Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 1 of 23
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`SPEIR TECHNOLOGIES LTD.,
`
`
`
`
`
`
`
`v.
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`
` C.A. No. 6:22-cv-00077-ADA
`
` JURY TRIAL DEMANDED
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S CLAIMS OF DIRECT
`INFRINGEMENT OF U.S. PATENT NO. 7,765,399
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 2 of 23
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION .............................................................................................................. 1
`
`II.
`
`STATEMENT OF FACTS ................................................................................................. 2
`
`III.
`
`LEGAL STANDARD ......................................................................................................... 5
`
`IV.
`
`COUNT IV SHOULD BE DISMISSED FOR FAILURE TO PLEAD INFRINGEMENT
`OF ALL LIMITATIONS OF ANY ASSERTED CLAIM ................................................. 6
`
`A.
`
`B.
`
`C.
`
`Count IV Does Not Plausibly Plead Infringement of the “Trusted
`Operating System Executing on Said Trusted Cryptographic Processor”
`Limitation ................................................................................................................ 7
`
`Count IV Does Not Plausibly Plead Infringement of the “Second Data
`Communication Link” Limitation......................................................................... 11
`
`Count IV Does Not Plausibly Plead Infringement of the “Secure
`Human/Machine Interface” Limitation ................................................................. 13
`
`V.
`
`CONCLUSION ................................................................................................................. 16
`
`
`
`
`
`
`
`i
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 3 of 23
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................5
`
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP,
`616 F.3d 1249 (Fed. Cir. 2010)........................................................................................8, 9, 10
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................5
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ..........................................................................................2, 6, 11
`
`Chapterhouse, LLC v. Shopify, Inc.,
`No. 2:18-cv-00300-JRG, 2018 WL 6981828 (E.D. Tex. Dec. 11, 2018) ..................................6
`
`CPC Patent Techs. Pty Ltd. v. Apple Inc.,
`No. 6:21-CV-00165-ADA, 2022 U.S. Dist. LEXIS 5838 (W.D. Tex. Jan. 12,
`2022) ..........................................................................................................................................2
`
`Huawei Techs. Co. v. Verizon Commc’ns, Inc.,
`No. 2:20-cv-00030-JRG, 2021 U.S. Dist. Lexis 7944 (E.D. Tex. Jan. 15,
`2021) ..........................................................................................................................................8
`
`Kirsch Rsch. & Dev., LLC v. Atlas Roofing Corp.,
`No. 5:20-cv-00055-RWS, 2020 WL 8363154 (E.D. Tex. Sept. 29, 2020)................................6
`
`Med. Components, Inc. v. Osiris Med., Inc.,
`No. 15-cv-305-PRM, 2016 WL 7638155 (W.D. Tex. July 12, 2016) .......................................5
`
`Ruby Sands LLC v. Am. Nat’l Bank of Tex.,
`No. 2:15-cv-1955-JRG, 2016 WL 3542430 (E.D. Tex. June 28, 2016) ....................................5
`
`Vervain, LLC v. Micron Tech., Inc.,
`No. 6:21-cv-00487-ADA, 2022 U.S. Dist. LEXIS 54 (W.D. Tex. Jan. 3, 2022) ............ passim
`
`Other Authorities
`
`Federal Rule of Civil Procedure 84 .................................................................................................5
`
`Federal Rule of Civil Procedure 8 ...................................................................................................5
`
`Federal Rule of Civil Procedure 12(b)(6) ..................................................................................1, 13
`
`
`
`
`
`ii
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 4 of 23
`
`
`
`TABLE OF EXHIBITS
`
`Description
`Excerpts from Apple Platform Security Guide https://support.apple.com/en-
`gb/guide/security/welcome/web (last visited Apr. 3, 2022) (“Apple Platform
`Security Guide”).
`Excerpts from U.S. Patent No. 7,765,399 File History (“’399 FH”)
`
`
`
`Exhibit
`A
`
`
`
`B
`
`
`
`iii
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 5 of 23
`
`
`
`Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Apple Inc. (“Apple”)
`
`respectfully moves to dismiss Count IV of Plaintiff Speir Technologies Ltd.’s (“Speir” or
`
`“Plaintiff”) Amended Complaint for failing to state a factual basis for its direct infringement
`
`allegations related to U.S. Patent No. 7,765,399 (Dkt. No. 8, Ex. 4, hereinafter “’399 patent”).
