trials@uspto.gov
`571-272-7822
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`IPR2014-00415, Paper 32
`April 22, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`FACEBOOK, INC.,
`Petitioner,
`
`v.
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`REMBRANDT SOCIAL MEDIA, L.P.,
`Patent Owner.
`____________
`
`Cases IPR2014-00415
`Patent 6,415,316
`____________
`
`Held: April 6, 2015
`____________
`
`
`
`
`BEFORE: PHILLIP J. KAUFFMAN, JENNIFER S. BISK, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Monday, April 6,
`2015, commencing at 2:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`IPR2014-00415, Paper 32
`April 22, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`FACEBOOK, INC.,
`Petitioner,
`
`v.
`
`REMBRANDT SOCIAL MEDIA, L.P.,
`Patent Owner.
`____________
`
`Cases IPR2014-00415
`Patent 6,415,316
`____________
`
`Held: April 6, 2015
`____________
`
`
`
`
`BEFORE: PHILLIP J. KAUFFMAN, JENNIFER S. BISK, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`
`The above-entitled matter came on for hearing on Monday, April 6,
`2015, commencing at 2:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`
`
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`Cases IPR2014-00415
`Patent 6,415,316
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`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`HEIDI KEEFE, ESQ.
`
`
`PHILLIP MORTON, ESQ.
`
`
`ANDREW MACE, ESQ.
`
`
`Cooley LLP
`
`
`3175 Hanover Street
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`
`Palo Alto, California 94304-1130
`
`ON BEHALF OF PATENT OWNER:
`
`
`JOHN S. GOETZ, ESQ.
`
`
`Fish & Richardson P.C.
`
`
`601 Lexington Avenue, 52nd Floor
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`New York, New York 10022
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` P R O C E E D I N G S
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`- - - - -
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`JUDGE CLEMENTS: Please be seated. Good afternoon.
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`This is a hearing for IPR2014-00415 between Petitioner, Facebook,
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`Inc. and Rembrandt Social Media, L. P., the owner of U.S. Patent
`
`6,415,316.
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`Just a few administrative matters before we begin. I am
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`Judge Clements, joining you from the Silicon Valley office. With you
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`there in person are Judges Bisk and Kauffman. When referring to the
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`demonstratives, since I'm remote, please describe any slides by slide
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`number so that I can follow along.
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`Per our order, each party is going to have 45 minutes to
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`present its argument. Petitioner has the burden to show
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`unpatentability of the original claims, so Petitioner will proceed first,
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`followed by Patent Owner and Petitioner may reserve time to rebut
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`Patent Owner's opposition.
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`At this time, we would like counsel to introduce yourselves
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`and who you have with you, beginning with Petitioner, please.
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`MS. KEEFE: Thank you very much, Your Honor, good
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`afternoon, my name is Heidi Keefe from the Cooley Law Firm here
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`today representing Petitioner, Facebook. With me at counsel table
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`is -- I'm sorry, I just had an incredible moment that I can't even
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`remember the name of somebody I work with on a daily basis, his
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`name is Andrew Mace, Andrew is an associate who works with me at
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`Cooley, and behind me is Phil Morton, a partner in our firm.
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`MR. GOETZ: Good afternoon, Your Honor, John Goetz
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`from Fish & Richardson on behalf of Patent Owner Rembrandt, I have
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`no one with me at counsel table, but I do have the president of
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`Rembrandt here in the audience. Thank you, Your Honor.
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`JUDGE CLEMENTS: Thank you, Mr. Goetz.
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`Ms. Keefe, would you like to reserve any time for rebuttal?
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`MS. KEEFE: I would, Your Honor, I would like to reserve
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`approximately 25 minutes of my time for rebuttal.
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`JUDGE CLEMENTS: Okay, 25 minutes, so you have 20
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`minutes for your opening, and you may begin when you're ready.
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`MS. KEEFE: Thank you very much, Your Honor. Just so
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`the record is incredibly clear, I actually do remember Mr. Mace's
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`name and I am incredibly embarrassed that I did not remember it a
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`few minutes ago.
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`We are here today to challenge the patentability of the '316
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`patent. The '316 patent, in essence, has a number of large elements.
