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` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
` ________________
` 2
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` 3 ________________
`
` 4
` MICROSOFT CORPORATION,
` 5 Petitioner,
`
` 6 v.
`
` 7 BRADIUM TECHNOLOGIES, LLC,
` Patent Owner
` 8
` ________________
` 9
` Case IPR 2016-00448 (Patent 7,908,343 B2)
` 10 Case IPR 2016-00449 (Patent 8,924,506 B2)
` ________________
` 11
`
` 12 Before BRYAN F. MOORE, BRIAN J. MCNAMARA, and MINN CHUNG,
` Administrative Patent Judges
` 13
`
` 14
`
` 15 The above-entitled matter came on for hearing on
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` 16 Tuesday, April 18, 2017, commencing at 1:32 p.m., at the
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` 17 U.S. Patent and Trademark Office, 600 Dulany Street,
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` 18 Alexandria, Virginia 22314.
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` 19
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` 20 Job No.: 140053
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` 21 Pages: 1 - 89
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` 22 Reported By: Christina S. Hotsko, RPR
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`
` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
` ________________
` 2
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` 3 ________________
`
` 4
` MICROSOFT CORPORATION,
` 5 Petitioner,
`
` 6 v.
`
` 7 BRADIUM TECHNOLOGIES, LLC,
` Patent Owner
` 8
` ________________
` 9
` Case IPR 2016-00448 (Patent 7,908,343 B2)
` 10 Case IPR 2016-00449 (Patent 8,924,506 B2)
` ________________
` 11
`
` 12 Before BRYAN F. MOORE, BRIAN J. MCNAMARA, and MINN CHUNG,
` Administrative Patent Judges
` 13
`
` 14
`
` 15 The above-entitled matter came on for hearing on
`
` 16 Tuesday, April 18, 2017, commencing at 1:32 p.m., at the
`
` 17 U.S. Patent and Trademark Office, 600 Dulany Street,
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` 18 Alexandria, Virginia 22314.
`
` 19
`
` 20 Job No.: 140053
`
` 21 Pages: 1 - 89
`
` 22 Reported By: Christina S. Hotsko, RPR
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` 2
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` 1 A P P E A R A N C E S
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` 2 ON BEHALF OF PETITIONER:
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` 3 MATTHEW C. BERNSTEIN, ESQUIRE
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` 4 EVAN S. DAY, ESQUIRE
`
` 5 11988 El Camino Real, Suite 350
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` 6 San Diego, California 92130-2594
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` 7 (858) 720-5721
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` 8
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` 9 CHUN M. NG, ESQUIRE
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` 10 Perkins Coie
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` 11 1201 Third Avenue, Suite 4900
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` 12 Seattle, Washington 98101-3099
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` 13 (206) 359-6488
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` 14
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` 15 ON BEHALF OF PATENT OWNER:
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` 16 CHRIS J. COULSON, ESQUIRE
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` 17 IAN MOORE, ESQUIRE
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` 18 Andrews Kurth Kenyon, LLP
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` 19 One Broadway
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` 20 New York, New York 10004-1007
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` 21 (212) 908-6409
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` 22
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` 3
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` 1 P R O C E E D I N G S
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` 2 JUDGE MCNAMARA: Good afternoon everyone. I am
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` 3 Judge McNamara. With me is Judge Moore. And Judge Chung
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` 4 is participating remotely, so I would urge everyone today
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` 5 to make sure they speak into the microphones from the
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` 6 podiums so that Judge Chung can hear you. And the other
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` 7 thing is refer to any slides or demonstratives or anything
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` 8 you may be using today so that he can access them because
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` 9 he may not be able to see them otherwise.
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` 10 To begin, this is the oral hearing in --
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` 11 consolidated hearing, actually, for case
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` 12 IPR 2016-00448-00449. Microsoft Corporation versus Bradium
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` 13 Technologies.
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` 14 Each side today will have 60 minutes of total
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` 15 argument time. And let me do a couple of housekeeping
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` 16 things at the beginning here.
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` 17 First, the petitioner will present its case in
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` 18 chief on the grounds on which we instituted it, and then it
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` 19 will argue its motion to exclude. The patent owner will
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` 20 then oppose or argue -- make its arguments in opposition to
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` 21 petitioner's case and make arguments in support of its
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` 22 motion to exclude.
