throbber
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`*
`PROXENSE, LLC
`December 27, 2021
`*
`
`*
`VS.
`* CIVIL ACTION NO. W-21-CV-210
`
`SAMSUNG ELECTRONICS CO ET AL *
`
`BEFORE THE HONORABLE ALAN D ALBRIGHT
`MOTION HEARING (via Zoom)
`
`
`APPEARANCES:
`For the Plaintiff:
`
`For the Defendant:
`
`Court Reporter:
`
`David L. Hecht, Esq.
`Conor McDonough, Esq.
`Maxim Price, Esq.
`Hecht Partners LLP
`125 Park Avenue, 25th Floor
`New York, NY 10017
`Marissa Ducca, Esq.
`Quinn Emanuel Urquhart & Sullivan, LLP
`1300 I Street, NW, Suite 900
`Washington, DC 20005
`Sean San-Chul Pak, Esq.
`Quinn Emanuel Urquhart & Sullivan, LLP
`50 California St., 22nd Floor
`San Francisco, CA 94111
`Victoria F. Maroulis, Esq.
`Mark Tung, Esq.
`Quinn Emanuel Urquhart & Sullivan LLP
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, CA 94065
`Kristie M. Davis, CRR, RMR
`PO Box 20994
`Waco, Texas 76702-0994
`(254) 340-6114
`
`Proceedings recorded by mechanical stenography, transcript
`produced by computer-aided transcription.
`
`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 1 of 86
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`(December 27, 2021, 9:02 a.m.)
`DEPUTY CLERK: Markman hearing in Civil Action
`W-21-CV-210, styled Proxense LLC versus Samsung Electronics
`Company Limited and Samsung Electronics America, Incorporated.
`THE COURT: If I could have announcements from counsel,
`please.
`MR. HECHT: Your Honor, this is -- I'm sorry. This is
`David Hecht and Maxim Price from Hecht Partners for the
`plaintiff Proxense. Good morning, Your Honor.
`THE COURT: Good morning to you guys. I hope you had a
`wonderful Christmas.
`MR. HECHT: You too, Your Honor.
`MR. PAK: Good morning, Your Honor. This is Sean Pak of
`Quinn Emanuel representing Samsung. And with me is Marissa
`Ducca as well as Joshua Scheufler. Merry Christmas, Your
`Honor.
`THE COURT: Merry Christmas -- Mr. Pak, I don't think I've
`had you argue in front of me, have you?
`MR. PAK: No. I have not, Your Honor. I've had the great
`fortune of joining some of your cases, but I haven't had the
`opportunity to share argument with Your Honor.
`THE COURT: It's a great pleasure to have you.
`I'm scrolling -- I'm trying to find my cheat sheet here of
`the -- unfortunately my phone is not catching up with where --
`so let me flip over here real quick. Okay.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`The first issue that we need to take up would be
`"persistently storing," and goes on from there. The Court,
`looks like, adopted as a preliminary construction the
`plaintiff's construction. Therefore, I'm going to hear first
`from defendant with respect to what I should do with this claim
`term.
`I look toward to hearing from whoever's going to argue on
`behalf of the defendant.
`MS. DUCCA: Good morning, Your Honor. This is Marissa
`Ducca from Quinn Emanuel on behalf of Samsung.
`And, Your Honor --
`THE COURT: Ms Ducca, I think this is your -- I don't
`remember you being in front of me. I apologize if you have,
`but if not, welcome to my court.
`MS. DUCCA: Oh, well, thank you. I think this is the
`first time I've argued in front of you.
`THE COURT: Okay.
`MS. DUCCA: Thank you.
`THE COURT: I don't do so well with just people who might
`have been in another window. I only have five windows, but
`I --
`
`(Laughter.)
`THE COURT: I had a trial once that lasted three weeks in
`Dallas in a federal court. And about two weeks later I ran
`into the judge and he had no idea who I was. And that hurt my
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`feelings, so I try to do a little bit better about paying
`attention to who's been in my court and who hasn't. But I lost
`the trial, so maybe it was better that he forgot who I was too.
`(Laughter.)
`THE COURT: That may be a good thing too.
