Case4:11-cv-06357-YGR Document100 Filed06/28/12 Page1 of 3
`
`
`
`
`[SEE SIGNATURE PAGE FOR COUNSEL]
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`
`
`
`
`Plaintiff,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. 4:11-cv-06357-YGR
`
`
`
`SUPPLEMENTAL JOINT CLAIM
`CONSTRUCTION AND PREHEARING
`STATEMENT [N.D. CAL.4-3]
`
`
`
`HONORABLE YVONNE GONZALEZ
`ROGERS
`
`
`ANCORA TECHNOLOGIES, INC.
`
`
`
`v.
`
`APPLE, INC.,
`
`
`
`
`APPLE, INC.
`
`
`
`v.
`
`ANCORA TECHNOLOGIES, INC.
`
`
`
`Defendant.
`
`Counter-claimant,
`
`Counter-defendant.
`
`Page 1
`
`HTC EX. 1011
`HTC v. Ancora
`US Patent No. 6,411,941
`
`

`

`Case4:11-cv-06357-YGR Document100 Filed06/28/12 Page2 of 3
`
`
`
`1
`
`Plaintiff and counter-defendant Ancora and defendant and counter-claimant Apple submit
`
`2
`
`this Supplemental Joint Claim Construction and Prehearing Statement.
`
`3
`
`Attached hereto as Exhibit A is a table setting forth the claim terms/phrases that the
`
`4
`
`parties request that the Court construe, along with the intrinsic and extrinsic evidence on which
`
`5
`
`the parties currently intend to rely. In addition, the parties have identified one term on which
`
`6
`
`they have agreed on a construction (“verification structure accommodating data that includes at
`
`7
`
`least one license record”).
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Attached hereto as Exhibit B is a copy of U.S. Patent No. 6,411,941.
`
`The parties anticipate that the length of time necessary for the Claim Construction
`
`Hearing will be three hours.
`
`Dated: June 28, 2012
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`BROOKS KUSHMAN P.C.
`
`
`
`
`By:_/s/ John S. LeRoy
`Mark A. Cantor (Pro Hac Vice)
`mcantor@brookskushman.com
`John S. LeRoy (Pro Hac Vice)
`jleroy@brookskushman.com
`Marc Lorelli (Pro Hac Vice)
`mlorelli@brookskushman.com
`John P. Rondini (Pro Hac Vice)
`jrondini@brookskushman.com
`1000 Town Center, Twenty-Second Floor
`Southfield, MI 48075
`Tel: (248) 358-4400 -- Fax: (248) 358-3351
`
`Attorneys for Ancora Technologies, Inc.
`
`
`
`MORRISON & FOERSTER, LLP
`
`By: /s/ Eric W. Ow (with permission)
`Michael A. Jacobs
`mjacobs@mofo.com
`Richard S.J. Hung
`rhung@mofo.com
`Francis C. Ho
`fho@mofo.com
`Eric W. Ow
`eow@mofo.com
`425 Market Street
`San Francisco, CA 94105-2482
`(415) 268-7000 – Tel.
`
`
`SUPPLEMENTAL JOINT CLAIM CONSTRUCTION
`AND PREHEARING STATEMENT
`Case No. 4:11-cv-06357-YGR
`
`
`
`
`2
`
`Page 2
`
`

`

`Case4:11-cv-06357-YGR Document100 Filed06/28/12 Page3 of 3
`
`
`
`(415) 268-7522 – Fax
`
`Bita Rahebi
`brahebi@mofo.com
`MORRISON & FOERSTER, LLP
`555 West Fifth Street, Suite 3500
`Los Angeles, CA 90013-1024
`(213) 892-5200 – Tel.
`(213) 892-5454 – Fax
`
`
`Attorneys for Apple Inc.
`
`
`SUPPLEMENTAL JOINT CLAIM CONSTRUCTION
`AND PREHEARING STATEMENT
`Case No. 4:11-cv-06357-YGR
`
`
`
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`Page 3
`
`

`

`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page1 of 21
`
`EXHIBIT A
`
`Page 4
`
`

