Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`SPEIR TECHNOLOGIES LTD.,
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`Plaintiff,
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`Case No. 6:22-cv-00077-ADA
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`JURY TRIAL DEMANDED
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`v.
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`APPLE INC.,
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`Defendant.
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`PLAINTIFF SPEIR TECHNOLOGIES LTD.’S RESPONSE TO DEFENDANT’S
`MOTION TO DISMISS CLAIMS OF DIRECT INFRINGEMENT
`OF U.S. PATENT NO. 7,765,399
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 2 of 17
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ................................................................................................................. 1
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`II. LEGAL STANDARD ............................................................................................................ 2
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`III. ARGUMENT ......................................................................................................................... 3
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`A. Speir Sufficiently Alleges The Claimed Trusted Operating System ............................ 3
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`B. Speir Sufficiently Alleges The Claimed Data Links..................................................... 5
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`C. Speir Sufficiently Alleges The Claimed Human/Machine Interfaces........................... 7
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`i.
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`TouchID and/or FaceID are secure HMIs .............................................................8
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`ii. There is a secure HMI for enabling bi-directional communication between
`the user and secure user processor ......................................................................10
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`iii. There is exclusive exchange of secret information between the user and
`secure user processor through the secure HMI ...................................................11
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`IV. CONCLUSION .................................................................................................................... 12
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`i
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 3 of 17
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`Cases
`
`TABLE OF AUTHORITIES
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................... 2
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................... 2
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ..................................................................................................... 3
`
`CPC Pat. Techs. Pty Ltd. v. Apple Inc.,
`No. 6:21-CV-00165-ADA, 2022 WL 118955 (W.D. Tex. Jan. 12, 2022) ......................... 3, 4, 6
`
`In re Bill of Lading Transmission & Processing Sys. Pat. Litig.,
`681 F.3d 1323 (Fed. Cir. 2012) .............................................................................................. 1, 4
`
`K-Tech Telecomms., Inc. v. Time Warner Cable, Inc.,
`714 F.3d 1277 (Fed. Cir. 2013) .............................................................................................. 1, 6
`
`Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
`594 F.3d 383 (5th Cir. 2010) ...................................................................................................... 2
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018) .......................................................................................... 1, 2, 8
`
`Panasonic Corp. v. Magna Int’l, Inc.,
`No. 6:21-CV-00319-ADA, 2022 WL 174513 (W.D. Tex. Jan. 19, 2022) ................................. 5
`
`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019) ............................... 2
`
`Unification Techs. LLC v. Dell Techs., Inc.,
`No. 6:20-CV-00499-ADA, 2021 WL 1343188 (W.D. Tex. Jan. 28, 2021) ............................... 9
`
`United Servs. Auto. Ass’n v. PNC Bank N.A.,
`No. 2:21-CV-00246-JRG, 2022 WL 739521 (E.D. Tex. Jan. 14, 2022) .................................... 4
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`No. 6:20-CV-00555-ADA, 2021 WL 3134260 (W.D. Tex. July 23, 2021) ..................... 2, 6, 10
`
`Rules
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`Fed. R. Civ. P. 12(b)(6)................................................................................................................... 2
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`Fed. R. Civ. P. 15(a)(2) ................................................................................................................... 3
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`ii
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 4 of 17
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`I.
`
`INTRODUCTION
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`The Court should deny Defendant Apple Inc.’s (“Apple”) motion to dismiss Plaintiff Speir
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`Technologies Ltd.’s (“Speir”) claim for direct infringement of U.S. Patent No. 7,765,399 (“the
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`’399 Patent”) (Dkt. No. 13, “Mot.”).
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`Speir’s Amended Complaint (Dkt. No. 8, “Am. Compl.”) provides detailed notice of its
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`theory of Apple’s direct infringement of exemplary claim 1 of the ’399 Patent. Apple seeks a
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`complaint with expert report-level detail based on highly confidential information it possesses
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`about the operation of its own products. But Speir need not “prove its case at the pleading stage.”
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`In re Bill of Lading Transmission & Processing Sys. Pat. Litig., 681 F.3d 1323, 1339 (Fed. Cir.
