trials@uspto.gov
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`571-272-7822
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`IPR2015-00818, Paper No. 39
`IPR2015-00819, Paper No. 41
`June 9, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KAPSCH TRAFFICCOM IVHS INC. and KAPSCH
`TRAFFICCOM HOLDING CORP.,
`Petitioner,
`
`v.
`
`NEOLOGY, INC.,
` Patent Owner.
`____________
`
`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
`____________
`
`Held: May 10, 2016
`____________
`
`
`BEFORE: JUSTIN T. ARBES, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`
`
`
`
` The above-entitled matter came on for hearing on Tuesday, May
`10, 2016, commencing at 1:01 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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`
`
`
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`IPR2015-00818, Paper No. 39
`IPR2015-00819, Paper No. 41
`June 9, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KAPSCH TRAFFICCOM IVHS INC. and KAPSCH
`TRAFFICCOM HOLDING CORP.,
`Petitioner,
`
`v.
`
`NEOLOGY, INC.,
` Patent Owner.
`____________
`
`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
`____________
`
`Held: May 10, 2016
`____________
`
`
`BEFORE: JUSTIN T. ARBES, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`
`
`
`
` The above-entitled matter came on for hearing on Tuesday, May
`10, 2016, commencing at 1:01 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`
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`ON BEHALF OF PATENT OWNER:
`
`
`
`
`
`
`
`GREGG F. LoCASCIO, ESQUIRE
`DAVID SCHLAIFER, ESQUIRE
`Kirkland & Ellis LLP
`655 Fifteenth Street, N.W.
`Washington, D.C. 20005
`
`
`
`
`
`
`
`
`NOEL C. GILLESPIE, ESQUIRE
`ROBERT H. SLOSS, ESQUIRE
`Procopio, Cory, Hargreaves & Savitch LLP
`525 B Street
`Suite 2200
`San Diego, California 92101
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`P R O C E E D I N G S
`- - - - -
`JUDGE ARBES: This is the combined oral hearing in
`two cases, Case IPR2015-00818 involving Patent 8,237,568 and
`Case IPR2015-00819 involving Patent 8,325,044.
`Can counsel please state your names for the record?
`MR. LoCASCIO: Sure. Good afternoon, Your Honor.
`Gregg LoCascio from Kirkland & Ellis on behalf of the Petitioner
`Kapsch.
`MR. GILLESPIE: Noel Gillespie on behalf of
`Respondent Neology.
`JUDGE ARBES: Thank you.
`We will follow the same procedures as this morning.
`Each party will have one hour of total time to present arguments
`for both cases. The order of presentation will be Petitioner will
`present its case first regarding the challenged claims in both cases
`and may reserve time for rebuttal. Patent Owner then will
`respond. Petitioner may then use any remaining time to respond
`to Patent Owner's presentation.
`Please do try to refer to your slides by slide number
`when you can. We find that helpful in order to keep the record
`clear. And also if either party believes that something that the
`other party is arguing is objectionable, we ask you to please raise
`that in your own presentation rather than interrupting the other
`side.
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`Any questions from either party?
`MR. LoCASCIO: No.
`JUDGE ARBES: Okay. Petitioner, you may proceed.
`MR. LoCASCIO: Thank you.
`JUDGE ARBES: Would you like to reserve time for
`rebuttal?
`MR. LoCASCIO: I will, Your Honor. I'll reserve 20
`minutes, please.
`I've got some copies of the slides, Your Honor. May I
`approach?
`JUDGE ARBES: Thank you.
`MR. LoCASCIO: Thank you.
`May I proceed, Your Honor?
`JUDGE ARBES: Yes.
`MR. LoCASCIO: Thank you.
`Good afternoon. Gregg LoCascio on behalf of the
`Petitioners Kapsch. We're here today on two instituted petitions
`for inter partes review with respect to certain claims of two
`patents, the '044 patent and the '568 patent.
`At base, these petitions turn on whether the cited art
`anticipates or renders obvious a method or a system of doing a
`very particular thing, and that is communicating between a reader
`and an RFID tag or a transponder, as it's called, where the reader
`sends two communications, a first communication and a second
`communication to that tag. And in response, the tag then
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`Case IPR2015-00819 (Patent 8,325,044 B2)
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`validates a security key, and if it does, it provides a piece of
`information back to the reader.
