`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`ASSA ABLOY AB, ASSA ABLOY INC., ASSA ABLOY RESIDENTIAL
`GROUP, INC., AUGUST HOME, INC., HID GLOBAL CORPORATION,
`ASSA ABLOY GLOBAL SOLUTIONS, INC.,
`Petitioners,
`
`v.
`
`CPC PATENT TECHNOLOGIES PTY LTD.,
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2022-01045
`Patent 9,269,208
`
`
`
`
`
`
`
`
`
`
`
`EXPERT DECLARATION OF SAMUEL RUSS, PHD.
`
`U.S PATENT NO 9,269,208 (CLAIMS 1-13)
`
`
`
`
`
`CPC Ex. 2031 - Page 1
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`TABLE OF CONTENTS
`
`
`
`I.
`
`INTRODUCTION ........................................................................................... 1
`
`II.
`
`QUALIFICATIONS AND EXPERIENCE ..................................................... 2
`
`III.
`
`INFORMATION CONSIDERED ................................................................... 7
`
`IV. LEGAL STANDARDS ................................................................................... 7
`
`
`
`
`
`
`
`Legal Standards: Person Of Ordinary Skill In The Art ......................... 8
`
`Legal Standards: Obviousness .............................................................. 9
`
`Legal Standards: Claim Construction .................................................11
`
`V.
`
`LEVEL OF SKILL IN THE ART .................................................................11
`
`VI. CLAIM CONSTRUCTION ..........................................................................12
`
`VII. OPINIONS REGARDING PETITIONERS’ INVALIDITY
`GROUNDS ....................................................................................................21
`
`
`
`Series of Entries of the Biometric Signal, Said Series Being
`Characterized According to At Least One of the Number of
`Said Entries and a Duration of Each Said Entry .................................23
`
`1.
`
`Bianco (EX-1003) .....................................................................24
`
`1. Mathiassen (EX-1004) ..............................................................28
`
` Mathiassen does not discloses a number/duration
`of biometric entries to issue an instruction .....................28
`
` Mr. Lipoff’s deposition testimony ..................................31
`
` Mathiassen teaches that the single touch-sensitive
`switch does not biometrically scan the fingerprint
`while in a navigation mode .............................................32
`
`
`
`A POSITA familiar with the state of the art would
`have understood that the single touch-sensitive
`switch does not scan the fingerprint while in a
`
`ii
`
`CPC Ex. 2031 - Page 2
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`navigation mode..............................................................35
`
` Mapping Said Series Of The Biometric Signal Into An
`Instruction ............................................................................................41
`
`
`
`Populate The Database of Biometric Signatures According to
`the Instruction ......................................................................................42
`
` No Motivation To Combine Bianco and Mathiassen ..........................44
`
`Other Independent Claims ...................................................................49
`
`Dependent Claims ...............................................................................49
`
`
`
`
`
`
`
`
`
`iii
`
`CPC Ex. 2031 - Page 3
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`I.
`
`INTRODUCTION
`
`1.
`
`I, Samuel Russ, submit this Declaration in support of Patent Owner
`
`CPC Patent Technologies Pty Ltd. (“CPC”) Patent Owner’s Response to the
`
`Petitioners’, ASSA ABLOY AB, ASSA ABLOY Inc., ASSA ABLOY Residential
`
`Group, Inc. (“Yale”), August Home, Inc. (“August”), HID Global Corporation
`
`(“HID”), ASSA ABLOY Global Solutions, Inc. (“Hospitality”) (collectively
`
`“Petitioners”) Petition for Inter Partes Review (“Petition” or “IPR”) against U.S.
`
`Patent No. 9,269,208 (the “’208 patent”).
`
`2.
`
`I have been asked to review the Petition, as well as the Declaration of
`
`Stuart Lipoff (EX-1005) and the transcript of his deposition (EX-2034), as
`
`submitted in the above-captioned IPR (and the exhibits cited in each) in which
`
`Petitioners and Mr. Lipoff have asserted and offered opinions that the claims of the
`
`’208 patent are obvious.
`
`3.
`
`All of the opinions set forth in this Declaration are based on my own
`
`personal knowledge, professional experience, education, and judgment in
`
`consideration of the documents, materials and information referenced herein.
`
`4.
