Case 6:21-cv-00916-ADA-DTG Document 59 Filed 05/24/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`RFCYBER CORP.,
`
`v.
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`APPLE INC.,
`
`Plaintiff,
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`Defendant.
`
`Civil Action No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT APPLE INC.’S REPLY CLAIM CONSTRUCTION BRIEF
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`DISPUTED CLAIM TERMS ..............................................................................................1
`A.
`“e-purse” / “electronic purse” / “e-purse applet” .....................................................1
`B.
`“payment server” .....................................................................................................4
`C.
`“security authentication module” / “SAM” .............................................................5
`D.
`“application” ............................................................................................................6
`CONCLUSION ....................................................................................................................8
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`RFCyber Corp. v. Google LLC,
`No. 2:20-CV-274-JRG, 2021 WL 5357465 (E.D. Tex. Nov. 17, 2021)................................3, 5
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`RFCyber ignores Apple’s constructions and the disputes between the parties and instead
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`tries to rewrite Apple’s positions. For several disputed terms, RFCyber recharacterizes Apple’s
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`position as trying to limit each term to a single specific function, rather than identifying a
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`necessary, but not exclusive, aspect. Similarly, RFCyber fails to address the arguments in
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`Apple’s opening brief, instead relying on arguments from a prior litigation analyzing different
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`constructions than the ones Apple now proposes. For each disputed term, Apple’s constructions
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`address and clarify the actual disputes between the parties and should be adopted
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`I.
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`DISPUTED CLAIM TERMS
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`A.
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`“e-purse” / “electronic purse” / “e-purse applet”
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`Term and Claims
`“e-purse” / “electronic purse” / “e-
`purse applet”
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`’218 patent, claims 1, 3-7, 10-12,
`14-15, 18
`’855 patent, claims 1, 3-6, 9, 12-15
`’787 patent, claims 1-3, 5-6, 11-13,
`15-16
`’009 patent, claim 3
`’046 patent, claim 1
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`Apple’s Construction
`software that stores
`electronic financial
`information, including
`electronic value, in a local
`portable device
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`RFCyber’s Construction
`Regarding “e-purse” and
`“electronic purse”,
`“software that stores
`electronic financial
`information in a local
`device”
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`Regarding “e-purse applet”,
`Plain and ordinary meaning
`except for the term “e-purse”
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`RFCyber misunderstands Apple’s position. Apple’s construction requires that an e-purse
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`be capable of storing electronic value, not that it must always do so. Compare Opening Br. at 9
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`(“The dispute regarding the ‘e-purse’ terms centers around whether the electronic information
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`stored by an e-purse includes but is not limited to electronic value.”) to Response at 9 (arguing
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`that the patent “does not require that every e-purse actually stores value”). A purse is a purse,
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`regardless of whether it is empty or full, but software that lacks the ability to store electronic
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`value cannot be an “e-purse.”
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`RFCyber concedes an e-purse is capable of storing electronic value. “There is no dispute
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`that an e-purse can include some sort of stored value.” Response at 7 (emphasis in original). An
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`e-purse, “[l]ike any purse, [] can include cash or credit cards or both.” Id. During prior litigation,
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`“RFCyber explained that an e-purse can store money, but was not limited to such storage” and
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`could store other information as well. Id. at 8 (“[A]n e-purse can store money, but it is not
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`required to store money.”) (emphasis in original). RFCyber’s concessions are consistent with
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`Apple’s construction, leaving little to no dispute between the parties.
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`The applicant’s statements during prosecution of the ’218 patent confirm that an e-purse
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`stores electronic value. “[A]n e-purse in the instant application describes [] electronic money in a
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`local portable device.” See Response at 8 (quoting Apple Ex. 1, ’218 File History, 12/31/2010
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`Resp. at 9) (emphasis in original). RFCyber now argues the applicant distinguished the Atsmon
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`reference because it did not disclose storing electronic value in a local portable device (Response
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`at 9), but the fact remains that the applicant characterized the e-purse “in the instant application”
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`as one that holds “electronic money”—that is, value—in a local portable device.
