Trials@uspto.gov
`571-272-7822
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`Paper No. 44
`Entered: May 21, 2015
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`RECORD OF ORAL HEARING
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`- - - - - -
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`- - - - - -
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`QUALTRICS, LLC,
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`Petitioner,
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`v.
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`OPINIONLAB, INC.,
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`Patent Owner.
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`- - - - - - -
`Cases
`IPR2014-00356 (Patent 6,606,581 B1)
`IPR2014-00366 (Patent 8,041,505 B2)
`IPR2014-00406 (Patent 7,085,820 B1)
`IPR2014-00420 (Patent 7,370,285 B1)
`IPR2014-00421 (Patent 8,024,668 B2)
`
`Technology Centers 2800, 3600, and 2100
`
`- - - - - - -
`
`Oral Hearing Held on Wednesday, April 22, 2015
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`- - - - - - -
`Before: RAMA G. ELLURU, JEREMY M. PLENZLER (via video link),
`GEORGIANNA W. BRADEN (via video link), and CARL M.
`DeFRANCO, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday, April 22,
`2015, at 1:00 p.m., in Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`571-272-7822
`
`
`Paper No. 44
`Entered: May 21, 2015
`
`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`- - - - - -
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`- - - - - -
`
`QUALTRICS, LLC,
`
`Petitioner,
`
`v.
`
`OPINIONLAB, INC.,
`
`Patent Owner.
`
`- - - - - - -
`Cases
`IPR2014-00356 (Patent 6,606,581 B1)
`IPR2014-00366 (Patent 8,041,505 B2)
`IPR2014-00406 (Patent 7,085,820 B1)
`IPR2014-00420 (Patent 7,370,285 B1)
`IPR2014-00421 (Patent 8,024,668 B2)
`
`Technology Centers 2800, 3600, and 2100
`
`- - - - - - -
`
`Oral Hearing Held on Wednesday, April 22, 2015
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`- - - - - - -
`Before: RAMA G. ELLURU, JEREMY M. PLENZLER (via video link),
`GEORGIANNA W. BRADEN (via video link), and CARL M.
`DeFRANCO, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday, April 22,
`2015, at 1:00 p.m., in Hearing Room A, taken at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`APPEARANCES:
`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF THE PATENT OWNER:
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`BOB STEINBERG, ESQ.
`Latham & Watkins LLP
`140 Scott Drive
`Menlo Park, California 94025-1008
`650-463-2642
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`NEIL A. RUBIN, ESQ.
`PHILIP X. WANG, ESQ.
`Latham & Watkins LLP
`355 South Grand Avenue
`Los Angeles, California 90071-1560
`213-485-1234
`
`RYAN TIBBITS
`Qualtrics, LLC Representative
`
`CHRIS KENNERLY, ESQ.
`Paul Hastings LLP
`1117 S. California Avenue
`Palo Alto, California 94304
`650-320-1808
`
`NAVEEN MODI, ESQ.
`TIMOTHY P. CREMEN, ESQ.
`Paul Hastings LLP
`875 15th Street, N.W.
`Washington, D.C. 20005
`202-551-1990
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`KRISTEN SHAHEEN, General Counsel
`MARK TRESCHL, Co-founder
`OpinionLab, Inc. Representatives
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`2
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`
`P R O C E E D I N G S
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`(1:00 p.m.)
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`JUDGE ELLURU: Good afternoon, everyone. We
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`have this afternoon our final hearing in IPR2014 -00356,
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`IPR2014 -00366, IPR2014 -00406, IPR2014 -00420, and
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`IPR2014 -00421, Qualtrics, LLC against OpinionLab, Inc.
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`I' m Judge Elluru. To my right is Judge DeFranco.
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`And appearing remotely are Judges Braden and Plenzler.
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`Let's get the parties appearances, please. Please
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`approach the microphone so that our remote Judges ca n hear
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`you clearly.
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`Who m do we have from Petitioner?
