Trials@uspto.gov
`571-272-7822
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`Paper No. 40
`Entered: April 17, 2024
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
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`APPLE INC. and GOOGLE LLC,1
`Petitioner,
`
`v.
`
`SPACETIME3D, INC.,
`Patent Owner.
`________________
`
`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
`________________
`
`Record of Oral Hearing
`Held: March 18, 2024
`________________
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`
`
`
`Before HUBERT C. LORIN, DAVID C. McKONE, and
`SHEILA F. McSHANE, Administrative Patent Judges.
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`1 Google LLC was joined as Petitioner to IPR2023-00343 and -00344,
`respectively, via the granting of motions for joinder filed in IPR2023-00579
`and -00578, respectively.
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`

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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER, APPLE INC.:
`
`
`W. KARL RENNER, ESQ.
`ANDREW PATRICK, ESQ.
`KENNETH DARBY, ESQ.
`USMAN KHAN, ESQ.
`Fish & Richardson P.C.
`1000 Maine Avenue SW, Suite 1000
`Washington, D.C. 20024
`(202) 783-5070
`
`
`
`ON BEHALF OF THE PETITIONER, GOOGLE LLC:
`
`YINAN LIU, ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`Two Seaport Lane
`Boston, Massachusetts 02210
`(617) 646-1652
`
`
`
`ON BEHALF OF THE PATENT OWNER, SPACETIME3D, INC.:
`
`
`TODD E. FITZSIMMONS, ESQ.
`Fitzsimmons IP Law, P.C.
`P.O. Box 199
`Gardena, California 90248
`(571) 210-8000
`
`
`
`
`
`
`
`
`2
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`

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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`GREGORY CORDREY, ESQ.
`Jeffer Mangels Butler & Mitchell LLP
`3 Park Plaza, #1100
`Irvine, California 92614
`(949) 623-7236
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`
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`The above-entitled matters came on for hearing at 3:25 PM EDT on
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`Monday, March 18, 2024, at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia.
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`
`P R O C E E D I N G S
`- - - - -
`JUDGE LORIN: Good afternoon. This is an oral hearing in
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`IPR2023-00343 and IPR2023-00344. The oral arguments in these two cases
`have been consolidated for purposes of this hearing. Petitioner is Apple Inc.
`and Patent Owner is SpaceTime3D, Inc. Google LLC has been joined. The
`proceeding 00343 concerns U.S. Patent 9,304,654. And the patent that is the
`subject of the 00344 proceeding is 9,696,868. Are the other two Judges on
`the screen?
`USHER: They are here. You should be able to hear them now.
`JUDGE McKONE: I’m present, if you can hear me.
`JUDGE LORIN: Oh, okay. Because I do not see you. Judge
`McShane?
`USHER: It’s being worked on
`JUDGE McSHANE: I’m here.
`JUDGE LORIN: Oh, you’re also here?
`JUDGE McSHANE: Yes, I’m here as well.
`JUDGE LORIN: Okay. Very good.
`JUDGE McSHANE: So, you just probably can’t see me.
`JUDGE LORIN: Yeah, we don’t see you. Okay. So, I'm Judge
`Lorin. And as you heard, Judge McKone and Judge McShane are appearing
`remotely and you’ll see them on video soon. Let's begin with Petitioner
`Apple. Could you introduce yourselves for the record?
`MR. PATRICK: Your Honor, my name is Andrew Patrick. I'm here
`for Petitioner Apple. And I'm joined by my colleagues Usman Khan and
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`Karl Renner. Also on the line is Allen Kathir for Apple. And Yinan Liu is
`here on behalf of Google.
`JUDGE LORIN: Thank you. For Patent Owner?
`MR. CORDREY: Good afternoon, Your Honor, this is Greg Cordrey
`on behalf of the Patent Owner, SpaceTime3D. With me today is my
`colleague, Todd Fitzsimmons.
`JUDGE LORIN: Very good. Thank you so much. Okay. As I
`always do, I'd like to remind the parties that this hearing is open to the
`public. So be aware of that, please. A full transcript will be part of the
`record. We received your demonstratives, so we'll have them before us.
`And I see Judge McKone. Both Judges are now on the screen. When you
`speak, please speak so that they can hear you. And also make sure you
`identify the slides very clearly so we know where you are and what you're
`focused on. Okay, Petitioner, you may begin.