`
`I am being compensated for my services as an independent expert in
`
`these proceedings at an hourly rate of $450. I expect to be available to provide oral
`
`testimony should the need arise. My compensation is not in any way contingent
`
`1
`
`CPC Ex. 2031 - Page 4
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`upon the outcome of any Inter Partes review. I have no financial or personal
`
`interest in the outcome of these proceedings, or of any related litigation.
`
`II. QUALIFICATIONS AND EXPERIENCE
`
`5. My experience and education are detailed in my curriculum vitae
`
`(“CV”), which I understand has been submitted into the record of this proceeding
`
`as EX-2032. My CV also lists publications on which I am a named author and
`
`identifies parties on behalf of whom I have previously provided expert testimony.
`
`6.
`
`I have experience in a number of areas, and have particular expertise
`
`in electronics, security systems, including biometric security systems, device
`
`access security, payment terminals, and their related technologies, such as in debit-
`
`capable payment terminals and digital set-top boxes, which include design,
`
`physical security, system layout, and cryptography schemes. This expertise is
`
`directly applicable to the technical area of the ’208 patent, which relates to a
`
`system for providing secure access to a controlled item, such as physical locking
`
`mechanism or an electronic key circuit, using physical biometric attributes.
`
`7.
`
`I received my bachelor’s degree in electrical engineering from
`
`Georgia Institute of Technology in 1986. I then received my Ph.D. in electrical
`
`engineering from Georgia Institute of Technology in 1991.
`
`8.
`
`From 2007 to the present, I have been a member of the faculty of the
`
`University of South Alabama as an Assistant and Associate Professor in the
`
`2
`
`CPC Ex. 2031 - Page 5
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`Department of Electrical and Computer Engineering. During that time, I have won
`
`awards for excellent teaching and have actively published research in home
`
`networking and digital video recording (DVR) technologies. I am active in the
`
`Institute of Electrical and Electronic Engineers (IEEE) and am a Distinguished
`
`Lecturer for the IEEE Consumer Electronics Society. As an example of the type of
`
`research I perform, I helped to manage the development of a fully functional
`
`“CubeSat” satellite that was successfully launched into space in September 2022
`
`and sent back data. I teach a graduate-level class in cryptographic methods, as well
`
`as courses in embedded system design and signal integrity. The graduate-level
`
`cryptographic methods course covers the techniques needed to create secure
`
`systems, such as biometric systems, and preserve confidentiality and data integrity.
`
`The embedded-system design course covers the design of practical computer-based
`
`embedded computing systems, such as those found in alarm systems and secure
`
`payment terminals. The course specifically includes topics such as security,
`
`privacy, networking, and computer system design, all of which are needed for
`
`biometric systems. The signal integrity course covers the circuit design techniques
`
`to minimize crosstalk and electromagnetic susceptibility. To go with the course, I
`
`also authored a textbook on the subject of signal integrity, now in its second
`
`edition. The textbook covers the techniques needed to develop secure computer
`
`3
`
`CPC Ex. 2031 - Page 6
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`systems, such as systems that do not emit unwanted signals and are not susceptible
`
`to outside interference.
`
`9.
`
`From 2000 to 2007, I worked for Scientific-Atlanta (now Cisco’s
`
`Service Provider Video Tech. Group), where I managed a cable set-top box (STB)
`
`design group that designed four STB models, including the Explorer 4200 (non-
`
`DVR) and 8300 (DVR) models. Both models sold several million units. As design-
`
`group manager, I was responsible for managing the design and prototyping
`
`activities of the group, for interfacing with other groups (especially integrated-
`
`circuit design, procurement, software developers, the factory where prototypes
`
`were built, and product managers), and for maintaining the hardware and
`
`mechanical development schedule. The hardware, software, and system design of
`
`cable set-top boxes included security at a variety of levels, including conditional
`
`access, broadcast encryption, key management, and service authorization.
`
`Additionally, designing for the manufacturing process required design and
`
`implementation physical access security measures to restrict physical access to the
`
`secure elements of a set-top box, including flash memory, the secure
`
`microcontroller, and the smart-card reader. I am a named inventor on fifty-one (51)
`
`patent applications that were filed while I was at Scientific-Atlanta, twenty-nine
`
`(29) of which have issued as U.S. patents as of the writing of this declaration.
