UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`AIRE TECHNOLOGY LIMITED,
`Patent Owner.
`———————
`
`IPR2022-01137
`U.S. Patent No. 8,581,706
`_____________________
`
`DECLARATION OF DR. JOSHUA PHINNEY,
`UNDER 37 C.F.R. § 1.68 IN SUPPORT OF
`PETITIONER’S OPPOSITION TO MOTION TO AMEND
`
`1
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`Ex.1026 / IPR2022-01137 / Page 1 of 20
`Apple Inc. v. Aire Technology Limited
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`
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`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`———————
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`AIRE TECHNOLOGY LIMITED,
`Patent Owner.
`———————
`
`IPR2022-01137
`U.S. Patent No. 8,581,706
`_____________________
`
`DECLARATION OF DR. JOSHUA PHINNEY,
`UNDER 37 C.F.R. § 1.68 IN SUPPORT OF
`PETITIONER’S OPPOSITION TO MOTION TO AMEND
`
`1
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`Ex.1026 / IPR2022-01137 / Page 1 of 20
`Apple Inc. v. Aire Technology Limited
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`Phinney Supplemental Declaration
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`Inter Partes Review of U.S. 8,581,706
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`
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`I.
`II.
`
`II.
`III.
`
`B.
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`TABLE OF CONTENTS
`Introduction ...................................................................................................... 3
`The Proposed Amendments Add New Subject Matter by Claiming
`Functionality Different than the Functionality Described in the
`Specification. ................................................................................................... 5
`A.
`Substitute claims 23 and 25-26 recite new matter by claiming
`concepts that differ from those described in the specification. ............. 5
`Substitute claim 24 recites new matter by claiming concepts
`that differ from those described in the specification. ............................ 9
`The claims recite the impossible and thus cannot be enabled. ...................... 12
`Substitute claims 23-26 are obvious under (pre-AIA) 35 U.S.C. § 103. ...... 13
`A.
`Claim 23 .............................................................................................. 13
`B.
`Claim 24 .............................................................................................. 15
`C.
`Claim 25 .............................................................................................. 19
`D.
`Claim 26 .............................................................................................. 19
`III. Conclusion ..................................................................................................... 20
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`2
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`Inter Partes Review of U.S. 8,581,706
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`I, Dr. Joshua Phinney, do hereby declare as follows:
`
`I.
`
`INTRODUCTION
`1.
`
`I am the Joshua Phinney who has previously submitted a declaration
`
`as Ex.1003 in this proceeding. The terms of my engagement, my background,
`
`qualifications and prior testimony, and the legal standards and claim constructions
`
`I am applying are set forth in my previous CV and declaration. See Ex.1003;
`
`Ex.1004. I offer this declaration in reply to Patent Owner’s Motion to Amend filed
`
`in this proceeding.
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`2.
`
`I have been asked to provide my opinions with respect to substitute
`
`claims 23-26 (“Substitute Claims”) as proposed in Patent Owner’s Motion to
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`Amend. It is my opinion that the specification of the ’706 patent does not enable
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`what is claimed. To the extent the claims were to be interpreted in a specific
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`manner as described below, it is my opinion that the claims would have been
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`obvious to a person having ordinary skill in the art (“POSITA”) at the time of the
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`alleged invention, in light of the prior art. It is also my opinion that the
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`specification of the ’706 patent does not enable what is claimed.
`
`3.
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`I am a Principal Engineer in the Electrical Engineering and Computer
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`Science practice at Exponent, an engineering and scientific consulting firm
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`headquartered at 149 Commonwealth Drive, Menlo Park, California 94025.
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`4.
`
`I have been retained as an independent expert consultant in this
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`
`
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`3
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`proceeding before the United States Patent and Trademark Office (the “Patent
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`Inter Partes Review of U.S. 8,581,706
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`
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`Office”). I am being compensated for my work in this matter at my standard hourly
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`rate. I am also being reimbursed for reasonable and customary expenses associated
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`with my work and testimony in this investigation. My compensation is not
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`contingent on the outcome of this matter or the specifics of my testimony.
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`5.
`
`I previously submitted an expert declaration in support of Apple,
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`Inc.’s Petition for inter partes review (IPR) regarding U.S. Patent No. 8,581,706
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`(“the ’706 Patent”). See Ex. 1003. I understand that Patent Owner submitted a
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`Patent Owner Response as well as a Motion to Amend (Paper 16, “Motion”) in
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`IPR2022-01137. I submit this expert declaration in support of Petitioner’s
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`Opposition to the Motion to Amend.
