Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 1 of 7
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`Exhibit 30
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 2 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 1 of 21
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ANCORA TECHNOLOGIES, INC.,
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`APPLE INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`AND RELATED COUNTER-CLAIM
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`Case No.: 11-CV-06357 YGR
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`CLAIM CONSTRUCTION ORDER
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`Ancora Technologies, Inc. (“Ancora”) alleges that devices that run Apple Inc.’s (“Apple”)
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`iOS operating system infringe on U.S. Patent No. 6,411,941 (the “ ’941 Patent”). Apple has
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`counterclaimed for declaratory judgments of non-infringement and invalidity.
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`The parties have requested the Court construe seven claim terms/phrases from the ’941
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`Patent: (1) “volatile memory”; (2) “non-volatile memory”; (3) “BIOS”; (4) “program”; (5) “license
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`record”; (6) “verifying the program using at least the verification structure”; and (7) whether the
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`steps in the asserted claims must be performed in a specific order. On June 29, 2012, the parties
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`provided a technology tutorial and on July 11, 2012, the Court held a claim construction hearing.
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`Based upon the papers submitted, the argument of counsel, for the reasons set forth below,
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`Northern District of California
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`United States District Court
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`the Court provides the following claim construction.
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`I.
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`BACKGROUND
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`The patent in suit relates to software anti-piracy technology. At issue here is technology
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`directed at preventing computer users from copying software and then running that software without
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`a license. Ancora is the owner of the ’941 Patent, which claims a method of restricting software
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 3 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 8 of 21
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`B.
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`THIRD DISPUTED CLAIM TERM/ PHRASE – “BIOS” (CLAIMS 1-3, 5-17)
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`No party disputes that “BIOS” is an acronym for Basic Input/Output System. Rather, the
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`parties dispute whether the term “BIOS” applies to all computers or only to IBM PC-compatible
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`computers, as Apple proposes.5 The parties’ proposed constructions are shown below:
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`APPLE’S PROPOSED
`CONSTRUCTION
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`ANCORA’S PROPOSED
`CONSTRUCTION
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`software routines on IBM PC
`compatible computers that handle
`startup operations and support the
`transfer of data among peripheral
`devices
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`software routines that handle
`startup operations
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`The claims of the ’941 Patent refers to the “non-volatile memory area of the BIOS” of a
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`computer fourteen times (and refers to the “non-volatile memory area of a BIOS” once). Neither the
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`claim nor the specification defines “BIOS.” In the prosecution history the Patent Examiner gave the
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`following definition of BIOS based upon “The Microsoft Computer Dictionary, 5th Edition, 2002”:
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`the set of essential software routines that test hardware at startup, start the operating
`system, and support the transfer of data among hardware devices.
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`The Patent Examiner further commented:
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`This definition is consistent with the specification of the ’941 patent. Since a BIOS is
`therefore defined by the functional descriptive material contained within it, one skilled
`in the art would consider any non-functional descriptive material, such as tables, to be
`part of the BIOS only if it is made and used by the functions of the BIOS itself. This
`does not preclude such material being also used or modified by programs located
`outside of the BIOS, such as applications running in an operative system. The fact that
`a program or tables resides in non-volatile memory does not necessarily mean that it is
`part of the BIOS. It is therefore the case that a reasonable examiner would only
`consider a table to be in a BIOS if it were, at a minimum, created by a function
`residing in the BIOS.
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`(Rondini Dec. ¶ 4, Ex. 3, Order Granting Request for Reexamination, at 8-9, ANCA 2568-69.)
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`5 Apple also seeks to limit the scope of the definition so that BIOS handles transfer of data among “peripheral”
`devices. Ancora argues that the Claim does not mention “peripheral” devices and that the Examiner used the
`broader “hardware” language not the narrower term “peripheral.” In a footnote, Apple states that its
`construction is consistent with the definitions in the technical dictionaries, but Apple’s proposed construction
`is consistent with only one of the five the technical dictionaries quoted in Apple’s Markman Brief. Apple has
`not otherwise explained why it believes that BIOS should be construed to interact with peripheral devices
`only. The Court has not found any basis to support this interpretation.