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`2012). Rather, “[t]he complaint must place the ‘potential infringer ... on notice of what activity ...
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`is being accused of infringement.’” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed. Cir.
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`2018) (citation omitted). As such, the “purpose of a motion to dismiss is to test the sufficiency of
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`the complaint, not to decide the merits.” Id. (citation omitted) (emphasis in original).
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`Apple cannot meaningfully contest that it is on notice of Speir’s theory of infringement.
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`Instead, Apple disputes whether there is infringement based on the exemplary publicly-available
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`evidence cited by Speir and its construction and interpretation of discrete sub-limitations of the
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`asserted claims—issues that are not appropriate on a motion to dismiss. See Nalco, 883 F.3d at
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`1349 (“Defendants’ arguments boil down to objections to [Plaintiff’s] proposed claim construction
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`... a dispute not suitable for resolution on a motion to dismiss.”). The issues raised by Apple
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`require discovery into the inner workings of Apple’s Secure Enclave—an aspect of the Accused
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`Products for which Apple releases limited public information and that is not amenable to reverse
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`engineering because it is specifically designed to keep sensitive user data secure. See K-Tech
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`Telecomms., Inc. v. Time Warner Cable, Inc., 714 F.3d 1277, 1286 (Fed. Cir. 2013) (“A defendant
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`cannot shield itself from a complaint for direct infringement by operating in such secrecy that the
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`1
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 5 of 17
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`filing of a complaint itself is impossible.”). Because Speir’s Amended Complaint plausibly alleges
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`a claim for direct infringement of the ’399 Patent, Apple’s motion should be denied in its entirety.
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`Additionally, while Speir’s pleadings are sufficient, any alleged ambiguities have been
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`resolved in its preliminary infringement contentions, which have been served on Apple
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`contemporaneously herewith. See, e.g., Parity Networks, LLC v. Cisco Sys., Inc., No. 6:19-CV-
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`00207-ADA, 2019 WL 3940952, at *2 (W.D. Tex. July 26, 2019) (“[T]he Court finds that
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`Plaintiff’s pleadings are sufficient and that any deficiencies will necessarily be addressed when
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`Plaintiff serves its infringement contentions as is required.”). To that end, any issues raised in the
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`instant motion are moot, and Apple’s motion to dismiss should be denied. Alternatively, the Court
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`should grant Speir leave to amend its Amended Complaint to remedy any alleged deficiencies.
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(6) requires that a complaint contain sufficient factual
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`matter, if accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009) (citation omitted). “The court’s task is to determine whether the plaintiff
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`has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of
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`success.” USC IP P’ship, L.P. v. Facebook, Inc., No. 6:20-CV-00555-ADA, 2021 WL 3134260,
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`at *1 (W.D. Tex. July 23, 2021) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
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`594 F.3d 383, 387 (5th Cir. 2010)). “The plausibility standard ‘does not impose a probability
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`requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation
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`that discovery will reveal evidence’ to support the plaintiff’s allegations.” Nalco Co., 883 F.3d at
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`1350 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).1
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`1 Speir disagrees that there is some amorphous heightened pleading standard in patent cases
`involving hardware and software, as advocated by Apple. Mot. at 2, 5, 13-14. Indeed, Apple’s
`cited authority makes clear that “[a] plaintiff is not required to plead infringement on an element-
`by-element basis” and that a plaintiff “need not prove its case at the pleading stage.” Bot M8 LLC
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`2
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 6 of 17
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`Further, Federal Rule of Civil Procedure 15(a)(2) provides that the court should “freely”
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`grant leave to amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). To that end,
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`this Court has granted patentee’s leave to amend a complaint alleging direct infringement to add
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`additional factual allegations in the face of a motion to dismiss. See, e.g., CPC Pat. Techs. Pty
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`Ltd. v. Apple Inc., No. 6:21-CV-00165-ADA, 2022 WL 118955, at *2 (W.D. Tex. Jan. 12, 2022).
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`III.
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`ARGUMENT
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`A.
