Trials@uspto.gov
`571-272-7822
`
`Paper 6
`Entered: January 9, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`UNILOC LUXEMBOURG S.A.
`Patent Owner.
`____________
`
`Case IPR2016-01271
`Patent 8,566,960 B2
`____________
`
`Before DAVID C. MCKONE, BARBARA A. PARVIS, and
`MICHELLE N. WORMMEESTER, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`571-272-7822
`
`Paper 6
`Entered: January 9, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`UNILOC LUXEMBOURG S.A.
`Patent Owner.
`____________
`
`Case IPR2016-01271
`Patent 8,566,960 B2
`____________
`
`Before DAVID C. MCKONE, BARBARA A. PARVIS, and
`MICHELLE N. WORMMEESTER, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`IPR2016-01271
`Patent 8,566,960 B2
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`I. INTRODUCTION
`
`A. Background
`Unified Patents Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) to
`institute an inter partes review of claims 1–25 of U.S. Patent No. 8,566,960
`B2 (Ex. 1001, “the ’960 patent”). Uniloc Luxembourg S.A. (“Patent
`Owner”) filed a Preliminary Response (Paper 5, “Prelim. Resp.”). Upon
`consideration of the Petition and Preliminary Response, we conclude, under
`35 U.S.C. § 314(a), that Petitioner has not established a reasonable
`likelihood that it would prevail with respect to any of the challenged claims.
`Accordingly, we do not institute an inter partes review of the ’960 patent.
`
`B. Related Matters
`The parties indicate that the ’960 patent has been asserted in several
`lawsuits in the United States District Court for the Eastern District of Texas.
`Pet. 1–2; Paper 3, 2.
`
`C. Evidence Relied Upon
`Petitioner relies on the following prior art:
`Apr. 10, 2007
`
`Ex. 1002 (“Abburi”)
`US 7,203,966 B2
`June 19, 2008
`Ex. 1003 (“Gilder”)
`US 2008/0148363 A1
`July 6, 2010
`Ex. 1004 (“Hu”)
`
`US 7,752,139 B2
`
`Apr. 27, 2010
`Ex. 1005 (“Goringe”) US 7,707,115 B2
`
`Petitioner also relies on the Declaration of Ivan Zatkovich (Ex. 1031,
`
`“Zatkovich Decl.”).
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`D. The Asserted Grounds
`Petitioner asserts the following grounds of unpatentability (Pet. 21,
`45–68):
`
`Reference(s)
`
`Basis
`
`Abburi
`
`§ 102(a) and (e)
`
`Gilder and Hu
`
`§ 103(a)
`
`Claims Challenged
`1, 3–5, 8, 18–22, and
`25
`
`1–8, 18, 19, 22, and
`25
`
`§ 103(a)
`
`9–17, 23, and 24
`
`Gilder, Hu, and Goringe
`
`E. The ’960 Patent
`The ’960 patent describes techniques for monitoring and adjusting
`software usage under software licenses. Ex. 1001, 1:16–20. The ’960 patent
`discusses problems with existing software licensing schemes, including that
`“consumers of software have normal patterns of use that include the
`installation and use of digital products on multiple devices” and that
`“computers are also bought, sold and replaced so over time maybe two or
`three times this number of computers may be used by the user over time
`with a legitimate need to install and use the software on every computer.”
`Id. at 1:31–41. The ’960 patent addresses these problems with “an improved
`technique for allowing for a changing number of device installations on a
`per license basis over time.” Id. at 1:67–2:2.
`Figure 2, reproduced below, illustrates an example:
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`Figure 2 is a flowchart for an approach to adjusting a license for a digital
`product. Id. at 3:20–21. In Figure 2, device 50 requests authorization from
`
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`licensing authority 55 (e.g., a publisher or distributor) to use a copy of a
`software license. Id. at 4:50–55.
`Device 50 gathers information about itself, including license related
`information 10 and unique device identifying information 11, and sends a
`request for authorization 12 to licensing authority 55. Id. at 4:56–59.
`Licensing authority 55 checks whether the requesting device’s unique
`identifying information 11 exists in its database of prior authorizations 15
`and, if so, reauthorizes device 50 and allows the software to run on the
`device. Id. at 5:1–12 (steps 13–18).