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`The first of those is a diary program, or in other words, a piece of
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`software that is sent from a server down to a user's computer to assist
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`in creating what is called a cohesive diary page, which essentially is a
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`web page with content information on it.
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`All of those elements are found in the Salas, Tittel and
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`Parker references. The parties uniquely here are really only
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`challenging one of the elements, and that is whether or not privacy
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`level information is sent from the server down to the user's computer,
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`and then there's a little bit of a dispute, also, as to what is done with
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`that information.
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`I realize that it is our burden to show each and every
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`element, but because the Patent Owner does not dispute the existence
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`of a diary program or content information being sent down, or that
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`information being combined to represent a page, I would not go
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`through those necessarily unless the Board would like me to, and if
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`you would like me to go through each element here in oral argument, I
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`can; otherwise I'll just focus on the disputed elements.
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`Claims 1 and 16, and for Judge Clements, I am literally
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`walking directly through my PowerPoint slides, I am right now on
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`PowerPoint slide demonstrative number 2, just claim 1 is one of the
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`independent claims, and the second limitation, "sending diary
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`information," is a limitation we're going to be focusing on from this
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`claim.
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`Claim 17 is the other independent claim, and as I said, this is
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`now slide 4, the element that we'll be focusing on, "sending diary
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`information from the diary server to the user system, the information
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`comprising content data including an associated time, a page design to
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`specify the presentation of the content data, and configuration
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`information for controlling behavior of a cohesive diary page, the
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`configuration information including privacy level information."
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`The dispute centers around whether or not the configuration
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`information that is sent from the server to the user's computer includes
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`privacy level information. The Board has, we believe, properly
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`construed configuration information to be information that determines
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`what information will be displayed to a user, who is viewing the
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`cohesive diary page. The entire claim is about how the page is going
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`to be presented for a given user, a single user of that user's computer.
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`The claim limitation goes on to say that configuration
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`information; in other words, information that determines what
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`information will be displayed to a user, also must include privacy
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`level information. The Board correctly found that to be construed as
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`configuration information that describes or specifies at least one user,
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`or category of users, permitted to view particular content on a
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`cohesive diary page.
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`Patent Owner has tried to argue, again, they argued
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`originally in their first submission and then they've argued
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`subsequently in their opposition, that privacy level information has to
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`specify a universe of permitted users; in other words, that it lists all of
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`the individuals who may view it, not just be related to the particular
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`individual who is actually viewing the page.
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`But that definition makes no sense. If we look at the claim
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`as a whole, the claim is directed at creating a page for viewing by a
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`user. Therefore, the only thing that matters is privacy level
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`information related to that user. If that user may be a part of a group
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`instead of an individual, that would be all right, too, but there is
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`nothing in the plain language of the claims, nor in the specification,
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`that indicates that you have to list out every single person who might
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`see or not see the information.
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`In making this argument, Patent Owner cites to figure 4D of
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`the patent, showing different icon buttons that show one person, two
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`people, best friends, the whole world, but Patent Owner ignores the
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`fact that that figure is about how the privacy level information is set,
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`either before the page is ever displayed, or how privacy level
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`information may be changed after the page already exists.
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`And the patent is very clear about that in the '316 patent,
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`Exhibit 1001, column 10, specifically at the section detailing privacy
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`level of a diary page starting at line 29 and going to line 54, where it
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`details that this is how the privacy level information is set, not that it
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`is the privacy level information that must be passed down, it's simply
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`a way to set that information, but that's not the only way, it could be
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`set any number of ways.
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`As we see in the '316 specification, again, Exhibit 1001,
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`column 5, lines 55 through 67, "If a user does not have sufficient
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`permission to view an object in a diary, the diary may not make the
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`object visible to the user, i.e., the user does not even know that the
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`object exists, or it may present the object using an alternate
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`representation." Alternate representation like an icon that's greyed
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`out, so it can't be clicked on, or some other form of symbol that says,
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`you cannot see this item. Something along those lines.
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`The whole point is for the person observing the page only to
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`view the information that they have permission to view. And this
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`makes sense, because the idea of the patent was that someone could
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`be tooling around on the Internet, gathering bits of information that
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`they thought were interesting, that they wanted to eventually share
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`with other people, and some of that information they might want to
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`only share with a person or a different person.