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`MR. STEINBERG: Your Honor, Bob Steinberg for
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`Petitioner, Qualtrics. Shall I identify my other colleagues?
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`JUDGE ELLURU: Yes, please.
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`MR. STEINBERG: Neil Rubin, also for Qualtrics.
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`We are both from Latham & Watkins. Behind me is Philip
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`Wang, also from Latham & Watkins. To his left with Qualtrics
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`is Ryan Tibbitts.
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`JUDGE ELLURU: Thank you. And for the Patent
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`Owner whom do we have?
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`MR. KENNERLY: Yes, Your Honor. Chris
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`Kennerly for Patent O wner OpinionLab. With me is my partner
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`Naveen Modi, my colleague Tim Cr e men. All of us are with
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`Paul Hastings. And our client from OpinionLab is here. We
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`have the general counsel, Kristen Shaheen, and we have the
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`co-founder, Mark Treschl.
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`JUDGE ELLURU : Thank you. Wel come,
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`everyone. We set the procedure for today's hearing in our trial
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`hearing order. But just to remind everyone how it will work
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`today, each party will have one and a half hours of total time
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`to present argume nts for all five cases.
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`Each party ma y al locate its allotted time as it so
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`chooses. Please keep in mind that whatever is projected on the
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`screen will not be viewable by Judges Braden and Plenzler.
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`Accordingly, when you do refer to an exhibit on the
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`screen, please state the exh ibit and page number for the
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`demonstrative. This is also important for clarity in the
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`transcript.
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`At all times the parties must make clear which case
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`they are discussing so that we can have a clear transcript. So,
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`for example, when a party transitions from one case to the
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`other, it must identify the case by case number.
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`Petitioner has the burden on the original claims and
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`will go first and ma y reserve time for rebuttal on the original
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`claims.
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`Petitioner also ma y make objections to the Patent
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`Owner's demonstratives at the end of its opening argument.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`We do ask that the arguments be brief and concise. We just
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`need identification of the slide number to which you are
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`objecting and a short explanation of the basis for the objection.
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`Patent Owner will then have the opportunity to
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`present its response on the original claims. Before Patent
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`Owner begins its argument on the original claims, we ask that
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`Patent Owner respond to any objections to the demonstratives
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`made by Petitioner. Again, we ask that thes e responses be
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`brief.
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`We will make rulings on objections to the
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`demonstratives in our final written decision. I will use the
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`clock on the wall to time you, and I will give you a warning
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`when you are at the end of your argument.
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`Is that okay with every one, starting with
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`Petitioner?
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`MR. STEINBERG: Can I start, Your Honor?
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`JUDGE ELLURU: I just want to make sure there
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`are no objections to what I've stated.
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`MR. STEINBERG: No.
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`JUDGE ELLURU: Patent Owner?
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`MR. KENNERLY: No objections. Thank you.
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`JUDGE ELLURU: Okay, Mr. Steinberg. You ma y
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`begin when you are ready.
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`MR. STEINBERG: Thank you.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`JUDGE ELLURU: And will you be reserving any
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`time for rebuttal?
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`MR. STEINBERG: Yes, Your Honor. I'm going to
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`present the substantive arguments with regard to the five
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`patents that we have petitions for, and my colleague, Neil
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`Rubin, he is going to address secondary considerations and a
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`motion to exclude Dr. Shamos, the expert for OpinionLab.
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`JUDGE ELLURU: And do you reserve any time for
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`rebuttal.
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`MR. STE INBERG: We will. I don't know exactly
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`how much that will be, but I'm assuming it will be about 20
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`minutes.
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`JUDGE ELLURU: Thank you.
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`MR. STEINBERG: Okay. We're going to break
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`this up into two fa milies of patents, the related subject matter
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`for the '5 81 patent family and the '285 patent family. First we
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`will take the '581 patent family.