`
`I.
`
`INTRODUCTION
`
`Speir’s Amended Complaint, filed March 22, 2022 (Dkt. No. 8, hereinafter “Amended
`
`Complaint” or “Am. Compl.”), fails to plead facts that plausibly support Speir’s direct
`
`infringement claim for the ’399 patent. In particular, Speir’s Count IV provides mere boilerplate
`
`recitation of the claim language and cites screenshots of high-level descriptions of phone
`
`components, but does not put Apple on sufficient notice of how the accused products allegedly
`
`infringe the asserted claims of the ’399 patent.
`
`More specifically, Claim 1 of the ’399 patent (the only claim addressed in Count IV)
`
`requires, among other things: (1) three separate operating systems, each executing on a separate
`
`processor; (2) two separate communication links—one between a secure processor and a
`
`cryptographic engine, and a second between a non-secure processor and the same cryptographic
`
`engine; and (3) two “distinct” human/machine interfaces—one “secure” and one “non-secure”—
`
`that respectively enable two types of bi-directional communication (one type “exclusively”
`
`between the user and the non-secure processor, and the other “exclusively” between that user and
`
`the secure processor).
`
`While Speir points generally to the accused products’ ability to securely store and process
`
`biometric data, Speir fails to allege any facts plausibly suggesting that Apple’s accused products
`
`have any of the following claim requirements: (1) a third, separate operating system executing on
`
`a cryptographic processor; (2) a data link between the non-secure processor and the same
`
`cryptographic engine used by the secure processor; (3) a second “secure” interface, distinct from
`
`1
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 6 of 23
`
`
`
`the first non-secure interface; (4) “exclusive” bi-directional communication of classified
`
`information between user and the secure processor; and (5) a bi-directional communication of
`
`classified information that is exclusively enabled by the identified “secure” interface. Each of
`
`these five failures independently compels dismissal.1
`
`As this Court has recognized, barebones allegations like these, that fail to address material
`
`limitations, are insufficient. See Vervain, LLC v. Micron Tech., Inc., No. 6:21-cv-00487-ADA,
`
`2022 U.S. Dist. LEXIS 54, at *13, *19 (W.D. Tex. Jan. 3, 2022); CPC Patent Techs. Pty Ltd. V.
`
`Apple Inc., No. 6:21-cv-00487-ADA, 2022 U.S. Dist. LEXIS 5838, at *4. Rather, a complaint
`
`must support entitlement to relief with “factual content” beyond such conclusory allegations that
`
`the accused product(s) meet every claim limitation. Vervain, U.S. Dist. LEXIS 54, at *3-5 (citing
`
`Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 2021)). Moreover, the technology
`
`at issue here (involving the specific configuration of hardware and software) and the materiality
`
`of the relevant limitations, require a heightened degree of detail to sufficiently plead direct
`
`infringement. Id. at *13. Count IV of Speir’s Amended Complaint fails to meet the required
`
`pleading threshold and should be dismissed.
`
`II.
`
`STATEMENT OF FACTS
`
`On January 20, 2022, Speir filed suit against Apple, claiming patent infringement of two
`
`patents. Dkt. No. 4. Following a meet and confer regarding Speir’s indirect infringement claims
`
`
`1 This Court has recognized that where a Plaintiff alleges infringement of “one or more claims”
`of an asserted patent, but limits its analysis to a representative claim, dismissal is appropriate
`where Plaintiff fails to articulate sufficiently its theory of infringement as to that representative
`claim. See CPC Patent Techs. Pty Ltd. v. Apple Inc., No. 6:21-CV-00165-ADA, 2022 U.S. Dist.
`LEXIS 5838 at *4 (W.D. Tex. Jan. 12, 2022) (dismissing claim for direct infringement for failing
`to fully articulate theory of infringement as to the representative claim); see also id. at Dkt. No. 2
`at 6-7 (providing allegation of infringing as to “representative claim 13” only); Am. Compl. ¶¶
`51-65.
`
`2
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 7 of 23
`
`
`
`and claims for past damages (and before Apple’s responsive pleading), Speir filed an Amended
`
`Complaint alleging infringement of two additional patents, including the ’399 patent at issue here.