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`For example, I could envision a time where I gather
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`information while I am searching through the Internet, and some of
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`the information I would want to share with my mother, and some of it
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`I would not. And this allowed you to be able to click the privacy
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`level, mom, or not mom. So, when mom went to access her web page
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`of information that I had been gathering, she wouldn't see the
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`information that I had said not mom for.
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`The key issue, as we were discussing just a minute ago, was
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`whether privacy level information must specify a universe of users
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`permitted to see the content. It absolutely does not. Again, the claim
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`talks about a single individual user and what that user is going to see
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`on that user's computer, not whether or not anyone else needs to see it
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`as well. It didn't have to say, mom can see it, but dad cannot, or my
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`brother cannot either, it's just mom will see what mom has permission
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`to see.
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`JUDGE CLEMENTS: Counsel, on that point, is there
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`anything in the claim that requires the privacy level information that's
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`sent to relate to the user who's actually viewing the diary page?
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`MS. KEEFE: In other words, is there something that where
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`it actually has to show on the page mom can view? Absolutely not.
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`There's nothing in the claim that requires that.
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`JUDGE CLEMENTS: If I'm mom viewing the page, does
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`the privacy level information have to relate to mom or can it relate
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`to -- is the claim broad enough to encompass mom viewing privacy
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`level information about a different user or category of users?
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`JUDGE BISK: Like maybe kids.
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`MS. KEEFE: Oh, look, for example, could mom view all of
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`the information that was allowed for kids to look at as well?
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`JUDGE BISK: Um-hmm.
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`MS. KEEFE: There's nothing in the claim that specifies one
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`way or the other how that's displayed, if I'm understanding your
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`question. If you're asking, on the other hand, though, if mom can
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`view what kids can view. In other words, mom can view everything
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`mom can view plus everything kids can view, of course that's
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`possible, because that's just a rule that's written up above in terms of
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`the information that mom can view.
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`Does that answer your question?
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`JUDGE CLEMENTS: I think it does.
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`MS. KEEFE: And that would go to the notion, as Your
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`Honors construed, of a category of user, not necessarily just an
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`individual user. Mom could be a part of a category, which is adults,
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`or adults versus children, something along those lines, but it doesn't
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`have to spell out mom and dad and the aunts and the uncles can all
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`view it, they can be a simple part of a group, or it can be just limited
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`to mom itself, which is why the claim is broad enough to encompass
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`all of that as well. And it's not as narrow as Patent Owner is saying
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`where there has to be a listing of each person in the universe that has
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`similar privacy controls. That is nowhere in the claim, nor is it
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`anywhere in the specification.
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`The second question is whether or not the privacy level
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`information must be used at the user's system to perform the content
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`filtering, and again, that is nowhere in the limitations itself, and yet
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`we see this argument coming up time and time again with Patent
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`Owner that the real difference between Salas and Parker is that Salas
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`and Parker do filtering at the server side and then reuse or use that
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`same information again when building the page itself. Patent Owner
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`argues that that simply can't be because all of the filtering has to
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`happen at the server.
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`Interestingly, that is the exact opposite argument that Patent
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`Owner made in the District Court. In the District Court, Patent Owner
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`specifically said that privacy level information and the filtering
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`thereof could be done anywhere. And, in fact --
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`JUDGE BISK: I have a related question.
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`MS. KEEFE: Yes, Your Honor?
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`JUDGE BISK: Which is is there any type of required order
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`of the steps of this claim? For instance, does the sending have to
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`happen before the assembling? Or could it happen after? Or I guess
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`there's lots of sending, so I'm talking about the sending that the
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`sending limitation that you are discussing right now with the privacy
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`level information. I'm wondering if there's anything in the claim that
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`requires that to happen before assembling.
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`MS. KEEFE: There's nothing in the claim, per se, that
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`requires the order, but logic dictates that the information be sent
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`before the assembling step, because the information is -- the
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`configuration information -- the page that is eventually displayed has
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`to be accordance with the configuration information for that page to
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`be displayed.