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`Here on slide 3 is an outline of what we plan to
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`cover, the prior art briefly, and then the disputed claims and
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`the arguments with respect to the sa me. The subject matter of
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`these three patents is related to surveys, obtaining feedback on
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`websites and web pages.
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`Briefly, the patents are about having an icon that
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`you click on. I'm pointing to item 50 on page 5. It opens up a
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`window for feedback purposes called in the patent a pop -up
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`window. And the information from the feedback can be
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`assembled in a report that a website owner can then review.
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`The grounds for institution involved three different
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`references in combination for the various claims. We will talk
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`abo ut them one at a time. But first let's discuss the prior art.
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`CustomerSat. CustomerSat is an entity which our
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`expert, the expert for Petitioner Qualtrics, John Chisholm was
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`the CEO and chair man of this entity. CustomerSat was a
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`successful company. It did surveys on websites. It obtained
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`feedback. It created reports, did analysis automatically.
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`What we have here on the screen on page 8 of the
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`slide deck is a website for marketing purposes that
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`CustomerSat had created. On the left -hand side of the
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`screen -- I'm still on page 8 -- you can see there is a frame, in
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`it, it has information about CustomerSat, that you could find
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`out who are we, events, links, and then the "feedback" button
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`that is highlighted here in yellow.
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`At the bottom of that page it talks about Pop!Up
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`survey invitations. This website says: "By the time you have
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`read this far, a Pop!Up survey invitation should have appeared
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`on your screen. Give it a try! For more information about
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`pop -up, please e -mail us."
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`And Pop!Up is used bo th in this initial case form,
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`and then in the lower case, pop -up generic form. Pop -up
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`means a pop -up window, something that pops up on the screen
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`that you can see while you are at a particular website. And by
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`the text --
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`JUDGE ELLURU: Is there any evid ence in the
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`record of what pop -up means?
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`MR. STEINBERG: Yes, there is, Your Honor, and
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`I a m going to get to that in a few slides here, if I could take
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`that in order, but to preview that, number 1, John Chisholm
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`provides information about pop -up and what pop -up meant, the
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`CEO, as I said, of CustomerSat, number 1.
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`Number 2, Dr. Sha mos, the OpinionLab expert, also
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`tells us what a pop -up window is. Okay? And we will have
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`that testimony presented.
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`A Pop!Up questionnaire is also a pop -up. It is a
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`window that pops up on the screen, just like this Pop!Up
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`survey does and the feedback ends up in that Pop!Up
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`questionnaire.
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`JUDGE DeFRANCO: Mr. Steinberg, is feedback a
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`pop -up?
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`pop -up?
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`MR. STEINBERG: Feedback?
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`JUDGE DeFRANCO: That feedback icon, is that a
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`MR. STEINBERG: If you click up on that feedback
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`link in this example, it doesn't produce a pop -up because that's
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`part of the website for marketing. So that's just a link to
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`another page. In fact, let me just jump to that and I will come
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`back to this in a second.
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`I' m putting up on the screen just so you can see the
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`Patent Owner slide number 13. I'm just jumping to that
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`because I think this question goes to a point that they raise and
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`I want to address right up front.
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`And, that is, if you click on the feedback, there is a
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`link and it does take you to another page, a web page about
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`CustomerSat, but that's not the Pop!Up questionnaire and we
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`know that because it has this left -hand column, this frame, that
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`provides the information about "The Internet Survey Experts"
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`at the top, information about who they are, the fact that there
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`are 2,000 sample questions.
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`Clearly if that were the Pop!Up questionnaire, all
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`that other stuff wouldn't be there. This is part of their
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`marketing.
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`What they are doing in this website is explaining
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`what some of the information looks like that you can do and
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`conduct a survey with. What do the questions look like? A
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`Pop!Up questionnaire is like the Pop!Up survey. It pops up on
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`your screen so you can see it while you are at a website that
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`you are providing comments on pursuant to a survey.
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`JUDGE DeFRANCO: So, Mr. Steinberg, you would
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`concede that the feedback and me mbership form that we are
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`looking at on the right side of slide 13, that that is a link to a
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`separate page, correct?