`So I've interrupted you. I'm sorry. I invite you to say
`whatever you care to.
`MS. DUCCA: No. That's okay. We appreciate that, Your
`Honor, and thank you for your courtesy. And I'll say it does
`make it more difficult with Zoom. This is a whole new world, I
`think, in the last couple years.
`But with respect to the "persistently storing" term, I can
`say that in the interest of time and the interest of preserving
`limiting resources, we -- Samsung will accept your tentative
`construction of the preliminary -- of the term.
`THE COURT: See, there you've won on your very first
`hearing before me.
`MS. DUCCA: I know.
`(Laughter.)
`THE COURT: Well, go tell John Quinn that you won your
`first argument.
`MS. DUCCA: I will tell him that, Your Honor.
`THE COURT: Next up would be "device ID code." And I'm
`not sure if that's you who will argue this one or someone else
`on your team.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 4 of 86
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`MS. DUCCA: This is me, Your Honor.
`THE COURT: Okay. Very good.
`MS. DUCCA: And I'm actually going to ask my colleague
`Josh Scheufler, he's going to operate the slides for me because
`I'll probably make lots of technical mistakes and he will not.
`All right. So the term here that we're discussing is
`"device ID code." And in two of the patents, the '905 patent
`and the '989 patent, it's actually just "ID code."
`I will say preliminarily the '730, '905 and '989 patents
`are all family members. They all share the same specification.
`So in some instances I may refer just to one of the
`specifications. However, the quotations or citations would
`appear in all three patents.
`So Mr. Scheufler, if you can turn to Slide 28.
`So for this term Samsung proposed the construction "the
`device specific code that identifies the device" and Proxense
`proposed "a unique code identifying a device." And even though
`it's not on the slide, Your Honor proposed as the tentative
`that it be "a unique code identifying device."
`Your Honor, we don't have any issues with the term "a
`unique code." We accept that. We can agree to that in the
`construction. What I wanted to discuss today is whether this
`ID code has to be device-specific. So that's the first portion
`of our construction where it says "the device-specific code."
`And specifically I want to talk a little bit about the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`prosecution history. Because there was some back and forth
`with the examiner in the prosecution history that discussed
`device-specific versus user-specific.
`So, Mr. Scheufler, if you can skip to Slide 30, please.
`What we're showing in Slide 30 is a couple different
`citations from the '730 file history. But if you look at our
`briefing we also have some citations from the further file
`history in the subsequent file histories in the family.
`Essentially what happened here is there was a rejection by
`the Examiner. And the rejection was based on a particular
`reference that involved a fob, a key fob and a private key that
`is used to encrypt a CRC. And that key fob was used to unlock
`a door. So the issue ultimately was whether the CRC is the
`same as -- is the ID code, and that was what the applicant was
`deciding.
`So in response, you can see here on the right the
`applicant's response. And this is in Exhibit 4 to our
`briefing. It's part of the '730 patent file history at Page
`26. This is the applicant's argument responding to the
`Examiner.
`And the applicant wanted to distinguish between two types
`of data. The first type the applicant described as
`user-specific data. And he or she identified that as names,
`public keys, CRCs. This is user-specific data. This is
`information that a user maintains, a user keeps and is attached
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`to a user.
`And these are -- they may be used with other devices. So
`they may be used with the key fob to unlock the door. They may
`be used with other devices as well, perhaps other key fobs,
`other doors.
`What the Examiner did here, though, is specifically made
`clear that the door, which is the device, needs to maintain
`device-specific data as the ID code. And so you can see the
`last sentence that's highlighted on the right side, it says,
`"no device-specific data is maintained by the door, much less
`'a list of codes identifying legitimate integrated devices' as
`claimed."
`So he's specifically saying that ID code is a
`device-specific data. And that's where the device-specific
`portion of our construction came from. It came right here from
`the file history. So that is exactly what the applicant
`intended the ID code to be, that it had be device-specific as
`opposed to a code tied to the user.
`And that is what we submit, Your Honor, as far as the
`issue that has to be decided with respect to this term. Very
`specific in whether or not the ID code has to be user-specific
`or it has to be device-specific. And we would submit that it
`needs to be device-specific based on the file history, as
`demonstrated here.
