`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner
`
`U.S. Patent No. 7,969,925
`Filing Date: July 8, 2010
`Issue Date: June 28, 2011
`Title: Peer-to-Peer Mobile Data Transfer Method and Device
`
`
`Inter Partes Review No.: IPR2019-00702
`
`
`
`DECLARATION OF DR. HENRY H. HOUH
`IN SUPPORT OF PETITIONER’S REPLY TO
`PATENT OWNER’S RESPONSE TO PETITION
`
`
`
`
`
`
`Apple Inc.
`Ex. 1028 - Page 1
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 1
`
`Background and Qualification ......................................................................... 1
`
`III. Materials Considered for this Declaration ....................................................... 1
`
`IV. Understanding of the Law ............................................................................... 1
`
`V.
`
`Summary of my Opinions ................................................................................ 2
`
`VI. Claim Construction .......................................................................................... 2
`
`A.
`
`The “opening a listening software port” Limitation ............................. 2
`
`1.
`
`2.
`
`3.
`
`The Limitation Does Not Require That the “listening
`software port” Be Opened Only for a Specific Device ............... 3
`
`The “listening software port” Only Need Be Opened Once ....... 7
`
`Patent Owner’s Conclusory Attacks on Petitioner’s
`“Associating” Construction Are Both Wrong and Irrelevant ..... 8
`
`B.
`
`No Order Is Required Between the Steps of Claims 1-2; 8-9;
`and 15-16 ............................................................................................. 11
`
`VII. Patent Owner’s Attacks on the Six Grounds of the Petition are all
`Flawed ............................................................................................................ 12
`
`A.
`
`B.
`
`Patent Owner’s First Attack Relies on a Flawed Construction ........... 12
`
`Patent Owner’s Second Attack Based on Well-Known Ports Is
`Contrary to the Evidence On Which Patent Owner Relies ................. 12
`
`C.
`
`Patent Owner’s Additional Attacks Are Also Flawed ........................ 14
`
`VIII. The Petition Establishes the Obviousness of Every Dependent Claim ......... 16
`
`IX. Conclusion ..................................................................................................... 16
`
`
`
`
`
`i
`
`Apple Inc.
`Ex. 1028 - Page 2
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`
`
`
`
`Exhibit No.
`
`EXHIBITS continued
`
`EXHIBITS
`
`Description
`
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`U.S. Patent No. 7,969,925 to Lin (“925 patent”)
`
`Declaration of Dr. Henry Houh
`
`File History of U.S. Pat. No. 7,969,925 to Lin
`
`File History of U.S. Pat. No. 7,961,663 to Lin
`
`Certified Translation and Original of European Pat. App. Pub. EP
`1 009 153 A1 (“Alos”)
`
`U.S. Pat. No. 6,847,632 (“Lee”)
`
`European Pat. App. Pub. EP 1 385 323 A1 (“Cordenier”)
`
`Complaint for Patent Infringement (“Uniloc Complaint”)
`
`Declaration of Sandy Ginoza for IETF RFC 1122: Requirements
`for Internet Hosts - Communication Layers with the exhibit
`RFC 1122, “Requirements for Internet Hosts - Communication
`Layers” (“RFC1122”)
`
`Declaration of Sandy Ginoza for IETF RFC 793: Transmission
`Control Protocol with the exhibit, RFC 793, “Transmission
`Control Protocol” (“RFC793”)
`
`U.S. Pat. App. Pub. No. 2003/0217174 (“Dorenbosch”)
`
`U.S. Patent No. 5,163,131 (“Row”)
`
`W. Richard Stevens, “Unix Network Programming,” Chapters 1,
`“Introduction”; 4, “A Network Primer”; 5, “Communication
`Protocols”; and, 6, “Berkeley Sockets”
`
`Information Disclose Statement Under 37 C.F.R. §§ 1.97 and 1.98
`that includes “Universal Mobile Telecommunications System
`(UMTS); Technical realization of the Short Message Service
`(SMS) (3G TS 23.040 version 3.5.0 Release 1999)” and was
`submitted August 15, 2002, concurrently with U.S. Pat. App.