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` 1 The petitioner may then rebut the patent owner's
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` 2 opposition and oppose the patent owner's motion to exclude,
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` 3 so reserve some time for that. And the patent owner then
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` 4 may, if he chooses to reserve some time, rebut the
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` 5 petitioner's opposition to the motion to exclude. That's
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` 6 all you get to do on that last part.
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` 7 Today's hearing is public. And we are aware of
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` 8 the e-mail that we received from the parties earlier this
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` 9 week concerning the potential for some confidential subject
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` 10 matter. We'd like to avoid a lot of popping up and down
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` 11 and having to, you know, switch between a confidential
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` 12 proceeding and a public proceeding.
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` 13 So the way we're going to do that is I'm going
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` 14 to urge you all to stay on the -- to make everything -- to
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` 15 not use any confidential subject matter. But if it's
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` 16 absolutely unavoidable, then you need to reserve time for
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` 17 it, and we will have a confidential session at the end.
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` 18 And we will -- if we do that, we will hear from
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` 19 the petitioner and from the patent owner once, in that
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` 20 order. And so we will only hear from you once on
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` 21 confidential subject matter, and you'll have whatever time
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` 22 you have left out of the 60 minutes.
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` 1 Is everybody clear about what we're going to do?
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` 2 MR. BERNSTEIN: Yes, Your Honor.
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` 3 JUDGE MCNAMARA: Okay. Great. Thanks, so much.
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` 4 Could I have the -- beginning with the
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` 5 petitioner, could you introduce yourselves and any counsel
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` 6 and who's here?
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` 7 MR. NG: Thank you, Your Honor. My name is Chun
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` 8 Ng. I'm with Perkins Coie on behalf of petitioner,
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` 9 Microsoft Corporation. I'm the lead counsel in this
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` 10 matter.
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` 11 With me are my colleagues, Matt Bernstein and
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` 12 Evan Day. Mr. Bernstein will be conducting the argument on
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` 13 our behalf. Thank you.
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` 14 JUDGE MCNAMARA: Thank you. How about the
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` 15 patent owner?
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` 16 MR. COULSON: Good afternoon, Your Honor. My
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` 17 name is Chris Coulson with Andrews, Kurth, Kenyon. I'm
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` 18 lead counsel, and I will be conducting the argument today.
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` 19 And with me is my colleague, Ian Moore, also from
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` 20 Andrews, Kurth, Kenyon.
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` 21 JUDGE MCNAMARA: Thank you very much. Welcome
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` 22 to the Patent Trial and Appeal Board.
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` 1 MR. COULSON: Thank you, Your Honor.
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` 2 JUDGE MCNAMARA: And I guess we're ready to
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` 3 begin with the petitioner. And how much time would you
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` 4 like me to alert you to?
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` 5 MR. BERNSTEIN: 35 minutes for our opening and
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` 6 25 minutes rebuttal, Your Honor.
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` 7 JUDGE MCNAMARA: All right.
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` 8 MR. BERNSTEIN: We have some hard copy of the
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` 9 demonstratives in case, due to user/operator error, I have
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` 10 a hard time with this.
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` 11 JUDGE MCNAMARA: That's fine. You may approach.
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` 12 MR. BERNSTEIN: Thank you. Good morning, Your
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` 13 Honors.
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` 14 Based on its papers and the cited evidence,
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` 15 Microsoft has shown by a preponderance of the evidence that
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` 16 the challenge claims are obvious over Reddy and Hornbacker.
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` 17 Today I'm going to focus on a few issues in our
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` 18 case in chief. But before I dig into them, I wanted to
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` 19 raise two important issues that really permeate these IPRs.
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` 20 First, what is important is to actually look at
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` 21 what the prior art references actually disclose. And by
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` 22 that I mean a person of ordinary skill in the art must look
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` 1 at the full disclosure of the references. That's what the
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` 2 law requires.
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` 3 We have to assume that the person of ordinary
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` 4 skill in the art is not an unintelligent automaton but that
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` 5 that individual, he or she, can look at the entire
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` 6 reference and understand its full disclosure. What a party
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` 7 cannot do is put on a pair of blinders when looking at a
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` 8 reference and not take into account what's actually and
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` 9 expressly disclosed.
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` 10 Second, what's obviously important is the actual
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` 11 claim language, focusing on the actual claim language when
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` 12 comparing a prior art, not impermissibly narrowing or
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` 13 changing the claim terms.