`

`See, e.g., The ‘941 File History - 5/21/2001
`
`Prosecution History:
`
`Column 6, Lines 53-56.
`Lines 9-16; Col. 5, Lines 19-33; Col. 6, Lines 7-52;
`3, Line 41; Col. 3, Line 62 to Col. 4 Line 62; Col. 5,
`1, Line 38 to Col. 2, Line 26; Col. 2, Line 62 to Col.
`See, e.g. The ‘941 Patent – Figure 1; Abstract; Col.
`
`Specification:
`
`Intrinsic Evidence
`
`
`
`that the required level of system programming
`volatile memory such as that residing in the BIOS is
`3:4-17 (“An important advantage in utilizing non-
`programmers (e.g. ‘hackers’)”) (emphasis added),
`to attack at the hands of skilled system’s
`honest software users, but they are very vulnerable
`These products may be appropriate for restricting
`the computer’s volatile memory (e.g. hard disk).
`software usage by writing a license signature onto
`products have been developed to validate authorized
`'941 Patent Specification at 1:19-2 (“Software based
`
`Intrinsic Evidence
`
`
`
`
`
`
`
`not maintained when the power is removed
`PROPOSED CONSTRUCTION: memory that is
`
`35 U.S.C. § 112, ¶ 2.
`APPLE POSITION: This term is indefinite under
`
`Claims 1-3, 5-17
`
`“volatile memory”
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`DISPUTED TERMS
`
`data structure for verifying whether a program is licensed that includes at least one license record
`
`
`
`
`
`Claims 1-3, 5-17
`
`one license record”
`that includes at least
`accommodating data
`“verification structure
`
`Agreed Construction
`
`Claim Term/Phrase
`
`
`
`AGREED TERM
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page2 of 21
`
`Page 5
`
`

`

`1 References to the Amendment received on Nov. 14, 2001 incorporate each of the Amendments received Dec. 3, 2001 and Dec. 6, 2001.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dictionary (1998), p 372.
`nonvolatile memory.” The Microsoft Computer
`loses its data when the power is shut off. Compare
`“volatile memory n. Memory, such as RAM, that
`
`including exhibits. Declaration of John Kelly.
`Expert Testimony: Deposition of John Kelly
`
`including exhibits. Declaration of Ian Jestice, ¶ 6-8.
`Expert Testimony: Deposition of Ian Jestice
`
`Extrinsic Evidence
`
`Notice.
`See, e.g., The ‘941 3/9/2010 Re-examination
`
`and Decision Granting Re-Examination.
`See, e.g., The ‘941 8/3/2009 Re-examination Order
`
`of Allowance.
`See, e.g., The ‘941 File History - 2/20/2002 Notice
`
`Amendment.
`See, e.g., The ‘941 File History - 2/5/2002
`
`Action.
`See, e.g., The ‘941 File History, 6/21/2001 Office
`
`Amendment.
`
`(“claim 1 has been amended to recite that the
`of U.S. Application No. 09/164,7771 at ANCA 687
`Amendment dated Nov. 14, 2001 in the file history
`
`removed from it.”)
`volatile’ as it does not lose data when the power is
`while it is accepted that a ‘hard disk’ is ‘non-
`claim 1 is used by the claim to exclude ‘hard disk,’
`term.”), ANCA 670 (“The term ‘non-volatile’ in
`meaning repugnant to the usual meaning of that
`lexicographer, a term in a claim may not be given a
`(“While applicant may be his or her own
`of U.S. Application No. 09/164,777 at ANCA 669
`Office Action dated June 22, 2001 in the file history
`
`5:12-16, claim 18.
`(emphasis added); see also id. at 1:38-53, 3:24-32,
`disk and/or internal memory of the computer.”)
`BIOS and the volatile memory is a RAM e.g. hard
`nonvolatile memory area is a E²PROM section of a
`area is a ROM section of a BIOS; the second
`present invention, the first non-volatile memory
`to one, non-limiting, preferred embodiment of the
`disk . . .”) (emphasis added), 4:49-54 (“According
`with data residing in volatile memory such as hard
`substantially higher than those needed for tampering
`commands, interacting with the BIOS, is
`expertise that is necessary to intercept or modify
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page3 of 21
`
`Page 6
`
`