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`Speir Sufficiently Alleges The Claimed Trusted Operating System
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`Representative claim 1 of the ’399 Patent recites (1) a “secure user processor” comprising
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`“a trusted operating system executing on said trusted microprocessor,” (2) a “non-secure user
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`processor” comprising “an untrusted operating system executing on said untrusted
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`microprocessor,” and (3) a “cryptographic engine” comprising “a trusted operating system
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`executing on said trusted cryptographic processor.” ’399 Patent, Claim 1. Speir alleges sufficient
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`factual support to raise a plausible inference that these limitations are practiced by the Accused
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`Products. See Am. Compl. ¶¶ 53-55. Apple does not contest that Speir has sufficiently alleged
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`the existence of a trusted operating system utilized by the secure user processor (i.e., “sepOS”)
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`and an untrusted operating system utilized by the non-secure user processor (i.e., “iOS”). Mot. at
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`9. Rather, Apple maintains that (1) the ’399 Patent requires three separate operating systems and
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`(2) Speir somehow fails to allege the existence of a third operating system utilized by the
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`cryptographic engine. Id. at 7. Apple is wrong.
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`As an initial matter, Apple’s argument is predicated on claim construction. Specifically,
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`Apple’s motion requires that the Court construe the claims of the ’399 Patent and hold that the
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`v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir. 2021) (internal citation and quotation omitted).
`As detailed herein, Speir’s detailed allegations, made on an element-by-element basis, more than
`satisfy Federal Rule of Civil Procedure 8’s pleading requirements.
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`3
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 7 of 17
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`claims require three entirely separate and distinct operating systems—one for each of the three
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`claimed processors. Mot. at 7-8. But “claim construction at the pleading stage—with no claim
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`construction processes undertaken—[i]s inappropriate.” In re Bill of Lading, 681 F.3d at 1343
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`n.13. Rather, to the extent any claim interpretation is required, courts “afford claims their broadest
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`possible construction at this stage of the proceedings.” Id.; see also United Servs. Auto. Ass’n v.
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`PNC Bank N.A., No. 2:21-CV-00246-JRG, 2022 WL 739521, at *2 (E.D. Tex. Jan. 14, 2022)
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`(“PNC is asking the court to construe the claims, and the Court is unwilling to engage in, what is
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`effectively, claim construction at this early stage.”).
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`The ’399 Patent does not require that the “trusted operating system” utilized by the “secure
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`user processor” be entirely separate and distinct from the “trusted operating system” utilized by
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`the “cryptographic engine.” To that end, and as Apple acknowledges (Mot. at 10), the trusted
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`operating system may comprise of the “sepOS” and be utilized by both the Secure Enclave
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`Processor (the “secure processor”) and the Secure Enclave AES Engine (the “cryptographic
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`engine”)—which is a plausible construction of the claims. See, e.g., CPC Pat. Techs., 2022 WL
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`118955, at *3 (“[T]he Court finds that Plaintiff’s claim construction is plausible, so Plaintiff need
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`not plead infringement of the claimed duration. The inherent and plausibly pleaded construction
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`entitles Plaintiff to a Markman hearing.”). And Speir has put Apple on notice that the “sepOS”
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`operating system may satisfy claim 1’s requirement that both the secure user processor and the
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`cryptographic engine work with a “trusted operating system.” See Am. Compl. ¶ 55 (identifying
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`Apple’s customized version of the L4 microkernel, also referred to as “sepOS,” in connection with
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`the cryptographic engine’s operating system).2
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`2 While Apple acknowledges that the sepOS may be considered the trusted operating system for
`both the “secure user processor” and “cryptographic processor” (Mot. at 10), Speir has elaborated
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`4
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 8 of 17
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`Alternatively, to the extent an entirely separate and distinct third “operating system” is
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`required, Speir alleges that the exemplary “iPhone 13 contains a Secure Enclave AES Engine and
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`a trusted operating system.” Am. Compl. ¶ 55. For factual support, Speir cites to documentation
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`provided by Apple explaining the Secure Enclave AES Engine. Id. For example, Apple’s
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`materials provide that the Secure Enclave AES Engine is “used to perform cryptography” and that
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`“[t]he AES Engine supports hardware and software keys.” Id. Based on the documentation cited
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`by Speir, Apple is on notice that Speir alleges that there is a trusted operating system utilized by
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`the Secure Enclave AES Engine, for example, for purposes of performing cryptography.