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` 14 So I want to start by talking about an overview
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` 15 of the '343 and the '506 patents. What are they about?
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` 16 The patents talk about accessing very large images on a
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` 17 server and the issues and problems of getting those images
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` 18 to a client device, given the size of the images and
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` 19 network constraints.
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` 20 Patents are specific that the problem is, one,
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` 21 related to large amounts of imagery. It's not limited to
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` 22 geographic images but the patent is very clear that it
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` 1 includes any type of imagery. And that's at column 11,
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` 2 line 7 to 14 of the '343 patent.
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` 3 And Your Honor, when I refer to the patents, I'm
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` 4 going to -- the spec is by and large the same, so I'm going
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` 5 to refer to the '343 patent specification.
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` 6 So what's the claimed solution? The solution
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` 7 claimed by the Bradium patents is breaking the source image
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` 8 into equally sized image parcels, then creating a series of
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` 9 derivative images where each layer of tiles is successfully
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` 10 lower and lower resolution; that way, the client device can
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` 11 download just the tiles for the correct locations and
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` 12 resolution that it needs to display a particular view.
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` 13 I'm going to -- let's see. Is there anything --
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` 14 so I'm on Demonstrative 2, Your Honors.
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` 15 And what you see are a few things. First, you
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` 16 have figure 2, which is the image pyramid of the Bradium
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` 17 patents. And then what you have at 6, the middle block,
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` 18 column 6, lines 56 to 59, you have the description of the
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` 19 image data parcels. The tiles are stored in the
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` 20 conventional quad-tree data structures where tree nodes of
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` 21 depth D correspond to the stored image parcels of a
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` 22 derivative image.
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` 1 So some but not all of the claims talk about
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` 2 progressive resolution enhancement, which simply refers to
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` 3 downloading lower-resolution images before
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` 4 higher-resolution images to assure that the compete image
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` 5 of at least a low resolution is available to the user. And
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` 6 this is discussed at column 10, lines 10 to 14. It's the
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` 7 lower box of Demonstrative 2.
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` 8 So turning to an overview of the prior art
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` 9 references -- and I'm going to start with Reddy. And Reddy
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` 10 addresses effectively the same problems that the '343 and
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` 11 '506 patents do, which is retrieving portions of large
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` 12 images over a network with limited bandwidth.
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` 13 And Reddy unequivocally states that addressing
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` 14 bandwidth constraints was one of its goals. And if you
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` 15 look at Demonstrative 6, Your Honors, we've cited to
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` 16 paragraph 16 and 17 of Reddy, where this is set forth.
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` 17 And Reddy actually uses fundamentally the same
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` 18 solution of creating a pyramid of images at varying
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` 19 resolutions so that the client device can request tiles at
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` 20 their appropriate locations and resolutions. And that's on
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` 21 Demonstrative 13, Your Honors.
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` 22 In the series of derivative images, the image
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` 1 pyramid, the quad tree, is shown in figure 1 of Reddy. And
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` 2 it's effectively the same image pyramid that is in figure 2
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` 3 and the description of figure 2 in the '343 and '506
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` 4 patents.
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` 5 I want to pause for a moment and say something
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` 6 about figure 1 of Reddy. I mean, Reddy is one of our -- or
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` 7 Reddy is our key prior art reference. And Reddy figure 1
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` 8 is something that petitioners rely on throughout and
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` 9 repeatedly in its petitions and in its papers.
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` 10 Bradium by and large just ignores it. I mean,
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` 11 they chose to address it by pretending it didn't exist and
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` 12 that a person of ordinary skill in the art would not have
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` 13 considered it. Bradium's expert also ignored figure 1.
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` 14 And so to the extent that the Board hears
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` 15 anything about figure 1 today, Microsoft posits that that's
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` 16 new argument.
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` 17 I want to turn to Demonstrative 7, Your Honors.
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` 18 And while figure 1 is an important figure, paragraph 48 of
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` 19 Reddy is also pretty critical. And what does paragraph 48
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` 20 say? So first, it starts off by saying what Bradium likes
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` 21 that it says. TerraVision II can be implemented on a
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` 22 graphics workstation connected to a gigabyte-per-second ATM
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` 1 network with high-speed disk servers for fast response
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` 2 times.