`THE COURT: Give me just one second.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`(Pause in proceedings.)
`THE COURT: Do you happen to have the -- a claim that has
`the -- the entire claim that has the claim term in it?
`MS. DUCCA: Absolutely, Your Honor.
`Mr. Scheufler, if you would turn to Page 29.
`THE COURT: He's quicker than you are.
`MS. DUCCA: He is. And that's why he's helping out.
`THE COURT: Okay. Give me just one second, and let me go
`back over this.
`I think you were done with your argument. If you're not,
`I'm happy to hear anything else.
`MS. DUCCA: I was, Your Honor. I'm sorry, Your Honor.
`THE COURT: No, no, no.
`MS. DUCCA: I was finished unless you have any questions
`for me right now.
`THE COURT: Okay. Okay.
`I'll hear a response, please.
`MR. PRICE: Your Honor, this is Maxim Price for the
`plaintiff. I'll be arguing this term.
`You know, Your Honor, I'm not clear how defendants'
`construction, proposed construction, achieves what they say it
`achieves. The term "device-specific" standing alone doesn't
`seem to me all that different from "unique code that identifies
`the device."
`But I'm able to glean from their briefing that the
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`construction is meant to exclude any data that might identify a
`user, and such that the device ID code can only identify the
`device. And that is simply not what the claim says.
`If I can -- I'll pull up the claim for you again on our
`PowerPoint.
`I'm not sure if ours is being shown.
`THE COURT: It is.
`MR. PRICE: So let me just go back to the --
`THE COURT: Okay. Go ahead, please. I've got it now.
`MR. PRICE: Yeah. So it is "a plurality of codes and
`other data values that comprise a device ID...[that uniquely
`identifies] the integrated device." And so there's nothing in
`the claim language that so limits it, other than that it must
`uniquely identify the device, which we don't argue it doesn't,
`but can have other data values.
`Now, the defendants, they hang their hat on the
`prosecution history, but that's not -- there's no clear
`disclaimer the way that they are framing it. What the prior
`art had was a CRC code which was a code that was the result of
`cryptography which, because of the way cryptography works, more
`likely than not every such code that was generated by this
`device would have been unique because it was the result of it
`being encrypted.
`But there was no disclosure there of something
`specifically designed to be unique to the device such that it
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`identified the device. So they were not saying device-specific
`to the exclusion of user data. They were merely pointing out
`the prior art did not have both user data and something that
`was device-specific.
`And so the examiner came in and said there is something
`device-specific here. And for there to be a prosecution
`history disclaimer, they would have had to come back and say,
`yes, there's something-device specific but there's also user
`data, and so therefore it doesn't disclose.
`But what they said was, no, there isn't anything
`device-specific. This happens to be unique most of the time
`because of the cryptography.
`But because there is -- but in reality all it is is
`user-specific. Because it is encrypted user-specific data.
`And so it does not disclose something that has both a
`device-specific ID and user-specific data.
`And so the prosecution history does not evidence the
`prosecution history disclaimer of the claim language the way
`that they claim that it does.
`And that's the argument, Your Honor.
`THE COURT: Got it.
`Any response or rebuttal?
`MS. DUCCA: Yes, Your Honor. I'd actually like to address
`Mr. Price's initial note about where he thinks that we want to
`exclude any data that identifies a user. That's not true.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`What we want to do is specifically give the correct
`construction that the applicant argued in the prosecution
`history.
`And with regard to that, he was excluding -- the applicant
`was excluding identifying information that is specific to the
`user. I mean, this is exactly what we're trying to do. You
`know, the CRC is unique but it's not device-specific. It's
`specific to the user. The user can use the CRC whether he's at
`a computer, whether he's on a phone, whether he's on something
`else.
`However, what needs to be the ID code needs to identify
`the device itself. So for example, let's say something that
`isn't in the prior art, an e-mail address. I use an e-mail on
`my phone. I use an e-mail address on my computer. It
`identifies me, but it also, you know, theoretically could
`identify the device if you want to go that broad.