`

`See Note 3. ii
`
`“volatile memory”
`PTO printout of 700 Apple Patents disclosing
`
`U.S. Patent Nos. 5,751,989 (ANCA 02392-2405)
`
`Performance Guideline;
`ANCA02261-2316 – Apple Memory Usage
`
`ANCA 01193-1401 – Apple II Reference Manual;
`
`Microprocessor-based Systems (1996), p 30
`Microelectronics: Structure and Operation of
`non-volatile if it retains its contents.”
`contents are lost when the power is switched off and
`“A memory device is said to be volatile if its
`
`
`
`telling me that notwithstanding this passage in
`Deposition of Miki Mullor at 211:3-9 (“Q. You are
`
`13:18-14:16, 24:21-27:25, 28:6-29:14, 40:9-16.
`actual application”); see also id. at 8:7-10:17,
`nonvolatile and I guess volatile, depending on the
`conceivably use a hard disk in this context as
`me continue all the way through. I guess you could
`volatile memory from what I can see. Hang on, let
`no sense. Actually, it doesn’t make any sense on
`I insert the word hard disk into nonvolatile, it makes
`volatile memory or nonvolatile memory? . . . . A. If
`the context of claim 1, would a hard disk fall under
`. So the competitor is looking at this claim, sir, in
`Expert Deposition of Ian Jestice at 12:9-13:6 (“Q. . .
`Extrinsic Evidence
`
`2648-2656.
`file of U.S. Application No. 90/010,560 at ANCA
`certificate, dated Mar. 9, 2010 in the reexamination
`Notice of Intent to Issue Ex Parte Reexamination
`Application No. 09/164,777 at ANCA 719-725;
`dated Mar. 28, 2002 in the file history of U.S.
`09/164,777 at ANCA 679; Notice of Allowability
`2001 in the file history of U.S. Application No.
`ANCA 647-659; Examiner Summary dated Nov. 9,
`history of U.S. Application No. 09/164,777 at
`See also Amendment dated Feb. 5, 2002 in the file
`
`volatile memory area of the BIOS . . .”).
`verification structure is stored in an erasable, non-
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page4 of 21
`
`
`
`
`
`Page 7
`
`

`

`
`
`(emphasis in original).
`secondary storage units such as disk drives.”)
`Rea-only memory (ROM) is non-volatile as are all
`information, even when the power is switched off.
`memory The memory specially designed to hold
`Internet Dictionary (6th ed. 1995) (“non-volatile
`Terms (6th ed. 1997) and Que’s Computer &
`Webster’s New World Dictionary of Computer
`
`original).
`reference disk subsystems as well.”) (emphasis in
`CMOS Ram, the term is occasionally used to
`flash memory, bubble memory, or battery backed
`Intended to refer to core memory, ROM, EPROM,
`does not lose data when power is removed from it.
`(“non-volatile memory . . . A storage system that
`Microsoft Press Computer Dictionary (3rd ed 1997)
`
`original).
`reference disk subsystems as well.”) (emphasis in
`CMOS Ram, the term is occasionally used to
`flash memory, bubble memory, or battery backed
`Intended to refer to core memory, ROM, EPROM,
`does not lose data when power is removed from it.
`(“non-volatile memory . . . A storage system that
`Microsoft Computer User’s Dictionary (1998)
`
`claim, it excludes a hard disk. A. Right.”)
`the term volatile memory is used in the
`used as an example of volatile memory . . . – when
`Column 4 where a hard disk is described as being
`
`
`
`
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page5 of 21
`
`Page 8
`
`

`

`See, e.g. The ‘941 Patent – Figure 1; Abstract; Col.
`
`
`
`Specification:
`
`Intrinsic Evidence
`
`See Note 1.
`
`immediately above for “volatile memory.”
`See all intrinsic and extrinsic evidence cited
`
`
`
`
`
`
`
`maintained when the power is removed
`PROPOSED CONSTRUCTION: memory that is
`
`35 U.S.C. § 112, ¶ 2.
`APPLE POSITION: This term is indefinite under
`
`“non-volatile memory”
`
`Claims 1-3, 5-17
`
`See Note 1.i
`
`Jestice ¶ 5.
`100:1-103:2, 118:5-8; Expert Declaration of Ian
`Expert Deposition of John Kelly at 83:11-84:15,
`See also Expert Declaration of John Kelly ¶¶ 19-28;
`
`original).
`removed. Disks are nonvolatile.”) (emphasis in
`is volatile, that is, it goes blank when power is
`erased when turned off. The memory of a computer
`Terms (5th ed. 1996) (“Volatile not permanent;
`Barron’s Dictionary of Computer and Internet
`
`original).
`medium; memory (RAM) is volatile.”) (emphasis in
`when turned off. Disks are a nonvolatile storage
`Terms (5th ed. 1996) (“Nonvolatile not erased
`Barron’s Dictionary of Computer and Internet
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page6 of 21
`
`Page 9
`
`

