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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
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`NETFLIX, INC.,
`Petitioner,
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`v.
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`UNILOC 2017 LLC,
`Patent Owner.
`________________
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`IPR2020-00041
`Patent 8,407,609 B2
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`Record of Oral Hearing
`Held Virtually: Thursday, December 3, 2020
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`Before CHARLES J. BOUDREAU, DANIEL J. GALLIGAN, and
`JULIET MITCHELL DIRBA, Administrative Patent Judges.
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
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`NETFLIX, INC.,
`Petitioner,
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`v.
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`UNILOC 2017 LLC,
`Patent Owner.
`________________
`
`IPR2020-00041
`Patent 8,407,609 B2
`________________
`
`Record of Oral Hearing
`Held Virtually: Thursday, December 3, 2020
`________________
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`
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`Before CHARLES J. BOUDREAU, DANIEL J. GALLIGAN, and
`JULIET MITCHELL DIRBA, Administrative Patent Judges.
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`IPR2020-00041
`Patent 8,407,609 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`PATRICK J. MCKEEVER, ESQUIRE
`BABAK TEHRANCHI, ESQUIRE
`PERKINS COIE LLP
`11452 El Camino Real
`Suite 300
`San Diego, California 92130-2080
`(858) 720-5700
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`
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`ON BEHALF OF THE PATENT OWNER:
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`BRIAN KOIDE, ESQUIRE
`ETHERIDGE LAW GROUP
`2600 East Southlake Boulevard
`Suite 120-324
`Southlake, Texas 76092-6634
`(817) 470-7249
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`The above-entitled matter came on for hearing on Tuesday, December 3,
`2020, commencing at 3:00 p.m. EST, by video/by telephone.
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`P R O C E E D I N G S
` JUDGE DIRBA: Good afternoon. This is the oral
`hearing for IPR2020-00041 relating to U.S. patent number
`8,407,609. I'm Judge Dirba, and I'm joined by Judges Boudreau and
`Galligan today. We'll begin with the parties' appearances. Who
`do we have for Petitioner?
` MR. McKEEVER: Good afternoon, Your Honors. Patrick
`McKeever for Petitioner, Netflix, and with me in the room but
`not arguing is my co-counsel Babak Tehranchi.
` JUDGE DIRBA: Thank you, Mr. McKeever. And for Patent
`Owner?
` MR. KOIDE: Good afternoon, Your Honors. This is
`Brian Koide of the Etheridge Law Group for Patent Owner Uniloc
`2017. And with me on the -- again, as I mentioned on the other
`hearing, I believe on the telephonic line may be Uniloc's
`general counsel, Steve Peterson.
` JUDGE DIRBA: Thank you, Mr. Koide. Is there anyone
`else on the line who would like to enter an appearance?
` Okay. Please be aware that we received a request for
`a public telephone line. As you all mentioned, there is a
`telephone line active. So members of the public may be
`listening to this hearing today. Neither party objected to
`making the hearing publicly available, and the information of
`record in this proceeding doesn't include any confidential
`information.
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` There are a few things we'd like to address before
`we get started today.
` First, thank you all for your flexibility in
`participating in this hearing by videoconference. Our first
`priority is to ensure your right to be heard. So if at any time
`you have a technical problem that you feel is undermining your
`ability to adequately represent your client, please let us know
`right away so that we can promptly address the problem. If you
`are unable to speak with any of the judges, contact the team who
`provided you with the connection information. We will pause the
`action if a video participant or the court reporter loses their
`audio or video connection. If that happens to you, please make
`a note of what was being discussed at the time that you lost
`your connection so that we can figure out where to pick up.
` Also, to improve the audio quality during the hearing
`today, please mute your mike and only unmute when speaking.
`Also, please identify yourself when you speak so that the
`transcript accurately reflects the speaker. Per the hearing
`order, each side will have 30 minutes of total argument time for
`this proceeding.
` Petitioner has the ultimate burden of establishing
`unpatentability; therefore, Petitioner will open by presenting
`its case as presented in its Petition regarding the alleged
`unpatentability of the challenged claims. Petitioner may
`reserve rebuttal time no more than half of its total argument
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`time. Thereafter, Patent Owner will respond to Petitioner's
`arguments. Patent Owner may likewise reserve surrebuttal time
`of no more than half of its total argument time to respond to
`Petitioner's rebuttal, if any.