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`Now, the true reality is, if we take that at its absolute
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`broadest understanding, in accordance with just means that it looks
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`like the thing that it was supposed to look like. It doesn't necessarily
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`mean based on. Based on would be something that would demand an
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`order, because there you would say, if you had the page being built
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`based on the information combined with other information, they
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`would have to necessarily be sent down first, but simply in accordance
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`with means that it looks like what it's supposed to look like.
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`I do believe, logically, that both Salas and Parker and,
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`frankly, the patent itself we're talking about having the information
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`sent from the server down to the user's computer and then the program
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`on the user's computer takes those bits of information and combines
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`the content with the template and the privacy information and then
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`builds a page that is shown to the user.
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`JUDGE BISK: But it doesn't say in the claim that the user
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`system actually does the assembling.
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`MS. KEEFE: The diary program is what's actually used to
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`do the assembling, and the diary program, according to the claim, is
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`sent from the server down to the user's system. And, so, it's the diary
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`program on the user's system that is doing the assembling, and so in
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`that sense, it does happen -- the assembly happens at the user's system.
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`That doesn't mean that the filtering does. All that means is, take
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`whatever content was sent down, with whatever layout information,
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`templates, page design, and make -- and have the diary program down
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`at the user's computer, combine those two things in order to display a
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`cohesive diary page, or the total page.
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`For instance, the filtering, i.e., determining whether or not
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`mom gets to see something, whether it's a piece of content that I want
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`mom to see, all of that filtering can happen back up at the server.
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`And, in fact, the server can apply those rules and decide, mom is
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`going to see A, B and D, but not C, gather up that content and then
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`send it down to the user's computer, where the diary program takes the
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`template, combines it with that content and renders a page.
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`And this was a very important issue at the District Court as
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`well. At the District Court, Patent Owner specifically argued that the
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`filtering did not have to take place at the client side, that, in fact, the
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`filtering could take place either at the server or at the client. And yet
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`here, before Your Honors, they're trying to argue the opposite in order
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`to try to overcome prior art.
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`They're trying to say now that the filtering all has to happen
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`down at the client side to try to distinguish from Salas and Parker,
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`where the filtering, in other words, choosing which information to
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`send happens at least initially up at the server's computer, but that is
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`nowhere in the claims and is contrary to what Patent Owner has
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`already argued to the District Court and, frankly, won at the District
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`Court. They won the construction that the filtering did not have to
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`happen at the client side and, in fact, could include server-side
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`filtering.
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`If I look, for example, to -- and we know, also, this is not
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`something controversial now, I know this is an argument that they're
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`continuing to make, but Patent Owner's own expert also agreed that
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`privacy level information, the imposition that the user system use the
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`privacy information to determine the content is not in the claim, and
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`I'm looking here, Your Honors, at slide 13 of our demonstratives.
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`Does the language of claim 1 impose any requirement that
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`the user system use the privacy information to determine what
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`content, if any, the user is permitted to see?
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`"The witness: No, I don't believe it does."
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`So, that's simply not a part of the limitations and, in fact, the
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`filtering can happen at the server system. And in both Salas and in
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`Parker, that is the case, that there's filtering going on at the server
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`system to decide which content is going to be sent down. Salas is a
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`method and system for providing a networked collaborative work
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`environment. All that means is that the whole patent is directed to the
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`idea of having eRooms that individual users can see, which include
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`the files that they are permitted to see and that they are permitted to
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`work with.
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`Salas, just like the patent, actually has a page builder
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`software program that is sent down to the user's computer, that then
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`awaits information coming to it, the content, and the template, or the
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`way that the page is going to look, it receives that information,
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`combines it, and creates the diary page, this eRoom page, and that
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`eRoom page only shows the information that the particular user is
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`allowed to see.
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`The page builder application resides on the client
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`workstation, this is in slide 16, Salas Exhibit 1005, column 6, line 57
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`through 63, a page builder application resides on the client's
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`workstation. It goes on to talk about the client -- the page builder
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`building the page.
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`And then the more -- one of the most interesting things here,
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`though, is because people continue to work on their own individual
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`computers, and they may be doing different things with those pages.
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`Some people typing in them and then wanting to share their edits, or
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`preventing people from typing while they're doing their edits. The
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`Salas has to constantly synchronize itself and make sure that the
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`folders that you're working with are the same as the folders as other
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`people are working with.