`But that was exactly what the applicant in the prosecution
`history was doing to be able to distinguish the prior art. And
`he was talking about the ID code being device-specific as
`opposed to just user-specific.
`THE COURT: Got it.
`Anything else? Anything else from the plaintiff?
`MR. PRICE: There's just -- I would just refer Your Honor
`to the briefing where they specifically are arguing that user
`data can't be included.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
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`THE COURT: I'm sorry. I couldn't hear what you said.
`That user data is what?
`MR. PRICE: Specifically that the user data is excluded
`from their construction. That would be on Pages 5 and 6 of
`their opening brief.
`THE COURT: Okay. Very good. I'll be back in a second.
`(Pause in proceedings.)
`THE COURT: If we can go back on the record.
`The Court is going to maintain its claim construction.
`The claim -- final claim construction will be "a unique code
`identifying a device."
`The next claim term to take up is "access message." And I
`will hear from -- I'll start with the defendant.
`MS. DUCCA: Your Honor, this is me again, Marissa Ducca.
`So if Mr. Scheufler -- there you go. You're already
`there -- to Slide 32.
`We're going to talk about the term "access message."
`THE COURT: I'm starting to feel really badly now that we
`set this like the day after Christmas. I feel like I ruined
`several Christmases here. And I -- and I want you to know I'm
`going to completely throw my clerks on the fire here, because I
`have nothing to do with the scheduling. And if I -- if it were
`up to me, I think maybe I would have this for tomorrow and not
`today. So I'll have to pay a little more careful attention. I
`just realized you're on your third claim term the Monday after
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Christmas. That can't have been right. So I apologize for
`that. But we'll -- I'll try and do better next year.
`MS. DUCCA: Well, Your Honor, thank you. And it's fine.
`We're all ready to go. So who doesn't want to argue claim
`terms the day after Christmas? Two days after Christmas. We
`did have a break.
`THE COURT: Well, I think this is -- Josh told me this and
`I'm not sure if it's right. But this will be the 106th Markman
`of the year for me.
`MS. DUCCA: Oh, wow.
`THE COURT: And I have another one this afternoon. And
`then I think I'm done. I think that'll be enough Markmans for
`a year. So...
`MS. DUCCA: Three more and you can hit 110.
`THE COURT: Yeah. And believe me, there were clerks who
`thought that was an admirable thing to try to achieve. So...
`(Laughter.)
`THE COURT: Let's have that goal for 2022. Let's save
`that.
`MS. DUCCA: That's a lot of Markman hearings. That's more
`Markman hearings than I've had in my career.
`THE COURT: Well, I hope you have that many in your
`career. That would be a great career.
`MS. DUCCA: That's a lot of Markmans.
`Thank you, Your Honor.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`So turning to the term "access message." And if you take
`a look at our briefing, you'll see that Samsung actually
`proposed a bigger phrase. But I think for purposes of the
`issue that we'd like to discuss, it's easier to just address
`the term "access message."
`So the term "access message" only appears -- the actual
`term only appears in two of the family members, the '730 patent
`and the '905 patent.
`So, Mr. Scheufler, if you can go on to the next slide.
`So Samsung's proposed construction for this term was
`"receiving a signal from the agent permitting a user to access
`an application" and "receiving a signal from the agent
`permitting a user to access."
`And Proxense's proposed construction was "a signal or
`notification permitting or announcing access."
`We obviously -- and this was also the Court's tentative
`construction. We obviously agree with the signal permitting
`access. You know, it -- permitting or enabling anything like
`that, we agree with.
`What we don't agree with is the notification part. And
`the reason we don't agree with that is we think that the
`notification, as disclosed in the specification, is separate
`from the access message.
`So the issue that we're going to decide today is does the
`access message need to enable or permit access? And the answer
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`to that is yes. It needs to permit or enable access. It does
`not have to notify or announce.
`So, Mr. Scheufler, if we go to Slide 34.
`What I have here is an example of Claim 1 from all three
`patents. And I think the '989 patent Claim 1 is informative as
`well, even though the term "access message" does not appear
`here.