`
`4
`
`CPC Ex. 2031 - Page 7
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`10. From 1999 to 2000, I was a Staff Electrical Engineer and then Matrix
`
`Manager at IVI Checkmate (now Ingenico), where I managed the hardware design
`
`team that completed the design of the eN-Touch 1000 payment terminal. This
`
`terminal was in widespread use, for example, at the self-checkout at Home Depot.
`
`This terminal contained the cryptographic systems and physical security needed to
`
`conduct debit transactions, including the use of ATM cards, debit cards, and PIN
`
`numbers. Debit-capable terminals require a great deal of physical and
`
`communications security and key management because of their direct connection
`
`to the financial and banking community. As a result, I developed and enhanced my
`
`expertise in device access security, considering physical protection, software
`
`protection, encryption, and communications. The eN-Touch 1000 could capture
`
`human signatures (and transmit them for storage) and was the first widely sold
`
`payment terminal to use capacitive touch-screen technology, which has biometric
`
`security applications. Capacitive touch screens have several advantages over their
`
`predecessor (resistive touch screens). One major advantage is that they operate off
`
`of the presence or absence of a conductive medium (such as a user’s finger) and so
`
`can function as a fingerprint scanning technology because they can work at a finer
`
`resolution than resistive touch. I directly managed the development of the
`
`capacitive touch screen of the eN-Touch 1000, and I am an expert in how
`
`5
`
`CPC Ex. 2031 - Page 8
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`capacitive touch technology works, including with respect to biometric security
`
`applications.
`
`11. From 1992 to 1994, I was Director of Manufacturing at Dickerson
`
`Vision Technologies (now Cognex) where I oversaw the development and
`
`implementation of a manufacturing plan for the company. My responsibilities
`
`included the development of human-machine interfaces for machine-vision
`
`systems.
`
`12.
`
`I have also authored over 30 journal articles and conference papers. A
`
`conference paper on digital video recording won second place in a “Best Paper”
`
`competition at the 2011 International Conference on Consumer Electronics in Las
`
`Vegas, NV.
`
`13. Through my research and work, I have been a joint inventor on 29
`
`issued U.S. patents related to, among other things, client devices, including device
`
`access security, multimedia systems, and interactive programming. Additionally, I
`
`have been a joint inventor on nine issued European patents.
`
`14. Therefore, based on my education, professional experience of 35
`
`years, and my writing of scholarly books and publications, I am an expert in the
`
`relevant field of the ’208 patent and have been an expert in this field since well
`
`before August 13, 2003, which I understand is one year before the date to which
`
`the ’208 patent claims priority. I am intimately familiar with how a person having
`
`6
`
`CPC Ex. 2031 - Page 9
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`ordinary skill in the art would have understood and used the terminology found in
`
`the ’208 patent as of that date.
`
`III.
`
`INFORMATION CONSIDERED
`
`15. All of the opinions included herein are based on my personal
`
`knowledge, my education, and my professional experience and judgment in
`
`consideration of the documents submitted in this IPR proceeding, the papers and
`
`exhibits submitted by both parties, the documents discussed in the body of this
`
`Declaration, including the Declaration of Petitioner’s expert witness Stuart Lipoff
`
`and the documents referenced therein, and Mr. Lipoff’s deposition transcript. I
`
`have also reviewed certain documents filed in connection with the ongoing IPRs
`
`filed by Apple concerning the ’208 patent and the related U.S. Patent No.
`
`9,666,705 (“the ’705 patent”), namely IPR2022-00601 and IPR2022-00602. A
`
`complete list of the documents and information I have considered in forming my
`
`opinions is attached as Appendix A.
`
`IV. LEGAL STANDARDS
`
`16. The paragraphs in this section present an overview of some legal
`
`principles that counsel has explained to me, and which I have applied in arriving at
`
`my conclusions. I am not an attorney or a legal expert, and I offer no opinions on
`
`the law.
`
`7
`
`CPC Ex. 2031 - Page 10
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`17.
`
`I understand that for an invention claimed in a patent to be found
`
`patentable, it must be, among other things, new and not obvious in light of what
`
`came before it. Patents and publications which predated the invention are
`
`generally referred to as “prior art.”
`
`18.