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` 3 But then note the word "however," meaning in
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` 4 contrast. And then it is specifically talking about
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` 5 communication channels with less bandwidth and client
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` 6 devices that are less powerful. It talks about one
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` 7 TerraVision on the internet as opposed to the ATM network;
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` 8 and two, a standard VRML browser on a laptop to be enable
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` 9 to browse the same data that the high-end TerraVision can
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` 10 browse.
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` 11 So both 1 and 2 specifically are capable of
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` 12 being used in military missions, emergency relief efforts,
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` 13 and things along those lines. And Microsoft's expert, in
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` 14 his declaration, as well as the reply declaration,
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` 15 testified that a person of ordinary skill in the art would
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` 16 recognize that there was a need for the ability to access
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` 17 data under network constraints and for a system that can
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` 18 operate on portable computing devices in light of the
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` 19 emergency relief efforts and military missions in
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` 20 paragraph 48.
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` 21 JUDGE CHUNG: So Counsel, I have a question on
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` 22 paragraph 48. Patent owner argues that the laptop
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` 1 discussed in paragraph 48 of Reddy is about using a laptop
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` 2 offline and, you know, looking at data that's on the local
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` 3 drive on the laptop, and it's not about using limited
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` 4 bandwidth connection.
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` 5 That seems to be at least a feasible argument,
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` 6 right? Because when you are in a military situation or
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` 7 emergency response situation, you may not have any
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` 8 connection at all. You may be offline, you might be just
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` 9 looking at the data on the hard drive on the laptop. So,
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` 10 you know, how do you respond to that?
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` 11 MR. BERNSTEIN: So I respond a couple ways. I'm
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` 12 not sure I remember that in their preliminary response. I
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` 13 don't remember if they continued that through to their
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` 14 actual patent owner response. But regardless, I think if
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` 15 you look at Exhibit 2066, there's a clear discussion of use
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` 16 of the Terra server technology on laptops.
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` 17 And the testimony on whether something was
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` 18 online as opposed to offline, we have the testimony of
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` 19 Dr. Michalson. And I think a person of ordinary skill in
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` 20 the art, maybe it could be used for offline, but I think
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` 21 the disclosure of Reddy in paragraph 48, I think based on
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` 22 the testimony, a person of ordinary skill in the art could
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` 1 definitely see that one of the scenarios, in addition to
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` 2 maybe what you just said, Judge Chung, is that it could be
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` 3 used on a limited bandwidth channel and on limited device
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` 4 in those emergency settings.
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` 5 So a person of ordinary skill in the art, maybe
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` 6 he would use it offline, but I think absolutely a person of
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` 7 ordinary skill in the art would understand there are
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` 8 situations where there would be limited bandwidth issues
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` 9 and there would be the need for -- to go into, you know a
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` 10 fire area and have a laptop instead of -- or have a laptop
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` 11 or have something smaller so you're not lugging around a
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` 12 desktop or something along those lines.
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` 13 JUDGE CHUNG: Okay. Thank you.
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` 14 MR. BERNSTEIN: So the last thing I wanted to
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` 15 talk about Reddy is in Demonstrative 11.
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` 16 And what Demonstrative 11 shows in Reddy
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` 17 Exhibit 1004, paragraphs 3, 21, and 44, talks about how the
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` 18 resolution of an image that the user is viewing can be
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` 19 built up progressively in a coarse-to-fine manner by first
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` 20 downloading lower-resolution images and then gradually
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` 21 replacing those images with higher-resolution imagery as it
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` 22 becomes available.
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` 1 So I want to now briefly move on to Hornbacker,
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` 2 which is Exhibit 1003. And I want to briefly discuss
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` 3 Demonstrative 8, Your Honors.
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` 4 And at a high level, Hornbacker addresses a very
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` 5 similar problem to Reddy and to the issues addressed by the
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` 6 Bradium patents, which is allowing a user to view portions
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` 7 of very large images over a network with bandwidth
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` 8 constraints. And that's found in Exhibit 1003 at page 2,
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` 9 lines 27 and 28.
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` 10 Hornbacker also addresses this problem by
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` 11 dividing the source imagery into tiles and creating
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` 12 derivative tiles at varying resolutions so the client
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` 13 browser can request tiles at the correct locations and
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` 14 resolutions for a particular view.