`If unique identifying information 11 is not in its database of prior
`authorizations 15, and if the request comes within the first five days of the
`licensing period, licensing authority 55 determines a device count of the
`number of successful authorizations for new devices (including device 50)
`that have been allowed and, if the device count is less than a device count
`limit of five, licensing authority 55 sends device 50 a message allowing the
`software to be used. Id. at 5:13–26 (steps 18–19). If the device count is
`equal to five, licensing authority 55 can send a message to device 50
`allowing the device to run, but informing the user that the limit on available
`devices has been reached and that subsequent requests may be denied. Id. at
`5:26–32 (step 22). If the device count is greater than five (step 23),
`licensing authority 55 sends a message to device 50 denying authorization
`(step 24). Id. at 5:33–40.
`If request 12 comes between six and thirty-one days from the first
`successful authorization, licensing authority 55 performs similar tests, this
`time with a device count limit of seven. Id. at 5:41–60 (steps 19–33).
`Likewise, if request 12 comes after thirty-one days, licensing authority 55
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`performs similar tests with a device count limit of eleven. Id. at 5:61–6:7
`(steps 34–41).
`Claim 1, reproduced below, is illustrative of the claimed subject
`matter:
`
`A system for adjusting a license for a digital product
`1.
`over time, the license comprising at least one allowed copy count
`corresponding to a maximum number of devices authorized for
`use with the digital product, comprising:
`a communication module for receiving a request for
`authorization to use the digital product from a given
`device;
`a processor module in operative communication with the
`communication module;
`a memory module in operative communication with the
`processor module and comprising executable code
`for the processor module to:
`verify that a license data associated with the digital
`product is valid based at least in part on a device
`identity generated by sampling physical parameters
`of the given device;
`in response to the device identity already being on a
`record, allow the digital product to be used on the
`given device;
`in response to the device identity not being on the record,
`set the allowed copy count to a first upper limit for
`a first time period, the allowed copy count
`corresponding to a maximum number of devices
`authorized to use the digital product;
`calculate a device count corresponding to total number of
`devices already authorized for use with the digital
`product; and
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`when the calculated device count is less than the first
`upper limit, allow the digital product to be used on
`the given device.
`
`
`
`II. ANALYSIS
`Claim Construction
`A.
`We interpret claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
`136 S. Ct. 2131, 2144–45 (2016). In applying a broadest reasonable
`construction, claim terms generally are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`
`
`1. “a first time period after an initial authorization of the
`digital product” (claim 25)
`Claim 25 (emphasis added) recites, inter alia,
`code for causing a computer to, in response to the device identity
`not being on the record, set the allowed copy count to a first
`upper limit for a first time period after an initial authorization of
`the digital product, the allowed copy count corresponding to a
`maximum number of devices authorized to use the digital
`product.
`Neither party proposes an express construction for “a first time period after
`an initial authorization of the digital product.” In its application of the prior
`art to this limitation, however, Petitioner appears to argue that this term
`refers to any arbitrary amount of time after an initial authorization of a
`digital product. See Pet. 33 (“Because the request [of Abburi] is through the
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`roaming service, the time of the license request and the given device limit
`are necessarily after the initial authorization of the original license.”), 52
`(“These ‘float copies’ authorized in the DRM system of Gilder as well as the
`‘float copy’ limit enforced at the given time, are necessarily after an ‘initial
`authorization’ of a very first copy of the digital content for that user.”).
`Petitioner’s implicit construction is not supported by the intrinsic
`evidence. Rather, the Specification describes a first time period beginning at
`the initial authorization of a digital product and lasting for a set duration.
`See Ex. 1001, 5:20–26 (“At step 19, if the request is within the first five day
`period, the authorization database 15 is consulted for a count of how many
`successful authorizations for new devices have been allowed. Under the
`license rules 60, if the device count is less than five then a message is sent to
`the request device that allows the software to continue in an authorized state
`(step 18).”), 8:5–10 (“In further related aspects, the first time period may
`comprise[] a defined number of days since the initial authorization. For
`example, the defined number of days may comprise six days since the initial
`authorization, and the first upper limit may comprise five authorized
`devices.”). This supports a reading of claim 25 that the first time period
`after an initial authorization is a time period beginning at the initial
`authorization and extending for a duration after the initial authorization.
`Petitioner has pointed to no disclosure (and we have found none) consistent
`with its application of the claim term “a first time period after an initial
`authorization of the digital product.”
`On this record, in light of the description in the Specification, we
`construe “a first time period after an initial authorization of the digital
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`product” to mean “a time period that begins at an initial authorization of the
`digital product and extending for a duration thereafter.”