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`One of the ways that that synchronization is done is with
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`metadata about the files that is sent down from the server to the user's
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`computer. And we see in Salas at Exhibit 1005, column 12, lines 1
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`through 6, once synchronization has been accomplished and local
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`database metadata has been updated, the appropriate data objects and
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`values are inserted into the eRoom. So, make sure you have all the
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`right information, and then display that. So, that's configuration
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`information.
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`We also note from the patent, very specifically, that that
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`metadata, and this is on slide 19, Your Honor, that metadata, again,
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`we're in Exhibit 1005, column 13, lines 52 to 57, includes access
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`information such as which users may open, view, and edit the file.
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`Privacy level information. Metadata is sent down for the purpose of
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`synchronization, metadata includes access information.
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`Patent Owner has argued that for some reason because they
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`found a number of places where the filtering was happening at the
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`server, that must mean that the access metadata was not sent down,
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`but that's absolutely not what the patent teaches. This patent teaches
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`that metadata is sent from the server to the client, metadata is used in
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`comparison to synchronize, and specifically that metadata includes
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`access information. And that makes sense, because, for example, you
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`could envision a time when someone leaves a working group and you
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`can change their access to that information, decide that they can't see
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`it any longer, they're not a part of that working group anymore.
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`We also know that the metadata about access rights is being
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`used at the local computer because of the section of the specification
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`that talks about can edit versus can view access rights. This is on
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`slide 20, column 12, lines 34 through 41. The access rights of the
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`requesting user are checked. "If the user has appropriate access rights,
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`i.e., 'can edit,' if the user has indicated editing will occur, or 'can
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`view,' if the user has indicated only viewing will occur, the user will
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`be allowed to retrieve the file." So, we're using that metadata.
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`I'm not saying that this necessarily is the privacy level
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`information, it could be, but the privacy level information is simply
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`the access and what gets put into that eRoom at all.
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`JUDGE CLEMENTS: Ms. Keefe, just a heads-up, I think
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`we've hit 20 minutes, so going forward, you will eat into your rebuttal
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`time.
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`MS. KEEFE: I will wrap up really quickly, Your Honor, I
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`am almost at the end of my presentation. Thank you so much.
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`Dr. Jones himself agreed that if a file was on the user's
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`computer, the file system on the user's computer will enforce access
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`privileges, and that's on slide 21 from the Jones deposition.
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`The reason to add Parker in is that Parker adds just -- we
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`believe, honestly, that Salas has all of the limitations. Parker, though,
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`goes one step deeper into defining the different types of access rights
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`that someone could have. For example, the '316 talks about not only
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`sending down the information itself, as privacy level information, but
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`it could show a different representation in order to show different
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`levels of privacy.
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`Column 5 of the 1001 exhibit, "If a user does not have
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`sufficient permission to view an object in a diary, the diary may not
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`make the object visible to the user, the user does not even know it
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`exists, or it may present the object using an alternate representation."
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`What we have in Parker, very clearly, is the use of an
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`alternate representation to show the privacy level information. Here,
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`the user can access test folder one, but cannot access test folder
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`number two, and it's done through an alternate representation, not
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`simply not having it, but instead showing it in an alternate
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`representation.
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`So, we believe that Salas in combination with Parker meets
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`all of the limitations, especially sending privacy level information
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`down. There is privacy level information, who can view it, who can't,
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`and it is sent down in at least the metadata that Salas specifically
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`contemplates.
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`Thank you.
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`MR. GOETZ: Good afternoon, Your Honor, if I may just
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`have one minute to switch the video equipment. Thank you.
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`JUDGE CLEMENTS: Sure, no problem.
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`MR. GOETZ: May it please the Court, John Goetz, again,
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`on behalf of the Patent Owner. I would just like to begin by noting,
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`just to give you an overview of the patent. The '316 patent issued
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`from an application that was filed in September 1998, almost 17 years
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`ago, and it was drawn to a patent on an online personal diary, having a
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`novel privacy level system that allowed regular, everyday, ordinary
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`people to publish content on the Internet and to select for each piece
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`of content a particular class of people that might view that content,
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`and the classifications are set out right in the patent of world, friend,
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`close friend, best friend, and owner. And the Petitioner here
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`effectively concedes the novelty of the claimed invention, and only
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`raises here before the Board an obviousness attack.