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`Apple does not meaningfully refute Speir’s allegations other than to assert that no such
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`operating system exists on the Secure Enclave AES Engine because it is “a simple ‘hardware
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`block’ component.” Mot. at 11. However, Apple’s “say-so” on whether there is a separate
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`operating system for the Secure Enclave AES Engine is a factual dispute that will be explored
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`during discovery. Rather, on a motion to dismiss, all allegations are accepted as true and Speir “is
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`not required to provide evidence of infringement at the pleading stage.” Panasonic Corp. v. Magna
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`Int’l, Inc., No. 6:21-CV-00319-ADA, 2022 WL 174513, at *2 (W.D. Tex. Jan. 19, 2022).
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`Because Speir has plausibly alleged that the Secure Enclave AES Engine (“cryptographic
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`engine”) utilizes an operating system (for example, to perform cryptography), Apple’s motion
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`should be denied on this basis.
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`B.
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`Speir Sufficiently Alleges The Claimed Data Links
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`Claim 1 of the ’399 Patent recites “a second data communication link communicating data
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`between said non-secure processor and said cryptographic engine.” Speir alleges that the
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`in
`theory
`this
`further on
`contemporaneously herewith.
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`its preliminary
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`infringement contentions served on Apple
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`5
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 9 of 17
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`exemplary “iPhone 13 contains a data communication link between the Application Processor and
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`the Secure Enclave AES Engine.” Am. Compl. ¶ 57. Speir also cites to exemplary evidence from
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`Apple that plausibly suggests the existence of the data communication link between the
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`Application Processor (“non-secure processor”) and
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`the Secure Enclave AES Engine
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`(“cryptographic engine”). Id. For example, Apple’s materials explain that:
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`The Application Processor then sends the sepOS image to the Secure Enclave Boot
`ROM. After copying the sepOS image into the Secure Enclave protected memory,
`the Secure Enclave Boot ROM checks the cryptographic hash and signature of the
`image to verify that the sepOS is authorised to run on the device.
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`Id. (emphasis added). Speir’s allegations also explain that the Secure Enclave AES Engine is what
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`performs cryptography in the Secure Enclave—meaning information sent from the Application
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`Processor is communicated to the Secure Enclave AES Engine. Id. As such, Speir has sufficiently
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`alleged the existence of a communication link between the Application Processor (the “non-secure
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`processor”) and the Secure Enclave AES Engine (the “cryptographic engine”) with factual support.
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`To the extent Apple contends that there may be some overlap between the first
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`communication link (between the Secure Enclave Processor and Secure Enclave AES Engine) and
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`the second communication link (between the Application Processor and Secure Enclave AES
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`Engine) (Mot. at 12), those are issues of claim construction and proof. While claim construction
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`is not appropriate on a motion to dismiss, there is nothing in the ’399 Patent that precludes partial
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`overlap in the two data communications links. See CPC Pat. Techs., 2022 WL 118955, at *3.
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`Further, “a plaintiff should not be barred at the dismissal stage ‘when the operation of [the accused
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`product] is not ascertainable without discovery.’” USC IP P’ship, L.P., 2021 WL 3134260, at *2
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`(quoting K-Tech Telecomms., 714 F.3d at 1286). Here, the information needed to ascertain the
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`exact scope of the communication link between the Application Processor and Secure Enclave
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`AES Engine requires discovery as it relates to the inner workings of Apple’s Secure Enclave.
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`6
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 10 of 17
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`Because Speir has plausibly alleged the existence of a communication link between the
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`Application Processor and Secure Enclave AES Engine, Apple’s motion should be denied.
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`C.