` All arguments presented today must have been
`previously presented in your briefs. No new arguments are
`allowed. Otherwise, the parties may use their allotted time to
`discuss the case however they choose. We ask that you make it
`clear which challenges and which claims you're addressing so
`that the transcript is clear and so the judges can follow along.
` We will not take objections during a party's argument.
`Please hold your objections and present them at your next turn
`to speak. I will maintain a clock and inform the parties when
`they have approximately five minutes left in their presentation.
` Are there any issues or questions that either party
`would like to raise before we begin? I'll begin with
`Mr. McKeever?
` MR. McKEEVER: No questions at this time, Your Honor.
` JUDGE DIRBA: And Mr. Koide?
` MR. KOIDE: No questions, Your Honor.
` JUDGE DIRBA: Excellent. Mr. McKeever, how long would
`you like to reserve for your rebuttal?
` MR. McKEEVER: I would like to reserve 10 minutes,
`please, Your Honor.
` JUDGE DIRBA: Okay. You may begin when you're ready.
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` MR. McKEEVER: Thank you, Your Honor. Good afternoon,
`Your Honors. I'm Patrick McKeever arguing on behalf of
`Petitioner, Netflix, in the IPR2020-00041case. Netflix has
`advanced two grounds in this case, and there were only a couple
`of -- one to two disputed limitations for each ground. At the
`outset, I do want to make the point that in this case it is also
`true that while Patent Owner disputes a couple of these
`limitations, they have not introduced any expert testimony in
`support of their positions, so Patent Owner is really relying on
`attorney argument, and that's all. On the other hand,
`Petitioner's arguments are well supported by expert declaration
`testimony of Professor Michael Franz, who's a distinguished
`computer science professor at UC Irvine. With that I will jump
`right into the first ground, which is Davis and Choi, and I'm
`referring to slide seven of our demonstratives.
` For Davis and Choi there's only one disputed
`limitation. It's the receiving limitation that's highlighted on
`slide seven. And so that limitation recites receiving at least
`a portion of the identifier data from the user's computer
`responsively to the timer applet each time a predetermined
`temporal period elapses using the first computer system.
` And Uniloc sort of disputes two different aspects of
`this claim limitation. The first is really the timer applet
`itself. But if you turn forward to slide eight, there really
`can be no dispute that Davis and Choi disclosed the timer applet
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`that is claimed. Davis discloses a tracking program. It can
`track a variety of things, but as we have here on slide eight,
`the left quote from column nine, it talks in the simplest form
`the tracking program is basically a timing program. It times
`how long the user interacts with a web page for a given resource
`on a web page.
` And so Davis discloses, you know, a timer, and Davis
`further discloses in column ten, and we have this on slide eight
`as well, that the tracking program can be implemented as a
`downloadable Java applet. Now, the only issue with Davis's
`timer applet is it's not periodic by itself as disclosed in
`Davis. But this was addressed in the Petition and Professor
`Franz addressed this in his opening declaration. It was well
`known in the art that there were alternative ways of
`implementing timers in client server applications, and another
`well known approach was a periodic timer approach. That
`approach was often described as a heartbeat approach where a
`client sends periodic messages to a server that provide
`information and sort of signal to the server that the client is
`still there.
` And so if you flip forward to slide 11, the secondary
`reference in the first ground, the Choi reference, describes
`exactly that. Choi provides an example of a periodic timer.
`This is in the context of, you know, a client-side functionality
`that is reporting back to a server while content is being
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`streamed to the client.
` And in paragraph 47, which we have excerpted on slide
`11, Choi states that the client 110 periodically transmits state
`data, e.g., logging statistics, to the server 108 for storage.
`So you have Davis explicitly disclosing a timer applet
`implemented with Java, and then you have Choi providing a
`teaching that timers can be periodic in the same context as
`Davis.
` And so as Professor Franz explained and how these are
`put together and would be combined, you put them together and
`you have your periodic timer applet. Now, these references also
`disclose the aspect of the receiving limitation, which requires
`the -- that a portion of the identifier data be received from
`the user's computer each time the timer period elapses.