`MR. PATRICK: Thank you, Your Honor.
`JUDGE LORIN: Would you like to reserve? Any time.
`MR. PATRICK: Thank you, Your Honor. I would like to reserve 15
`minutes.
`JUDGE LORIN: Okay, you may proceed.
`MR. PATRICK: May it please the Board. My name is Andrew
`Patrick and I represent Petitioner Apple. I'd like to ask Your Honors to turn
`to slide 2 of the deck, which provides an overview. As shown in the table of
`contents provided on slide 2, we have organized our presentation today to
`address the record evidence relating to whether a POSITA would have found
`the claimed ‘654 and ‘868 Patents’ subject matter obvious over the
`combined teachings of the Anthony and Hanggie references, whether based
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`on obvious modifications to Anthony motivated by Hanggie's teachings, or
`on obvious modifications to Hanggie motivated by Anthony's teachings. In
`either case, we have, throughout these proceedings, referred to the combined
`system yielded by those teachings as “HAC” for short, and we will continue
`to do so today.
`That said, it is important to note that Patent Owner’s briefing, in
`addition to improperly attacking the applied references individually, rather
`than addressing what a person of skill would have found obvious over their
`combined teachings, and in addition to attempting to distinguish those
`teachings based on terms that are not actually recited in the claims, also
`failed to address several of the motivations that Dr. Fuchs explained would
`have inspired the POSITA to combine those teachings in both directions.
`This, ironically, despite SpaceTime having alleged that there would have
`been no motivation to combine Hanggie and Anthony as proposed.
`By leaving motivations uncontested, Patent Owner’s failed to present
`evidence they could defeat the case for the HAC combination established by
`the petitions and Dr. Fuchs's testimony. I'd like to first explore that issue
`together, which I've identified in our demonstratives as issue one, and I'll
`then plan to address on direct issues two, three, and four, respectively. The
`obviousness over HAC of the common replacing features, of the common
`ordering features, and of the features of the ‘868 Patent’s independent claim
`13.
`
`With that plan, I'd like to ask Your Honors to join me in turning to
`slide 10, which presents on the right from Anthony exemplary figure 4,
`illustrating the chronological organization of images within a 3D immersive
`space and which presents, at left, related description from Anthony's
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`paragraph 42. More specifically, and as shown in the clip at left, Anthony
`explains that all items stored in an operating system have certain properties,
`for example a time attribute, and that those items may be visual
`representations, for example, icons, thumbnails, and the like of a file folder,
`virtual folder, or any other data object. Turning to slide 11, we can see that
`Anthony's paragraph 42 continues by noting that any item property may be
`used as an ordering attribute, a term referring to the attribute around which
`data is primarily sorted or organized at a given time. For instance, in the
`embodiment of Anthony illustrated by figure 4, the ordering attribute is
`based on time, and the items are chronologically ordered into a logical,
`dynamic timeline view in 3D, which is said to allow a user to easily navigate
`and locate items.
`More specifically, Anthony offers that items visually representing
`data objects within the operating system may be chronologically arranged,
`for example, by using a date of creation or date of edit attribute as the
`ordering attribute. In its field section, Anthony expressly describes its
`teachings as enabling a user to more efficiently view, find, and select a
`group of objects on a graphical user interface. And Anthony later expressly
`offers a paragraph 44 that its dynamic timeline allows a user to freely
`navigate documents, files, or other data objects in a chronological manner.
`Turning to slide 12, we see images from Hanggie, which discloses
`rendering a desktop on a computer using a composited desktop model
`operating system with intrinsic support for composition agnostic legacy
`applications. More specifically, Hanggie indicates that its desktop window
`manager uses advanced textures, lighting, and 3D transformations, yet
`supports legacy applications. Notably, while Hanggie's compositing engine
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`enables 3D graphics and animation, transparency, shadows, lighting effects,
`and other rich visual features on the desktop, it is further connected to a
`legacy graphics device interface that provides 2D graphics services to both
`legacy applications as well as the legacy window manager. The different 3D
`graphics and 2D graphics interfaces are highlighted on slide 12 and
`Hanggie's figure 1b.