`

`
`
`
`
`
`
`Expert Testimony: Deposition of John Kelly
`
`e.g., ¶ 5.
`including exhibits. Declaration of Ian Jestice,see
`Expert Testimony: Deposition of Ian Jestice
`
`Extrinsic Evidence
`
`Notice.
`See, e.g., The ‘941 3/9/2010 Re-examination
`
`and Decision Granting Re-Examination.
`See, e.g., The ‘941 8/3/2009 Re-examination Order
`
`Allowance.
`See, e.g., The ‘941 File History - 2/20/2002 Notice of
`
`Amendment.
`See, e.g., The ‘941 File History - 2/5/2002
`
`Action.
`See, e.g., The ‘941 File History - 6/21/2001 Office
`
`Amendment.
`See, e.g., The ‘941 File History - 5/21/2001
`
`Prosecution History:
`
`Column 6, Lines 53-56.
`Lines 9-16; Col. 5, Lines 19-33; Col. 6, Lines 7-52;
`3, Line 41; Col. 3, Line 62 to Col. 4 Line 62; Col. 5,
`1, Line 38 to Col. 2, Line 26; Col. 2, Line 62 to Col.
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page7 of 21
`
`Page 10
`
`

`

`
`
`See Note 3.
`
`
`
`
`
`“non-volatile memory.”
`PTO printouts of 600 Apple Patents disclosing
`
`U.S. Patent Nos. 5,751,989 (ANCA 02392-2405)
`
`Performance Guideline;
`ANCA02261-2316 – Apple Memory Usage
`
`ANCA 01193-1401 Apple II Reference Manual;
`
`(1993), p 860.
`of Electrical and Electronics Terms, Fifth Edition
`supplied to it.” The New IEEE Standard Dictionary
`data content is retained when power is no longer
`“nonvolatile memory. A memory in which the
`
`Microprocessor-based Systems (1996), p 30
`Microelectronics: Structure and Operation of
`non-volatile if it retains its contents.”
`contents are lost when the power is switched off and
`“A memory device is said to be volatile if its
`
`Dictionary (1998), p 246.
`flash memory[.]” The Microsoft Computer
`Intended to refer to core memory, ROM, EPROM,
`not lose data when power is removed from it.
`“nonvolatile memory n. A storage system that does
`
`including exhibits. Declaration of John Kelly.
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page8 of 21
`
`Page 11
`
`

`

`Notice.
`See, e.g., The ‘941 3/9/2010 Re-examination
`
`and Decision Granting Re-Examination.
`See, e.g., The ‘941 8/3/2009 Re-examination Order
`
`of Allowance.
`See, e.g., The ‘941 File History - 2/20/2002 Notice
`
`Amendment.
`See, e.g., The ‘941 File History - 2/5/2002
`
`Amendment.
`See, e.g., The ‘941 File History - 5/21/2001
`
`Prosecution History:
`
`Lines 53-56.
`Col 5, Lines 59-65; Col. 6, Lines 40-52; Column 6,
`Lines 4-19; Col. 4, Lines 49-61; Col. 5, Lines 9-34;
`27-32; Col. 1, Line 44 to Col. 2, Line 59; Col. 3,
`See, e.g. The ‘941 Patent - Figure 1; Col. 1, Lines
`
`
`
`Time Clock date when the machine is booted.
`system date is initialized from the BIOS or Real
`devices, including the date and time. The operating
`supports the transfer of data among hardware
`hardware at startup, starts the operating system, and
`the set of essential software routines that tests
`input/output system. On PC-compatible computers,
`definition: “BIOS n. Acronym for basic
`ed. 2002) at APL10792-10794 including the
`regarding the Microsoft Computer Dictionary (5th
`Excerpt from the reexamination file history
`
`(emphasis added).
`file system to arrange and manage data structures.”)
`device connected to the PC is associated with an OS
`(emphasis added), ANCA 714 (“Every writable
`recognized by the OS except for the BIOS.”)
`peripheral devices in the PC are listed and
`ANCA 714 (“Furthermore, it is common that all
`file history of U.S. Application No. 09/164,777 at
`Amendment dated Feb. 5, 2002, submitted in the
`
`Specification:
`
`61, 5:62-63, 6:29-39.
`'941 Patent Specification at 1:44-2:59, 3:4-17, 4:51-
`
`Intrinsic Evidence
`
`Intrinsic Evidence
`
`
`
`
`
`
`
`that handle startup operations.
`PROPOSED CONSTRUCTION: Software routines
`
`among peripheral devices
`startup operations and support the transfer of data
`on IBM PC compatible computers that handle
`PROPOSED CONSTRUCTION: software routines
`
`Claims 1-3, 5-17
`
`“BIOS”
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page9 of 21
`
`Page 12
`
`