`
`Am. Compl. ¶ 1. Specifically, Speir accuses Apple’s “iPhone 5s and all subsequently released
`
`iPhones, iPad Air and all subsequently released models, and MacBook computers with Touch ID”
`
`(collectively “Accused ’399 Products”), of allegedly infringing at least Claim 1 of the ’399 patent.
`
`Id. ¶ 12.
`
`The ’399 patent issued on July 27, 2010, and is titled “Computer architecture for a handheld
`
`electronic device.” The ’399 patent relates to “personal digital assistant devices for storing,
`
`processing and communicating classified as well as unclassified data.” ’399 patent, 1:8-10.
`
`According to the ’399 patent, “there exist a wide variety of PDA devices with conventional
`
`operating systems and architectures” that “generally satisfy the processing and communications
`
`requirements of most users,” but are not suitable for transporting, processing, or communicating
`
`classified data. Id., 1:28-67. There also exist “[s]ecure PDA devices [that] utilize a trusted
`
`operating system, trusted microprocessors, and a trusted human/machine interface” and are
`
`“designed to more rigorously address the problem of computer security,” but do not generally
`
`include wireless communications capabilities. Id., 2:1-18. The purported invention “concerns a
`
`mobile PDA computer system . . . consist[ing] of a non-secure user processor, a secure user
`
`processor, and a cryptographic engine.” Id., 2:23-26.
`
`More specifically, the purported invention of the ’399 patent concerns “a method for
`
`managing classified and unclassified [data] on a mobile PDA computer system.” Id., 2:57-59.
`
`Classified data is processed “exclusively using a secure processor,” while unclassified data is
`
`processed “exclusively using a non-secure processor.” Id., 2:59-62. Further, classified data is
`
`communicated “to and from the secure processor exclusively using a secure human/machine
`
`3
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 8 of 23
`
`
`
`interface,” while “unclassified information can be provided to the user by the non-secure processor
`
`exclusively using a non-secure human/machine interface.” Id, 3:4-6, 3:9-15. Fig. 3 of the ’399
`
`patent is a block diagram illustrating the “architecture of a PDA that can be used for classified and
`
`unclassified data.”
`
`
`
`Id., Fig. 3, 3:36-38.
`
`This specific architecture, including the distinct processors, the cryptographic engine, and
`
`the distinct secure and non-secure human/machine interfaces, is reflected in asserted Claim 1 of
`
`the ’399 patent, which recites:
`
`1. A computer system, comprising:
`a portable mobile computing device including a secure user processor, a non-secure user
`processor, a communications transceiver, and a cryptographic engine;
`said secure user processor comprising
`a trusted microprocessor,
`a trusted operating system executing on said trusted microprocessor, and
`a trusted application software executing on said trusted microprocessor;
`said non-secure user processor comprising
`an untrusted microprocessor,
`an untrusted operating system executing on said untrusted microprocessor, and
`an untrusted application software executing on said untrusted microprocessor;
`said cryptographic engine configured for encrypting any data communicated from said
`secure user processor to said non-secure user processor, comprising
`
`4
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 9 of 23
`
`
`
`a trusted cryptographic processor, and
`a trusted operating system executing on said trusted cryptographic processor;
`a first data communication link communicating data between said secure processor and
`said cryptographic engine;
`a second data communication link communicating data between said non-secure
`processor and said cryptographic engine;
`a secure human/machine interface configured for enabling bi-directional communication
`of classified information exclusively between a user and said secure user
`processor; and
`a non-secure human/machine interface distinct from said secure human/machine interface
`and configured for enabling bi-directional communication of unclassified
`information exclusively between said user and said non-secure user processor;
`wherein said communications transceiver is operatively coupled to said non-secure user
`processor and configured for communicating data external to said portable mobile
`computing device.
`
`
`Id., Claim 1 (emphasis added).
`
`III. LEGAL STANDARD
`
`“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
`
`relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To satisfy the plausibility standard, a plaintiff must
`
`plead facts that allow “the court to draw the reasonable inference that the defendant is liable for
`
`the misconduct alleged.” Id. Courts “are not bound to accept as true a legal conclusion couched
`
`as a factual allegation.” Id. While Form 18 of Fed. R. Civ. P. 84, previously governed pleading
`
`requirements for allegations of direct infringement in patent cases, that rule was abrogated on
`
`December 1, 2015, “in favor of the more stringent pleading requirements of Federal Rule of Civil
`
`Procedure 8.” Med. Components, Inc. v. Osiris Med., Inc., No. 15-cv-305-PRM, 2016 WL
`
`7638155, at *3 (W.D. Tex. July 12, 2016). Accordingly, Twombly and Iqbal now apply to a
`
`plaintiff’s infringement claims. See Ruby Sands LLC v. Am. Nat’l Bank of Tex., No. 2:15-cv-1955-
`
`JRG, 2016 WL 3542430, at *2-3 (E.D. Tex. June 28, 2016).