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`And, so, the question presented by the petition is whether
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`the Petitioner has carried its burden to show that the claimed
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`invention -- claimed invention would have been obvious at the time,
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`and we submit that they have not met that burden. Really for four
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`reasons. The first is there's a lack of motivation, and we'll talk a little
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`bit more about that, but really, even if you accept everything that the
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`Petitioner has said about the prior art, there's no legitimate motivation
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`for the combination that they have argued should take place, and
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`everyone agrees, their expert, our expert, and even I think the
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`Petitioner itself, that the Salas system is a system where everyone in
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`that system can see, everyone in that eRoom can see the content.
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`Every eRoom member. And as such, it would not have been obvious
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`to add to the eRoom of Salas the user interface technique of Parker,
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`which an item displayed is normally if access is allowed, or if it's
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`greyed out if there's no access allowed.
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`Now, that's a quote from their petition at page 46. That's the
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`argument that they made. That's the combination argument. And
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`when you realize that in Salas, every member of the eRoom can see
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`all of the content, you see that there's really -- there's no motivation to
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`make that combination. And really that lack of a motivation is a
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`signal to the Board about what's really going on here, and that is that
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`this attack is really an improper impermissible hindsight
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`reconstruction, where they are using what the teacher taught, what Joz
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`Van Der Meer taught against the teacher. And so that's the first
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`reason that we think the Petitioner fails.
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`The second reason has to do with the privacy level
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`information. Under any construction, everyone agrees that privacy
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`level information is all about viewability of content. And the access
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`information that Petitioners rely on in Salas doesn't have anything to
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`do with the viewable content on the eRoom page. The access
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`information that they're relying on has to do with the files in the
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`eRoom system, and the Salas eRoom system files, the specification
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`was very clear in Salas, are opened not in the eRoom page, but outside
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`of the eRoom page, and we'll talk a little bit more about that in a few
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`minutes.
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`Third, under a proper construction of privacy level
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`information, which we've submitted to the Board, and which we think
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`should account for the word level, we think that the current
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`construction does not do that, and once you realize that that level is an
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`important part, an important limitation of the claim, you'll see that the
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`Salas and Parker combination does not include privacy level
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`information under proper construction.
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`And, finally, this question of sending. The claims are very
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`clear that the privacy level information must be sent from the server to
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`the client, and there's very good reason for that, the patent makes clear
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`that in one particular example, where it's the owner who is looking at
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`the online diary, the owner can actually use that privacy level
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`information to select and to change the content of his diary.
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`And, so, that information is sent down to the client, and
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`there's no disclosure of that in Salas, and we'll talk about that, and
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`actually that sending aspect gets into this filtering idea, which I don't
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`think has been characterized fairly, and we'll talk about that in a
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`minute.
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`So, if I could start with the motivation, and I haven't referred
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`Your Honor to any slides yet, but I think I'm going to start with slide
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`14, which is just the placeholder for motivation. And actually, I'll
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`start with slide 15, on motivation.
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`In the Salas collaborative work-based system, all users can
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`at least read all of the content. And we know this because if you read
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`Salas, it tells you that. We know this because our expert made that
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`point very clear and there has been no rebuttal testimony from the
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`Petitioner's expert on this point. And as a result, once you're at that
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`point in the Salas reference, you realize there's no good reason to hide
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`anything, and there's a good reason to share everything.
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`Actually, before I go to the next slide, and you can really see
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`that in Salas, starting at the end of column 1, the summary of the
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`invention, through, say, line 11 of column 2, and it's really talking
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`about the system and how it's really the whole purpose is to engage in
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`a work discussion and to collaborate on a common project. And, so,
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`it's really not that surprising that that's what Salas is all about.
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`Now, we actually asked the Petitioner's expert at his
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`deposition, before we put in the Patent Owner response, about this
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`notion of whether the Salas system is a system where all the members
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`can view the files represented by the icons. We asked him that, and
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`this is at slide 1
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