`
`6.
`
`Details regarding my qualifications, testifying experience,
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`employment history, fields of expertise, and publications are provided in my prior
`
`declaration and my CV, Ex. 1003; Ex.1004.
`
`7.
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`In the preparation of this declaration, I have studied the materials
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`listed in Ex.1003. I have also considered the relevant legal standards, including the
`
`standard for obviousness, and any additional authoritative documents as cited in
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`the body of this declaration; and my own knowledge and experience.
`
`8.
`
`Unless otherwise noted, all emphasis in any quoted material has been
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`added.
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`
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`4
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`II. THE PROPOSED AMENDMENTS ADD NEW SUBJECT MATTER
`BY CLAIMING FUNCTIONALITY DIFFERENT THAN THE
`FUNCTIONALITY DESCRIBED IN THE SPECIFICATION.
`9.
`
`It is my opinion that the proposed substitute claims are directed to
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`Inter Partes Review of U.S. 8,581,706
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`
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`concepts not supported by the specification of the ’706 patent. It has been
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`explained to me by counsel that claim amendments must be supported by the
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`specification. In particular, a patent specification must describe the claimed
`
`invention in sufficient detail that one skilled in the art can reasonably conclude that
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`the inventor had possession of the claimed invention.
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`10. Here, a POSITA would not have concluded that the original
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`specification provides written description support for the proposed claim
`
`amendments because the proposed substitute claims recite subject matter that is
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`different than what is described in the specification.
`
`A.
`Substitute claims 23 and 25-26 recite new matter by claiming
`concepts that differ from those described in the specification.
`11. The proposed claim amendments add new matter because they claim a
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`device with different functionality than what is described in the specification.
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`Substitute claim 23 (proposed substitute for claim 11) has been amended to recite:
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`“wherein after selection of one of the plurality of applications, subsequent
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`communication between the reading device and the selected application takes
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`place without requiring any further steps.” Motion, 4. Substitute claims 25-26
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`(proposed substitutes for claims 18 and 20) recite similar language. Motion, 7, 9.
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`5
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`The Motion cites to the following portion of the specification for § 112 support:
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`Inter Partes Review of U.S. 8,581,706
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`Substitute claim 23
`wherein after selection of one
`of the plurality of
`applications, subsequent
`communication between the
`reading device and the
`selected application takes
`place without requiring any
`further steps
`
`Cited support
`“When an application has been selected for
`further communication by the reading device,
`said communication takes place subsequently
`without requiring any further steps. An
`application selected for further communication
`by the reading device is thus then engaged in
`communication with the reading device.”
`(Ex.1002, p.290, ¶[0021]).
`
`Motion, 4.
`
`12. Although the new claim language and the cited support both describe
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`(i) an application “selection” and (ii) “communication” that takes place “without
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`requiring any further steps,” the relationship between these requirements is
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`fundamentally different in the claim. As an initial matter, there is no previous
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`recitation of a “selection” in claim 23 even though the claim is directed to
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`functionality that happens “after selection.” The claim doesn’t tell us when the
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`selection takes place or which element performs the selection or for what the
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`application is being selected, and thus the claim offers no guidance as to when the
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`time period of “after selection” begins. In contrast, the cited portion of the
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`specification describes a different time period related to the application selection
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`that begins “when an application has been selected for further communication by
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`6
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`the reading device.” Ex.1002, 290. This difference alone divorces the claim from
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`
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`functionality described in the specification. There is no indication in the
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`specification that the inventor possessed the idea that all subsequent
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`communication after any selection of an application would take place without
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`requiring any further steps.
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`13. More importantly, the new claim language untethers the “selection” of
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`the application from the “subsequent communication”—whereas in the
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`specification they are inextricably linked. The specification explains that an
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`application is selected specifically “for further communication,” and thereafter
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`“said communication” takes place:
`
`When an application has been selected for further communication by
`the reading device, said communication takes place subsequently
`without requiring any further steps.
`
` Ex.1002, 290. This description is clear that the subsequent “said communication”
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`is the same “communication” for which the application is selected. Id. The new
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`claim removes this relationship by failing to recite any purpose for the selection.