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`MR. STEINBERG: This is showing a link to a
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`separate page and that page is on the website, yes. That is not
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`the Pop!Up questionnaire. It has the substance of what the
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`questionnaire would be or could include, but clearly this is
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`information her e that includes, like I said, marketing
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`information about CustomerSat, the entity. Okay?
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`And I think a person of ordinary skill in the art, as
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`you will see from John Chisholm's testimony, will know when
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`you are talking about pop -up, that word, and what it means, a
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`pop -up window, in combination with survey invitation, how it's
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`explained on that front page, one would understand that that
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`example that is being provided, to let you know that you are
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`going to see how this works in real operation.
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`Here is the text: Pop-up survey. Here you go.
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`Here you see it. It pops up on your screen while you're reading
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`this. That's what Pop!Up questionnaire is. So when you click
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`on it you get a Pop!Up questionnaire and then you can see
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`what, in fact, simultaneously you are looking at on the web
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`page and what's in the question.
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`JUDGE DeFRANCO: Mr. Steinberg, what is the
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`questionnaire that the CustomerSat reference is referring to
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`when it states Pop!Up questionnaires?
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`MR. STEINBERG: The questionnaire is this
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`informat ion right here. Here is the questionnaire. So this
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`information about asking ratings, if you will, open -ended
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`questions, that's the questionnaire. That's the feedback that
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`one provides.
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`JUDGE DeFRANCO: But, Mr. Steinberg, you just
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`conceded that the form that is up on the screen is a link to a
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`page, a link to a separate page, it is not a pop -up, correct?
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`MR. STEINBERG: In that website that's a link to a
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`separate page explaining what is in a Pop!Up questionnaire,
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`correct.
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`JUDGE DeFRANCO: So you are s aying the
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`questionnaire that's referred to in the phrase Pop!Up
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`questionnaire is the form that's on the screen on slide 9?
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`MR. STEINBERG: In a pop -up window. That form
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`in a pop -up window in a questionnaire. And if you will let me,
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`Your Honor, I don't mean to cut you off -- go ahead.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`JUDGE DeFRANCO: One last question and then I
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`will let you continue. Where is that form depicted in the
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`CustomerSat reference as a pop -up?
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`MR. STEINBERG: Let me ju mp to that since we
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`are talking about it. If we jump b ack to slide 32, and I'm just
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`going to click to it, of the Qualtrics website, in that website
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`there was some code. And that code provided an exa mple of
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`the Pop!Up questionnaire. And the code is shown on the
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`left-hand side.
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`JUDGE DeFRANCO: What slide ar e we referring
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`to?
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`MR. STEINBERG: 33, I'm sorry, Your Honor -- 32
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`of the slide deck that you have, 32. Is everybody there? On
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`the slide shown on the screen it shows 33 because I inserted
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`one or two slides from the OpinionLab's slide deck to show
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`issues that they raised to try to explain the arguments, so there
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`is an extra page in there based on the page I just showed you,
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`page 13 of their deck.
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`Anywa y, on the slide deck that we have -- and I
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`have printouts if it would be helpful -- there is this CGI script
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`at the top. It is called "cgi -bin/popupadmin." And the
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`questionnaire is this "cssurvey.html." And it is placed in this
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`pop -up admin window.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
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`And the code for doing that is on the left -hand side.
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`And now I'm bringing up OpinionLab's slide, 19, s o this is
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`another added slide, but their slide. And on the left -hand side
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`it is exactly that sa me code. It is just a little larger so you can
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`see it. And in this code it has the lines of code that I was
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`referring to, "cgi -bin/popupadmin."
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`And you put in the information that comes up in a
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`customer survey. It has here the size of the pop -up window,
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`height, width, et cetera, there it is, and pixels, and those are
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`the inputs to this program "cgi -bin/popup.jar."