`
`As this Court recognized in Vervain, the U.S. Court of Appeals for the Federal Circuit
`
`recently denounced a “blanket element-by-element pleading standard for patent infringement,”
`
`5
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 10 of 23
`
`
`
`favoring instead a flexible inquiry into “whether the factual allegations in the complaint are
`
`sufficient to show that the plaintiff has a plausible claim for relief.” Vervain, 2022 U.S. Dist.
`
`LEXIS 54, at *4-5 (citing Bot M8, 4 F.4th at 1352). In Bot M8, the Federal Circuit held that the
`
`level of detail required to meet that standard depends on multiple factors, not limited to “the
`
`complexity of the technology, the materiality of any given element to practicing the asserted
`
`claim(s), and the nature of the allegedly infringing device.” Bot M8, 4 F.4th at 1353; see Vervain,
`
`2022 U.S. Dist. LEXIS 54, at *13. Under any standard, however, the complaint must support its
`
`entitlement to relief with “factual content,” not mere conclusory allegations that the accused
`
`product(s) meet every claim limitation. Id.
`
`IV. COUNT
`IV SHOULD BE DISMISSED FOR FAILURE TO PLEAD
`INFRINGEMENT OF ALL LIMITATIONS OF ANY ASSERTED CLAIM
`
`Count IV of Speir’s Amended Complaint—alleging direct and indirect infringement of the
`
`’399 patent—should be dismissed because Speir alleges no facts that plausibly suggest that
`
`Apple’s products practice each limitation of any asserted claim of the ’399 patent, including the
`
`“trusted operating system executing on said trusted cryptographic processor,” “second
`
`communication link,” and “secure human/machine interface” limitations. See Kirsch Rsch. &
`
`Dev., LLC v. Atlas Roofing Corp., No. 5:20-cv-00055-RWS, 2020 WL 8363154, at *2 (E.D. Tex.
`
`Sept. 29, 2020) (“To survive a motion to dismiss, therefore, a plaintiff must allege facts sufficient
`
`to create a plausible inference that each element of the claim is infringed by the accused
`
`products.”); see also Chapterhouse, LLC v. Shopify, Inc., No. 2:18-cv-00300-JRG, 2018 WL
`
`6981828, at *1 (E.D. Tex. Dec. 11, 2018) (“If it is apparent from the face of the complaint that an
`
`insurmountable bar to relief exists, and the plaintiff is not entitled to relief, the court must dismiss
`
`the claim.”).
`
`6
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 11 of 23
`
`
`
`Speir ignores the requirements of these claim limitations, providing only conclusory
`
`assertions and screenshots from Apple’s website, without explanation, that are deficient and fail
`
`to provide Apple with the requisite notice as to how Speir contends the limitations are plausibly
`
`met. That failure is especially glaring in light of this Court’s holding that a higher level of pleading
`
`may be required for claims like these that involve hardware and software configurations for
`
`managing data. See Vervain, 2022 U.S. Dist. LEXIS 54, at *13. Moreover, where particular
`
`limitations are clearly “material” to novelty and non-obviousness—as may be demonstrated by the
`
`file history, as here—such limitations also demand a higher level of detail in pleading
`
`infringement. Id.
`
`A.
`
`Count IV Does Not Plausibly Plead Infringement of the “Trusted Operating
`System Executing on Said Trusted Cryptographic Processor” Limitation
`
`Claim 1 of the ’399 patent requires a “trusted operating system executing on said trusted
`
`cryptographic processor.” See ’399 patent, Claim 1. This is one of three distinct operating systems
`
`claimed, each executing on a separately claimed (micro)processor: (1) “a trusted operating
`
`system executing on said trusted microprocessor” of the secure user processor; (2) “an untrusted
`
`operating system executing on said untrusted microprocessor” of the non-secure user processor;
`
`and (3) “a trusted operating system executing on said trusted cryptographic processor” of the
`
`cryptographic engine. See ’399 patent, Claim 1. Speir fails to allege any facts in support of its
`
`conclusory allegation that the Accused ’399 Products include the claimed “trusted” third operating
`
`system.