`10/218,580, which application was published on February 27,
`2003, as U.S. Pat. App. Pub. 2003/0040300 A1 (“SMS
`Specification”)
`
`
`
`
`
`ii
`
`Apple Inc.
`Ex. 1028 - Page 3
`
`
`
`EXHIBITS continued
`
`Exhibit No.
`
`Description
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`1023
`
`1024
`
`1025
`
`1026
`
`W. Richard Stevens, TCP/IP ILLUSTRATED, VOLUME 2: THE
`PROTOCOLS (1994)
`
`U.S. Pat. No. 8,018,877 to Lin
`
`U.S. Pat. Pub. No. 2005/0278448 to Mazor (“Mazor”)
`
`Declaration of Harold Ogle Regarding JSR-000120, “Wireless
`Messaging API (WMA) for JavaTM 2 Micro Edition Version
`1.0” with the exhibit JSR 120, “Wireless Messaging API
`(WMA) for Java™ 2 Micro Edition Version 1.0” (“WMA”)
`
`IBM Dictionary of Computing, 10th Ed. (1993)
`
`Newton’s Telecom Dictionary, 11th Ed. (1996)
`
`Declaration of Sandy Ginoza for IETF RFC 2543: SIP: Session
`Initiation Protocol with the exhibit RFC 2543, “SIP: Session
`Initiation Protocol” (“RFC2543”)
`
`Declaration of Sandy Ginoza for IETF RFC 791: Internet
`Protocol with the exhibit RFC 791, “Internet Protocol”
`
`U.S. Pat. Pub. No. 2003/0040300
`
`Declaration of Sandy Ginoza for IETF RFC 2026: The Internet
`Standards Process – Revision 3 with the exhibit, RFC 2026:
`“The Internet Standards Process – Revision 3” (“Internet
`Standards Process”)
`
`U.S. Pat. No. 7,181,231
`
`Declaration of Mr. Craig Bishop regarding ETSI TS 123 040
`V3.5.0, “Universal Mobile Telecommunications System
`(UMTS); Technical Realization of the Short Message Service
`(SMS) (3GPP TS 23.040 version 3.50 Release 1999) with
`appendices A-D
`
`1027
`
`Declaration of Sandy Ginoza for IETF RFC 768: User Datagram
`Protocol with the exhibit, RFC768: User Datagram Protocol
`
`1028
`
`Declaration of Dr. Henry Houh (for Petitioner’s Reply)
`
`
`
`
`
`iii
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`Apple Inc.
`Ex. 1028 - Page 4
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`
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`
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`I, Dr. Henry H. Houh, do hereby declare:
`
`I.
`
`INTRODUCTION
`
`1.
`
`As I discussed in the declaration dated February 22, 2019, that I
`
`provided for the Petition in this proceeding (Ex. 1002), I have been retained as an
`
`expert witness on behalf of petitioner Apple Inc. (“Apple”) for the above-captioned
`
`Petition for Inter Partes Review (“IPR”) of U.S. Patent No. 7,969,925 (“925
`
`patent”). I am being compensated for my time in connection with this IPR at my
`
`standard consulting rate of $620 per hour. My compensation is in no way
`
`dependent on the outcome of this matter.
`
`II. BACKGROUND AND QUALIFICATION
`
`2.
`
`Section II of my prior declaration (Ex. 1002, ¶¶5-23) states my
`
`background and expertise that qualify me as an expert in the technical issues in this
`
`case. There are no relevant updates to that background or expertise.
`
`III. MATERIALS CONSIDERED FOR THIS DECLARATION
`
`3.
`
`In addition to my general knowledge, education, and experience, and
`
`the prior art publications I listed in paragraphs 5 through 23 of Exhibit 1002, I
`
`considered the materials filed in this proceeding and the materials listed in the
`
`Exhibit List above in forming my opinions.