`Importantly, and as can be seen in the clip at left of slide 13, Hanggie
`expressly discloses that the drawing modes are integrated such that the
`operating system inherently has the capability to render the desktop using
`either mode. More, Hanggie describes allowing the user to select which
`mode should be used either automatically or manually, for example, using a
`manual user control in accordance with a visual style or alternatively or also
`based on power conservation conditions.
`With that brief overview of the constituent references, I'd like to now
`discuss Patent Owner's failure to fully address the HAC combination in each
`of its two directions. Toward that end, I'd like Your Honors to turn with me
`now to slide 15. As Dr. Fuchs testified and as shown on this slide, a person
`of skill would have been motivated and found it obvious to combine the
`teachings of Hanggie and Anthony to implement one or more windows
`corresponding to one or more applications as displayed windows in
`Anthony's timeline; implement control buttons on application windows
`within the timeline that would allow a user to restore, maximize, minimize,
`or close the windows; and, implement a control selection through which a
`user can switch between 2D and 3D viewing of the application windows.
`For instance, Dr. Fuchs noted that a person of skill would have been
`motivated to modify Anthony based on Hanggie's teachings by
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`implementing Hanggie's control buttons in Anthony's 3D timeline windows
`such that the user could close, minimize, maximize, or restore a window
`when desired by selecting a corresponding button, as doing so would be
`consistent with user expectations, convenient to the user, and would assist
`the user in interacting with applications represented within the timeline,
`since control buttons of this nature would have been understood to provide a
`user with more control over the information displayed within the timeline in
`application windows and would allow the user to view or interact with a
`particular window only when desired. Moreover, consistent with these
`advantages in Hanggie's teachings, Dr. Fuchs testified, the POSITA would
`have found it obvious to implement the maximize control button such that
`manual user selection of that button would result in Anthony's user interface
`switching from a 3D timeline view, enabling user interaction with a plurality
`of applications represented within windows displayed within that timeline to
`a 2D view of a 2D maximized window, at least because doing so would
`allow certain users to interact with an application in a 2D environment
`similar to their past experiences in 2D, and make it unnecessary to expend
`computing resources on rendering the 3D timeline while a window is in a
`maximized state.
`Dr. Fuchs further explained that a POSITA would have been
`motivated to modify Hanggie based on Anthony's teachings in a manner
`yielding the same HAC system, but additionally because the person of skill
`would have recognized that ordering and representing Hanggie's windows in
`this 3D dynamic timeline manner would allow for efficient, intuitive, and
`user friendly navigation. Against this, SpaceTime argues in its Patent
`Owner’s responses, and sur-replies that, quote, there is no motivation to
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`combine Hanggie and Anthony as proposed because, for example, Hanggie's
`description of use of a legacy drawing mode in circumstances in which
`processor intensive calculations are inappropriate is allegedly inapplicable to
`the proposed combination where, according to SpaceTime, only images are
`presented in 3D space. Weirdly, SpaceTime goes on to state on the same
`page that Hanggie does not -- and that's at the ‘868 sur-reply at 22.
`SpaceTime goes on to state on the same page that Hanggie does not disclose
`displaying images in 3D space but active windows, and to argue that
`resource intensive features are only applicable when displaying legacy
`application windows in 3D space rather than images, and that as such,
`Hanggie does not provide the proposed motivation to modify Anthony, as
`Petitioners suggest.
`Now, beyond the fact that these arguments seemingly skirt past the
`processor intensive calculations that would be involved in rendering and
`presenting a 3D dynamic timeline including 3D window images, they
`altogether failed to address the various motivations that Dr. Fuchs identified
`for modifying Anthony based on Hanggie involving user expectations,
`convenience, and control. Also left unaddressed were the motivations
`offered for modifying Hanggie based on Anthony. SpaceTime additionally
`argues at, for example, pages 23 and 24 of its ‘868 sur-reply that
`conservation of battery power cannot be a motivation to switch from 3D to
`2D upon user selection of the maximized control button. If the device is
`only operating in 3D space when connected to an AC power source. Beyond
`incorrectly asserting that the HAC device is only operating in 3D space
`when connected to an AC power source. This argument suffers from similar
`problems as the last. For example, ignoring motivations for switching from
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`3D to 2D upon user selection of the maximize button offered by Dr. Fuchs is
`flowing from user expectations, convenience, and control. In short,
`SpaceTime has failed to seriously contest that a POSITA would have
`combined these references in the manner testified to you by Dr. Fuchs. And
`unless there are questions on that point, I'd like to ask Your Honors to turn
`with me now to slide 24, where we'll address the obviousness of the
`common replacing features over HAC.