`
`I understand that in this proceeding the burden is on the party
`
`asserting unpatentability to prove it by a preponderance of the evidence. I
`
`understand that “a preponderance of the evidence” is evidence sufficient to show
`
`that a fact is more likely than not.
`
`19.
`
`I have been informed that the terms in a claim subject to Inter Partes
`
`Review are given the meaning they would have had to a person of ordinary skill in
`
`the art at the time of the invention. After being construed in this manner, the
`
`claims are compared with the prior art.
`
` Legal Standards: Person Of Ordinary Skill In The Art
`
`20.
`
`I understand from counsel that patents are written to be
`
`understandable to a person having ordinary skill in the appropriate art. I
`
`understand that factors that may be considered in determining the ordinary level of
`
`skill in the art include: 1) the types of problems encountered in the art, 2) the prior
`
`art solutions to those problems, 3) the rapidity with which innovations are made, 4)
`
`the sophistication of the technology, and 5) the educational level of active workers
`
`in the field.
`
`8
`
`CPC Ex. 2031 - Page 11
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`21.
`
`In determining the characteristics of a hypothetical person of ordinary
`
`skill in the art of the patents-at-issue at the time of the claimed inventions, I
`
`considered these factors. It is my understanding that not all such factors may be
`
`present in every case, and one or more of them may predominate.
`
`
`
`22.
`
`Legal Standards: Obviousness
`
`I understand that determining whether a claimed invention is obvious
`
`requires one to determine the scope and content of the prior art, identify the
`
`differences between the asserted claims and the prior art, determine the level of
`
`ordinary skill in the pertinent art at the time the invention was made, and then
`
`decide whether each claim as a whole would have been obvious to a person of
`
`ordinary skill in the pertinent art when viewing the prior art.
`
`23.
`
`I understand that a prior art combination is able to render a patent
`
`claim as obvious only if each and every claim limitation is taught or suggested by
`
`the prior art combination.
`
`24. Moreover, even if the prior art teaches each and every element in the
`
`claims at issue, I understand that fact alone would not prove obviousness. Most, if
`
`not all, inventions rely on building blocks of prior art. I understand that it is
`
`necessary to determine whether there was an apparent reason to combine the
`
`known elements in the fashion claimed by the patents-at-issue.
`
`9
`
`CPC Ex. 2031 - Page 12
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`25. Thus, in evaluating whether a claimed invention is obvious, one must
`
`consider whether there was a reason that would have prompted a person having
`
`ordinary skill in the art to combine the known elements in a way that the claimed
`
`invention does, taking into account factors such as (1) whether the claimed
`
`invention was merely the predictable result of using prior art elements according to
`
`their known function, (2) whether the claimed invention provides an obvious
`
`solution to a known problem in the relevant field, (3) whether the prior art teaches
`
`or suggests the desirability of combining elements claimed in the invention, (4)
`
`whether the prior art teaches away from combining elements in the claimed
`
`invention, (5) whether it would have been obvious to try the combinations of
`
`elements (such as when there is a design need or market pressure to solve a
`
`problem, and there are a finite number of identified predictable solutions), and (6)
`
`whether the change resulted more from design incentives or other market forces.
`
`26.
`
`In addition, to find that the prior art rendered the invention obvious,
`
`one must find that it provided a reasonable expectation of success, one must
`
`consider each claim separately, and one cannot use hindsight – i.e., one can
`
`consider only what was known at the time of the invention. I understand that
`
`hindsight bias is likely to be present where the asserted motivation to combine does
`
`not provide a sufficient reason, supported by rational underpinnings, for combining
`
`the references in the claimed manner.
`
`10
`
`CPC Ex. 2031 - Page 13
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
` Legal Standards: Claim Construction
`
`27.
`
`I have been informed that the terms of the patents-at-issue should be
`
`construed under the same claim construction standard that would be used to
`
`construe the claim in a civil action. I have also been informed that the meaning of
`
`a term may be evidenced by a variety of sources, including the words of the claims,
`
`the specification, drawings and prior art.
`
`28.
`
`I understand that extrinsic evidence may be consulted for the meaning
`
`of a claim term as long as it is not used to contradict claim meaning that is
`
`unambiguous in light of the patent’s intrinsic evidence.