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` 15 Hornbacker actually goes a little bit further
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` 16 and teaches that you can use -- you can also save bandwidth
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` 17 by using compression, including forms of compression that
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` 18 result in fixed tile sizes.
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` 19 So in December 2000 at the filing date of the
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` 20 Bradium patents, the use of compression was something that
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` 21 was well known in the art at the time. Professor Michalson
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` 22 talked about that in Exhibit 1005 at paragraphs 44 to 46,
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` 1 69, 126.
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` 2 And so a person of ordinary skill in the art at
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` 3 the time would know you could either send raw imagery or
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` 4 compressed imagery. And Hornbacker specifically talks
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` 5 about using compression.
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` 6 The Hornbacker client, like Reddy, also
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` 7 requested tiles by making URL requests to the server. And
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` 8 Hornbacker added additional detail about the specific
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` 9 makeup of those requests by incorporating information about
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` 10 the coordinates, the position, and the resolution.
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` 11 So I want to talk about motivation to combine,
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` 12 Your Honors. And Microsoft has shown by a preponderance of
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` 13 the evidence that a person of ordinary skill in the art
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` 14 would have been motivated to combine Reddy and Hornbacker.
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` 15 Our petition provides articulated reasoning with
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` 16 rational underpinnings to support the motivation to
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` 17 combine. First, both of these references are analogous
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` 18 art. Both Reddy and Hornbacker are in the same field of
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` 19 endeavor; both address the problem of viewing small
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` 20 portions of much larger images over a network, and both GIS
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` 21 and viewing document images are part of that. The Bradium
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` 22 patent itself is specifically not limited to GIS and
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` 1 mapping.
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` 2 The combination also satisfies the reasonably
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` 3 pertinent test because both references are about retrieving
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` 4 tiles that are part of a larger image at the appropriate
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` 5 resolution or resolutions for display and optimizing the
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` 6 use of bandwidth in order to display an appropriate part of
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` 7 an image.
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` 8 Both Reddy and Hornbacker utilize a client
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` 9 browser to request image tiles from the server-based
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` 10 inputs.
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` 11 Both Reddy and Hornbacker disclose accessing a
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` 12 server by a web browser resident on the client.
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` 13 Second, Your Honors, there's undisputed evidence
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` 14 of motivation to combine in these petitions. In our
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` 15 petitions, Microsoft pointed out that person of ordinary
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` 16 skill in the art would have combined Reddy and Hornbacker
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` 17 in order to take advantage of the benefits of compression,
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` 18 which are taught by Hornbacker.
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` 19 Reddy teaches that selectively using just the
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` 20 tiles for the location resolution needed to display a
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` 21 particular viewpoint concerns bandwidth. So that means
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` 22 that saving bandwidth is a goal of Reddy.
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` 1 Reddy further talks about using the system in
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` 2 naturally bandwidth-constrained environments, such as
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` 3 military and emergency applications.
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` 4 Therefore, a person of ordinary skill in the art
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` 5 would have concluded that using the tile compression taught
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` 6 by Hornbacker to compress the tiles in Reddy would improved
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` 7 bandwidth efficiency, one of the goals of Reddy.
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` 8 And Your Honors, in their institution decision,
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` 9 articulated this motivation to combine. Bradium has not
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` 10 responded to it. So to the extent Bradium has anything to
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` 11 say about it today, it would be new argument.
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` 12 JUDGE MCNAMARA: I do have a question. As I
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` 13 recall, there is an argument that the Hornbacker is aimed
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` 14 more at documents and Reddy is aimed more at mapping in a
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` 15 realtime-type environment.
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` 16 How do you respond to that particular position
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` 17 that I think the patent owner has articulated?
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` 18 MR. BERNSTEIN: So I'll start by stating that
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` 19 the patent itself specifically is not -- it says it
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` 20 specifically is not limited to GIS and mapping, but it's
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` 21 talking -- it is directed toward imagery and getting
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` 22 imagery from the server to the client --
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` 1 JUDGE MCNAMARA: I understand that. And so
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` 2 if --
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` 3 MR. BERNSTEIN: I'm sorry, Your Honor.
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` 4 JUDGE MCNAMARA: No, no, no. I didn't mean to
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` 5 interrupt you.