`

`
`
`
`
`
`
`ANCA 02214-2215 - Info World Article;
`
`Specification;
`ANCA 01720-2213 - Extensible Firmware Interface
`
`Operating System User's Guide;
`ANCA 01492-1719 - Commodore 64 CP/M
`
`computers are copyrighted, so manufacturers of
`monitor. The BIOS programs of IBM personal
`for hardware, such as disk drives, keyboards, and
`the power-on self-test (POST) and low-level control
`These programs handle startup operations such as
`memory (ROM) on IBM PC-compatible computers.
`1995) ("A set of programs encoded in read-only
`Que’s Computer & Internet Dictionary 47 (6th ed.
`
`ANCA 01402-1491 - Apple II Technote;
`
`Extrinsic Evidence
`
`ANCA 01193-1401 – Apple II Reference Manual;
`
`for Apple II Pascal 1.1;
`ANCA 01143-1192 - ATTACH-BIOS Document
`
`55-65; Col. 4, Lines 6-34;
`2, Lines 38-44; Col. 2, Lines 11-31; Col. 3 Lines
`See, e.g. U.S. Patent 7,979,728 – Figs. 1 & 3; Col.
`
`– Figs. 1, 3, 5-6; ¶ 60, 79, 80, 96
`See, e.g. U.S. Patent Publication No. 2011/0090380
`
`including exhibits. Declaration of John Kelly.
`Expert Testimony: Deposition of John Kelly
`
`e.g. ¶ 32.
`including exhibits. Declaration of Ian Jestice, see
`Expert Testimony: Deposition of Ian Jestice
`
`Extrinsic Evidence
`
`file of U.S. Application No. 90/010,560.
`dated Mar. 9, 2010, submitted in the reexamination
`Intent to Issue Ex Parte Reexamination certificate,
`of U.S. Application No. 09/164,777; Notice of
`Allowability dated Mar. 28, 2002 in the file history
`U.S. Application No. 09/164,777; Notice of
`Amendment dated Dec. 6, 2001 in the file history of
`history of U.S. Application No. 09/164,777;
`Amendment dated November 14, 2001 in the file
`history of U.S. Application No. 09/164,777;
`See also Amendment dated May 21, 2001 in the file
`
`Computer Dictionary (5th ed. 2002).
`usually invisible to computer users.” Microsoft
`on. Although critical to performance, the BIOS is
`that it can be executed when the computer is turned
`The BIOS is stored in read-only memory (ROM) so
`thus may have suffered from Year 2000 problems.
`1997, have BIOSs that store only 2-digit years and
`Many older PCs, particularly those dating before
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page10 of 21
`
`Page 13
`
`