`
`IV. UNDERSTANDING OF THE LAW
`
`4.
`
`Paragraphs 25 through 30 of Exhibit 1002 state the legal principles
`
`that Apple counsel explained to me and on which I rely.
`
`
`
`1
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`Apple Inc.
`Ex. 1028 - Page 5
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`
`
`
`
`V.
`
`SUMMARY OF MY OPINIONS
`
`5.
`
`Based on my review of the materials filed in this proceeding and the
`
`materials listed in the Exhibit List above, I maintain the opinions I expressed in
`
`Exhibit 1002. Further, in this declaration I address the arguments Patent Owner
`
`raised in Patent Owner’s Response to Petition, Paper 9 (“POR”).
`
`6.
`
`Generally, I note that the POR is unsupported by any expert
`
`declaration, and relies on constructions that are contrary to the plain meaning of
`
`the claims as a person of ordinary skill in the art (“POSITA”) would understand
`
`the claims, to what is actually taught in the specification, and even to what is
`
`technically possible.
`
`VI. CLAIM CONSTRUCTION
`
`7.
`
`Patent Owner raises two claim construction issues: (1) the proper
`
`construction of the “opening a listening software port” limitation in independent
`
`claims 1, 8 and 15; and (2) whether the “opening a second listening software port”
`
`limitation in claims 2, 9 and 16 requires that this second port be opened only after
`
`the port in the independent claims. Both of Patent Owner’s constructions are
`
`wrong.
`
`A. The “opening a listening software port” Limitation
`
`8.
`
`The first step in independent claims 1, 8 and 9 recites in its entirety
`
`“opening a software listening port on an initiating mobile device to receive
`
`
`
`2
`
`Apple Inc.
`Ex. 1028 - Page 6
`
`
`
`
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`communications through the data packet-based communications service.” The
`
`POR raises three separate issues with respect to this limitation.
`
`1.
`
`The Limitation Does Not Require That the “listening
`software port” Be Opened Only for a Specific Device
`
`9.
`
`The POR asserts that the “opening a listening software port”
`
`limitation must be construed as requiring that the port be opened for a specific
`
`target mobile device. POR, 7-8. This is an attempt to add the italicized limitations
`
`to what the claims actually recite: “opening a software listening port on an
`
`initiating mobile device to receive communications from only a specific target
`
`mobile device through the data packet-based communications service.” I disagree
`
`with this assertion for at least four reasons.
`
`a.
`
`The Plain Meaning Does Not Support Patent Owner’s
`Erroneous Construction
`
`10. Patent Owner’s construction is contrary to the plain language of the
`
`claims. A POSITA would understand that there is nothing in this limitation
`
`requiring that the software listening port be opened in such a way that it can
`
`receive communications from only a specific target mobile device. I note that
`
`Patent Owner offers no declaration from an expert or any other evidence to the
`
`contrary.
`
`
`
`3
`
`Apple Inc.
`Ex. 1028 - Page 7
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`
`
`
`
`b.
`
`The Specification Does Not Support Patent Owner’s
`Erroneous Construction
`
`11. To support its erroneous construction, Patent Owner cites to only two
`
`disclosures in the specification, each of which identically recites:
`
`Initially, the initiating mobile device opens a TCP port to
`
`listen for communications from the target mobile device
`
`[210/310].
`
`Response, 8 (citing Ex. 1001, 4:38‒40 and 4:58‒62). Patent Owner seems to argue
`
`that those two passages lexicographically define “opening a listening software
`
`port” to require opening the port only for the target device. Id., 8-9. That argument
`
`is nonsense. An equally plausible understanding of the passages relied on by
`
`Patent Owner is that they explain why the listening software port is opened, not the
`
`manner in which it is opened. For example, if one turns on one’s mobile phone to
`
`receive an expected call from a child, that does not mean that the mobile phone is
`
`or must be configured to receive a call from only that child. Indeed, this latter
`
`understanding is compelled when one realizes as explained in further detail below
`
`that configuring the listening software port for only the target mobile device is not
`
`possible under the circumstances and using the TCP/IP connection discussed in
`
`those passages. A POSITA would not understand those passages to clearly set
`
`forth a definition of the disputed claim term that is different from its plain and
`
`ordinary meaning as would be necessary to construe the “opening a listening
`
`
`
`4
`
`Apple Inc.