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`RFCyber’s extrinsic evidence confirms that an e-purse is capable of storing electronic
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`value. The Third Edition of Dictionary of Banking and Finance equates an “e-purse” with a
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`“digital wallet,” see Response at 7, and explains that the digital wallet is a “piece of personalised
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`software on the hard drive of a user’s computer that contains, in coded form, such items as credit
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`card information [and] digital cash … and can be used when paying for a transaction
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`electronically.” Ex. A to Response (emphasis added). Earlier editions of the same dictionary
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`define an e-purse as “a way of holding a virtual token when shopping” and users should “treat
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`[their] e-purse like cash in a wallet.” Ex. 10, Dictionary of Banking and Finance, 106 (2d. ed.
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`2000) (“e-purse … [a] concept developed to provide a way of holding a virtual token when
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`shopping on the internet.”); id. at 250 (e-purse is a “concept developed to provide a way of
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`holding a virtual token when shopping on the internet; you should treat your electronic purse like
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`cash in a wallet”). These definitions comport with Apple’s construction that an e-purse is capable
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`of storing electronic value.
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`Apple proposes a different, broader construction than the one advocated by Samsung and
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`analyzed in the Google case. As RFCyber points out, “Samsung argued … that an e-purse was
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`limited to one that ‘stores electronic money locally.’” Response at 7. The Google court rejected
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`Samsung’s proposed construction, holding that it “would improperly limit the disputed term to a
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`specific feature of particular disclosed embodiments.” RFCyber Corp. v. Google LLC, No. 2:20-
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`CV-274-JRG, 2021 WL 5357465, at *9 (E.D. Tex. Nov. 17, 2021). Unlike Samsung, Apple’s
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`construction does not limit the e-purse to storing a specific type of information. Rather, Apple’s
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`construction confirms that an e-purse must be capable of storing electronic value, potentially in
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`addition to other electronic financial information.
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`RFCyber fails to identify any substantive difference between “e-purse/electronic purse”
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`and “e-purse applet” that would require these terms be given different meanings. RFCyber’s
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`Response regarding “e-purse applet” consists of a single paragraph that asserts “e-purse, when
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`used as part of e-purse applet, [] is an adjective modifying ‘applet.’” Response at 11. Although
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`RFCyber’s argument is a distinction without a difference, Apple is amenable adding the word
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`“applet” to its construction, to make it “applet software that stores electronic financial
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`information, including electronic value, in a local portable device.” This should resolve any
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`imagined dispute between the parties.
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`B.
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`“payment server”
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`Term and Claims
`“payment server”
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`’218 patent, claims 1, 3,
`5, 7-8, 11, 14, 15-16
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`Apple’s Construction
`server for payment
`transactions
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`RFCyber’s Construction
`Plain and ordinary
`meaning
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`RFCyber’s Response misstates Apple’s position: Apple does not seek to limit a payment
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`server to a server only for payment transactions. See Opening Br. at 15. Rather, Apple explained
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`that the term refers to a server that is capable of payment transactions. Id.; see also Response at
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`12 (acknowledging Apple’s position but not addressing it). Apple’s construction does not
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`prevent a payment server from performing functions other than payment transactions. However,
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`a server that is not capable of payment transactions cannot be a “payment server.”
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`RFCyber’s arguments underscore the need for a clarifying construction. RFCyber
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`repeatedly characterizes the primary role of the payment server as facilitating something other
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`than payment transactions. See Response at 12 (“the payment server’s primary role as
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`personalization of e-purse applets”), 12 (“the Asserted Patents recite a payment server in the
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`context of the process of downloading, installing, and personalizing an e-purse applet without
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`imposing any requirement for payment transactions”), 13 (“the payment server’s primary role is
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`personalization of e-purse applets … not ‘facilitating or processing’ transactions”) (emphasis in
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`original). RFCyber goes further, arguing that “the Asserted Patents recite a payment server …
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`without imposing any requirement for payment transactions.” Response at 12. RFCyber’s
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`position would include servers that do not and cannot process payments and would therefore read
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`the word “payment” out of the term “payment server.” RFCyber seeks to broaden this term
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`beyond its plain and ordinary meaning and delete words from the claim, which is improper.