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`So this information which could be what's inside
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`this questionnaire on the right -hand side, as shown in the
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`CustomerSat website --
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`JUDGE DeFRANCO: Mr. Steinberg, what part of
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`the record supports what you just stated as far as the height or
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`width, those lines of code referring to the pop -up admin ?
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`MR. STEINBERG: If we go back to slide 33, I
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`asked a series of questions to Dr. Shamos.
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`JUDGE ELLURU: Page 33 of your deck?
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`MR. STEINBERG: Sorry?
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`JUDGE ELLURU: Are you referring to slide
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`number 33 of your slide deck?
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`MR. STEINBERG: I am. 32 in the slide deck that
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`we produced, and 33 in the slide deck that is on the screen.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
`And here Dr. Shamos was asked about these lines of code,
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`"popupadmin, cssurvey." We discussed these lines of code
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`beneath it.
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`And I asked him: "Is it possible that the C GI script
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`in the line above" -- this line -- "would have taken the survey
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`and put it into the pop -up window?" And he says: Well, it
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`could, I suppose. That's with respect to this code on the
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`left-hand side.
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`I' m pausing because I'm giving you an opportun ity
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`to ask me another question.
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`JUDGE ELLURU: You ma y continue.
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`MR. STEINBERG: Then I can move back into the
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`material?
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`JUDGE DeFRANCO: Is there anything else in the
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`record that supports your interpretation of this code besides
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`Dr. Shamos' testimon y, because I'm not so certain Dr. Shamos'
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`testimony is definitive on this point?
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`MR. STEINBERG: Well, we have John Chisholm,
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`who is the CEO and chairman, who created this system and was
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`our expert witness, who under oath testified and provided a
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`declaration.
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`JUDGE ELLURU: Can you point us to that
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`testimony that supports the assertion by Dr. Chisholm?
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`MR. STEINBERG: I'm sorry, I can't hear you.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
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`JUDGE ELLURU: Could you point us to the
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`testimony b y Dr. Chisholm?
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`MR. STEINBERG: So here we have his de claration
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`reference.
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`to?
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`JUDGE ELLURU: And what slide are you referring
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`MR. STEINBERG: I'm on slide -- let me see if I
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`get the numbers right -- 31 in the slide deck that we produced,
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`32 in the slide deck that's being presented. I will jump to the
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`bot tom. "Pop!Up questionnaires could be, and in fact were,
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`displayed in a pop -up window, which a person of ordinary skill
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`in the art would have readily understood from CustomerSat's
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`disclosure."
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`Now, he says --
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`JUDGE PLENZLER: Excuse me. I have a quick
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`question for you. You have the code here, right --
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`MR. STEINBERG: Yes.
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`JUDGE PLENZLER: -- for the CustomerSat
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`website. Wh y wo uldn't it be possible then to produce what the
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`code does? Do you know what I mean? Why don't we see
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`something that shows us what the results of this code is?
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`MR. STEINBERG: Well, this code, this is from the
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`Wa yback Machine. This is what we could get printed off. So
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
`the actual CGI script is this column right here. I'm pointing to
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`slide 19 of the OpinionLab demonstratives.
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`And that slide has -- that input -- sorry, that CGI
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`script has a series of inputs that are provided in the form of
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`these parameters, and those parameters are then utilized by that
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`CGI script called "cgi -bin/popup.jar."
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`And it goes about putting the inf ormation, the
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`survey, into the Pop!Up questionnaire that is shown for this
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`space. The actual code for that "cgi -bin/popup.jar" was not
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`available in the archive. However, John Chisholm confirms
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`this is its operation.
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`JUDGE DeFRANCO: Is Dr. Chisholm conf irming
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`it based on his interpretation of the CustomerSat reference or
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`based on his knowledge of the CustomerSat website that he put
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`together, I believe?
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`MR. STEINBERG: Well, it is both, Your Honor,
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`just to be clear about that. But it is clearly based o n the code
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`that was available. More importantly, the phrase Pop!Up
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`questionnaire, and, of course, his recollection, you can't
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`divorce that.