`Ex. 1028 - Page 8
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`
`
`
`
`software port” limitation as being limited to opening the port for only a specific
`
`target mobile device.
`
`c.
`
`The File History Does Not Support Patent Owner’s
`Erroneous Construction
`
`12. To support its construction, Patent Owner also cites to assertions the
`
`applicant made during the prosecution of an earlier application that the same
`
`“opening a listening software port” limitation requires opening the port for only the
`
`specific target device. See, e.g., Response, 8-9, 12-15. As discussed above, a
`
`POSITA would not understand the claim language to require opening a port for
`
`only the target device. Therefore, a POSITA viewing this statement in the
`
`prosecution history would have recognized that the statement was erroneous. I
`
`have been informed and understand that as between the plain language of the claim
`
`and a clearly erroneous statement, the claim language controls. Thus, a POSITA
`
`would not understand those statements in the prosecution history to compel Patent
`
`Owner’s erroneous construction.
`
`d.
`
`Patent Owner’s Erroneous Construction Is Wrong
`Because It Cannot Be Implemented Using TCP/IP
`
`13. Another fundamental problem with Patent Owner’s construction is
`
`that it is impossible to implement that construction under the conditions discussed
`
`in the 925 patent using a TCP connection, which is the only type of connection
`
`disclosed in the 925 patent used for implementing ports on the claimed data
`
`
`
`5
`
`Apple Inc.
`Ex. 1028 - Page 9
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`
`
`
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`packet-based communications service and which is specifically required by
`
`dependent claims 7, 14 and 20. See, e.g., Fig. 2-3; 1:23-42, 2:21-27, 3:53-4:11,
`
`4:31-5:20.
`
`14. The Petition explains that an OPEN call can be either active or
`
`passive. Petition, 14 (citing Ex. 1010, RFC793). Both types of OPEN calls require
`
`arguments for an IP address of a remote/foreign host and for a port number of a
`
`process running on that remote/foreign host. Id. The combination of an IP address
`
`and port number is known as a socket address, or just a socket. A passive OPEN
`
`call with zeroes for each of the remote/foreign IP address and port arguments
`
`results in entry into the LISTEN state and allows for a connection with any
`
`foreign/remote process. Ex. 1010, 11. Alternatively, if a port is to be restricted to
`
`a particular foreign process, the OPEN call must specify the foreign socket address
`
`(both the IP address of the foreign host and the port number for the process on that
`
`host). Ex. 1010, 11.
`
`15. Thus, if Patent Owner were correct that “opening a listening software
`
`port” requires opening the port only for the target device, the initiating device
`
`would need to know the target device’s socket address (IP address and port
`
`number) in order to specify those arguments in the TCP OPEN call. However, this
`
`is inconsistent with the problem the 925 patent purports to solve, which is that
`
`initiating device does not know the target device’s network (e.g., IP) address or
`
`
`
`6
`
`Apple Inc.
`Ex. 1028 - Page 10
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`
`
`
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`port number. Ex. 1001, 1:42-51; 4:12-19 (“In order to provide direct data transfer
`
`capabilities between mobile devices, an initiating mobile device must have
`
`knowledge of the IP address (and possibly, a port) of the target device in order to
`
`establish a direct data transfer. Current mobile multimedia message solutions, such
`
`as MMS do not provide direct data transfer capabilities because the initiating
`
`mobile device is not able to obtain the receiving mobile device’s IP address.”)