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`Speir Sufficiently Alleges The Claimed Human/Machine Interfaces
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`Speir alleges the existence of two human-machine interfaces (“HMI(s)”). Claim 1 of the
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`’399 Patent recites:
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`(1)
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`“a secure human/machine interface configured for enabling bi-directional
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`communication of classified information exclusively between a user and said secure user
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`processor” and
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`(2)
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`“a non-secure human/machine interface distinct from said secure human/machine
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`interface and configured for enabling bi-directional communication of unclassified
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`information exclusively between said user and said non-secure user processor”
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`’399 Patent, Claim 1 (emphasis added). Speir alleges that the Accused Products (such as the
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`iPhone 13) contain (1) TouchID and/or FaceID to allow for communication of secure information
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`between the user and the Secure Enclave Processor (i.e., the “secure” HMI) and (2) the touchscreen
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`(and related software/hardware) allow the user to communicate non-secure information with the
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`Application Processor (i.e., the “non-secure” HMI). See Am. Compl. ¶¶ 58, 59. Apple cannot
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`credibly argue that it lacks notice of Speir’s infringement theory.
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`Rather than contest the sufficiency of notice, Apple quibbles over Speir’s exemplary
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`evidence as to three discrete aspects of the secure HMI claim elements: (1) whether, in fact,
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`Apple’s TouchID and/or FaceID operate as a secure HMI; (2) whether TouchID and/or FaceID
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`enable, in fact, bi-directional communication of secure information; and (3) whether there is, in
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`fact, exchange of information “exclusively” between a user and the Secure Enclave Processor.
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`Mot. at 13-16.
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`7
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 11 of 17
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`i. TouchID and/or FaceID are secure HMIs
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`Apple is wrong that TouchID and/or FaceID are not “interfaces, as the term is used in the
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`’399 Patent.” Mot. at 14. The ’399 Patent provides that secure HMI “devices are known in the art
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`and typically can include one or more features to ensure trusted communications between the user
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`and the secure processor ….” ’399 Patent at 7:41-44; see id. at 7:44-45 (“The secure HMI 308 can
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`provide a trusted path to applications executing on secure processor 302.”). For example, the ’399
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`Patent contemplates that the secure HMI “can be comprised of several components” and “can
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`include one or more input devices which allow a user to input control commands and input data.”
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`Id. at 7:60–8:13. However, the ’399 Patent notes the secure HMI is “not limited in this regard”
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`and, instead, contemplates that the secure HMI can be “implemented in a variety of ways that are
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`known to those skilled in the art.” Id.
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`Speir cites exemplary evidence that confirms that TouchID and FaceID utilize
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`“components” (such as biometric sensors) to ensure secure communications between the user and
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`the Secure Enclave Processor:
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`Apple’s biometric security architecture relies on a strict separation of
`responsibilities between the biometric sensor and the Secure Enclave, and a secure
`connection between the two. The sensor captures the biometric image and securely
`transmits it to the Secure Enclave.
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`See Am. Compl. ¶ 58 (emphasis added). That is, TouchID and FaceID both utilize “biometric
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`sensor[s]” that communicate data from the user directly and securely to the Secure Enclave.
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`Speir’s allegations provide more than sufficient notice to Apple of this theory. See, e.g., Nalco
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`Co., 883 F.3d at 1350 (patentee’s “pleading clearly exceeds the minimum requirements under Rule
`
`12(b)(6), especially as ‘the Federal Rules of Civil Procedure do not require a plaintiff to plead facts
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`establishing that each element of an asserted claim is met.’”) (citation omitted).
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`
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`8
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`

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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 12 of 17
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`Apple appears to contend that TouchID and FaceID are somehow not secure HMI’s
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`because it purports that they share hardware with a non-secure HMI. Mot. at 14. This issue of
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`“distinctness” is one of claim construction and proof—not an issue about adequate notice. See,
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`e.g., Unification Techs. LLC v. Dell Techs., Inc., No. 6:20-CV-00499-ADA, 2021 WL 1343188,
`
`at *3 (W.D. Tex. Jan. 28, 2021) (noting defendant’s arguments were “premature assertions that are
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`best addressed in claim construction or non-infringement positions.”).
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`Regardless, Apple is wrong. For example, Apple argues that FaceID cannot be a secure
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`HMI because it uses a “camera.” Mot. at 14. But Apple fails to explain whether the camera
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`utilized by FaceID is the same camera system used for non-secure purposes. To the contrary, Speir
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`cites evidence that suggests that a distinct infrared camera system is used for FaceID:
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`After the TrueDepth camera confirms the presence of an attentive face, it projects
`and reads thousands of infrared dots to form a depth map of the face along with a
`2D infrared image. This data is used to create a sequence of 2D images and depth
`maps which are digitally signed and sent to the Secure Enclave.