`
`
`2. “physical parameters”
`Petitioner proposes a construction of “physical parameters,” as recited
`in claims 1, 22, and 25. Pet. 17–20. Nevertheless, it is not necessary to
`construe this term to address the parties’ disputes. See Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those
`terms need be construed that are in controversy, and only to the extent
`necessary to resolve the controversy.”).
`
`B. Asserted Grounds of Unpatentability
`To anticipate, a reference must “show all of the limitations of the
`claims arranged or combined in the same way as recited in the claims.” Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1370 (Fed. Cir. 2008);
`accord In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
`was made to a person having ordinary skill in the art to which said subject
`matter pertains.” We resolve the question of obviousness on the basis of
`underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of skill in the art; and (4) objective evidence of
`nonobviousness, i.e., secondary considerations. See Graham v. John Deere
`Co., 383 U.S. 1, 17–18 (1966).
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`1. Alleged Anticipation of Claims 1, 3–5, 8, 18–22, and 25 by
`Abburi
`Petitioner contends that claims 1, 3–5, 8, 18–22, and 25 are
`anticipated by Abburi. Pet. 21. For the reasons given below, Petitioner has
`not demonstrated a reasonable likelihood that it would prevail on this
`ground.
`
`
`a. Overview of Abburi
`Abburi describes an architecture for enforcing rights in digital content,
`including roaming licenses that a user can use to access the digital content
`from a plurality of computers. Ex. 1002, 1:18–21. When a user attempts to
`render the digital content on a computing device, the rendering application
`invokes a Digital Rights Management (DRM) system on the computing
`device. Id. at 2:63–66. If this is the user’s first attempt to render the digital
`content, the DRM system directs the user to obtain a license from a license
`server, or the DRM system automatically obtains such a license. Id. at 2:66–
`3:4, 20:38–46. The license request can include identifying information of
`the DRM system, the type of license requested, and the type of rendering
`application that will render the digital content. Id. at 20:46–66. Moreover,
`the user can be prompted for unique identifying information for the
`computing device (e.g., a machine ID). Id. at 59:61–67.
`According to Abburi, “[t]ypically, the license the user receives is
`cryptographically bound to the device that receives the license, and is usable
`only on that device.” Id. at 3:67–4:3, 57:56–58 (“the license that user
`computing device 1302a receives is tightly bound to the particular
`computing device 1302a that receives the license.”). The license obtained
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`for this device may be “roamed” to other devices through use of short-term
`copies. Id. at 58:6–9, 58:21–28. Each copy of the original license is
`cryptographically bound to the device on which it is downloaded. Id. at
`58:29–34. To control the number of copies of the license that are deployed,
`the copies distributed to registered devices are set to decay, or end at an
`expiration date that is short-term relative to the expiration date of the
`original license. Id. at 4:19–28, 58:35–44.
`According to Abburi:
`In the case where the user enables the roaming service on a new
`device while contacting the synchronization server from the new
`device, the first synchronization will occur at the time the new
`device is registered. The synchronization server recognizes that
`this is a new device by checking for the machine ID of the new
`device in the user account device store. The synchronization
`server checks to see if the maximum number of devices is
`exceeded. If the maximum number of devices is not exceeded,
`the user
`is prompted for unique machine
`identification
`information. Unique information for the device is stored in the
`device store on the synchronization server.
`Id. at 61:46–57.
`Abburi describes that “there is a limit on the number of devices that a
`user may register to receive copies of the license (e.g., five devices at a
`given time).” Id. at 4:11–13, 58:63–66 (“In a preferred embodiment, a user
`will only be permitted to enroll a specified number of active devices (e.g.
`five devices) in device store 1522 at any one time.”), 60:46–48 (“This
`maximum number in a preferred embodiment is set to 5, but may be any
`suitable number of devices.”), 63:6–24. In one embodiment, permanent
`device copies are set to expire in thirty days and copy licenses are set to
`expire in two days. Id. at 63:25–32.
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`b. Claims 1, 22, and 25
`With the exception of one aspect of claim 25 (Pet. 33, discussed
`below), Petitioner argues independent claims 1, 22, and 25 together.
`Pet. 24–34. We focus on claim 1, although our analysis applies equally to
`claims 22 and 25.