`

`See Note 2.iii
`
`article titled “Introducing the Apple II”
`Dkt. #98-2 (Exhibit 19 to Ancora’s Reply Brief) –
`
`Company.
`article by Stephen Wozniak, Apple Computer
`article titled “The Apple-II System Description”
`Dkt. #98-1 (Exhibit 18 to Ancora’s Reply Brief) –
`
`User Guide;
`Release;ANCA 02663-2865 – Apple Macintosh
`ANCA 02389-2391 - UEFI Forum Media
`
`ANCA 02317-2388 - Sun Netra User's Guide;
`
`ANCA 02216-2260 – EFI Presentation;
`
`
`
`data among hardware devices. The BIOS is stored
`the operating system, and support the transfer of
`software routines that test hardware at startup, start
`PC-compatible computers, the set of essential
`1997) (“Acronym for basic input/output system. On
`Microsoft Press Computer Dictionary 51 (3rd ed.
`
`procedures provided by the operating system.”)
`programs do not call the BIOS; instead, they use
`multitasking programs. Windows and OS/2
`entrant and is therefore not easily usable by
`the application programs. The BIOS is not re-
`changed to match it, and there is no need to change
`a newer kind of video adapter) the BIOS can be
`the hardware is changed (for example, by installing
`hardware directly. This is important because ... if
`that programs do not have to manipulate the
`input-output functions, including screen graphics, so
`compatible computers. These routines handle all
`procedures stored on a ROM chip inside PC
`(“BIOS (Basic Input Output System) a set of
`(Barron’s Business Guides) 47 (5th ed. 1996)
`Dictionary of Computer and Internet Terms
`
`original).
`tracks and sectors on the drive.") (emphasis in
`hard disk controller, for example, stores a table of
`components have a separate BIOS. The BIOS on a
`American Megatrends, Inc. Some system
`from companies, such as Phoenix Technologies and
`that emulate the IBM BIOS or buy an emulation
`IBM PC-compatible computers must create BIOSs
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page11 of 21
`
`
`
`
`
`Page 14
`
`

`

`
`
`compatible computers must create BIOSs that
`copyrighted, so manufacturers of IBM PC-
`programs of IBM personal computers are
`disk drives, keyboards, and monitor. The BIOS
`(POST) and low-level control for hardware, such as
`startup operations such as the power-on self-test
`compatible computers. These programs handle
`in read-only memory (ROM) on IBM PC-
`Terms, (6th ed. 1997) ("A set of programs encoded
`Webster's New World Dictionary of Computer
`
`sometimes referred to as clones.”)
`today are developed outside of IBM; they are still
`compatible chips. Most PC-compatible computers
`computers that use the Intel 80x86 family or
`standards in the computing industry for personal
`specifications, which have been the de facto
`IBM PC/XT and PC/AT hardware and software
`1997) (“PC-compatible computer” “[c]onforming to
`Microsoft Press Computer Dictionary 51 (3rd ed.
`
`BIOS.”)
`80x86 family (or compatible) and can execute the
`computers, which uses a microprocessor in the Intel
`the standard developed by IBM for personal
`1997) (“PC” “[a] microcomputer that conforms to
`Microsoft Press Computer Dictionary 357 (3rd ed.
`
`invisible to computer users.”)
`critical to performance, the BIOS is usually
`executed when the computer is turned on. Although
`in read-only memory (ROM) so that it can be
`
`
`
`
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page12 of 21
`
`Page 15
`
`

`

`
`
`
`
`
`
`computer users.”) (emphasis in original).
`performance, the BIOS is usually invisible to
`computer is turned on. Although critical to
`in ROM so that it can be executed when the
`data among hardware devices. The BIOS is stored
`the operating system, and support the transfer of
`software routines that test hardware at startup, start
`On PC-compatible computers, the set of essential
`(“BIOS n. Acronym for basic input/output system.
`Microsoft Press Computer User’s Dictionary (1998)
`
`added).
`ROM or floppy disk at install time.”) (emphasis
`computer’s hard disk, but may be loaded from CD-
`operating system which is usually stored on the
`PC. Its main task is to load and execute the
`The BIOS is stored in ROM, or equivalent, in every
`process, including installing the operating system.
`devise and controls the first stage of the bootstrap
`that provides the lowest level interface to peripheral
`system software of the IBM PC and compatibles
`http://foldoc.org/BIOS (6-9-1999) (“The part of the
`Free On-Line Dictionary of Computing
`
`original).
`tracks and sectors on the drive.") (emphasis in
`hard disk controller, for example, stores a table of
`components have a separate BIOS. The BIOS on a
`American Megatrends, Inc. Some system
`companies, such as Phoenix Technologies and
`emulate the IBM BIOS or buy an emulation from
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page13 of 21
`
`Page 16
`
`