`As shown on slide 24, the independent claims of the ‘868 and ‘654
`Patents recite a replacing feature directed to replacing a plurality of images
`within 3D space with an object in 2D space. More specifically, and for
`example, the ‘868 Patent’s claim 1 recites, quote, replacing said plurality of
`images within said 3D immersive space with one of said first, second, and
`third objects corresponding to said one of said plurality of applications
`within said 2D space in response to said selection. Before moving on, I'd
`like to note that absent from that language are the words active or inactive.
`With that, I'd like to ask Your Honors to turn with me to slide 25. As
`shown on Slide 25, Patent Owner’s attempt to distinguish the applied prior
`art from the replacing feature can be understood as resolving to two
`arguments. First, as shown at upper right, Patent Owner repeats its pre-
`institution argument that the claims require switching from 3D space to 2D
`space and that HAC allegedly does not render such switching obvious. This,
`despite the Board having preliminarily found at institution that the
`independent claims do not require switching from 3D space to 2D space.
`Second, as shown at lower right, Patent Owner repeats its pre-institution
`argument that the claims require replacing inactive 3D images with an active
`2D window object. This, despite the absence of any lexicography or
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`disclaimer in the specification that might conceivably support the
`importation of such terms into the claims.
`More specifically, and as shown on Slide 26, Patent Owner relies on,
`in its attempt to read the terms inactive and active into the claims for its
`argument, that HAC does not disclose the replacing feature. For example,
`referring to the 3D window images displayed in HAC's 3D immersive space,
`Patent Owner argues that by definition, because a user can interact with the
`control buttons on the window, the window is not an image as required by
`the claims. This argument is interesting at least insofar as it implies a view
`by Patent Owner that if some portion of a thing being displayed is
`interactive, then that displayed thing is definitionally not an image. And yet,
`as we pointed out, the Petitioner replies, nowhere in the specification is there
`any definition, disavowal, or description suggesting that an image cannot be
`active or must be incapable of receiving interactions.
`And on the contrary, and as we'll see in the next slide, the opposite is
`true, as the specification itself repeatedly implies that images displayed in
`the 3D space are interactive and retain the functionality of their 2D object
`counterparts. For example, as shown in the highlighted text presented on
`slide 27, the ‘868 and ‘654 Patents expressly state that, quote, in general, the
`present invention displays graphics from the user's 2D finite desktop in 3D
`infinite space while retaining the functionality of the 2D programs and
`documents. In another portion of the specification, both patents add, quote,
`furthermore, once the file, document, application, or desktop is added to the
`virtual space 300, it is fully interactive and functional, and appears no
`different from or close to the original way the program functions when it
`was not in the 3D cartesian space 300.
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`
`In at least these instances, the ‘868 and ‘654 Patent specifications
`include descriptions of interactive images presented in 3D space that
`contradict the characterizations of the claimed plurality of images advanced
`by Patent Owner in these proceedings, upon which Patent Owner heavily
`relies in its attempt to distinguish HAC. More, and as we pointed out in the
`Petitioner replies, Patent Owner offered in its response a statement that by
`definition, HAC's 3D windows did not qualify as images based on there
`being at least partly interactive, but did not, in doing so, actually offer any
`definition or express construction of the term image. Instead, at that time,
`Patent Owner offered that all terms other than 3D space and 2D space should
`be given their plain and ordinary meaning.
`I'd like to ask Your Honors to turn with me to slide 28, which shows
`that, contrary to its earlier position, Patent Owner newly advanced a
`construction of the term image for the first time in its sur-reply. More
`specifically, Patent Owner advanced for the first time in its sur-reply an
`express claim construction section in which it embraced an alternative
`definition of image offered in a dictionary exhibit earlier submitted. Quote,
`an optical counterpart of an object produced by an electronic device.