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`JUDGE DeFRANCO: But his recollection is not
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`something we can base our decision on. Our decision has to be
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`based on what is in the four corners of the disclosure in the
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
`CustomerSat reference, not something that he is adding based
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`on his recollection. You understand that?
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`MR. STEINBERG: Completely understand that,
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`Your Honor. I'm just giving you the best answers I can. But
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`Pop!Up questionnaire, that phrase by itself says it all. It is a
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`pop -up questionnaire. It pops up a questionnaire. That's what
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`that means. There is a Pop!Up survey.
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`OpinionLab doesn't dispute whether a Pop!Up
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`survey is a pop -up window. T hat word, that phrase, pop -up, is
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`used in front of questionnaire. It means the same thing and he
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`just confirms that's what it meant, that's what it is, and that
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`code also confirms the same thing. There is no dispute over
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`Pop!Up survey invitation.
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`JUDGE DeFRANCO: Mr. Steinberg, the reference
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`says Pop!Up questionnaire.
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`Now, questionnaire could mean any number of
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`things. It could mean do you want to take a survey? It could
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`just be a question saying do you want to take a survey, which
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`is what the Custom erSat reference states in a number of places,
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`survey invitation, and I believe that's Patent Owner's position
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`that all the -- the only question being asked in the pop -up is do
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`you want to take a survey, and then when you click on the
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`survey, it takes you t o -- it links you to a different page.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
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`MR. STEINBERG: But it wouldn't be called a
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`Pop!Up questionnaire. It would be called probably a
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`questionnaire, but not the pop -up. The pop -up indicated that it
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`is useful to see these things simultaneously on the sa me page.
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`And that's exactly what John Chisholm is confirming here.
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`JUDGE ELLURU: Does Dr. Chisholm or Mr.
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`Chisholm refer to the source code itself anywhere in his
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`testimony?
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`MR. STEINBERG: I'm sorry, Judge Elluru?
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`JUDGE ELLURU: Does Mr. Chisholm r efer to the
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`source code in his testimony?
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`MR. STEINBERG: I think he does but I don't have
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`that handy in this slide deck. Maybe we can pull that up. He
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`certainly refers to the CustomerSat document, obviously. He is
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`talking about that. And he is talk ing about that in the context
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`of his testimony here in this declaration. It is that exhibit. It
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`is the same one.
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`JUDGE DeFRANCO: Where does the CustomerSat
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`reference describe the functionality of a pop -up?
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`MR. STEINBERG: It does here, Your Honor, in
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`the reply declaration -- to answer your first question, Judge
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`Elluru -- to John Chisholm, and I'm looking at the one for the
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`'805 patent, at paragraph 18.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
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`He says: I understand the OpinionLab argues that
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`because the target of the survey invitation disc losed in the
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`pop -up web page's source is "cssurvey.html," the survey could
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`not have been displayed in a pop -up window. This is incorrect.
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`The source code disclosed in CustomerSat identified a survey
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`of several parameter applets.
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`The value -- and he is now going through that same
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`information, and I' m reading paragraph 19 of the reply
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`declaration -- the value of this parameter is -- and it is on that
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`screen there, I'm not going to read it -- "CustomerSat.com,
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`cssurvey.htm" -- I read it -- but the source c ode does not
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`reflect how the applet actually processed the survey parameter
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`and reflect how the survey was displayed as a POSITA would
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`have readily understood a survey located at a given URL.
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`CustomerSat.com, cssurvey.htm, co uld be displayed in a
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`pop -up window as a matter of basic web functionality.
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`JUDGE ELLURU: Do you have the exhibit number
`
`for that reply declaration?
`
`MR. STEINBERG: The number for that? The
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`number for this is Exhibit 1027, and the pages were 7 and 8.
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`Now, there was another ques tion, Judge DeFranco,
`
`and I think I cut you off.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
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`JUDGE DeFRANCO: The question was where in
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`the CustomerSat reference is described the functionality of a
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`pop -up?