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 4 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 9 of 21
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`Apple points out that the definition supplied by the Patent Examiner is incomplete, referring
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`again to the Microsoft dictionary:
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`BIOS n. Acronym for basic input/output system. On PC-compatible computers, the
`set of essential software routines that tests hardware at startup, starts the operating
`system, and supports the transfer of data among hardware devices, including the date
`and time. The operating system date is initialized from the BIOS or Real Time Clock
`date when the machine is booted. Many older PCs, particularly those dating before
`1997, have BIOSs that store only 2-digit years and thus may have suffered from Year
`2000 problems. The BIOS is stored in read-only memory (ROM) so that it can be
`executed when the computer is turned on. Although critical to performance, the BIOS
`is usually invisible to computer users.
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`(Id. Ex. I (Microsoft Press Computer User’s Dictionary (5th ed. 2002)).)6
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`6 In addition to the dictionary definition used by the Patent Examiner, Apple offers four other dictionary
`definitions of the term BIOS:
`BIOS n. Acronym for basic input/output system. On PC-compatible computers, the set of
`essential software routines that test hardware at startup, start the operating system, and support
`the transfer of data among hardware devices. The BIOS is stored in ROM so that it can be
`executed when the computer is turned on. Although critical to performance, the BIOS is
`usually invisible to computer users.
`(Rahebi Dec., Ex. K (Microsoft Press Computer User’s Dictionary (3d ed. 1998)).)
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`A set of programs encoded in read-only memory (ROM) on IBM PC-compatible computers.
`These programs handle startup operations such as the power-on self-test (POST) and low-level
`control for hardware, such as disk drives, keyboards, and monitor. The BIOS programs of
`IBM personal computers are copyrighted, so manufacturers of IBM PC-compatible computers
`must create BIOSs that emulate the IBM BIOS or buy an emulation from companies, such as
`Phoenix Technologies and American Megatrends, Inc. ….
`(Id. Ex. F (Webster’s New World Dictionary of Computer Terms (6th ed. 1997)); id. Ex. G (Que’s Computer
`& Internet Dictionary (6th ed. 1995)).)
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`[A] set of procedures stored on a ROM chip inside IBM PC compatible computers. These
`routines handle all input-output functions, including screen graphics, so that programs do not
`have to manipulate the hardware directly ….
`(Id. Ex. H (Barron’s Dictionary of Computer and Internet Terms (5th ed. 1996)).)
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`On PC-compatible computers, the set of essential software routines that test hardware at
`startup, start the operating system, and support the transfer of data among hardware devices.
`The BIOS is stored in read-only memory (ROM) so that it can be executed when the computer
`is turned on. Although critical to performance, the BIOS is usually invisible to computer users.
`(Id. Ex. E (Microsoft Press Computer Dictionary (3d ed. 1997)).)
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`The part of the system software of the IBM PC and compatibles that provides the lowest level
`interface to peripheral devices and controls the first stage of the bootstrap process, including
`installing the operating system. The BIOS is stored in ROM, or equivalent, in every PC. Its
`main task is to load and execute the operating system which is usually stored on the computer’s
`hard disk, but may be loaded from CD-ROM or floppy disk at install time.
`(Id. Ex. J (Free On-Line Dictionary of Computing (June 6, 1999)).)
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 5 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 10 of 21
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`Apple proposes that BIOS be construed to operate only on IBM PC-compatible computers.
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`According to Apple, the plain and ordinary meaning of the term “BIOS” at the time of the invention,
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`as demonstrated by dictionary definitions is that BIOS is specific to the IBM PC-compatible
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`computer platform.
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`Ancora urges the Court to avoid using a dictionary to construe BIOS by arguing that the
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`Federal Circuit in Phillips stated that using a dictionary to alter the claim term violates the public
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`notice function of the patent. The problem identified in Phillips is that a dictionary definition
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`oftentimes will be overly broad and when taken out of the context of the patent at issue can lead to
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`an “unduly expansive” construction of the claim term. 415 F.3d at 1321. The opposite problem is
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`presented here. Apple is resorting to the dictionary definition to narrow the construction of the term
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`because it believes that the Patent Examiner gave BIOS an unduly expansive construction.