`
`In its Amended Complaint, Speir relies generally on descriptions of the iPhone 13 and
`
`purportedly identifies three distinct processors, but only two of the three claimed operating
`
`systems. As illustrated below, Speir identifies the Application Processor as the “non-secure user
`
`processor” (annotated by Apple in blue), the Secure Enclave Processor as the “secure user
`
`7
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 12 of 23
`
`
`
`processor” (annotated by Apple in green), and the Secure Enclave AES Engine as the
`
`“cryptographic processor” (annotated by Apple in red):
`
`
`
`Am. Compl. ¶¶ 53-55 (annotations added by Apple based on its best understanding of Speir’s
`
`allegations). Accordingly, under its mapping, Speir must allege facts sufficient to create a
`
`plausible inference that the accused products include three distinct operating systems, one each for
`
`the Application Processor, the Secure Enclave Processor, and the Secure Enclave AES Engine.
`
`See Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010)
`
`(“Where a claim lists elements separately, ‘the clear implication of the claim language’ is that
`
`those elements are ‘distinct component[s]’ of the patented invention.”); Huawei Techs. Co. v.
`
`Verizon Commc’ns, Inc., No. 2:20-cv-00030-JRG, 2021 U.S. Dist. Lexis 7944, *26 (E.D. Tex. Jan.
`
`15, 2021) (“The two buffers are separately recited in the claims. Thus, the plain meaning based
`
`on the claim language reflects that the buffers are necessarily distinct structures.”). As explained
`
`8
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 13 of 23
`
`
`
`below, Speir fails to allege any facts plausibly suggesting a third operating system executing on
`
`the Secure Enclave AES Engine and therefore fails to plead infringement. Becton, 616 F.3d at
`
`1255 (“There can be no literal infringement where a claim requires two separate structures and one
`
`such structure is missing from an accused device.”).
`
`Specifically, while Speir alleges that Apple’s accused products contain each of the claimed
`
`“secure user processor,” “non-secure user processor,” and “cryptographic engine,” Speir does not
`
`expressly identify what, if any, operating system Speir is relying upon for each of the claimed
`
`processors. Id. For the claimed “trusted operating system executing on said trusted
`
`microprocessor,” Speir identifies Apple’s “Secure Enclave Processor” as the trusted processor
`
`(green box in the figure above) and quotes Apple materials identifying “sepOS” (an Apple-
`
`customized version of the L4 microkernel) that runs on the Secure Enclave Processor as the
`
`claimed operating system. Am. Compl. ¶ 53 (quoting Ex. A (hereinafter “Apple Platform Security
`
`Guide”) at 1-3)).
`
` For the “untrusted operating system executing on said untrusted
`
`microprocessor,” Speir identifies Apple’s “Application Processor” as the untrusted processor (blue
`
`box in the figure above) and quotes Apple materials identifying iOS15 as the corresponding
`
`“untrusted” operating system. Am. Compl. ¶ 54. For the “trusted operating system executing on
`
`said trusted cryptographic processor,” however, Speir identifies the “Secure Enclave AES Engine”
`
`as the alleged “cryptographic processor” (red box in the figure above), but fails to identify any
`
`third operating system within the Accused ’399 Products. Rather, Speir quotes the exact same
`
`paragraph from the Apple Platform Security Guide in support of both (1) the trusted operating
`
`system executing on the secure processor and (2) the trusted operating system executing on the
`
`cryptographic engine:
`
`9
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 14 of 23
`
`
`
`
`
`Am. Compl. ¶¶ 53, 55. Beyond this excerpt, Speir provides no explanation or factual support for
`
`its allegation that the “iPhone 13 contains a secure Enclave AES Engine and a trusted operating
`
`system.” Am. Compl. ¶ 55. This conclusory statement fails to address the actual claim language
`
`and is not supported by pleaded facts for multiple reasons.