`And of course claim construction starts with the language
`of the claims. And there's two things that we need to take
`away from the claim language. The first thing is that the
`access message always comes from this third-party trusted
`agent, a third-party trusted authority or agent. So that's
`who's sending the access message.
`The second item to take away from the claims is that the
`access message always enables or permits access to the
`application or the functionality of the transaction.
`So if we take a look at Claim 1 in the '730 patent, you
`can see it highlighted there. You see "receiving an access
`message from the agent." And if you look above, the agent is
`this third-party trusted authority. So it's not the device.
`It's not the device that's actually being used by the user.
`It's coming from this third party. They're the ones that
`actually determine whether or not that user can access the
`application or access the transaction.
`Looking at the '905 patent, it's the same -- it's exactly
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`the same. "Responsive to receiving an access message from the
`third-party trusted authority."
`And then I also included the '989 patent Claim 1, because
`that is also informative. Although it doesn't use the term
`"access message," it describes what's happening. It says "a
`transaction being completed responsive to the third-party
`trusted authority successfully authenticating the ID code."
`So the third-party trusted authority performs the
`authentication and then sends this access message back to
`the -- I'll say smartphone, but any device that's being used.
`I believe smartphone is only in the '989 patent.
`And then, of course, as I mentioned, the second item
`that -- takeaway from the claims is that the access message is
`always providing access. So looking at the '730 patent, it
`says that it allows the user access to the application. So
`that's what's letting the user access the application.
`Same with the '905 patent. It's allowing the user to
`complete a financial transaction.
`And finally, with the '989 it still says a transaction
`being completed responsive to that message from the third-party
`trusted authority.
`You think about using a smartphone and using -- doing
`something on a smartphone. You know, you might have -- try to
`access an app or try to perform a financial application, you
`need to get access to that. But the access in this claim is
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 16 of 86
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`17
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`coming not from the phone itself, it's coming from this
`third-party trusted authority. And the third-party trusted
`authority has to somehow let the phone know that the user can
`actually access it. It has to provide the access. And that's
`what that access message is. And that's what's being provided
`to -- in the claim.
`Now, what Proxense does is, they're citing to some
`different parts of the specification. And I'm going to show
`that next. They're talking about this notification that's
`discussed in the specification. But that's another -- that's
`another step. That's another message actually generated by the
`phone itself.
`So, Mr. Scheufler, if you can go on to Slide 35.
`What I've done here is I've taken two portions of the
`specification. I've -- on the top this is where the
`specification describes the access message.
`And, Your Honor, I'd actually say that except for the
`claims, this is the only citation within the specification that
`actually discusses the access message. And it says
`specifically, "If authentication is successful, the trusted key
`authority sends an access message." So, again, it's that
`third-party trusted authority sending the access message to the
`application to allow user access. It's saying, hey,
`application on the phone, the user's allowed to access this.
`Let's talk about the citations that the -- that Proxense
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 17 of 86
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`18
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`submits for the notification portion of their construction. So
`here is an example of that. This is actually showing a
`separate notification that occurs after access has already been
`allowed by the access message.
`So it says, "Responsive to successful authentication of
`the key, access is allowed to the application." Period. Okay?
`And then they give an example. In the slot machine
`example now a pop-up window's going to be spawned. But that's
`separate from the access message.
`If we could go to the next slide.
`And these are just a couple more examples that were cited
`in Proxense's briefing. You can see "In one embodiment LED 130
`can also confirm user verification and/or authentication has
`completed." Has completed means that the access message has
`already come in, it's already authenticated, access is already
`granted. The LED 130, that is a user -- that's a user
`interface on the device, on the smartphone. It's not coming
`from the third-party trusted authority.
`And these next two examples that were cited are actually
`the same language, even though in different portions of the
`specification. That shows that the first thing that happens is
`that access is allowed, period. And then a user interface from
`the phone will pop up and say, hey, you've got access now.
`That's the difference between the messages.
`So we would submit that the access message itself needs to
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 18 of 86
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`19
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`have -- needs to permit access. It's something that comes from
`a third party, it gives access. And then later, of course,
`there can be a pop up, a notification that gives notice.