`With respect to the '568, that information is slightly
`narrower, it's vehicle identification as opposed to just generic
`identifiers and so these challenged claims, as we'll see in a
`second, we believe are invalid as instituted on the various pieces
`of prior art.
`So if we can go to the deck. Let's go to slide 4, please.
`And so the way we have approached it similar to the
`last presentation is to walk through, first, any issues around claim
`construction. The only issue revolves around security key and
`then the various references, the Hurta reference, the Snodgrass
`reference. Both of those are anticipation of the '044 only based
`on the institution and then an obviousness combination of
`Snodgrass plus Slavin with respect to both the '568 and the '044.
`So, Dave, move to slide 6.
`So let's start off talking about what the security key is
`and how it appears in these claims in the patents. And the
`security key is validated by the tag to allow access to some
`identifier from the memory. So what does that mean and the
`panel has already construed it.
`Next slide, please, Dave, slide 7.
`The broadest reasonable interpretation, this was
`proposed by Petitioners because this is a construction that
`previously the Patent Owner themselves had put forth.
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`As a housekeeping matter, there was a discussion about
`the prior litigation and what's in the record and what's out of the
`record in the earlier argument today in the 814 IPR.
`In this case with respect to 818, in hindsight I wish our
`numbers matched between 818, 814 and 819 as a valuable life
`learning lesson. Exhibit 1018 in the '568 or the 818 case is the
`decision of the magistrate judge in the underlying preliminary
`injunction motion.
`Mr. Mammen had said he wasn't sure if it was in the
`record. It is in the 814 case as well and it is in the 814 case at
`Exhibit 1015 for your benefit, and actually page 35 specifically
`addresses the issue as to what construction Neology proposed
`then.
`
`So in that proceeding and in that case Neology proposed
`that is a key checked and validated to grant or deny access to a
`memory. That we believe is correctly the broadest reasonable
`interpretation.
`Interestingly, when you look at the papers here, neither
`side, even though the panel did say the parties can address if
`there's any further interpretation necessary on that, neither side,
`certainly not Petitioner, but nor the Patent Owner says that claim
`should be more narrowly construed. They agreed that this is the
`proper construction of security key, both sides do.
`But then what you see, and we'll talk about this a little
`more, is there are efforts to narrow this without ever coming head
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`on and saying they're providing a narrower construction because
`they can't for the reasons you'll see in a second.
`Slide 8, please. During the preliminary injunction case
`over this specific patent, there was a question of, okay, what does
`this security key have to do, does it have to have encryption, does
`it have to have -- is it singulate -- is it singulating or is it doing
`something more from an encryption standpoint? And Neology,
`the Patent Owner, said, no, the security key, that one of skill in
`the art is a key checked and validated to grant or deny access to a
`memory. That's the broadest reasonable interpretation.
`And under Phillips this panel certainly can't come up
`with a construction narrower than that. The BRI can be broader
`than a District Court Phillips construction or a construction, but
`Neology can't have it where they say in District Court it means X
`and then it means something narrower than X here at the PTAB.
`So this is their definition. They agree with it.
`If we go on to the next slide, slide 9, they've asserted in
`that case and they're asserting it currently, I think there was a
`question as to what's the state of the play in the other patent
`vis-a-vis the parties. In this patent certain claims of it is still in
`both the District Court case, which is stayed, but not because of
`the PTAB proceeding. It's actually stayed because there's an ITC
`proceeding that's going on right now.
`JUDGE ARBES: Both patents we're talking about
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`MR. LoCASCIO: Yes.
`JUDGE JEFFERSON: Is the ITC --
`MR. LoCASCIO: Pardon me, I think the '044, yes;
`'568, no. So, I'm sorry, did I --
`JUDGE JEFFERSON: So go ahead.
`MR. LoCASCIO: And so in the Federal Signal case
`what's offered here, Goldberg says this RN16, the random
`number -- we'll talk about the arbitration number of Snodgrass
`and that that's also a random number is a security key in the
`context of those patents. Those were related applications. And in
`this case the position should be no different.
`Dave, we can go to the next slide, slide 10.
`JUDGE ARBES: But, counsel, I think the issue is not
`what it is, whether a random number can per se be a security key.