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`14. A consequence of this change is that the claim language prohibits
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`communication steps that the specification explicitly describes as required. In more
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`detail, the Motion points to ¶ [0021] on page 290 of Ex.1002 as support for the
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`added language. Motion, 4. This paragraph explains that an application selected for
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`further communication must first be assigned a session number by the reading
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`7
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`device before it can communicate with the reading device:
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`
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`The reading device selects an application for further communication by
`means of the identification number assigned to the application. The
`additional selection information optionally assigned to the application
`can also be used for selection by the reading device. An application
`selected for further communication is then assigned a session
`number dynamically by the reading device. Via said session
`number the application can be addressed uniquely during
`communication with the reading device.
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`Ex.1002, p. 290, ¶ [0021]. In other words, the assignment of the session number is
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`a step required for communication that happens after selection of the application—
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`which is prohibited by the proposed claim language: “after selection of one of the
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`plurality of applications, subsequent communication between the reading device
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`and the selected application takes place without requiring any further steps.”
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`Accordingly, claim 23 recites new and different functionality than the functionality
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`described in the specification.
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`15. Substitute claims 25 and 26 recite similar subject matter. Thus, the
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`reasoning described above with respect to claim 23 similarly applies to claims 25
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`and 26. Thus, substitute claims 23, 25, and 26 recite subject matter not supported
`
`by the specification.
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`8
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`B.
`Substitute claim 24 recites new matter by claiming concepts that
`differ from those described in the specification.
`16. The proposed amendments to substitute claim 24 similarly add new
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`matter because they require a different process than the process described in the
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`specification. Claim 24 (proposed substitute for claim 12) has been amended to
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`additionally recite:
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`wherein the communication device is set up to uniquely address
`the one or more of the least two applications with a receiving device,
`and
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`wherein communication between the reading device and the
`uniquely addressed application takes place subsequently without
`requiring any further steps after the communication-readiness signals
`are generated.
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`Motion, 5-6.
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`17. Patent Owner points to the below portions of the specification as
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`alleged written description support:
`
`Substitute claim 24
`
`Cited support
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`wherein the
`communication device is
`set up to uniquely
`address the one or more
`of the least two
`applications with a
`
`“The signals from the data carrier generated for the
`applications can be ergo periodically emitted signals
`or specific response signals to search signals emitted
`by the reading device. The reading device can thus
`recognize which communication-ready applications
`are located in its response field even when they are
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`
`
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`9
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`receiving device, and
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`wherein communication
`between the reading
`device and the uniquely
`addressed application
`takes place subsequently
`without requiring any
`further steps after the
`communication readiness
`signals are generated
`
`stored on a common data carrier.” (Ex. 1002, p.289,
`¶[0016]).
`“An application selected for further communication
`is then assigned a session number dynamically by
`the reading device. Via said session number the
`application can be addressed uniquely during
`communication with the reading device. Upon
`addressing, the session number is so linked in the
`data carrier by the communication device with the
`identification number assigned to the application and
`optionally the additional selection information that
`the correct application is always addressed upon
`communication. When an application has been
`selected for further communication by the reading
`device, said communication takes place subsequently
`without requiring any further steps.” (Ex. 1002,
`p.290, ¶[0021]).
`
`Motion, 5-6.
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`18. Notably, the second added limitation requires communication
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`“without requiring any further steps after the communication readiness signals
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`are generated.” Motion, 5-6. As an initial matter, the above cited portions of the
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`specification lack any disclosure of “communication” after generation of
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`“communication readiness signals.” For this reason alone, the Motion fails with
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`respect to claim 24.
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`10
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`19. More importantly, the disclosure as a whole explains that, for
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`communication to happen between a reading device and application, several steps
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`are in fact are required after the communication readiness signals are generated.
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`Specifically, the step of application selection occurs after the communication
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`readiness signals are generated but before communication:
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`When such a data carrier is brought into the response field of a reading
`device, thereby commencing its energy supply and putting it in an
`operational mode, it can receive a search signal emitted cyclically by
`the reading device and indicate its communication readiness to the
`reading device by means of a first response signal. As soon as the
`reading device has received this signal it starts a selection process
`using a so called anti-collision method in order to specifically select
`one data carrier for further communication when a plurality of
`communication-ready data carriers are located in the response field of
`the reading device at the same time.