` And if you flip back to the slide nine -- sorry for
`all the jumping around -- slide nine is an excerpt from Davis --
`we talked about this in our Petition -- Davis talks about the
`server stores client-identifying indicia. Part of that is a
`client ID, which is a cookie. Davis describes it as a cookie.
`You can see that on slide nine in the quote there as well.
` Now, Davis is explicit that the client ID is
`transmitted and stored. So if you look, slide nine, that
`excerpt is talking about what's being stored. If you go to
`slide ten, we have a couple of excerpts there that describe what
`is transmitted between the client and the server. And amongst
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`other things, Davis says that the client ID or cookie is
`transmitted, and specifically that it is transmitted as part of
`the HTTP request header.
` So again, you have Davis describing the timer applet
`explicitly, you have Davis describing that what the timer applet
`transmits includes a client ID, which is the portion of the
`identifier data, and then you again have Choi providing the
`motivation for making this transmission periodic as opposed to
`only when the user leaves the page.
` Now, Uniloc makes two primary arguments to attack the
`way that Petitioner has combined these references. One is -- if
`you flip to slide 12, one of the arguments they make is based on
`a statement in Choi in paragraph 97, which we have excerpted on
`slide 12, and it's a statement in Choi that indicates that
`certain statistical parameters that remain constant throughout
`the streaming session are only set once at the beginning of the
`session.
` And so Uniloc in effect argues that, well, if you
`combine these references you wouldn't send the client ID over
`and over again because the client ID doesn't change during the
`streaming session, and therefore that's a piece of information
`that would only be sent once. Now, that argument just doesn't
`withstand scrutiny for a number of reasons. First of all,
`there's no reason that a person of skill in the art would
`consider the client ID to be a statistical parameter. It's an
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`identifier. In both Davis and in Choi, you transmit identifiers
`that allow you to tie the logging data or the tracking data back
`to the particular user that was viewing the content and a
`particular resource that is being tracked.
` And so both references, Davis and Choi, describe
`sending the identifier. There's nothing in Choi that indicates
`that an identifier like the client ID in Davis would be a
`statistical parameter. And if you flip back to slide 11, which
`we looked at earlier, this is paragraph 47 from Choi. You know,
`Choi is explicit itself in saying that the identifier are sent
`as part of the state data that's transmitted periodically. So
`Choi says a session identifier and a stream identifier are
`transmitted every time.
` Now, when Choi gets into Appendix C and makes this
`point about statistical parameters that change or don't change,
`it never treats these identifiers, a session identifier or
`stream identifier as a statistical parameter. They're not,
`they're an identifier. And they're not listed, for instance, in
`the table in Appendix C that lists exemplary statistical
`parameters. And it's also -- and Professor Franz discussed this
`both in his initial declaration and more expressly in responding
`to Uniloc's argument in his supplemental declaration, you need
`the identifiers. The identifiers is what allows you to tie the
`tracking data back to a particular user back to the relevant
`resource that was being -- that was being tracked.
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` And so a person of skill in the art would understand
`that the -- that it would be obvious to transmit the identifiers
`every time, which is consistent again with both Davis and Choi's
`expressed disclosures. And you wouldn't want to leave that data
`out simply because you might leave out other data that doesn't
`change, like the client's operating system or something of that
`nature.
` So that's kind of the first main argument they make in
`attacking the way that those references are combined. The other
`point that they make relates also to Appendix C of Choi. And we
`have -- on slide 13 we have an excerpt that shows a portion of
`the table that's in Appendix C. And they make an argument
`based on a field that they plucked out of this table, the fourth
`field in the list, which is the C-DNS field.
` And they make an argument that, well, if you combine
`Choi with Davis, you would look at this description here and you
`would know that you shouldn't send a client identifier because
`it's -- it would violate privacy concerns. There's something
`here about blanking this field out for privacy reasons. You
`know, this is a total red herring.