`It's really how it's used.
`MR. LoCASCIO: Absolutely.
`JUDGE ARBES: Okay. So if that is the case, what is
`the relevance of the standard that it's asserted against?
`MR. LoCASCIO: The standard that it's asserted
`against, there's a protocol, but the protocol doesn't say what
`format that security key has to take. They have said it doesn't
`have to be cryptological or cryptographic I guess is the better
`word and it doesn't have to have a particular format. It has to
`perform, as you know, which has a particular function, and that
`function is, okay, it has to be validated. And if it's correctly
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`validated, then it provides information from the tag back to the
`reader, essentially what's sometimes called on the Patent Owner's
`side is protected information, meaning information that isn't
`turned over until that key is validated.
`And what you see throughout Patent Owner's papers is
`saying, well, it can be anything, that it doesn't have to be -- you
`know, it doesn't even have to be validated. It doesn't have to be --
`all it has to be, it has to be a key. Everybody's definition means it
`has to be a key and the purpose of a key is it has to be checked
`against something, like a physical key. There's some references
`to a physical key on the Patent Owner's side. A physical key is
`checked against the tumblers inside a physical lock. And if the
`two match, well, then you have access.
`You could have more than one lock. Obviously you
`could have a deadbolt and a regular lock in your house and that
`doesn't mean it's not a key anymore. The point is it has to be
`checked against something, and that's all this patent and all these
`claims require.
`And we'll see in a second, not only is that the broadest
`reasonable interpretation of how you use the security key, but it's
`also specifically how the Patent Owner themselves argued this --
`the scope of this claim in these patents and how it reads allegedly
`on 6C in the Federal Signal case.
`In response, what you see from Patent Owner are
`several efforts to sort of -- the first two they don't propose an
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`actual construction, but they sort of spend a lot of time in their --
`in the Patent Owner response saying, well, what's different about
`the art from their applications and their patents are the primary
`purpose of security or you can't look at art that relates to
`singulation.
`That's not the case. We have to look at what the claims
`mean and whether the art falls within those claims and reads on it
`or in the case of the obviousness combination renders them
`obvious. So let's go to slide 13 for a second.
`How much security do you need? Because there's a lot
`of talk in the Patent Owner response saying, you know, these
`Snodgrass-Slavin combined or Snodgrass alone or Hurta don't
`provide any adequate security. Except during the preliminary
`injunction proceeding, there's a whole back and forth, and this is
`Exhibit 1031 is the transcript and pages 101 through 108 of 1031
`are particularly instructive, but here is just one piece:
`The magistrate judge is trying to find out with Mr.
`Gillespie who is arguing it for Neology, well, what does this
`security key have to do, how much -- does it need encryption, for
`instance? And the Court says -- and he says, there's no need for it
`to be encrypted. Anybody who could figure out what's going on
`between the reader and the tag could do this. That's the Court.
`How is it a security key?
`Mr. Gillespie says, it's a low level security potentially.
`It's making sure I'm talking to a reader that got my random
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`number before I sent it back. And so for the discussion that says
`disregard prior art that deals with singulation and that this
`somehow needs some higher degree of security, this is eight
`pages of Exhibit 1031, 101 to 110, that couldn't be clearer.
`For instance, Mr. Gillespie, the random number
`accesses a security key to make sure it's talking to the right
`reader, page 107. Before it sends information, it wants to make
`sure it's sending it to the right reader, so it checks random number
`16, that security key, and it says, yep, that's the right one, I'll go
`ahead and send the information, pages 107 to 108.
`And so this -- we're back to 10. This argument that --
`JUDGE ARBES: I'm sorry, if you can just step back for
`a second. If we're going with something that uses the random
`number, how am I conclusively identifying one particular reader?
`Isn't it theoretically possible that two transponders could generate
`the exact same random number?
`MR. LoCASCIO: It is theoretically possible, just like it
`would be theoretically possible that if you had a hard-coded
`number there could be some error in transmission that would read
`one as the other. That doesn't identify cases to this point.