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`MR. STEINBERG: Right, and so that is going back
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`to -- I might be able to show it here. Le t's just see if I don't --
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`no. If I go back to slide -- here we go -- slide 8 of the
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`presentation we produced, and I think it is -- let's see if it is
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`the same.
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`So slide 8 also on your screen, and the pop -up
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`functionality is described in that last parag raph on the page
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`that is shown on the left. And it says, and I've read this
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`before: "By the time you have read this far, a Pop!Up survey
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`invitation should have appeared on your screen." So while you
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`are reading this page, you see the Pop!Up invitation. And the
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`Pop!Up questionnaire follows the sa me format.
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`And if you look on the right -hand side you can see
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`the words Pop!Up, I' m pointing to Pop!Up survey invitation,
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`the same phraseology is used right here, Pop!Up
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`questionnaires.
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`The combination of tha t, the source code and the
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`declaration from John Chisholm shows that, in fact, Pop!Up
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`questionnaire, its utility was being able to see the questions,
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`provide feedback, while you are on the same page. That way
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`you don't have to flip back and forth. You do n't have to
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
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`reme mber what you saw. That was the pop -up technology that
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`they were selling and described in this document.
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`JUDGE DeFRANCO: But does that description
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`describe what a pop -up actually does?
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`MR. STEINBERG: Yeah, I think it does actually,
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`because it is telling you while you are looking at the website
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`you are going to see this Pop!Up invitation pop up literally,
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`that's the idea, it pops up.
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`JUDGE DeFRANCO: Right, but it is just saying
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`that a Pop!Up invitation appears.
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`MR. STEINBERG: Yes.
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`JUDGE DeFRANCO: Not that the questionnaire
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`appears.
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`MR. STEINBERG: It doesn't say a questionnaire, I
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`agree with you, but the words Pop!Up are in front of the
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`questionnaire. And that we saw is connected to the way that
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`John Chisholm tells you that that system worked and it is
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`consistent with the code that he has provided a declaration on.
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`JUDGE ELLURU: Is it Petitioner's position that
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`CustomerSat teaches this limitation or that it renders this
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`limitation obvious?
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`MR. STEINBERG: No, I think this limi tation is
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`taught by the CustomerSat website. I think it is pretty clear
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`from that docume nt what it is. And, frankly, it would have
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285); and
`IPR2014-00421 (Patent 8,024,668)
`
`been obvious to a person of ordinary skill to do that. That's
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`what John Chisholm said.
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`So that's actually what I quoted you on slide 32 of
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`our slide deck. In his declaration, he said seeing that
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`information -- I'm looking at slide 32 and then jumping to it --
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`Pop!Up questionnaires could be, and in fact were, displayed in
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`a pop -up window, and a person of ordinary skill in t he art
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`would have readily understood that CustomerSat disclosure
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`includes the same .
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`JUDGE ELLURU: He testifies that it could, and
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`that's what I'm having a problem with. I don't see how that
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`teaches when he testifies that it could possibly be that.
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`MR. STEINBERG: He said "could be and in fact
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`were." That's what I quoted. "Could be and in fact were,"
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`under oath in a declaration.
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`JUDGE DeFRANCO: Where is that found again?
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`MR. STEINBERG: Go to slide 31 in our slide
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`deck. I will bring it back up in the materials. It is on slide 32
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`in the presentation that I have on the screen. I'm pointing to it
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`now: "Pop!Up questionnaires could be, and in fact were,
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`displayed in a pop -up window," and then there is that other
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`phrase right here where he says "a per son of ordinary skill in
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`the art would have readily understood from Customer Sat's
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`disclosure," that that is the case.
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`IPR2014-00356 (Patent 6,606,581); IPR2014-00366 (Patent 8,041,505);
`IPR2014-00406 (Patent 7,085,820); IPR2014-00420 (Patent 7,370,285);
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