12:25- 13 Ll-13; 15:23 – 16:14; 16:15- 17:14; 17:15
`– 18:14; 18:15- 19:9; 21:2-24; 22:1- 23:2; 24:1-15; 24:16- 25:6; 25:7-20; 26:18-
`27.:2; 28:6-15, 29:16- 30:6; 34:22- 35:11; 35:12-18; 35:19-23; 35:24- 36:7; 36:8-24;
`36:25- 38:3; 38:5- 39-11; with respect to “auditing” see: 99:2-10; 99:11-19; 100:2-
`11; 100:12- 101:5; 101:25- 102:20; 104:11-21; 104:22- 105 Ll.13; 105:15- 106:6;
`106:16-25; 107:1-9; 108:8-22; with respect to “error handling” see: 117:16- 118:5;
`118:11- 120:7; 120:8-19; 122:23- 124:6; 124:7- 125:2; 126:5-11; 126:12- 127:1.
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`functionality from Dill meets the claim language. In such a situation, the complete
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`absence of articulated definitions from Petitioner that circumscribe the mapped
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`functionality from Dill is fatal to Petitioner’s case.
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`A.
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`“Auditing Financial Transactions”
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`In the context of financial transactions, the ordinary and customary meaning
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`of “auditing financial transactions” is “performing retrospective inspection and
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`verification of financial transactions.” POR, at 21-22. This construction is grounded
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`in a textbook -- Auditing: Principles and Techniques, Pearson Education, 2006
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`(Ex. 2011)) – as well as the testimony of Dr. Shamos, an expert in the field of
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`financial transactions. Ex. 2009, ¶46-48. Petitioner does not cite any authority for its
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`unarticulated claim construction of this term.
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`In the Reply, Petitioner takes the curious position that “a POSITA would have
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`known that an audit of a financial transaction in an electronic payment system may
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`not be retrospective at all and could be performed as part of a transaction before it is
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`completed.” Reply, at 14. In support, Petitioner cites a phrase from an unrelated
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`patent (U.S. Patent 9,147,184, Ex. 1019), which states:
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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
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`transaction amount and source). Reply at 14, citing Ex. 1019 (emphasis
`in original).
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`This quote is saying that the results of a prior audit can be used in authorizing
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`a transaction. The quote does not say or even suggest that the transaction being
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`authorized was itself audited before being completed. Despite Dr. Houh’s professed
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`accounting experience (limited to assisting his CPA with his personal books), he was
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`unable to provide any instance where he was involved in a prospective audit of a
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`transaction before it was completed. Ex. 2018, p. 114, L. 25 – p. 117, p.4. Petitioner
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`has presented no substantial argument that “auditing financial transactions” means
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`anything other than “performing retrospective inspection and verification of
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`financial transactions,” as proposed by the Patent Owner.
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`B.
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`“Handling Errors”
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`“Handling Errors” or “Error handling” (the terms are synonymous, as
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`explained by both Dr. Shamos and Dr. Houh) refers to procedures for responding to
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`and recovering from errors. POR, at 22. The rollback processes shown in Figures
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`20C and 20E are examples of “handling errors.” Figures 20A, 20C, 20E, 20F, 21A,
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`21C, 21E, 21F,21G, 21H, 21I, 22B, 22F, 22G, and 22I of the specification each
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`contain a block labeled “On Error.” Inside of the blocks labeled “On Error” are
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`various messages that are sent in response to the error occurring. These blocks are
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`other examples from the specification of how errors are handled. Again, Patent
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`Owner’s construction is grounded in the specification, a textbook – Kingsley-
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`Hughes, Adrian, et al., VBScript Programmer’s Reference, United Kingdom, Wiley,
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`2007 (Ex. 2012)) as well as the testimony of Dr. Shamos, an expert in the field of
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`financial transactions. Ex. 2009, ¶49-52. Petitioner does not cite any authority for its
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`unarticulated claim construction of this term.
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`Dr. Houh acknowledged during his deposition that “detecting errors” and
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`“handling errors” are different:
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`Q. Is it your opinion that “detecting errors” and “handling errors” are
`different?
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`A. Well, yeah.· I mean, so, when I’m saying -- when I say “detect,”
`there’s code to·handle -- like, there’s the catch block that will handle
`the error. And you can actually, like -- you·know, oftentimes in a
`programming environment, you can tell what kind of error it was. ...
`(Ex. 2018, 124:7-20) (emphasis added).
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`Only after an error occurs and is detected can error handling be implemented.
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`During his deposition, Dr. Houh also acknowledged that the “Try-Catch-
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`Finally” error handler in the JavaScript program language was an example of error
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`handling. The Javascript error handler functions in a manner analogous to the
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`“On Error” blocks in the patent specification. In both cases, the error is first detected,
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`and then there is a mechanism for responding or recovering from the error (a rollback
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`in the case of the ’386 Patent, and code in the catch block in the case of Javascript).
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`Specifically, Dr. Houh testified:
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`Q. How does a -- how does a try statement·work?·
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`A. Well, you execute the -- the instructions in a try block, and then if
`there’s an error, if there’s a catch block, the catch block gets executed.
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`Q. So is that an example of “error handling”?
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`A. Yeah. ...
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`Ex. 2018, 125:24-126:1 (emphasis added).
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`
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`The Reply levels the following criticisms of Patent Owner’s proposed
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`construction:
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`Patent Owner appears to be analogizing the phrase “handling
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`errors” to the “rollback process” depicted in Fig. 20C of the ’386 patent.
`Ex.2009, ¶51; APPL-1018, 107:18-108:11; APPL-1017, ¶35. But this
`argument fails for at least two reasons. First, neither Fig. 20C nor the
`specification require that the rollback process must be part of “handling
`errors” and, even if it did, neither suggests that “handling errors” must
`include “recovering” from the errors. APPL-1017, ¶35. Second, Patent
`Owner has already argued, without support, that the “rollback process”
`is part of the “committing” a pending transaction process. POR 16-19;
`Section II.A; APPL-1017, ¶35. It does not explain how or why the same
`rollback process might be involved in two separate limitations. APPL-
`1017, ¶35. (Reply, at 15-16).
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`These arguments are weak. Petitioner does not dispute that the rollback
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`processes depicted in the figures are examples of “handling errors” from the patent
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`specification. Examples from the specification are the single best evidence of what
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`an applicant intended a term to mean. The “rollback” examples indeed suggest that
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`“handling errors” includes “recovering” from the errors. Contrary to Petitioner’s first
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`argument, the specification need not contain an explicit statement requiring that the
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`rollback process must be part of “handling errors” in order for the example in the
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`specification to be pertinent to claim construction.
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`Petitioner’s second argument faults Patent Owner for citing to the rollback
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`process in the specification in connection with the interpretation of “two separate
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`limitations.” There is no reason why a single teaching from the specification could
`
`not be relevant to the interpretation of more than one claim term. Petitioner cites no
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`authority to the contrary, because there is none. Further, as agreed to by both
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`Dr. Shamos and Dr. Houh, a POSITA would understand that a rollback is a type of
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`process that can be executed in an error handler.
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`Accordingly, Petitioner has presented no substantial argument that “handling
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`errors” means anything other than “procedures for responding to and recovering
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`from errors,” as proposed by Patent Owner.
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`C.
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`“Logging” Platform Objects
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`“Logging” platform objects means storing or recording platform objects in a
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`log. POR, at 23-24. The terms “logging” and “logs” are used 30 thirty times in the
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`specification, in each case referring to storing or recording information in a log. Id.
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`Again, this construction is g