`The idea that there's a hypothetical way could either be
`sort of misapplied or some -- whatever that would be. I mean, it's
`a 16-bit random number, so we're pretty small down in the weeds
`as to the potential for those two to overlap with each other. But
`even then, the patent doesn't say it has to be like guaranteed
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`perfection. You don't have to obviously, just like you don't have
`to infringe perfectly to infringe. The patent doesn't say there's no
`chance for error in this design or it's foolproof or anything like
`that.
`
`And, indeed, the patent itself in the specification does
`talk about a crypto key, but it never actually defines what a
`security key is. In the Federal Signal litigation, the judge said
`there are actually some written description issues around what is
`this security key. If you wanted to just mean any kind of key,
`you have to put some meat on it.
`Not an issue for this case not today, but there's nothing
`in there that says it has to be so unique to Your Honor's question
`that it would carve out somehow random numbers of 16 bit.
`So the first two don't significantly change, frankly, any
`of the analysis.
`And then for the last two, Neology argues that they
`essentially read out the word identification and they say, instead,
`that if the prior art sends anything from memory before the
`security key is validated, that somehow gets them out of
`anticipation and they say Snodgrass, they say the same about
`Hurta, because both of those we'll see provide some information
`before the key is validated.
`But that doesn't change anything either. Because as the
`Board noted in the Institution Decision, even in both patents the
`security key mentioned is in the memory. So some piece of the
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`memory of that tag has to be sent to the reader before the
`validation can occur.
`JUDGE ARBES: So going to Claim 1 of the '568
`patent, for example, a processor coupled with the memory, the
`processor configured to provide access to the memory based on a
`security key. Is it your position that if I have a memory that
`stores a lot of different things, but I'm only granting access to one
`portion of that to one field of data in memory that that means that
`limitation, even if I have previously provided everything else in
`the memory, that this can reach a portion of the memory?
`MR. LoCASCIO: It can and it does because the claim
`itself says that the key is in the memory or certainly there are
`claims that say it can be in the memory, so there's no question.
`The idea, as I think the analogy puts it, that narrows this -- it
`narrows something. They're not actually saying it's part of the
`definition for security key. They're sort of taking a gestalt view
`of all the elements and saying it's narrower because no
`information can be sent, which if I understand your question
`correctly, before the key is validated is belied by the claims
`themselves, first of all.
`And it also would be belied by the dependent claims
`that weren't instituted about a second security key providing
`access to other parts of the memory. And so if the memory -- if
`access to the memory in a full all or none was a binary decision
`as to you're either in or you're out, it would be inconsistent with
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`this patent itself, both the '568 and '044 on two reasons, because
`the code -- the key, which is sent before validation is in the
`memory, and there are aspects to the memory that are
`inaccessible based on the first key and reverse second key.
`JUDGE ARBES: Okay. So if I'm talking about
`Snodgrass, for example.
`MR. LoCASCIO: Yes.
`JUDGE ARBES: It has various pieces of memory,
`memory 64 and flag register 84, is it your position that the
`memory in the claims is just the memory that stores tag and data
`or is it all of memory 64, for example?
`MR. LoCASCIO: The memory -- and so if we look at
`the claim, so if we go to Claim 1, for instance, of the '568 -- and
`actually from an anticipation standpoint, we should actually look
`at '044 because of the way the panel instituted these.
`If we look at '044, Claim 1, the validation results in the
`identifier being provided, and so the identifier has to be in
`memory. Okay. And the access to the memory, which includes
`the identifier, doesn't mean the whole memory full stop.
`So if I think I understood your question correctly, the
`point is this claim in the '044, all of the claims in the '044, only
`require that something in the memory and identifier -- it could be
`more. It can say that some claims say at least an identifier. The
`identifier itself is essentially locked in protected until a validation
`happens of the security key.
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`It is in the memory. Physically where is it in a chip
`design level or something like that, neither of the patents at issue
`proscribe it that narrowly and the way one embodiment has it in
`the patent, they have the security key in the cryptographic piece
`and then the problem, but then they themselves say both of those
`are part of the "memory" in their response and Claim 1 talks
`about it that way.
`JUDGE ARBES: Counsel, I think I understand what
`you're saying when we're looking at the claims of the '044 patent
`that say granting access to the memory contents.
`MR. LoCASCIO: Yes.