`
`Therefore, in the embodiments described in the specification and specifically
`
`required in dependent claims 7, 14 and 20, Patent Owner’s construction is simply
`
`not possible. Indeed, if the initiating device already knew the information
`
`necessary to perform a TCP active OPEN, then the initiating device could simply
`
`proceed to the “establishing a data transfer session” step using TCP/IP without
`
`having to first use a page-mode messaging service to perform the “transmitting”
`
`and “receiving” steps as recited in claims 1, 8 and 15 of the 925 patent. Notably,
`
`the POR offers no explanation (let alone evidence) as to how a listening software
`
`port for only a specific target mobile device could be opened without knowledge of
`
`the target mobile device’s IP address and port number. The reason for the lack of
`
`evidence is simple – this is not possible using TCP.
`
`2.
`
`The “listening software port” Only Need Be Opened Once
`
`16.
`
`In addition to arguing that claimed “listening software port” must be
`
`opened only for a specific target mobile device, Patent Owner also argues that “the
`
`
`
`7
`
`Apple Inc.
`Ex. 1028 - Page 11
`
`
`
`
`
`claim language ‘requires opening a listening software port every time that initiating
`
`mobile device desires to establish communications with a particular target mobile
`
`device.’” POR, 8-9 (citing the same prosecution history at Ex. 1004, 316 discussed
`
`above). However, this assertion is clearly erroneous as the words “every time” do
`
`not appear in the “opening a listening software port” limitation, and nothing in the
`
`specification indicates that a listening software port must be opened “every time”
`
`data is to be exchanged. Further, a requirement that a port be open “every time” is
`
`inconsistent with the claims, which recite that a port is open to receive plural
`
`“communications” (claim 1) and plural “invitation messages” (claim 2). Ex. 1001,
`
`5:49-50, 6:2-3; see also identical language for claims 8-9 and 15-16. Therefore, a
`
`POSITA would not understand independent claims 1, 8, and 15 to require opening
`
`a new port for every connection to a target device.
`
`3.
`
`Patent Owner’s Conclusory Attacks on Petitioner’s
`“Associating” Construction Are Both Wrong and Irrelevant
`
`17. Patent Owner attacks Petitioner’s construction of the “opening a
`
`listening software port” limitation by mischaracterizing Petitioner’s construction as
`
`“replac[ing] the word ‘opening’ with ‘associating.’” POR, 6. This is incorrect
`
`because Petitioner’s construction replaces the phrase “opening a listening software
`
`port” with the phrase “associating a port identifier with a process” rather than
`
`simply replace the word “opening” with “associating” as Patent Owner asserts.
`
`Petition, 21-22 and 10-17. Patent Owner further asserts that Petitioner’s
`
`
`
`8
`
`Apple Inc.
`Ex. 1028 - Page 12
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`
`
`
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`construction “fails to give effect to the meaningful and limiting term chosen by the
`
`patentee,” but Patent Owner never identifies any effect that Petitioner’s
`
`construction fails to give the “opening” term. Response, 6. Patent Owner’s
`
`assertion fails and Petitioner’s construction is correct because the construction uses
`
`“associating” in the same way that the claims themselves use “associated” in the
`
`“transmitting” limitations that immediately follow the “opening” limitations. See,
`
`e.g., Ex. 1001, 5:52-57, 6:34-39, 7:19-24 (each reciting, “a network address
`
`associated with the initiating mobile device”) (emphasis added). As explained in
`
`the Petition, the port number associated with a process uniquely identifies that
`
`process on a computer and the IP address associated with the computer uniquely
`
`identifies that computer in the network. Petition, 12-13. Patent Owner’s Response
`
`also demonstrates the flaw in this attack when it uses “associated” in the same way
`
`to describe the 925 patent:
`
`The initiating mobile device may further utilize and
`
`incorporates a unique identification number (e.g.,
`
`telephone number, PIN number, etc.) associated with the
`
`target mobile device into the invitation message to locate
`
`and contact the target mobile device within the wireless
`
`mobile network.