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` 6 But I guess the question is why one would look
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` 7 from one particular field to the other. You know, the
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` 8 technologies may be similar, but the question is why would
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` 9 one be motivated to make that combination? Why would one
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` 10 be motivated to consider the mapping, the active mapping,
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` 11 that might be going on from the point of view that I
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` 12 understand Reddy is talking about versus the type of
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` 13 document analysis that might be going on in the context of
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` 14 Hornbacker?
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` 15 MR. BERNSTEIN: So Hornbacker talks about -- you
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` 16 know, TIFF would be a document imagery. And as we set
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` 17 forth in our petition, there's an aspect of TIFF that's
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` 18 geoTIFF. It's geography related.
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` 19 There's also -- there's really no difference
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` 20 when you look at -- if you have a scan of a map in, say,
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` 21 Hornbacker, as opposed to, you know, satellite imagery, map
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` 22 imagery. You're still -- a person of ordinary skill in the
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` 1 art would still be trying to, you know, accomplish the same
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` 2 thing, whether it's in the document setting or in the
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` 3 mapping setting, Your Honor.
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` 4 JUDGE MCNAMARA: Okay. Thank you.
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` 5 MR. BERNSTEIN: So as I mentioned previously and
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` 6 I think I'll probably mention again, paragraph 48 teaches
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` 7 that a system can be applied in situations such as military
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` 8 and disaster response scenarios where a user of a system is
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` 9 likely to encounter severe bandwidth constraints where
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` 10 mobility would be beneficial. Microsoft believes that
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` 11 Reddy suggests and teaches this on its own, but Hornbacker
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` 12 explicitly teaches that its browsing methods can be used to
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` 13 retrieve tile over a dial-up 28.8 connection, as well as
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` 14 laptops and PDAs.
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` 15 These are exactly the types of connections and
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` 16 devices that are suggested to a person of ordinary skill in
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` 17 the art by the military and disaster relief scenarios that
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` 18 Reddy talks about. And therefore, these scenarios and uses
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` 19 would lead a person of ordinary skill in the art to the
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` 20 types of connections that are explicitly specified in
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` 21 Hornbacker.
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` 22 And in addition, Your Honor, Reddy also teaches
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` 20
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` 1 that tiles are identified by URLs, although it does not
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` 2 specify the exact content of the URLs.
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` 3 Hornbacker teaches formats by requesting tiles
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` 4 by URL, including the concept of using the position of the
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` 5 tile and resolution of a tile to identify an individual
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` 6 tile request.
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` 7 As Microsoft explains in the petition,
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` 8 Hornbacker's teaching of using the coordinates and
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` 9 resolution of the image in the URL would provide a ready
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` 10 way -- ready, R-E-A-D-Y, not Reddy -- to specify particular
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` 11 tiles based on coordinates and resolution in the system of
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` 12 Hornbacker.
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` 13 And for all of these reasons and all of the
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` 14 reasons in our petition, Your Honor, Microsoft has
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` 15 established by a preponderance of the evidence a motivation
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` 16 to combine.
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` 17 Your Honors, I'd like to move on to the disputed
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` 18 claim limitations. I'm going to start with the independent
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` 19 claims, and then I'll circle back towards the end to the
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` 20 dependent claims.
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` 21 And I'm going to first start with the limited
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` 22 bandwidth elements. And by that I'm talking about limited
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` 21
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` 1 bandwidth communication channel and also limited
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` 2 communication bandwidth computer device.
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` 3 So Your Honors, I want to briefly note that
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` 4 obviously Bradium has argued that these claim limitations
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` 5 require construction, and they propose some constructions
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` 6 for these terms. But regardless of whether the terms are
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` 7 given their plain and ordinary meaning or the Board adopts
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` 8 Bradium's constructions, Microsoft has shown by a
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` 9 preponderance of the evidence that the prior art discloses
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` 10 a limited bandwidth communication channel and a limited
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` 11 communication bandwidth computer device. So however the
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` 12 Court construes the terms, Microsoft prevails.
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` 13 I'm going to focus on Reddy's disclosure of
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` 14 limited bandwidth elements, but first I want to touch on
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` 15 Hornbacker. Hornbacker meets these limitations and Bradium
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` 16 has no argument on Hornbacker. Again, so if you hear
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` 17 anything today on whether Hornbacker meets these
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` 18 limitations, it's new argument.
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` 19 So turning back to Demonstrative 8, it's clear.
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` 20 Hornbacker, again, discus
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