`One other thing that I will note, the words "notification"
`and "announcement" in the construction, those words appear
`nowhere in the specification at all. They're not part of the
`intrinsic record at all.
`And that is my complete argument, unless Your Honor has
`any questions.
`THE COURT: I got it.
`A response?
`MR. PRICE: Let me just replace the -- when they stop
`sharing. There you go.
`So as my counterpart mentioned, the argument is whether or
`not an access message can also include a notification. It can
`also be a notification rather than just permitting access.
`And we can see in the claim language itself the act of
`allowing access is done in response and separately from
`receiving an access message from the agent. You see that in
`Claim 12 of the '730 as well as Claim 1 of the '905 patent.
`And so the access message is important in this patent. It
`has been discussed consistently as a separate thing from the
`act of permitting access.
`The access message can, in some circumstances, merely
`announce that access was permitted or it can be permitted. And
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
`
`Patent Owner Exhibit 2003, Page 19 of 86
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`20
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`we know that because, first of all, there are several examples
`in the specification where the only message that's being
`discussed is a message informing or notifying that there's
`access.
`They say that there's no -- the word "notification"
`doesn't appear in the specification. But there's several
`examples of notification where the order of events is access is
`allowed. The only message being sent, for instance here, is
`the LED that confirms that the user has been given access.
`Access can be allowed, for instance, as we'll learn in a
`later slide, that -- by the local application on the phone
`itself. Access can be allowed by a remote application such
`that the only notification that needs to be sent to the phone
`is the access -- that access has been allowed, informing the
`phone that access is allowed.
`The same thing with the pop-up window in the slot machine.
`Access is allowed. There is no access message in any of the
`steps before here. The only message is the pop-up. And that's
`what's discussed in the specification.
`And the reason we know that this -- the claim anticipates
`two different types of access messages is that the claims give
`two different types of resources. Some resources can be
`external, like a casino machine or ATM machine or a garage door
`opener, that need an access message sent to them that says it
`is okay to give access.
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 20 of 86
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`

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`21
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`But some resources are internal, like a file or computer
`software. And computer software can be both, but that's an
`example of something that can be internal to the phone. The
`phone will permit access upon receiving notification that
`access is permissible.
`And that's important because the specification shows that
`other steps might be necessary in granting access. And this
`was clearly in the conjunctive in the very slide that was shown
`by -- to Your Honor by opposing counsel. It says "and/or
`provide additional information from the profile."
`This is showing that sometimes there's an extra step.
`Once you receive an access message, you have to verify that the
`user's old enough to use that particular machine. And so the
`permission of access still needs another step. So it cannot be
`that the access message is that last step that permits access.
`The access message is one of the steps in this example,
`and another step is the verification of the age and then access
`will be granted. And so an access message must have both the
`possibility of being something that permits access or notifies
`a device that access is permissible.
`Thank you, Your Honor.
`THE COURT: A response?
`MS. DUCCA: Yes, Your Honor.
`And, Mr. Price, if you would put up -- can you keep your
`slides up for me for a second?
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`KRISTIE M. DAVIS, OFFICIAL COURT REPORTER
`U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)
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`Patent Owner Exhibit 2003, Page 21 of 86
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`22
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`MR. PRICE: One moment.
`MS. DUCCA: Thank you. I appreciate that.
`And if you could go to the first slide that you had. It
`had an example of Claim 12, I believe. Yes. Thank you.
`Your Honor, what I would submit is we have to look at the
`claim language and we have to look at the specification. And
`what's important is that the claim language makes clear in each
`of these examples the access is being given by the third-party
`trusted authority. And that is exactly what's being shown in
`Claim 12 that Mr. Price has up here.
`If you look at the claim language, it says, "receiving an
`access message from the agent and [then] in response to a
`positive access message..." Positive access message means that
`that message coming from the agent approved authorization.
`And then it proceeds to describe that access message. The
`access message is "allowing the biometrically verified user
`access to an application..." That's what the positive access
`message does.
`The fact is that every place that we've looked at in the
`specification when the access message is discussed, it is
`allowing or permitting access. And then every time where there
`is this other pop-up or this other information being provided,
`it is being described more just separate from that access
`message, separate fr

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