` Petitioner never relied on this C-DNS field for
`anything. Our identifier that we identified in the Petition was
`the client ID from -- again, from the Davis reference. As
`proposed, the combination was that that data would be sent
`periodically as taught by Choi, but we never identified this
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`C-DNS field as an identifier or as a portion of the identifier
`data. And again, it sort of blends in with the point I was just
`making. A person of skill in the art would understand that the
`identifiers need to be sent. And the -- you know, Choi
`explicitly, as we saw on the earlier slide, Choi itself says the
`identifiers are sent every time. That included a session
`identifier and the stream identifier. And so the way we
`proposed combining Davis and Choi is entirely consistent with
`both of the references.
` Choi doesn't say that the session identifier doesn't
`get sent every time, Choi doesn't say the stream identifier
`doesn't get sent every time. So with that, unless the board has
`any questions right now, I will turn to the second ground, which
`is --
` JUDGE DIRBA: I have a question that applies, I
`suppose, potentially to both grounds. Does -- do we need to
`construe the term identifier data?
` MR. McKEEVER: No. Our position is that we do not
`need to construe the term identifier data. We did not propose a
`construction of identifier data. Uniloc in its Patent Owner
`Response I believe referenced a construction that was adopted in
`the Google case in the Eastern District of Texas. We addressed
`that in our Reply brief. We think the construction is clearly
`wrong.
` The record shows that it was adopted by the district
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`court basically as a compromise between very similar
`constructions that were proposed by the parties in that case.
`I'm happy to talk about why we think the construction is wrong,
`but it's inconsistent with the sole and preferred embodiment in
`the 609 specification would be sort of the primary reason.
` But there's really no basis for construing the term
`identifier data as anything other than, you know, data that's an
`identifier. It's just -- it would just be the ordinary meaning
`is our position, Your Honor.
` JUDGE DIRBA: Is it Petitioner's position that any of
`the terms in this Petition need to be construed? I know that we
`have some district court constructions that have been introduced
`as exhibits. Do any of those constructions affect this
`proceeding?
` MR. McKEEVER: We don't think so in terms of the way
`the proceeding has played out. I know listening in the earlier
`hearing, there was a lot of discussion about the computer system
`construction, and I think -- I don't know that we have a whole
`lot to add to that discussion, but our position on that is the
`construction that was proposed on computer system, if the board
`goes with ordinary meaning that's a broader construction than
`what was proposed, at best. It would be a broader construction
`than what was proposed.
` So we addressed the proposed construction even if you
`credit Uniloc's argument that it means what they say it does,
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`that it would require separateness or a separate entity control
`and operate the two computer systems, we addressed those
`requirements in our Petition, we show that they're met, and I'd
`be happy to address that if the Board has any questions about
`it.
` But if you go with ordinary meaning, it's just
`distinct, as was discussed earlier. And I don't think there's
`any reason or any basis for construing distinct in a way that
`would -- you know, that would exclude any of the prior art that
`was put forth in this proceeding. So certainly not computer
`system, and it seems like there aren't really any significant
`arguments tied to the construction of any other terms is our
`Petition.
` JUDGE BOUDREAU: Mr. McKeever, I think you just said
`we should construe -- if we're going to construe identifier
`data, that it just should be construed to be data that
`identifies something. Do we need to answer the question of what
`it needs to identify?
` MR. McKEEVER: I mean, I don't think you do. I mean,
`the claim just says identifier data. There's nothing -- there's
`no explicit definition in the specification for what that would
`be. It's a broad phrase. A person of skill in the art I think
`hearing the phrase identifier data would understand that it's
`data that is an identifier of something. The claims do not
`prescribe nor does the specification prescribe what needs to be
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`identified. And I think if you look at the preferred
`embodiment --
` JUDGE DIRBA: Counsel, I want to interrupt real quick
`and let you know you have four minutes left in your opening
`presentation.
` MR. McKEEVER: Sure. I'm trying to recall whether I
`have this on the slide. I don't think that I do. In the
`preferred embodiment in the 609 patent, if you look at column
`13, you know, the preferred embodiment uses a cookie is
`essentially what it says. It says the server can provide a
`client with a cookie, and the client responds back by providing
`the cookie or some data associated with the cookie.
` The 609 patent never tells us what's in the cookie, so
`is it an identifier? Is it a unique identifier generated by the
`server? Could it be something like that? Is it an actual
`identifier of the client? The patent never says. So if the
`preferred embodiment never even tells us what needs to be
`identified, I don't know how there can be a basis for requiring
`the term identifier in the claims to identify something specific
`that's not flagged in the specification.