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`Apple’s position differs from the one advanced by Samsung, so the Google court’s
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`analysis of Samsung’s position is inapposite. RFCyber tries to equate Apple’s and Samsung’s
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`different positions while simultaneously acknowledging that they differ. Response at 13-14
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`(“While Apple’s construction does not explicitly recite ‘settling,’ its statement that a payment
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`server must process a payment imposes similar scope.”). Further, the Google court’s analysis
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`relied on the “settling” term that Apple’s construction lacks. RFCyber Corp. v. Google LLC, No.
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`2:20-CV-274-JRG, 2021 WL 5357465, at *12 (E.D. Tex. Nov. 17, 2021) (“‘settling,’ which is a
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`word that appears nowhere in the patents here at issue, despite there being various disclosures
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`regarding ‘transactions,’ ‘commerce,’ and ‘purchasing’”). Samsung’s position in the prior
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`litigation therefore has no bearing on Apple’s correct construction here.
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`C.
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`“security authentication module” / “SAM”
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`Term and Claims
`“security authentication
`module”/ “SAM”
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`’218 patent, claims 1, 3,
`11, 14
`’855 patent, claims 1, 9
`’787 patent, claims 6, 16
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`Apple’s Construction
`hardware or software module
`containing data to authenticate
`transactions of funds or
`transfer of funds1
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`RFCyber’s Construction
`“hardware or software
`module containing data
`necessary to authenticate
`transactions”
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`RFCyber misstates the extent to which the parties agree on this term. Apple’s
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`construction does not include the “necessary” term found in RFCyber’s construction. As Apple
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`explained, the “parties dispute whether the claimed ‘security authentication module’ must
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`contain the data to authenticate transactions, as Apple contends, or whether it may merely
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`1 For clarity, Apple is amenable to a compromise construction of “hardware or software module
`containing data to authenticate transactions, including, but not limited to, transactions of funds or
`transfer of funds” (addition underlined).
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`contain some portion of data necessary to authenticate transactions under RFCyber’s improperly
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`broad construction.” Opening Br. at 18. RFCyber does not address this issue.
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`Apple does not propose limiting the SAM term to authenticating only “transactions of
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`funds or transfer of funds.” Response at 14. Rather, Apple’s construction would require that a
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`SAM contain data to authenticate transactions of funds or transfers of funds, in addition to
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`whatever other authentication data or functionality it may include. The patents disclose that the
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`SAM “is used to enable and authenticate any transactions between a card and a corresponding
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`[payment] server,” including payment transactions. ’218 patent at 5:18-22 (emphasis added).
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`And although the PTAB did not construe this term, it agreed that the SAM “is used to enable and
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`authenticate transactions between a card and a payment server.” Opening Br. at 19, Ex. 9 at 4.
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`Thus, Apple’s construction aligns with the meaning ascribed by the patents and by the PTAB.
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`Apple’s proposed authentication of the “transactions of funds or transfer of funds” does
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`not exclude the authentication of data transactions related to the same. RFCyber states without
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`citation or explanation that “[a]n authentication transaction does not involve funds.” Response at
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`16. But the patents describe the payment network authorizing a potential fund transaction by
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`communicating with the SAM module. See ’218 patent, 7:56-62, Fig. 4C. The patents also
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`discuss the use of PINs to authenticate or validate fund transfers and transactions. See id. at 2:1-
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`8, 5:54-59, 6:62-65. Thus, an authentication transaction can involve a fund transfer or fund-
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`related information.
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`D.
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`“application”
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`Term and Claims
`“application”
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`’787 patent, claims 1, 11
`’009 patent, claims 1-4, 6, 9,
`13-14
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`Apple’s Construction
`software program suitable
`for being executed on a
`portable device
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`RFCyber’s Construction
`Plain and ordinary
`meaning
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`’046 patent, claim 1
`’724 patent, claims 1, 3, 7, 8
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`RFCyber’s proposal broadens the disputed term to include nearly any piece of software,
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`regardless of whether it is capable of execution. The term “application” has a more precise
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`meaning than a collection of lines of code or source code files.