`
`V. LEVEL OF SKILL IN THE ART
`
`29.
`
`I understand that the Board adopted the following level of ordinary
`
`skill in the art in the ongoing IPR concerning the ’208 patent that was filed by
`
`Apple: “a person of ordinary skill in the art would have had ‘at least a bachelor’s
`
`degree in computer engineering, computer science, electrical engineering, or a
`
`related field, with at least one year experience in the field of human-machine
`
`interfaces and device access security.” See IPR2022-00601, Paper 11 at 11-12.
`
`Further, “[a]dditional education or experience may substitute for the above
`
`requirements.” Id. For purposes of my analysis, I have applied this definition of a
`
`person of ordinary skill in the art. I also note that I satisfied these criteria as of
`
`August 13, 2003.
`
`11
`
`CPC Ex. 2031 - Page 14
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`VI. CLAIM CONSTRUCTION
`
`30.
`
`I understand that the Board adopted certain claim constructions in the
`
`ongoing IPR concerning the ’208 patent filed by Apple, which are set forth in the
`
`table below.
`
`Claim Term
`“database”
`
`Construction
`“organized structure of data”
`
`“conditional access”
`
`“access based on accessibility attribute”
`
`“biometric signal”
`
`“physical attribute of the user (i.e., fingerprint, facial
`pattern, iris, retina, voice, etc.)”
`“accessibility attribute” “attribute that establishes whether and under which
`conditions access to the controlled item should be
`granted to a user”
`
`
`See IPR2022-00601, Paper No. 1 at 9; Paper No. 11 at 13.
`
`31.
`
`In my analysis, I have applied these constructions. In addition, I have
`
`applied the plain and ordinary meaning to a person of ordinary skill in the art
`
`(“POSITA”) at the time of invention to any other claim terms.
`
`32.
`
`In his deposition, Mr. Lipoff testified that he did not apply the above
`
`construction of “biometric signal” adopted by the Board in the Apple IPR, but that
`
`he does not “necessarily agree or disagree” with it. EX-2034 at 30:6 – 33:3. To the
`
`extent there is any dispute regarding construction of “biometric signal” as it is used
`
`in the claims of the ’208 patent, for the reasons discussed below it is my opinion
`
`that the construction adopted by the Board in the Apple IPR is the correct
`
`construction and it should be applied is this proceeding as well.
`
`12
`
`CPC Ex. 2031 - Page 15
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`33. The ’208 patent itself defines “biometric signal” as a “physical
`
`attribute[].” EX-1007 at 1:29-32. More particularly, the ’208 patent states the
`
`following:
`
`One example of a biometric signal is a fingerprint. Other physical
`attributes that can be used to provide biometric signals include voice,
`retinal or iris pattern, face pattern, palm configuration and so on.
`
`Id (emphasis added). Thus, the ’208 patent expressly describes a biometric signal
`
`as a physical attribute, and then provides a list of examples of physical attributes
`
`that a POSITA would understand to be the recited biometric signals. Fingerprints,
`
`retinal and iris patterns, face pattern, and palm configuration are all physical
`
`attributes. See, e.g., EX1003 at 7:57-65; EX2035 at 1; EX2036 at 4. As discussed
`
`further below, voice authentication is (and was at the time of the invention)
`
`understood to be both a physical and a behavioral attribute. A POSITA would have
`
`understood from the overall context of the ’208 patent that inclusion of “voice” in
`
`the list of otherwise exclusively physical attributes does not expand the scope of
`
`biometric signals to include behavioral attributes. None of the examples of
`
`biometric signals supplied in the ’208 patent are examples of purely behavioral
`
`biometric attributes.
`
`34. At the time of the invention of the ’208 patent, i.e., August 2003, a
`
`POSITA would have understood that there were two categories of biometric
`
`13
`
`CPC Ex. 2031 - Page 16
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`measurements, namely, measurements of (i) physical attributes and (ii) behavioral
`
`attributes. For example, this distinction is explained in Bianco, as follows:
`
`Biometric identification mechanisms include two basic categories of
`biometric measurements. The first category involves measuring a unique
`characteristic found on a user's body. This may include, but is not limited
`to, finger and hand geometry, retina and facial images, weight, DNA data
`and breath. The second category involves measuring a user's behavioral
`characteristics. This may include, but is not limited to, voice, typing stroke
`and signature.