`
`POR, 2 (emphasis added). Patent Owner closes its first attack by complaining that
`
`“Petitioner offers no explanation as to why ‘associating’ is more appropriate here.”
`
`
`
`9
`
`Apple Inc.
`Ex. 1028 - Page 13
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`
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`
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`Response, 6. The Petition explains at length why Petitioner’s construction is
`
`correct under applicable law. Petition, 21-22 and 10-17.
`
`18. Patent Owner’s second attack is a variation of its first attack. Patent
`
`Owner again mischaracterizes Petitioner’s construction as “reduce the ‘opening’
`
`limitations as merely purposed for ‘associating a port identifier with a process …’”
`
`POR, 6-7. Substituting Petitioner’s construction in the limitation illustrates the
`
`mischaracterization:
`
`opening a listening software port [associating a port
`
`identifier with a process] on an initiating mobile device
`
`to receive communications through the data packet-based
`
`communications service
`
`See, e.g., Petition, 21-22 and 10-17. Patent Owner continues its second attack by
`
`asserting that it “is inconsistent with the remainder of the limitation and the
`
`surrounding context.” Response, 6-7. The Board should reject this second attack
`
`because Patent Owner never identifies any “surrounding context” and never
`
`explains how Petitioner’s construction is inconsistent with the remainder of the
`
`limitation or any “surrounding context.” Response, 6-7. The Board should also
`
`reject this attack because (i) as illustrated above, Petitioner’s construction retains
`
`all elements of the remainder of the limitation, and (ii) as explained for the first
`
`attack, Petitioner’s construction is consistent with the remainder of the claims and
`
`correct under applicable law.
`
`
`
`10
`
`Apple Inc.
`Ex. 1028 - Page 14
`
`
`
`
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`19. Patent Owner’s third attack asserts without explanation or evidence
`
`that Petitioner’s construction is incorrect because it does not require opening the
`
`port only for the target device “notwithstanding the explicit claim language to the
`
`contrary.” POR, 7. The Board should reject this attack because there is no
`
`requirement in the claim for the listening software port to be opened for only a
`
`specific target mobile device for the reasons discussed above.
`
`20.
`
`In addition to being wrong, Patent Owner’s arguments concerning
`
`“associating” are irrelevant because the POR fails to identify any reason why
`
`adopting the “associating” part of the construction in the Petition leads to an
`
`erroneous result.
`
`B. No Order Is Required Between the Steps of Claims 1-2; 8-9;
`and 15-16
`
`21. As explained in the Petition, there is nothing in independent claims 1,
`
`8 and 15 or in dependent claims 2, 9 and 16 that requires that the steps in the
`
`independent claims be performed in any particular order with respect to the steps in
`
`the dependent claims. Petition, 20-21. The Petition also explains that nothing in
`
`the specification requires any such temporal relationship. Id., 22. Therefore, a
`
`POSITA would not understand those claims to require the steps in the independent
`
`and dependent claims be performed in any particular order.
`
`22. Patent Owner identifies nothing more than the use of “second” in the
`
`dependent claims to support its construction that an order is required. POR, 10. A
`
`
`
`11
`
`Apple Inc.
`Ex. 1028 - Page 15
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`
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`
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`POSITA would understand that claims 2, 9, and 16 use the word “second” to
`
`modify “software listening port” merely to distinguish the page-mode messaging
`
`service port from the packet-based service port, and would reject Patent Owner’s
`
`construction that “second” imposes a temporal order.
`
`VII. PATENT OWNER’S ATTACKS ON THE SIX GROUNDS OF THE
`PETITION ARE ALL FLAWED
`
`A.
`
`Patent Owner’s First Attack Relies on a Flawed Construction
`
`23. Patent Owner first argues that all six grounds of the Petition are
`
`flawed because they rely on a construction of the “opening a listening software
`
`port” limitation of the independent claims that is not limited to a specific target
`
`mobile device. POR, 11-12. This argument fails because Patent Owner’s
`
`construction is wrong for the reasons discussed above. A POSITA would
`
`understand that the prior art cited in the Petition discloses that the intended purpose
`
`of opening the port is to receive responsive communications or invitations.