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`Ancora argues that the Examiner defined BIOS broadly, not limited to IBM PC-compatible
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`computers, and that the claim itself is not limited to a brand of computer but the “BIOS of a
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`computer.”7 Ancora argues that virtually all computers have BIOS, including the accused devices
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`(iPhone, Apple laptops and Apple desktops).8
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`As set forth above, “BIOS” stands for Basic Input/Output System; it is software code. No
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`one disputes that a person of ordinary skill in the art reading the Claim in the context of the
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`specification and prosecution history would understand the “BIOS” to be the location in the
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`computer where the software code was stored. The inventive aspect of the ’941 Patent was to write
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`information onto unused memory in the BIOS area of the computer. The limiting aspect of the
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`invention is to store information in the BIOS, not the type of computer that runs BIOS. The
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`technical dictionaries that Apple has offered into evidence do not convince the Court otherwise.
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`Northern District of California
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`7 Although Ancora argues that the Patent Examiner gave BIOS a specific definition, “the set of essential
`software routines that test hardware at startup, start the operating system, and support the transfer of data
`among hardware devices,” Ancora argues for an entirely different construction of BIOS tethered only to
`Apple’s proposed construction. Other than to argue that its patent applies to non-IBM PC-compatible
`computers, Ancora does not base its interpretation on any intrinsic evidence.
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`8 Ancora also offers evidence of a 1983 Commodore 64 computer that ran BIOS, and that during the mid-
`1990’s Apple’s Macintosh brand of computers, when operated in a PC-compatible mode, had BIOS. This
`extrinsic evidence both before and after the relevant time period does not reflect the usage or meaning in the
`art in 1998.
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 6 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 11 of 21
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`These dictionaries indicate that PC-compatible computers run BIOS. However, exclusionary
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`language is not found in the proffered dictionaries, i.e. the dictionaries do not indicate that the non-
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`IBM PC-compatible computers do not or cannot run BIOS, nor that a person of ordinary skill in the
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`art would have understood as much. Accordingly, the Court will not define BIOS by the hardware
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`architecture of the computer on which it runs.
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`The Court rejects both parties’ proffers and provides the following construction:
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`“BIOS” is an acronym for Basic Input/Output System. It is the set of essential startup
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`operations that run when a computer is turned on, which tests hardware, starts the operating system,
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`and supports the transfer of data among hardware devices.
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`C.
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`FOURTH DISPUTED CLAIM TERM/ PHRASE – “PROGRAM” (CLAIMS 1-3, 5-17)
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`The parties dispute whether an “operating system” is a type of “program” as that term is used
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`in the ’941 Patent. The parties’ proposed constructions are shown below:
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`APPLE’S PROPOSED
`CONSTRUCTION
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`ANCORA’S PROPOSED
`CONSTRUCTION
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`Software application that interacts
`with and relies on the operating
`system
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`A set of instructions that can be
`executed by a computer.
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`Apple argues that (i) using the term program in the specification to refer only to application
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`programs and then (ii) emphasizing the distinction during prosecution demonstrates a narrow use of
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`the term. Ancora argues that (i) the specification does not clearly set forth a narrower definition of
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`the term; (ii) the prior art reference over which the Examiner allowed the ’941 Patent to issue
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`described an operating system as a type of program; and (iii) there is no disavowal of the plain and
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`ordinary meaning of the term in the prosecution history.
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`According to Ancora, “[e]very person of skill in the computer field knows that a ‘program’
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`is: ‘a set of instructions that can be executed by a computer.’” (Ancora’s Br. 12.) The construction
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`that Ancora advances is the definition in the Microsoft Computer Dictionary, 5th Edition, 2002. By
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`contrast, Apple argues that to a person of skill in the field, the term “program” as used in the ’941
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`Patent means a “software application that interacts with and relies on the operating system.” As
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`explained below, Ancora’s definition is too broad, while Apple’s may be misunderstood by a jury.
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`Case 1:20-cv-00034-ADA Document 49-7 Filed 04/10/20 Page 7 of 7
`Case 4:11-cv-06357-YGR Document 107 Filed 12/31/12 Page 21 of 21
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`verifying the program using at least the
`verification structure
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`Confirming whether a program is licensed using at
`least the verification structure.
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`All Asserted Claims
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`IT IS SO ORDERED.
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`Date: December 31, 2012
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`The steps of the Claim do not need to be performed in
`the order recited.
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` ______________________________________
` YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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