`Interestingly enough, SpaceTime did not demonstrate in the sur-reply how
`this newly offered construction allegedly distinguishes HAC. That said,
`although Petitioner has not had an opportunity to respond to this late
`construction with a paper or evidence, and although Petitioner respectfully
`submits the Patent Owner should be considered to have forfeited its express
`construction by offering it for the first time only in the sur-reply, HAC
`renders the replacing limitation obvious even under SpaceTime's image
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`construction, and it's therefore not necessary to reach that construction to
`rule in Petitioner's favor.
`First, I'd like to ask Your Honors to turn with me to slide 31, which
`addresses obviousness of the replacing limitation under plain meaning of the
`term “image.” At the left of slide 31, we can see Patent Owner's critical
`misunderstanding of HAC by its response statement that in Anthony and
`Hanggie, everything occurs on a single 3D GUI. This, of course is not
`accurate, as Hanggie expressly discloses both a legacy drawing mode for
`rendering 2D windows in a 2D desktop display, and a 3D drawing mode for
`rendering 3D windows and a 3D desktop display, as well as the ability of a
`user to freely switch between these two modes via manual user control.
`Example disclosure from Hanggie’s paragraph 92 on these points is
`shown at the right side of slide 31. And as we earlier discussed in the
`context of the HAC combination, and as Dr. Fuchs testified, a person of skill
`would have understood and found obvious that manual user selection of the
`2D mode, for example, by pressing a maximize button on a particular 3D
`window image while the dynamic 3D timeline was being displayed, would
`result in the 3D window images presented within that timeline being
`replaced by the 2D window object corresponding to the selected image.
`Now, with that in mind, I'd like to ask Your Honors to turn back to
`slide 29, which provides further disclosure from Hanggie, demonstrating that
`the 3D windows presented in HAC would in fact have been understood by a
`person of skill to be images, whether under plain meaning or Patent Owner's
`newly advanced construction. For example, and as shown at upper right,
`Hanggie describes that an application can generate a 3D application window
`and attach any number of content objects to that application window,
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`including, quote, a raster surface of specified size and pixel format to be
`used as a diffused texture mapped to an application or system defined mesh,
`along with optional accessory resources such as additional textures, light
`map, specular map, bump, normal map, et cetera, lights, and a pixel shader.
`At least because HAC's 3D windows include mapped textures in addition to
`other content objects, Dr. Fuchs explained that a person of skill would have
`understood those 3D windows to be images under plain meaning. Moreover,
`the fact that HAC's 3D windows can include interactive control buttons does
`not prevent those windows from being understood to be images under plain
`meaning. To the contrary, the 3D windows are visually displayed to the user
`on a monitor and are, in at least that sense, images. And those images are of
`course each optical counterparts to objects produced by an electronic device.
`When generated, for example, in response to manual user selection of a 3D
`drawing mode after previously operating in a 2D drawing mode. HAC's 3D
`timeline windows are optical counterparts to the earlier presented 2D
`windows and their applications. In at least this way, HAC renders the
`replacing step obvious both under plain meaning and under Patent Owner's
`late-entered construction of the term image.
`Unless Your Honors have further questions on this point, I'd like to
`ask you to turn with me now to slide 33, where we'll address the ordering
`limitation as shown on slide 33. The independent claims of the ‘868 and
`‘654 Patents recite an ordering feature in which the plurality of images in the
`3D space are displayed in an order based on a last time that the user one of
`(i) opened said first application and interacted with said first object, (ii)
`opened said second application and interacted with said second object, and
`(iii) opened said third application and interacted with said third object.
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
`
`Before moving to the next slide, I wanted to just briefly highlight that in the
`claims, the one of is recited before the numerals one, two, and three, and
`each of the one, two, and three numerals recite opening an application first,
`second, and third, respectively, and interacting with a corresponding 2D
`object. With that in mind, let's turn to the prior art disclosure on slide 34.
`As shown at the left of slide 34, which presents highlighted text from
`Anthony's paragraph 42, Anthony teaches that its items can be
`chronologically arranged according to a time-based ordering attribute, which
`may be, for example, date of creation or date of edit. Shown on the right is a
`figure provided by Dr. Fuchs illustrating how, in the HAC system, the
`application windows would be displayed in a timeline and, consistent with
`Anthony's teachings, would have been arranged based on an ordering
`attribute, for example, date of edit. And as Dr. Fuchs explained, the date of
`edit of a given window would, in at least some cases, correspond to the last
`time that a user opened the corresponding application and interacted with the
`window object.