`
`Petition, 29-35 (Ground 1), 38-41 (Ground 2), 45-51 (Ground 3), 53-55
`
`(Ground 4), 58-64 (Ground 5), and 65-68 (Ground 6).
`
`B.
`
`Patent Owner’s Second Attack Based on Well-Known Ports Is
`Contrary to the Evidence On Which Patent Owner Relies
`
`24. Patent Owner next makes an argument concerning well-known ports.
`
`POR, 13-15. This argument is flawed for several reasons. First and foremost, each
`
`of the three grounds of the Petition directed to an independent claim relies on a
`
`theory that uses ports not known in advance in addition to a theory that uses well-
`
`
`
`12
`
`Apple Inc.
`Ex. 1028 - Page 16
`
`
`
`
`
`known ports. Petition, 29, 32 (Ground 1), 44, 48 (Ground 3), and 61 (Ground 5).
`
`Thus, even if any of Patent Owner’s arguments concerning well-known ports had
`
`merit (they do not for the reasons discussed below), they would not be sufficient to
`
`overcome any challenge in the Petition.
`
`25. Patent Owner also seems to argue that well-known ports would not be
`
`well-known to a POSITA. POR, 13. This is wrong as well-known ports were
`
`well-known to a POSITA as the applicant admitted in its appeal brief in the 994
`
`Application. See, e.g., Petition, 10-11 (e.g., quoting Ex. 1004, 415: “It is well-
`
`known in the art that any general computer system may open different types of
`
`default or well-known listening software ports for specific purposes.”)
`
`26. Patent Owner next cites Ex. 1010 for the proposition that well-known
`
`sockets are permanently assigned to a particular socket, and then argues that “[a]
`
`port that is permanently assigned and made available a priori to all devices in
`
`general is not one that [sic, is] even available for ‘opening’ as claimed.” POR, 13-
`
`14. To the extent that this argument relies on Patent Owner’s erroneous
`
`construction that requires that the listening software port be opened for a specific
`
`target mobile device, it must be rejected as being based on a flawed construction.
`
`To the extent that this is an argument that a well-known port cannot be opened
`
`because it is available “a priori,” such an argument fails because a POSITA
`
`understands that any TCP port must be opened before it can be used. I note that
`
`
`
`13
`
`Apple Inc.
`Ex. 1028 - Page 17
`
`
`
`
`
`Patent Owner offers no expert testimony to the contrary. Moreover, the passage of
`
`the Appeal Brief discussed in the POR at 14 flatly contradicts this argument
`
`because it states: “Such well-known TCP ports are not opened by default on
`
`mobile devices because mobile devices do not run servers for data packet based
`
`communications services by default.” POR, 14 (citing Ex. 1004, 416) (emphasis
`
`added). The challenged claims all require that the “opening a listening software
`
`port” step be performed “on an initiating mobile device.” Ex. 1001, claims 1, 8,
`
`and 15. Contrary to Patent Owner’s bald assertion that these well-known ports are
`
`available on a mobile device “a priori,” a POSITA would understand that they
`
`must be opened if they are to be used, just like any other port.
`
`C.
`
`Patent Owner’s Additional Attacks Are Also Flawed
`
`27. Patent Owner argues on 15-16 that the claims require that the port be
`
`opened for a specific target mobile device. This argument is flawed because it is
`
`based on a flawed construction as discussed above.
`
`28. Patent Owner then distinguishes between packet-switched networks
`
`and circuit-switched networks, (POR, 16-17), and argues that this distinction
`
`defeats grounds based on the combination of Alos and RFC793 (i.e., Grounds 1
`
`and 2), (POR, 18-19), and grounds based on the combination of Cordenier and
`
`RFC793 (i.e., Grounds 3 and 4), (POR, 19-20). Patent Owner does not contend
`
`that this distinction between packet-switched networks and circuit-switched
`
`
`
`14
`
`Apple Inc.