`
`First, Speir has failed to allege that the Accused ’399 Products include two distinct “trusted
`
`operating systems,” as required by the claims. Becton, 616 F.3d at 1254-55. The Apple Platform
`
`Security Guide excerpted by Speir for both limitations identifies—at most—one potential
`
`operating system: sepOS. See Am. Compl. ¶¶ 53, 55. As the claim expressly requires two distinct
`
`trusted operating systems, one executing on the “trusted microprocessor” and the other executing
`
`on the “trusted cryptographic processor,” Speir’s identification of a single alleged “trusted”
`
`operating system is insufficient. Becton, 616 F.3d at 1254-55.
`
`Second, even if sepOS could be considered both the first and second trusted operating
`
`system Speir’s allegations would still fail because Speir has not pleaded any facts plausibly
`
`suggesting that sepOS (or the customized L4 microkernel) executes on both the claimed
`
`“cryptographic engine” and the “secure processor,” as Claim 1 requires. In fact, Speir states that
`
`“the iPhone 13 contains a Secure Enclave AES Engine and a trusted operating system” but fails
`
`to plead that Secure Enclave AES Engine executes that operating system. Am. Compl. ¶ 55.
`
`10
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 15 of 23
`
`
`
`Moreover, as explained above, although Speir identifies the Secure Enclave Processor as the
`
`“secure user processor,” Speir’s own allegations establish that the Secure Enclave AES Engine is
`
`a simple “hardware block” component of the Secure Enclave that is separate and distinct from the
`
`Secure Enclave Processor. Id. ¶ 55. Therefore, it is not plausible that sepOS, which executes on
`
`the Secure Enclave Processor, also executes on the Secure Enclave AES Engine, and Speir has
`
`failed to show otherwise. ’399 patent, Claim 1; see also’399 patent, Fig. 3. Speir’s own allegations
`
`thus show that infringement by the Accused ’399 Products is implausible. See Bot M8, 4 F.4th at
`
`1354 (finding “Bot M8 … pleaded itself out of court” because “its allegations … reveal an
`
`inconsistency that is fatal to its infringement case”).
`
`B.
`
`Count IV Does Not Plausibly Plead Infringement of the “Second Data
`Communication Link” Limitation
`
`Claim 1 of the ’399 patent requires that the “second data communication link”
`
`“communicat[e] data between said non-secure processor and said cryptographic engine.” See ’399
`
`patent, Claim 1. Here, Speir makes the conclusory assertion that “the iPhone 13 contains a data
`
`communication link between the Application Processor and the Secure Enclave AES Engine.”
`
`Am. Compl. ¶ 57 (citing Apple Platform Security Guide at 3-4). But the figure of Apple’s system
`
`on chip that Speir cites throughout Count IV shows no such link between the Application Processor
`
`(in blue) and the Secure Enclave AES Engine (in red):
`
`11
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 16 of 23
`
`
`
`
`
`Am. Compl. ¶ 55 (annotated by Apple). Moreover, Speir fails to plead how the cited excerpts
`
`from the Apple Platform Security Guide (including the “Secure Enclave AES Engine” and “Secure
`
`Enclave Boot ROM” sections) purportedly describe the claimed second data communication link.
`
`Indeed, these excerpts mention the Application Processor (the alleged “non-secure processor”)
`
`only in stating that it “sends the sepOS image to the Secure Enclave Boot ROM” (not pictured).
`
`This does not suggest, however, that the required “data communication link between the
`
`Application Processor and the Secure Enclave AES Engine” exists. Am. Compl. ¶ 57 (emphasis
`
`added). Indeed, there is no suggestion in any of Speir’s cited materials that this necessary
`
`communication link exists at all. Rather, these materials show that Application Processor has a
`
`communication link to an AES Engine outside the Secure Enclave. Id.
`
`12
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 17 of 23
`
`
`
`C.
`
`Count IV Does Not Plausibly Plead Infringement of the “Secure
`Human/Machine Interface” Limitation
`
`Claim 1 of the ’399 patent requires “a secure human/machine interface configured for
`
`enabling bi-directional communication of classified information exclusively between a user and
`
`said secure user processor; and a non-secure human/machine interface distinct from said secure
`
`human/machine interface and configured for enabling bi-directional communication of
`
`unclassified information exclusively between said user and said non-secure user processor.” See
`
`’399 patent, Claim 1 (emphasis added). In other words, the claim unambiguously requires two
`
`“distinct” human/machine interfaces: (1) a non-secure human/machine interface and (2) a secure
`
`human/machine interface distinct from the non-secure interface. Further, this limitation requires
`
`that the secure interface enable bi-directional communication of classified information that is
`
`communicated “exclusively between” the user and the secure user processor. As explained by the
`
`applicant during prosecution, this limitation also requires that this bi-directional communication
`
`of classified information be “exclusively enabled” by the secure interface, as explained below.