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`RFCyber incorrectly equates limited functionality with the inability to “execute.” For
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`example, RFCyber points to examples in which the applications described in the patents cannot
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`perform certain functions until obtaining related data. See Response at 16 (“The application
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`cannot function as designed and is not enabled (i.e., it cannot be executed) until it receives the
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`‘data prepared by the server.’”). RFCyber’s arguments create a temporal impossibility. Under
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`RFCyber’s theory, the applications “cannot execute” without first obtaining additional data but
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`the applications cannot obtain said data without first executing. Rather, the inability to perform a
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`specific function requiring certain data does not render an application “unsuitable for execution.”
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`The patents teach that the applications can and do execute, thereby providing the mechanism to
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`obtain the necessary information (e.g., via user input, wireless communications, etc.).
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`Likewise, disabling an application via a configuration setting does not equate to
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`rendering the application “unsuitable for execution.” Response at 17 (“The specification also
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`describes instances where an application is locked or disabled, and therefore, no longer suitable
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`for being executed.”). The same software remains installed and may be executed under a
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`different configuration. For example, the patent describes instances requiring the entry of a PIN
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`before activating the e-purse. See ’009 patent, 17:15-22. The e-purse remains “locked” until the
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`PIN is entered, but it does not follow that the application “cannot be executed.”
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`RFCyber confuses the claimed “applications” with the unclaimed disclosures of other
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`applications. The claims recite applications stored or installed on portable or mobile devices. See,
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`e.g., ’787 patent, claims 1 and 11 (“portable device”); ’009 patent, claims 1 and 14 (“mobile
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`device”); ’046 patent, claim 1 (“mobile device [] configured to execute an installed application
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`therein”); ’787 patent, claims 1 and 8 (“mobile device”). RFCyber’s arguments relying on
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`unclaimed “web-based applications” or “server applications” exemplify the dispute between the
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`parties and the need for a construction to prevent jury confusion. Furthermore, the language of
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`claim 1 of the ’787 patent does not overcome the fact that every other disputed claim explicitly
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`requires the application to reside on the portable device. Regardless, Apple would agree to a
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`construction of “application” as “software program suitable for being executed.”
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`II.
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`CONCLUSION
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`For the foregoing reasons and those demonstrated in Apple’s opening brief, Apple
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`respectfully requests the Court adopt its constructions for the disputed terms and reject
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`RFCyber’s request that this Court to adopt wholesale a claim construction order from a separate
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`litigation involving different disputes and different proposed constructions.
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`Dated: May 24, 2022
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`Respectfully submitted,
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`/s/ John M. Guaragna
`John M. Guaragna (Bar No. 24043308)
`Zachary Loney (Bar No. 24092714)
`DLA PIPER LLP (US)
`303 Colorado St., Suite 3000
`Austin, TX 78701
`Telephone: (512) 457-7000
`Facsimile: (512) 457-7001
`john.guaragna@us.dlapiper.com
`zachary.loney@us.dlapiper.com
`
`Sean C. Cunningham (pro hac vice)
`Erin P. Gibson (pro hac vice)
`Peter Maggiore (pro hac vice)
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
`Telephone: (619) 699-2700
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`Facsimile: (619) 699-2701
`sean.cunningham@us.dlapiper.com
`erin.gibson@us.dlapiper.com
`peter.maggiore@us.dlapiper.com
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`Stephanie Lim (pro hac vice)
`DLA PIPER LLP (US)
`444 West Lake Street, Suite 900
`Chicago, IL 60606
`Telephone: (312) 368-4000
`Facsimile: (312) 630-7408
`stephanie.lim@us.dlapiper.com
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`Attorneys for Defendant Apple Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served on May 24, 2022 with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic
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`mail on this same date.
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`/s/ John M. Guaragna
`John M. Guaragna
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