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`Ex.1002, 270. After the application has been selected, as noted above, it is
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`assigned a session number: “[a]n application selected for further communication is
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`then assigned a session number dynamically by the reading device.” Ex.1002, 290.
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`20. Thus, contrary to the claim language, the specification requires at least
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`two further steps—application selection and session number assignment—for
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`communication after the communication readiness signals have been generated.
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`The specification provides no example in which there are no steps between
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`
`
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`11
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`communication-readiness signal generation and communication.
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`21. For at least these reasons, the proposed amendments are not supported
`
`by the written description of the specification, and thus claim 24 is directed to new
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`matter.
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`II. THE CLAIMS RECITE THE IMPOSSIBLE AND THUS CANNOT BE
`ENABLED.
`22. The newly added claim limitations of claim 23 require the
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`impossible—communication without any steps: “wherein after selection of one of
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`the plurality of applications, subsequent communication between the reading
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`device and the selected application takes place without requiring any further
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`steps.” It has been explained to me by counsel that a claim that is impossible to
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`implement is not enabled by the specification.
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`23.
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`It is my opinion that the newly added language makes the claim
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`impossible to implement because it requires that “subsequent communication”
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`must somehow take place “without requiring any further steps.” But
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`communication is itself—or at least involves—“steps.” In other words, the claim
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`limitation of “without requiring any further steps” is written so broadly that it
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`carves out any step, whether performed by man or machine. The proposed claim
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`limitation is thus impossible because communication cannot occur if the devices
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`involved do not take any steps to perform the communication (e.g., formatting
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`data, transmitting data). In summary, a POSITA could not possibly make what is
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`12
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`claimed.
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`24. Claims 24-26 recite similar language and are thus not patentable for
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`the same reasons as claim 23.
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`III. SUBSTITUTE CLAIMS 23-26 ARE OBVIOUS UNDER (PRE-AIA) 35
`U.S.C. § 103.
`25. While I believe the claims as currently proposed would be possible to
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`implement, they would be obvious if they were interpreted such that they prohibit
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`steps after selection but before subsequent communication. While this reading is
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`not within the language of the claim, I am applying this interpretation for purposes
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`of this declaration in support of Petitioner’s Opposition to the Motion to Amend.
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`26. My original declaration explained and illustrated how the limitations
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`of original claims 11, 12, 18, and 20 are obvious in view of various portions of
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`Guthery and Nozawa. The limitations of substitute claims 23-26 that are
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`unchanged from claims 11, 12, 18, and 20 are rendered obvious by the same
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`portions presented in the petition, and thus will not be addressed in this
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`Supplemental Declaration. The analysis below illustrates how Guthery and
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`Nozawa render obvious the newly added limitations in substitute claims 23-26.
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`A. Claim 23
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`“wherein after selection of one of the plurality of applications, subsequent
`communication between the reading device and the selected application takes
`place without requiring any further steps”
`27. Guthery describes an application selection process in which the host
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`13
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`(reading device) sends a request to an application on the smart card and receives a
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`permission-to-send (PTS) packet confirming its selection. See Guthery, 12:20-52.
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`After receiving the permission-to-send packet (“after selection of one of the
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`plurality of applications”), the host then begins to communicate with the
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`application (“subsequent communication”). Guthery, 12:20-52.
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`“selection of one
`of the plurality
`of applications”
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`does not require “any further steps”
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`“subsequent communication”
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`Guthery, Figs. 15B and 15C (partial, annotated).
`28. As can be seen from the annotated figure above, after the selection
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`process (shown in blue), there are no steps before subsequent communication
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`14
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`occurs (shown in green).
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`29. Thus, because in Guthery’s system communication between the host
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`and the smart card begins immediately after the selection process, Guthery renders
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`obvious “after selection of one of the plurality of applications, subsequent
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`communication between the reading device and the selected application takes
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`place without requiring any further steps [before communication begins]1.”
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`B. Claim 24
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`“wherein the communication device is set up to uniquely address the one or
`more of the least two applications with a receiving device, and”
`30. As explained at [1.2] of the original petition, Guthery teaches that the
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`host communicates with multiple applications on the smart card. Petition, 41-43.
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`Guthery illustrates in Figs. 15A-15C, a first application “M” will generate a first
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`Permission-to-Send (PTS) packet when it is ready to receive data, and then a
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`second application “N” will generate a second Permission-to-Send (PTS) packet
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`when it is ready to receive data: “FIG. 15 is a schematic diagram of a timeline 300
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`… for an exemplary case of simultaneous communication between a host and two
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`applications, Application M and Application N, on the smart card.” Guthery,
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`12:54-59.