`
`These limitations are subject to a heightened pleading standard because they were material
`
`to overcoming the prior art during prosecution.2 See Vervain, U.S. Dist. LEXIS 54, at *13; Ex. B
`
`(’399 FH) at 7, 12-13. The examiner had rejected as-filed claim 2 as anticipated by U.S. Patent
`
`No. 7,047,405 (“Mauro”) under § 102.3 See Id. at 3-5. Applicant distinguished Mauro, explaining
`
`that in contrast to Mauro’s input/output (I/O) interfaces 234 which enabled “[b]i-direction
`
`communications between a user of the device … and the secure unit,” the claimed invention
`
`
`2 The Court may take judicial notice of the prosecution history, even when resolving a Rule
`12(b)(6) motion. See Vervain, 2022 U.S. Dist. LEXIS 54, at *13, n.2.
`
`3 As-filed claim 2 recited the “secure human/machine interface” limitation, and was later
`amended to claim 1 prior to issuance.
`
`13
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 18 of 23
`
`
`
`requires that the “bi-directional communications between a user … and a secure processor [be]
`
`exclusively enabled via a secure human/machine interface that is distinct from an unsecure
`
`human/machine interface.” Id. at 12-13. Applicant further explained that this is “an important
`
`distinction” because “the security of ‘sensitive information’ communicated between a user and a
`
`secure processor of claim 1 is at a level that is adequate for national security related applications”
`
`“at least partially due to the provision of a secure human/machine interface that is (a) distinct from
`
`an unsecure human/machine
`
`interface and (b) configured for enabling bi-directional
`
`communication of classified information exclusively between a user and a secure user processor.”
`
`Id. Thus, these limitations were relied upon as the point of novelty, and Speir cannot now “nakedly
`
`alleg[e] that the accused product[s] practice[] the claimed invention”; rather it must provide “a
`
`higher level of detail.” Vervain, 2022 U.S. Dist. LEXIS 54, at *13. For each of the independent
`
`reasons below, Speir fails to meet its heightened burden.
`
`No secure human/machine interface: Speir alleges that the “secure human/machine
`
`interface” limitation is met by Apple’s TouchID and FaceID. But Speir fails to plead any facts
`
`plausibly suggesting that TouchID and FaceID functionality—which are software applications—
`
`are “interfaces,” as the term is used in the ’399 patent. See e.g., ’399 patent, 7:40-8:13 (describing
`
`human/machine interfaces (HMIs) as “devices” comprising one or more “components”), Figs. 3-
`
`5. Moreover, Speir has failed to show that TouchID and FaceID are secure HMIs “distinct” from
`
`non-secure HMIs, as required by the claims. For example, to the extent Speir alleges that TouchID
`
`and FaceID comprise the alleged HMIs because they utilize hardware on an iPhone—namely, the
`
`camera and/or the home button—this same hardware is used for “enabling bi-directional
`
`communication of unclassified information exclusively between said user and said non-secure user
`
`processor,” such as taking images or turning on a screen. In other words, the camera and home
`
`14
`
`

`

`Case 6:22-cv-00077-ADA Document 13 Filed 04/05/22 Page 19 of 23
`
`
`
`button are indisputably non-secure and cannot be distinct secure HMIs. As the applicant explained
`
`during prosecution, the claims do not cover a system where communication of classified data
`
`between a user and a secure processor may be enabled by an interface that is not separate and
`
`distinct from non-secure human/machine interfaces. Ex. B (’399 FH) at 12-13 (distinguishing
`
`Mauro because it discloses “bi-directional communications between a user … and the secure unit
`
`… enabled via the unsecure human/machine interface” rather than “exclusively enabled via a
`
`secure human/machine interface that is distinct from an unsecure human/machine interface”).
`
`No bi-directional communication of classified information: Speir fails to provide
`
`factual allegations sufficient to support a plausible inference that the Accused ’399 Products have
`
`“bi-directional communication of classified information exclusively between a user and said