`
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`Am. Compl. ¶ 58 (citing https://support.apple.com/en-in/guide/security/sec067eb0c9e/web). As
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`noted by this evidence, FaceID utilizes a TrueDepth camera that communicates with the Secure
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`Enclave.
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`
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`Apple is also wrong that TouchID cannot qualify as the secure HMI because it purportedly
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`shares the “home button.” Mot. at 14. As Apple’s documents explain, TouchID utilizes its own
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`distinct biometric sensor:
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`When the fingerprint sensor detects the touch of a finger, it triggers the advanced
`imaging array to scan the finger and sends the scan to the Secure Enclave. The
`channel used to secure this connection varies, depending on whether the Touch ID
`sensor is built into the device with the Secure Enclave or is located in a separate
`peripheral.
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`*
`
`*
`
`*
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`Communication between the Secure Enclave and the built-in Touch ID sensor takes
`place over a serial peripheral interface bus. The processor forwards the data to the
`Secure Enclave but can’t read it.
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`
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`9
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 13 of 17
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`Am. Compl. ¶ 58 (citing https://support.apple.com/en-in/guide/security/sec067eb0c9e/web). In
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`other words, TouchID utilizes its own distinct fingerprint sensor that communicates with the secure
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`user processor.
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`For these reasons, Speir has plausibly alleged that TouchID and/or FaceID qualify as the
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`claimed secure HMI and Apple’s motion should be denied on this basis.
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`ii. There is a secure HMI for enabling bi-directional communication
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`between the user and secure user processor
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`
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`Claim 1 of the ’399 Patent recites a secure HMI configured for enabling “bi-directional
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`communication” of secure information between the user and the secure processor. Apple purports
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`that Speir “does not identify any classified data communicated both from the user to the Secure
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`Enclave Processor and from the Secure Enclave Processor to the user.” Mot. at 15. Again, Apple
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`is not contesting that it is on notice of Speir’s infringement theory—it simply contests Speir’s
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`exemplary evidence. But “a plaintiff is not required to prove its case at the pleading stage….”
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`USC IP P’ship, L.P., 2021 WL 3134260, at *2.
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`
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`Apple is also incorrect; Speir’s exemplary evidence supports a plausible inference that
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`there is bi-directional communication between the user and Secure Enclave (“secure user
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`processor”) through the use of TouchID and/or FaceID. For example, Speir cites to the following:
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`The sensor captures the biometric image and securely transmits it to the Secure
`Enclave. During enrolment, the Secure Enclave processes, encrypts and stores the
`corresponding Touch ID and Face ID template data. During matching, the Secure
`Enclave compares incoming data from the biometric sensor against the stored
`templates to determine whether to unlock the device or respond that a match is valid
`(for Apple Pay, in-app and other uses of Touch ID and Face ID).
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`Am. Compl. ¶ 58. Apple’s documents (cited in the Amended Complaint) further explain:
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`When the fingerprint sensor detects the touch of a finger, it triggers the advanced
`imaging array to scan the finger and sends the scan to the Secure Enclave.
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`*
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`*
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`*
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`During enrolment, the resulting map of nodes is stored in an encrypted format that
`can be read only by the Secure Enclave as a template to compare against for future
`matches, but without any identity information.
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`*
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`*
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`*
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`After the TrueDepth camera confirms the presence of an attentive face, it projects
`and reads thousands of infrared dots to form a depth map of the face along with a
`2D infrared image. This data is used to create a sequence of 2D images and depth
`maps which are digitally signed and sent to the Secure Enclave. To counter both
`digital and physical spoofs, the TrueDepth camera randomises the sequence of 2D
`images and depth map captures and projects a device-specific random pattern. A
`portion of the Secure Neural Engine — protected within the Secure Enclave —
`transforms this data into a mathematical representation and compares that
`representation with the enrolled facial data.