`As shown at the top left, as slide 35 and its Patent Owner responses,
`SpaceTime attempted to distinguish HAC based on the assertion that the
`claimed invention orders images based on the most recently used
`applications. In making this argument, SpaceTime appears to be
`distinguishing a use of the application from a use of documents or files
`related to the application. But here again, SpaceTime's arguments are
`divorced from the claim language. For instance, the ordering limitation does
`not recite the words recently used. Setting aside the fact that SpaceTime's
`response argument relies on language not recited in the claims, Petitioner's
`replies, as shown at bottom left, noted that SpaceTime's argument fails to
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
`
`address that user interaction with an application file through an application's
`window object would require opening of the application and interaction with
`that object. In at least that sense, interaction with an application's window
`object would obviously involve use of the opened application. And for what
`it's worth, both experts appeared to agree with this. For instance, in
`paragraph 27 of his second declaration, Dr. Fuchs explained that a person of
`skill would have understood that an application executable file is executed in
`order to display an application window, and that if one were to enter a
`character in an application window, such an interaction would be with both
`the application and the application window, because the software executable
`file running the application receives and provides instructions to display and
`store the character in the application window.
`For his part and as shown on the right side of slide 35, SpaceTime's
`expert, Dr. Schaefer, acknowledged during his deposition that typically
`when a user wants to interact with an application, the user opens an
`application window. In columns 63 through 68 of his deposition transcript,
`there's further testimony from Dr. Schaefer also acknowledging that when
`running an application, for example, Microsoft Excel, and this is shown on
`slide 37, an executable file is executed and a Microsoft Excel application
`window captures a user keyboard input. Thus, both experts appear to agree
`that interacting with an application window would involve opening and use
`of the corresponding application.
`I'd like to ask Your Honors to turn with me now to slide 36, which
`provides a table of the evolving interpretations offered by SpaceTime for the
`ordering limitation in this proceeding up to and including the explicit
`construction offered by SpaceTime for the first time in its sur-reply. As I
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
`
`noted earlier with respect to the replacing feature, in its responses,
`SpaceTime had indicated that no constructions were necessary other than for
`the 2D space and 3D space terms, and that other terms should be given their
`plain and ordinary meaning. At that same time and as just discussed,
`SpaceTime suggested that the ordering must be based on the most recently
`used applications. Contrary to its earlier position, SpaceTime then
`introduced an express construction for the ordering limitation in its sur-
`reply, which we reproduced at the right side of the table. Specifically,
`SpaceTime now contends that the ordering limitation should be construed as
`based on a last time that said user (1) opened said first application or
`interacted with said first object; (2) opened said second application or
`interacted with said second object; and (3) opened third application or
`interacted with said third object.
`Notably, SpaceTime's late-express construction eliminates the words
`“one of” and several instances of “and” from this limitation more specific,
`more SpaceTime has actually replaced the word “and” in each of the
`enumerated one, two, and three clauses with the word “or”. In doing so,
`SpaceTime has drastically departed from the actual claim language, again,
`without any recourse to allege, disavow, or lexicography that might
`conceivably justify that attempt. And here again, Your Honors, although
`Petitioner has not had an opportunity to respond to this late construction
`with a paper or evidence, and although Petitioner respectfully submits that
`Patent Owner should be considered to have forfeited its express construction
`by offering it for the first time only in the sur-replies filed March 1.
`HAC renders the ordering limitation obvious both under plain and
`ordinary meaning and under SpaceTime's late construction, and it's therefore
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`IPR2023-00343 (Patent 9,304,654 B2)
`IPR2023-00344 (Patent 9,696,868 B2)
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`not necessary to reach that construction to rule in Petitioner's favor. For
`instance, and as previously noted with respect to slide 34, Anthony discloses
`that data items can be chronologically ordered based on attributes including
`a time of edit or a time of creation. And Dr. Fuchs testified that, consistent
`with Anthony's teachings, a person of skill would have chronologically
`arranged 3D application windows within Anthony's 3D dynamic timeline
`according to a time-based ordering attribute. For example, Dr. Fuchs, in his
`original ‘868 declaration at paragraphs 94 and 102, explained that a person
`of skill would have understood that the last time a user edited application
`data via a 2D application window object, in at least some instances,
`corresponds to the time when the application was last