`JUDGE ARBES: Claim 1 of the '568 patent is a little
`bit different where we're providing access to the memory based
`on a security key. So what is your position as to what the
`memory is in Snodgrass, for example?
`MR. LoCASCIO: The memory in Snodgrass we
`contend is -- I want to pull up the claim. Pardon me, the memory
`in '568 is the portion that stores the security key and vehicle
`identification information. There could be other aspects of
`memory on that chip. The memory that's accessed by the security
`key is the portion --
`This is column 23 is where you see it actually, Dave, if
`you're pulling it up on the screen. It's below the upper left.
`The memory has to be configured to store security key
`and vehicle identification information. That's what's accessed
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`and that's what this whole invention speaks to. It doesn't say
`nothing -- essentially if it was all memory of any sort, any storage
`device or vehicle on that chip, what would happen, then, is it
`would say you cannot get anything, you can't read anything,
`obviously you can't write anything off that tag until the validation
`has happened, except the claims themselves belie that point
`because it's already said we're going to offer up our key and our
`key is in that memory.
`JUDGE ARBES: Okay. So in Snodgrass, for example,
`the -- as I understand your position, you are saying that the
`arbitration number is the security key and the vehicle
`identification information taking into account Slavin maps to the
`tag and data; is that right?
`MR. LoCASCIO: Okay. So, yes, but you don't need
`Slavin, except for a handful of claims in '568 because '044 just
`says an identifier. It doesn't have to be vehicle information.
`JUDGE ARBES: I'm sorry. Okay. I'm talking just
`about Claim 1 of the '568 patent. What in Snodgrass are we
`saying is the memory?
`MR. LoCASCIO: In Snodgrass we're saying the
`memory is the portion of the memory that includes the tag and
`data.
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`JUDGE ARBES: Okay. And also the arbitration
`number, right?
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`MR. LoCASCIO: The arbitration number can -- or it
`can be in the memory. In theory all these things are in the
`memory somewhere because they're on that tag, but they're not --
`the memory that's being accessed, there's some portion of the
`memory that's accessed to get the data or the tag because those
`are protected.
`We'll look in a second. The experts on both sides agree
`there's protected information in Snodgrass. Because until you
`verify or validate the arbitration number, that information will not
`be sent.
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`JUDGE ARBES: Okay. Well, that's -- I think that's my
`question then. So Claim 1 of the '568 patent says the memory is
`configured to store a security key and vehicle identification
`information and then we provide access to the memory based on a
`security key. So whatever the memory is has to have the
`arbitration number, the security key, and it has to have a tag and
`data which you map to the protected information.
`MR. LoCASCIO: Correct. And so in the Snodgrass
`embodiment that's shown, although I don't -- I think there are
`others. Certainly the box 64 memory would be one of those and
`then you have essentially the register array 66 that would also be
`part of that, but --
`JUDGE ARBES: And it's only a portion of those.
`MR. LoCASCIO: It is -- it doesn't matter if it's the
`whole or a portion, because what's clear from Snodgrass is that in
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`memory, including in this case in 64 as it's shown here, there is
`something called tag and something called data and those are
`pieces of information and they are identifiers in the patent and
`Snodgrass lays that out, and then with Slavin they can be vehicle
`identifiers for those narrower claims. And it's not available and
`not disclosed at all to the reader until the arbitration number, the
`security key is validated.
`JUDGE ARBES: Okay. So it's the portion of memory
`64 that has tag and data because there are other things you would
`agree in memory 64 that aren't protected that are given out before
`the whole arbitration number process. I think that's Patent
`Owner's point.
`MR. LoCASCIO: Correct. This idea that the revision,
`for instance, a one-bit thing that's hard-coded in there that maybe
`says it's version 2.0 or something like that, sure, that's kept in
`memory somewhere. It doesn't have to be -- just because that
`revision ID is disclosed, the claims of '568 and '044 don't say no
`information from the tag, be it revision, be it security key, is
`accessible until validation essentially through what is not really
`claim construction.
`Because if you look at the actual claim terms, Patent
`Owner is not saying you need to change the definition of any of
`these about security key or memory or any of those, what they're
`saying is -- because they say the memory is anything that stores
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`anything and they say it could be the problem, it can be the
`cryptographic portion of their -- one of their embodiments.