` JUDGE BOUDREAU: What's actually being identified in
`the session identifier and the stream identifier of Choi?
` MR. McKEEVER: So in our combination we relied
`primarily on the client ID, the client identifier from Davis as
`the portion of the identifier data. And so what Davis says is
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`that it's an identifier that's generated by the server and
`provided to the client. There's a discussion in Davis that says
`basically the client sends the cookie, but if the server -- if
`the client doesn't have one, the server generates the cookie and
`provides it to the client, and then the client provides it
`thereafter.
` So Davis kinds of describes it as basically a unique
`identifier for the client. When you get to Choi, there are two,
`as you just mentioned, the session identifier of Choi tells
`us -- I think this is in paragraph 45 of Choi -- the session
`identifier basically identifies the combination of a particular
`server and client together, or at least it's associated with
`that relationship. And the stream identifier basically
`identifies the particular media stream.
` So that would identify, you know, the video that the
`user was streaming or presumably if there were multiple versions
`of the same video the user was streaming, it would identify
`which one the user was actually streaming.
` JUDGE BOUDREAU: So would you argue then that, even
`under that district court construction that you say we
`shouldn't adopt -- that even under that construction, the asserted
`prior art still meets the requirements of that construction?
` MR. McKEEVER: Yes, Your Honor, that would be our
`position. And we address that in our Reply paper for both
`grounds. I'm happy to go into that further if you would like me
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`to, but our position certainly is that yes, it would be
`satisfied even under that construction. But our primary
`argument is that construction is wrong is our position and
`should not be adopted. With that, I --
` JUDGE BOUDREAU: Thank you.
` MR. McKEEVER: Thank you, Your Honor. I'll briefly
`touch on the second ground. I'm probably eating in my rebuttal
`time, but that's okay.
` JUDGE DIRBA: You're at 19 and a half minutes.
` MR. McKEEVER: Thank you, Your Honor. So if you can
`flip to slide 15 if you want to follow along, the Siler and
`Davis combination is the second ground. And two limitations are
`disputed there. The first is the same receiving limitation we
`just talked about in connection with the first ground. The
`second is the first wherein clause, which is the one that gets
`into the whole independence streaming and the distinct computer
`systems.
` So briefly on the first one, their argument again on
`the receiving limitation is mostly about the timer applet
`functionality. And again, this is clearly disclosed. If you
`look at slide 16, Siler describes a periodic timer, it's
`described in paragraph 28, it's depicted in Figure 3, which we
`excerpted there. So this is part of player application 122, has
`this functionality.
` Now, time -- Siler does not explicitly refer to this
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`timer as an applet, that's certainly true, but it comes really
`close. In paragraph 32, which we have on slide 17, Siler
`discloses the alternative that the player application 122, which
`if you recall, the player application includes the timer
`functionality as it was described, that that can be implemented
`as a web page with active components. And Professor Franz
`explained in his declaration that a person of skill in the art
`would understand in the time period prior to the invention here
`a web page with active components would be implemented using
`either an applet or a script like Java script. I think Java and
`Java script were both referenced even in the standard for the
`level of ordinary skill in the art that the Board seemed to
`agree with, and I don't believe the Uniloc has challenged in any
`way.
` So certainly a person of skill in the art would have
`been familiar with Java script and Java applets, but then -- so
`then we also have our secondary reference for this ground, which
`is Davis, the same reference we talked about earlier. And
`really for this ground we're just relying on Davis because it's
`an example of putting this timer functionality into a Java
`applet.
` So we think that modification of the primary preferred
`embodiment from Siler is explicitly suggested by Siler in
`paragraph 22, but it would have been familiar to a person of
`skill in the art anyway, but certainly with that explicit
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`suggestion, they're going to know that you can implement that
`with an applet, just as described in the Davis reference. So,
`again, you put those together you have your periodic timer
`applet.
` Briefly on that last limitation, the wherein clause
`that was disputed, if you look at paragraph 20 -- sorry, slide
`23 of Petitioner's demonstratives, we have the annotated
`Figure 1 from Siler. I don't think there really can be any
`question that Siler discloses distinct computer systems as shown
`in the figure. You've got two web servers, which we treated as
`the first computer system annotated in green, you got a separate
`streaming server 105, which is the second computer system.