`

`See, e.g., The ‘941 File History - 2/5/2002
`
`Amendment.
`See, e.g., The ‘941 File History - 5/21/2001
`
`Prosecution History:
`
`53-56.
`Lines 57-65; Col. 6, Lines 7-52; Column 6, Lines
`Line 44; Col. 5, Line 25 to Col. 5, Line 49; Col. 5,
`to Col. 3, Lines 17-44; Col. 3, Line 51 to Col. 4,
`Col. 1, Lines 53 to Col. 2 Line 59; Col. 2, Line 62
`Abstract; Col. 1, Lines 6-8; Col. 1, Lines 11-17;
`See, e.g. The ‘941 Patent – Figure 1; Claim 18;
`
`Specification:
`
`Intrinsic Evidence
`
`instructions that can be executed by a computer.
`PROPOSED CONSTRUCTION: A set of
`
`
`
`programs . . .”) (emphasis added), ANCA 714
`present invention, are operating system (OS) level
`management applications, such as the one of the
`(emphasis added), ANCA 713 (“[s]oftware license
`simply identification for the operating system.”)
`ANCA 712 (“software license number of Ewertz is
`history of U.S. Application No. 09/164,777 at
`Amendment dated February 5, 2002 in the file
`
`10.
`added); see also id. at 2:12-58, 3:40, 5:25-38, 6:7-
`associated with a license record.”) (emphasis
`licensed to be run on the specified computer is
`the invention, each application program that is
`'941 Patent Specification at 1:52-57 (“[a]ccording to
`
`Intrinsic Evidence
`
`
`
`
`
`
`
`following construction.
`a construction is necessary, Ancora provides the
`No Construction Necessary. If the Court determines
`
`operating system
`application that interacts with and relies on the
`PROPOSED CONSTRUCTION: software
`
`Claims 1-3, 5-17
`
`“program”
`
`See Note 1.
`
`29:14.
`¶¶ 29-38; Expert Deposition of Ian Jestice at 28:6-
`25, 67:17-69:16; Expert Declaration of John Kelly
`See also Expert Deposition of John Kelly at 10:15-
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page14 of 21
`
`Page 17
`
`

`

`
`
`
`
`
`
`See Note 2.
`
`34-35;
`Manual;U.S. Patent No. 6,178,464, Col. 3, Lines
`ANCA 01193-1401 – Apple II Reference
`
`See Note 1.
`
`Dictionary (1998), p 281.
`executed by a computer.” The Microsoft Computer
` “program n. A sequence of instructions that can be
`
`Expert Declaration of John Kelly ¶¶ 39-52.
`
`Extrinsic Evidence
`
`including exhibits.
`Expert Testimony: Deposition of John Kelly
`
`including exhibits. Declaration of Ian Jestice.
`Expert Testimony: Deposition of Ian Jestice
`
`Extrinsic Evidence
`
`Column 6, Line 5;
`U.S. Patent No. 6,189,146, Col 5, Line 63 to
`
`Notice.
`See, e.g., The ‘941 3/9/2010 Re-examination
`
`and Decision Granting Re-Examination.
`See, e.g., The ‘941 8/3/2009 Re-examination Order
`
`of Allowance.
`See, e.g., The ‘941 File History – 2/20/2002 Notice
`
`Amendment.
`
`90/010,560.
`reexamination file of U.S. Application No.
`certificate, dated Mar. 9, 2010, submitted in the
`of Intent to Issue Ex Parte Reexamination
`history of U.S. Application No. 09/164,777; Notice
`See also Amendment dated May 21, 2001 in the file
`
`stored in the BIOS.”) (emphasis added).
`interacting with a program verification structure
`licensed programs running at the OS level
`ANCA 722 (“[Prior art systems] do not teach
`file history of U.S. Application No. 09/164,777 at
`Notice of Allowability dated Mar. 28, 2002 in the
`
`ANCA 711.
`drives, removable devices, etc.”); see also id. at
`applications to access storage devices such as hard
`application program interfaces (APIs) for
`(“[e]very OS [operating system] provides a set of
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page15 of 21
`
`Page 18
`
`