`
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`Id. (citing https://support.apple.com/en-in/guide/security/sec067eb0c9e/web). As this evidence
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`suggests, data is exchanged between the TouchID and FaceID sensors and the Secure Enclave
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`Processor for purposes of finding a match between the sensor data and the data stored in the Secure
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`Enclave. It is inherent that the “matching” process will either result in a match or not a match,
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`which will be communicated by the Secure Enclave and ultimately back to the user. As such,
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`Speir has plausibly alleged that there is “bi-directional” communication of secure data between the
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`user and secure user processor, and Apple’s motion should be denied.
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`iii. There is exclusive exchange of secret information between the user
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`and secure user processor through the secure HMI
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` Finally, Apple advances claim construction arguments concerning the use of the term
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`“exclusive” by claim 1 of the ’399 Patent. Specifically, claim 1 recites that the secure HMI is
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`configured for enabling “bi-directional communication of classified information exclusively
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`between a user and said secure user processor.” ’399 Patent, Claim 1 (emphasis added). Apple
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`construes this language to mean that TouchID and/or FaceID cannot be secure HMIs because a
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`user can enter a passcode on the touchscreen, which can operate as a non-secure HMI depending
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 15 of 17
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`on its mode of operation. Mot. at 15-16. But Apple does not contest that it is on notice that Speir
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`alleges that TouchID and/or FaceID enable bi-directional communication “exclusively” between
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`the user and Secure Enclave Processor. Nor can it—Apple’s own materials make clear that the
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`TouchID and FaceID sensors exclusively communicate data from the user to and from the Secure
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`Enclave. See, e.g., Am. Compl. ¶ 58 (“Apple’s biometric security architecture relies on a strict
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`separation of responsibilities between the biometric sensor and the Secure Enclave, and a secure
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`connection between the two.”) (emphasis added); see also id. (citing https://support.apple.com/en-
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`in/guide/security/sec067eb0c9e/web) (“Communication between the Secure Enclave and the built-
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`in Touch ID sensor takes place over a serial peripheral interface bus.”).
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`Further, whether there are other potential secure HMIs (for example, when the touch-screen
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`is operating in a password entry mode) is inapposite at the pleading stage. And Speir’s theory is
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`consistent with the cited prosecution history. There, the applicant merely stated that the Mauro
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`reference (U.S. Patent No. 7,047,405) was inapplicable because the ’399 Patent requires “bi-
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`directional communications between a user of the computer system … and a secure user processor
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`is exclusively enabled via a secure human/machine interface that is distinct from an unsecure
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`human/machine interface.” Dkt. No. 13-2 at 12. That is, the ’399 Patent requires a secure HMI
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`configured for enabling bi-directional communication with the secure user processor that is distinct
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`from the non-secure HMI. Because Speir has sufficiently alleged the existence of a secure HMI
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`(e.g., TouchID and FaceID) that enables bi-directional communications exclusively between the
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`user and Secure Enclave Processor, Apple’s motion should be denied.
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`IV.
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`CONCLUSION
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`For at least the reasons stated above, Apple’s motion should be denied in its entirety.
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`Alternatively, Speir should be granted leave to amend its allegations concerning direct
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`infringement of the ’399 Patent.
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 16 of 17
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`Dated: April 19, 2022
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`Respectfully submitted,
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`/s/ Brett E. Cooper
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`Reza Mirzaie (CA SBN 246953)
`rmirzaie@raklaw.com
`Marc A. Fenster (CA SBN 181067)
`mfenster@raklaw.com
`Brett E. Cooper (NY SBN SBN 4011011)
`bcooper@raklaw.com
`Seth Hasenour (TX SBN 24059910)
`shasenour@raklaw.com
`Drew B. Hollander (NY SBN 5378096)
`dhollander@raklaw.com
`
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd. 12th Floor
`Los Angeles, CA 90025
`Phone: (310) 826-7474
`Facsimile: (310) 826-6991
`
`Attorneys for Plaintiff Speir Technologies
`Limited
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`Case 6:22-cv-00077-ADA Document 27 Filed 04/19/22 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that the counsel of record who are deemed to have consented to electronic
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`service are being served on April 19, 2022 with a copy of this document via the Court’s ECF
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`system.
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`/s/ Brett E. Cooper
`Brett E. Cooper
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