` Professor Franz explained in his opening declaration
`and again in the rebuttal declaration that there's just no
`technical impediment, even if the claim required it to having
`the streaming server being operated by another party. The 609
`patent doesn't indicate that there would be any technical
`challenges to doing that. There's no wizardry in the
`specification of the 609 patent that tells you how to do that.
`It's as simple as providing a URL that points to the other
`server.
` And so with that, unless the panel has any further
`questions, I'll reserve any remaining time I have for rebuttal.
` JUDGE DIRBA: Thank you. And you'll have just over
`seven minutes of -- actually, just under seven minutes of
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`rebuttal time.
` MR. McKEEVER: Thank you, Your Honors.
` JUDGE DIRBA: All right. Mr. Koide, how long would
`you like to reserve for your rebuttal?
` MR. KOIDE: I'd like to reserve ten minutes, Your
`Honor.
` JUDGE DIRBA: Okay. All right. You may begin when
`you're ready.
` MR. KOIDE: Thank you. Good afternoon. I'd like to
`start with the point that Petitioner's counsel started with
`about the fact that we have not submitted an expert declaration
`to counter theirs. This is something we heard frequently, it's
`just not a valid point. The Board is trained or -- definitely
`in the field of this art, they're not lay judges, so they're
`qualified to interpret the reference. And we feel -- it's
`probably no surprise to the court that we could have come up
`with an expert that said in many or all instances, the exact
`opposite conclusion that Petitioner's expert said. And then
`Your Honors would be then left with a record and having to then
`look at the references and interpret them. It's -- to me it's
`just not a valid argument, especially given that some of the
`conclusory nature of Dr. Franz's statement, particularly in his
`supplemental declaration where he just makes, like, bald
`statements without really providing any context.
` And let me link up to that an issue that Petitioner's
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`counsel did not address, and that is the improper nature of that
`supplemental declaration. Let me turn to slide seven. And
`that's the Hulu case. To me it's particularly egregious that
`they submitted a supplemental declaration because, as they
`pointed out, it's not like we came in with an expert saying, you
`know, I have a totally different opinion. Everything that we
`raise within the primary -- was in the references themselves,
`and they could've read it and they could've anticipated it.
` But they came in like a whole new path, as we noted,
`there are kind of two issues they raise, this naturally
`occurring, they note that on the Franz supplemental paragraph 8,
`Choi identifier information would be naturally required in each
`message, and therefore that information could somehow be sent.
`That was their theory from the beginning, they should have
`included it, and we note why they should have.
` If we go to slide six, just get into the -- it kind of
`overlaps on the merit. Choi teaches kind of a bifurcated
`nonoverlapping set of parameters. There's a nonconstant
`dynamically changing parameters you send regularly, and the
`constant ones, sent only once at the beginning of the session.
`It doesn't have any middle ground. And given this clear
`teaching, Netflix should've included that in the Petition.
` Cookies. They expand upon cookies. This is something
`they mention in their brief, so they could of -- their Petition,
`they could've expanded upon it, but they talk about the
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`long-standing practice of using cookies. I don't even know how
`to deal with this, Your Honor. I mean, they're introducing
`another patent, they refer to an archive.org website that's not
`even referenced, that's not even in the record, and the Netscape
`patent is on the record. So I don't know what to say to it
`other than it's just further indication that it's improper.
` JUDGE DIRBA: Counsel, let me ask you a question about
`that. Not actually about the cookie paragraph, but about other
`paragraphs that are in Dr. Franz's supplemental declaration, so
`paragraphs, for example, six and seven, that begin with a
`summarization of arguments that Uniloc made, and then at least
`testify that -- paragraph seven begins, this passage does not
`indicate what Uniloc suggests. Are you contending that those
`paragraphs are also improper?
` MR. KOIDE: Well, Your Honor, if you look at the
`consolidated practice guide, it talks about if there's something
`objectionable in a reply or supporting a reply affidavit, the
`whole thing should be struck. It's not something where the
`Board -- it talks about the Board is not required to attempt to
`sort proper from improper. So if there's something improper,
`then the whole supplemental declaration sho
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