`
`EX-1003 at 7:57-65 (emphasis added).
`
`35. Thus, Bianco establishes that at the time of the invention the two basic
`
`categories of biometric measurements included measurements of the unique
`
`characteristics of a user’s body – i.e., physical attributes – and measurements of a
`
`user’s behavioral characteristics.
`
`36. This clear distinction between biometric identification via physical
`
`attributes versus via behavioral attributes drawn by Bianco is consistent with the
`
`other teachings in the art at the time of the invention of the ’208 patent. For
`
`example, Liu, published in 20011, teaches as follows:
`
`Biometrics measure individuals’ unique physical or behavioral
`characteristics to recognize or authenticate their identity. Common physical
`biometrics include fingerprints; hand or palm geometry; and retina, iris, or
`facial characteristics. Behavioral characters include signature, voice (which
`also has a physical component), keystroke pattern, and gait.
`
`
`
`1 S. Liu and M. Silverman, “A practical guide to biometric security technology,” in
`IT Professional, vol. 3, no. 1, pp. 27-32, Jan.-Feb. 2001. doi:
`10.1109/6294.899930. EX-2035.
`
`14
`
`CPC Ex. 2031 - Page 17
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`EX-2035 at 1 (emphasis added).
`
`37. Similarly, Currie, published in 20032, teaches that “Biometric
`
`characteristics fall into two broad categories”, as follows:
`
`• Physiological Biometrics are concerned with the unique physical traits of
`the individual, for example retinal scans, fingerprints and face
`geometries.
`
`• Behavioural Biometrics are concerned with the unique way individuals
`perform certain actions, for example conventional pen signatures and key
`stroke detection.
`
`EX-2036 at 4.
`
`38. Thus, it was well known in the art that the measurement of physical
`
`attributes are a distinct category of biometric measurement as compared to
`
`measurement of behavioral attributes. Examining the three references together
`
`(i.e., Bianco, Liu, and Currie), one can readily appreciate how such biometric
`
`attributes would have been understood by a POSITA at the time of the invention
`
`and, further, can compare them to the definition in the ’208 patent and the
`
`construction adopted in the Apple IPR, summarized in the table below.
`
`Reference
`
`Physical biometric
`
`Behavioral biometric
`
`Bianco [EX-1003]
`
`• finger and hand
`geometry
`• retina and facial
`images
`• weight
`
`• voice
`• typing stroke
`• signature
`
`
`2 D. Currie, “Shedding some light on Voice Authentication”, Global Information
`Assurance Certification Paper (2003). EX-2036.
`
`15
`
`CPC Ex. 2031 - Page 18
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`• DNA data
`• breath
`• fingerprints
`• hand or palm
`geometry
`• retina, iris, or facial
`characteristics
`
`• voice
`• retinal scans
`• fingerprint
`• face geometries
`• fingerprint
`• voice
`• retinal or iris pattern
`• face pattern
`• palm configuration
`
`
`
`Liu [EX-2035]
`
`Currie [EX-2036]
`
`’208 patent and the
`Board’s construction
`in the Apple IPR
`
`
`
`• signature,
`• voice (“which also
`has a physical
`component”)
`• keystroke pattern
`• gait
`
`• voice
`• pen signatures
`• key stroke detection
`
`39. The only form of biometric that appears in both categories is voice.
`
`Liu acknowledges the dual nature of voice in the context of biometric
`
`measurements, explaining that voice “has a physical component.” EX-2035 at 1.
`
`Currie further explains why voice straddles the two categories of physical
`
`attributes and behavioral attributes: “In the case of voice authentication, there is
`
`both a Physiological biometric component (for example, voice tone and pitch) and
`
`a behavioral component (for example, accent).” EX-2036 at 4. In other words,
`
`voice contains both a fundamental physiological component, based on a speaker’s
`
`16
`
`CPC Ex. 2031 - Page 19
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`tone and pitch (that are, in turn, a function of the speaker’s body), and a behavioral
`
`one, such as one’s accent.