`What they're saying is you cannot have access to
`anything on that tag and that's not true because it's belied by the
`actual patents themselves, which make clear that what's called
`memory can include the security key A and B. There are other
`things that are not accessed because of the first security key, and
`so it's not as if there's a sealed box that's everything in its memory
`that you're either in or out based on that key.
`Have I answered your question?
`JUDGE ARBES: I think I understand your position.
`Can I ask one more question regarding the claim language?
`MR. LoCASCIO: Of course you can.
`JUDGE ARBES: Is there a contradiction in that the
`memory is configured to store both the security key and vehicle
`identification information and then we provide access to the
`memory based on the security key? So I'm already accessing part
`of the memory to access the rest.
`MR. LoCASCIO: I think this is sort of perhaps the
`driver or the kind of reason for your first question, which is, you
`know -- and the basic concept of claim construction is we have to
`construe it to make sense. And so if you construe memory, as I
`think Patent Owner is trying to do and as like your question to me
`was a second ago, is it every single thing that's on that tag, then
`you have this inconsistency you point, which is how can it be that
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`I'm checking for access after I look at something that's already
`inside it, meaning the security key.
`So to my point, the only way you can construe this in a
`sense that -- in a way that makes any sense whatsoever is to look
`at how it's described obviously in the spec and how it's described
`in the claims itself, which is there's information or an identifier in
`the '044, vehicle information in the '568 and that information is in
`the memory, but you cannot access it until you've validated the
`security key.
`David, if we could go to -- I'd like to start with Hurta
`actually, slide 25.
`And Hurta is anticipatory and anticipates a handful of
`claims that are in the record already. I don't need to read them in,
`unless somebody tells me I need to. And let's walk through those.
`Because with respect to Hurta, there's actually not that much
`disagreement and you don't see that much. It's like two pages,
`frankly, of the Patent Owner's response.
`If we can go to the next side, slide 26 -- actually 27.
`So Hurta is a tolling system. But specifically for
`purposes of what we're looking at here, the question is, does it
`have a key and is there some piece of its memory, some
`identifier, or a piece of information that is not shared until that
`key is validated.
`So if we can go to slide 28.
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`What we've done here and this is something you saw in
`the initial submission is on the right side -- it's a little hard to read
`on the screen -- the idea that's there a first communication. In
`response to that communication, information is provided -- thank
`you -- by the tag and then there's a second communication with
`an encrypted version of that random number.
`And if we look at what Hurta actually does -- let me get
`back to my slides. Actually go to the left side of this, look at the
`claim language.
`What's important in the '044, it's a point we just talked
`about a second ago. Just blow up the claim, Dave.
`It says an identifier and then here it's just an identifier.
`So in the '044 it's broader than the '568 because it doesn't have to
`relate to vehicle information and, frankly, it just has to be some
`thing that serves as an identifier in some way or form.
`And we see in the Patent Owner's response, a lot of
`discussion, which we'll talk about in a second, that, well, there's
`other stuff that you did get access to before you did the
`validation. It doesn't matter. The '044 patent, Claim 1, would
`cover -- and, frankly, it's been asserted against things that it
`doesn't matter what is exchanged initially. It doesn't matter how
`much access you get. If there's some information, some identifier
`on that tag that you can't get, unless there's some validation by it
`based on the key, well, then that meets Claim 1 of the '044 patent.
`Let's go to the next slide, Dave, slide 29.
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`Case IPR2015-00818 (Patent 8,237,568 B2)
`Case IPR2015-00819 (Patent 8,325,044 B2)
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`The only thing disputed, Patent Owner agrees Hurta
`discloses every limitation of the instituted claims of the '044
`patent with one exception. They say that there is nothing that's --
`there's no protected information, if you will. There's no period
`where some security key is validated before you get access to
`some piece of what they call protected information.
`So we could go to the next slide.
`Well, is there validation? This is from Hurta. It's
`Exhibit 1009. It's column 7. The tag sends a cipher code. Okay.
`Pardon me, the tag sends a random number. The reader sends
`back what they call a cipher code. That cipher code has to match
`the random number sent during the presentation response from
`the tag and that completes authorization. So that's the validation
`step and there's no real debate that that's a key being validated.
`Next slide. And Dr. Goldberg, their expert, admits that
`this description
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