`Ex. 1028 - Page 18
`
`
`
`
`
`networks has any effect on Grounds 5 or 6 based on the combination of Lee and
`
`RFC793. Thus, even if this argument were sound (it is not), it does not overcome
`
`the Petition’s showing of unpatentability for any claim.
`
`29. Moreover, this argument is clearly flawed. As discussed in the
`
`Petition, Alos discloses that the wireless connections 13, 23 connect the phones 1,
`
`2 to Internet service providers. Petition, 23. Thus, communications over wireless
`
`connections 13, 23 conform to the Internet Protocol, which is indisputably a
`
`packet-switched protocol. The implementation of Internet Protocol (ISO level 3)
`
`over lower level (i.e., ISO level 2) switched telephone network links does not mean
`
`that the IP network is not packet-switched. Thus, Patent Owner’s unsupported
`
`attorney argument is meritless.
`
`30. Patent Owner’s arguments regarding Cordenier are equally flawed.
`
`Patent Owner notes that Cordenier discloses that “responsive to a message from
`
`the first terminal 1, the second terminal logs onto a server 15.” POR, 20 (citing
`
`Ex. 1007 ¶ 16 [7:2-15]). Patent Owner argues that the purpose of the 925 patent,
`
`which is to provide a technique in which “no separate data server need be used to
`
`provide a known location from which a recipient retrieves data such as multimedia
`
`content.” POR, 20 (citing 925 patent, 1:54-67). However, server 15 in
`
`Cordenier’s is a server that provides a temporary IP address for communications
`
`over GPRS, not a “separate data server” for multimedia content. Ex. 1007, Fig. 6,
`
`
`
`15
`
`Apple Inc.
`Ex. 1028 - Page 19
`
`
`
`
`
`1:28-2:25, 7:9-14; see also, Ex. 1001, Fig. 1, 3:53-4:11 (describing GPRS). Thus,
`
`this argument fails.
`
`VIII. THE PETITION ESTABLISHES THE OBVIOUSNESS OF EVERY
`DEPENDENT CLAIM
`
`31. The POR’s only arguments for the dependent claims are based on (1)
`
`its arguments for the independent claims, and (2) its claim construction argument
`
`that the “opening a second listening software port” limitation in dependent claims
`
`2, 9 and 16 requires that this step be performed only after the port recited in the
`
`independent claims has been opened. POR, 21. Both of these arguments are
`
`wrong for the reasons discussed above.
`
`IX. CONCLUSION
`
`32.
`
`I may utilize the documents cited and/or listed herein, or portions of
`
`those documents, as exhibits at any hearing or trial in this proceeding. I may
`
`further prepare and use exhibits that summarize portions of my testimony or key
`
`terms or concepts presented therein, or other demonstrative exhibits, at any hearing
`
`or trial in this proceeding.
`
`33.
`
`I reserve the right to supplement my testimony and this report in
`
`response to any judicial determinations, in response to the arguments expressed by
`
`Uniloc or the opinions of Uniloc’s experts in this proceeding, and/or in light of
`
`additional evidence or testimony brought forth at trial or otherwise brought to my
`
`attention after the date of my signature below.
`
`
`
`16
`
`Apple Inc.
`Ex. 1028 - Page 20
`
`
`
`34.
`
`I hereby declare under penalty of perjury under the laws of the United
`
`States of America that the foregoing is true and correct, and that all statements
`
`made of my own knowledge are true and that all statements made on information
`
`and belief are believed to be true.
`
`I understand that willful false statements are
`
`punishable by fine or imprisonment or both. See 18 U.S.C. § 1004.
`
`
`
`Dr. Henry Houh
`January 29, 2020
`
`17
`
`Apple Inc.
`
`Ex. 1028 - Page 21
`
`Apple Inc.
`Ex. 1028 - Page 21
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`
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