`

`See, e.g., The ’941 3/9/2010 Re-examination
`
`and Decision Granting Re-Examination.
`See, e.g., The ‘941 8/3/2009 Re-examination Order
`
`of Allowance.
`See, e.g., The ‘941 File History - 2/20/2002 Notice
`
`Amendment.
`See, e.g., The ‘941 File History - 2/5/2002
`
`Amendment.
`See, e.g., The ‘941 File History - 5/21/2001
`
`Prosecution History:
`
`Lines 53-56.
`Col. 5, Lines 44-57; Col. 6, Lines 7-52; Column 6,
`Line 5; Col. 4, Lines 25- 44; Col. 5, Lines 26-34;
`5-8; Col. 1, Lines 55-58; Col. 3, Line 51 to Col. 4,
`See, e.g. The ‘941 Patent – Figure 1; Col. 2, Lines
`
`Specification:
`
`Intrinsic Evidence
`
`verifying a licensed program
`PROPOSED CONSTRUCTION: information for
`
`
`
`file of U.S. Application No. 90/010,560.
`dated Mar. 9, 2010, submitted in the reexamination
`Intent to Issue Ex Parte Reexamination certificate,
`of U.S. Application No. 09/164,777; Notice of
`Allowability dated Mar. 28, 2002 in the file history
`of U.S. Application No. 09/164,777; Notice of
`Amendment dated May 21, 2001 in the file history
`file history of U.S. Application No. 09/164,777;
`See also Amendment dated February 5, 2002 in the
`
`4:41-44, Fig. 1, claims 15, 18, 19.
`for a network application). . . .”); see also id. at
`stand alone usage, >1 for number of licensed users
`(Lotus inc.), and number of licensed copies (1 for
`[a]pplication names (e.g., Lotus 123), Vendor name
`licensed users (for network).”), 5:25-38 (“. . .
`author name, program name, and number of
`associated with a license record; that consists of
`the invention, each application program . . . is
`'941 Patent Specification at 1:53-58 (“according to
`
`Intrinsic Evidence
`
`
`
`
`
`
`
`following construction.
`a construction is necessary, Ancora provides the
`No Construction Necessary. If the Court determines
`
`program and the number of licensed users
`licensed program that identifies the licensed
`PROPOSED CONSTRUCTION: record from the
`
`Claims 1-3, 5-17
`
`“license record”
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Technologies, Inc. v. Apple Inc.
`
`EXHIBIT A
`
`Case4:11-cv-06357-YGR Document100-1 Filed06/28/12 Page16 of 21
`
`Page 19
`
`

`

`6, Lines 18-39; Column 6, Lines 53-56.
`Line 33 to Col. 4, Line 5; Col. 4, Lines 25-44; Col.
`Claim 9; Col. 2, Line 59 to Col. 3, Line 35; Col. 3,
`See, e.g. The ‘941 Patent – Figure 2; Abstract;
`
`Specification:
`
`Intrinsic Evidence
`
`verification structure
`whether a program is licensed using at least the
`PROPOSED CONSTRUCTION: confirming
`
`following construction.
`a construction is necessary, Ancora provides the
`No Construction Necessary. If the Court determines
`
`See Note 2.
`
`including exhibits. Declaration of John Kelly.
`Expert Testimony: Deposition of John Kelly
`
`including exhibits. Declaration of Ian Jestice.
`Expert Testimony: Deposition of Ian Jestice
`
`
`
`license records [ ] is obtained by encrypting the
`added), 5:39-41 (“[e]ach one of the encrypted
`is verified to run on the computer. . .”) (emphasis
`in the E2PROM. In the case of match, the program
`encrypted record to the encrypted records that reside
`record, encrypts the record and compares the so
`the program under question, retrieves . . . the license
`'941 Patent Specification at 2:10-26 (“. . . accesses
`
`Intrinsic Evidence
`
`
`
`
`
`
`
`license record in the verification structure
`license record extracted from the program to the
`whether the program is licensed by comparing the
`PROPOSED CONSTRUCTION: confirming
`
`Claims 1-3, 5-17
`
`verification structure”
`using at least the
`“verifying the program
`
`See Note 1.
`
`Extrinsic Evidence
`
`Expert Declaration of John Kelly ¶¶ 53-59.
`
`Notice.
`
`Extrinsic Evidence
`
`Ancora’s Proposed Construction
`
`Apple’s Proposed Construction
`
`Claim Term/Phrase
`
`
`
`Joint Claim Construction Chart
`
`Case No. 4:11-cv-06357-YGR
`
`Ancora Te