`
`40. A POSITA at the time of the invention of the ‘208 patent,
`
`knowledgeable of the relevant prior art literature such as those cited above, would
`
`understand that there are physical biometrics, such as fingerprints, and behavioral
`
`biometrics, such as signature, and voice is regarded as fitting into either or both
`
`categories. Some references treat voice as a physical biometric, some treat it as a
`
`behavioral biometric, and some treat it as both physical and behavioral. This
`
`taxonomy is relevant because the ’208 patent is expressly drawn to physical
`
`biometrics exclusively, and the reference to “voice” amongst the list of examples
`
`of biometric signals is consistent with physical attributes. As noted above, the
`
`teaching is clear (see EX1007 at 1:29-32) and the Board adopted a construction
`
`accordingly in the Apple IPR (defining “biometric signal” as a “physical attribute
`
`of the user (i.e., fingerprint, facial pattern, iris, retina, voice, etc.)” (emphasis
`
`added).
`
`41. Mr. Lipoff refers to Bianco’s hand-written signature as a biometric
`
`signal, but he does not go a step further to identify whether the hand-written
`
`signature in Bianco is a physical or a behavioral biometric signal. Indeed, Bianco
`
`expressly characterizes hand-written signatures solely as a behavioral (not
`
`physical) biometric attribute. EX-1005, ¶ 179; EX-1003 7:57-65. This is
`
`17
`
`CPC Ex. 2031 - Page 20
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`significant because, in my opinion, Bianco’s teachings with regard to hand-written
`
`signatures are inapplicable to and do not disclose the teachings of the ’208 patent.
`
`Hand-written signatures are exclusively a behavioral attribute, whereas the claims
`
`of the ’208 patent are addressed solely to physical attribute biometric signals.
`
`42. Mr. Lipoff appears to contend that the reference to voice in dependent
`
`claim 4 of the ’208 patent suggests that the claims of the ‘208 patent cover both
`
`physical and behavioral biometric signals. See EX-1005, ¶ 279. I disagree. Mr.
`
`Lipoff relies on Bianco in asserting that voice is only a behavioral biometric
`
`attribute. From this, Mr. Lipoff apparently concludes that because the ‘208 patent
`
`includes reference to voice measurement, it must therefore cover both physical and
`
`behavioral biometric attributes. But Mr. Lipoff’s logic fails because he ignores the
`
`contrary teaching of the prior art that voice can be either a behavioral or a physical
`
`biometric measurement. EX-2035 at 1; EX-2036 at 4. It is my opinion that a
`
`POSITA reading the ’208 patent in proper context, and with knowledge of the
`
`relevant prior art, would readily understand that the ’208 patent was directed to,
`
`and only claimed, biometric signals based on physical (not behavioral) attributes.
`
`Indeed, as noted above, the ’208 patent defines “biometric signal” as a physical
`
`attribute. EX-1007 at 1:29-32. The ’208 patent then provides a list of biometric
`
`signals that consists of physical attributes, namely fingerprints, retinal and iris
`
`patterns, face pattern, palm configuration, and voice. Id. The ‘208 patent includes
`
`18
`
`CPC Ex. 2031 - Page 21
`ASSA ABLOY AB v. CPC Patent Technologies Pty Ltd.
`IPR2002-01045
`
`
`
`no disclosure of any purely behavioral biometric attribute. Thus, while voice is
`
`treated in the art as having both physical and behavioral aspects, a POSITA would
`
`have understood the ’208 patent to be classifying voice solely as a physical
`
`attribute at least because of the express definition of “biometric signal” as a
`
`physical attribute, and because it is included in a listing of other attributes that are
`
`all exclusively physical.
`
`43.
`
`In sum, the “biometric signals” claimed in the ‘208 patent are physical
`
`biometric attributes only; the claims do not include behavioral biometric attributes.
`
`A POSITA would have understood that attributes that are clearly behavioral
`
`attributes, such as hand-written signatures, typing stroke, and gait, did not fall
`
`within the scope of the claimed “biometric signal” as properly construed.
`
`44.
`
`In his deposition, Mr. Lipoff testified that the “finger presses”
`
`disclosed in columns 10 & 11 of the’208 patent are “the equivalent of a typing
`
`stroke”, which is known in the art to be a behavioral attribute. EX-2034 at 41:4-17.
`
`But the “finger presses” of the’208 patent are not the equivalent of - and indeed
`
`are very different from - a ty