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`1 The language in brackets is not in the claims. I am applying this interpretation for
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`purposes of this Opposition to Motion to Amend.
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`15
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`31. Additionally, as explained in the original petition at [1.4], Guthery
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`uses application identification numbers to communicate with the applications. An
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`example Request-to-Send packet 70, which includes application identification
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`numbers (“the identification numbers assigned to the applications”), is illustrated
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`in Fig. 8 below, which I presented in my original declaration.
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`application
` indices
`“identification
`numbers”
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`request-to-send packet
`Guthery, Fig. 8 (partial, annotated); Ex.1003, ¶81.
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`
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`32. Guthery further explains that the application indices “uniquely”
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`identify the applications: “At the end of the initialization and application
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`identification phase, the entities wishing to communicate with applications on the
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`card know what applications are available and have one-byte application indexes
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`to uniquely and efficiently identify the applications on the particular smart
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`16
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`card at hand.” Guthery, 8:60-64.
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`33. Thus, because Guthery’s host (“reading device”) uses application
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`indices to uniquely identify applications on the smart card, Guthery renders
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`obvious “wherein the communication device is set up to uniquely address the one
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`or more of the least two applications with a receiving device.”
`
`“wherein communication between the reading device and the uniquely addressed
`application takes place subsequently without requiring any further steps after the
`communication-readiness signals are generated”
`34. Guthery describes a selection process in which the host sends a
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`request to an application on the smart card and receives a permission to send
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`packet. Guthery, 12:20-52. After the permission-to-send packet has been generated
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`(“after the communication-readiness signals are generated”), the smart card
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`communicates the permission-to-send packet to the host (“communication between
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`the reading device and the uniquely addressed application takes place
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`subsequently”). Guthery, 12:20-52.
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`17
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`the communication-readiness
`signal is generated
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`does not require “any further steps”
`
`“communication between the reading
`device and the uniquely addressed
`application takes place subsequently”
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`Guthery, Figs. 15B and 15C (partial, annotated).
`35. As can be seen from the annotated figure above, after the permission-
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`
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`to-send packet is generated at 344 (shown in blue) there are no steps before
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`communication between the reader and the smart card (e.g., transmission of the
`
`PTS packet from the smart card to the reader) begins (as shown in green).
`
`36. Thus, because Guthery’s system proceeds with communication
`
`between the host and the smart card immediately after the permission-to-send
`
`packet is generated, Guthery renders obvious “wherein communication between the
`
`reading device and the uniquely addressed application takes place subsequently
`
`
`
`
`18
`
`
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`Ex.1026 / IPR2022-01137 / Page 18 of 20
`Apple Inc. v. Aire Technology Limited
`
`
`
`Phinney Supplemental Declaration
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`without requiring any further steps after the communication-readiness signals are
`
`Inter Partes Review of U.S. 8,581,706
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`generated [and before communication begins] 2.”
`
`C. Claim 25
`
`“wherein after selection of one of the plurality of applications, subsequent
`communication between the reading device and the selected application takes
`place without requiring any further steps”
`37.
`
`See claim 23 above.
`
`D. Claim 26
`
`“wherein after selection of one of the plurality of applications, subsequent
`communication between the reading device and the selected application takes
`place without requiring any further steps”
`38.
`
`See claim 23 above.
`
`
`
`
`
`
`2 The language in brackets is not in the claims. Again, I am applying this
`
`interpretation for purposes of this Opposition to Motion to Amend.
`
`
`
`
`19
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`
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`
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`Ex.1026 / IPR2022-01137 / Page 19 of 20
`Apple Inc. v. Aire Technology Limited
`
`
`
`Phinney Supplemental Declaration
`
`III. CONCLUSION
`39. This declaration and my opinions herein are made to the best of my
`
`Inter Partes Review of U.S. 8,581,706
`
`
`
`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.
`
`
`
`
`
`
`
`
`Date: ___6/21/2023____
`
`
`Joshua Phinney
`
`
`
`20
`
`
`
`Ex.1026 / IPR2022-01137 / Page 20 of 20
`Apple Inc. v. Aire Technology Limited
`
`
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