`Regarding claim 1, Petitioner contends that Abburi’s DRM system,
`with “copy/replacement” licenses that decay over time, is a “system for
`adjusting a license for a digital product over time.” Pet. 25. Petitioner
`argues that Abburi describes maximum numbers for “temporary devices”
`and “permanent devices” that can be licensed under a license, thus
`disclosing “at least one allowed copy count corresponding to a maximum
`number of devices authorized for use with the digital product,” as recited in
`claim 1. Id. at 25–26. Petitioner identifies components of Abburi’s
`computer 120 and communications network 16 (shown in Figures 12 and
`24), as corresponding to the “communication module,” “processor module,”
`and “memory module” of claim 1. Id. at 26–28.
`Claim 1 recites “in response to the device identity not being on the
`record, set the allowed copy count to a first upper limit for a first time
`period, the allowed copy count corresponding to a maximum number of
`devices authorized to use the digital product.” Claim 22 includes a similar
`recitation. Petitioner cites to Abburi’s disclosure of enabling a roaming
`service on a new device (computing device 1302c of Figure 24), while
`contacting a synchronization server (1402) using that device, in order to
`roam a previously acquired license on that device. Pet. 32 (citing Ex. 1002,
`61:46–53). As Petitioner points out (Pet. 32), during this process, “[t]he
`synchronization server checks to see if the maximum number of devices is
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`exceeded.” Ex. 1002, 61:52–53. Petitioner then argues that “Abburi also
`discloses doing this by using multiple ‘device counts,’ [Ex. 1002] at 63:11–
`23, any of which can be set to a maximum number equal to any suitable
`number of devices.” Pet. 32. Without further explanation, Petitioner
`concludes that Abburi discloses this limitation of claims 1 and 22. Id.
`Patent Owner contends that Abburi does not disclose setting an
`allowed copy count “in response to the device identity not being on the
`record.” Prelim. Resp. 20. Patent Owner further argues that Abburi does
`not disclose setting a first upper limit for “a first time period,” as recited in
`claims 1 and 22. Id. at 21. Rather, Patent Owner argues, in the disclosure
`cited by Petitioner, Abburi merely checks to see if a maximum number of
`devices is exceeded and does not otherwise contemplate a temporally
`adjustable upper limit for a number of devices. Id. at 20–21.
`We agree with Patent Owner. Claims 1 and 22 recite setting the
`allowed copy count to a first upper limit for a first time period “in response
`to the device identity not being on the record.” Although Abburi discloses
`checking a number of licensed devices against a maximum to see if the
`maximum is exceeded, Petitioner does not explain, or present evidence to
`show, how that maximum is set. Specifically, Petitioner does not show
`persuasively that this maximum is set in response to the identity of the
`device on which the license is to be roamed not being on a record of the
`synchronization server. Nor does Petitioner show that the maximum has any
`relationship to a time period and, thus, does not show that Abburi discloses
`“set[ting] the allowed copy count to a first upper limit for a first time
`period,” as recited in claims 1 and 22.
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`Petitioner’s showing for claim 25 is similarly deficient. Claim 25
`recites:
`code for causing a computer to, in response to the device identity
`not being on the record, set the allowed copy count to a first
`upper limit for a first time period after an initial authorization of
`the digital product, the allowed copy count corresponding to a
`maximum number of devices authorized to use the digital
`product.
`As to the language that overlaps that of claims 1 and 22 (discussed above),
`Petitioner incorporates its arguments as to claims 1 and 22. Pet. 33. For the
`reasons given above, Petitioner has not shown persuasively that Abburi
`discloses “in response to the device identity not being on the record, set the
`allowed copy count to a first upper limit for a first time period.”
`Additionally, Petitioner argues that “[b]ecause the request is through
`the roaming service, the time of the license request and the given device
`limit are necessarily after the initial authorization of the original license.”
`Pet. 33. Here, Petitioner appears to argue that “a first time period after an
`initial authorization of the digital product” is any time period that begins an
`arbitrary amount of time after an initial authorization of a digital product.
`As explained in Section I.A.1 above, “a first time period after an initial
`authorization of the digital product” is “a time period that begins at an initial
`authorization of the digital product and extending for a duration thereafter.”
`Petitioner has not shown persuasively that Abburi discloses setting a
`maximum device count for a time period that begins at an initial
`authorization of the digital content. Thus, as Patent Owner argues,
`Petitioner has not shown that Abburi contemplates a temporally adjustable
`upper limit for a number of devices.
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`In sum, Petitioner has not demonstrated that it is reasonably likely to
`prevail in showing that Abburi anticipates claims 1, 22, and 25.
`
`
`c. Claims 3–5, 8, and 18–21
`Claims 3–5, 8, and 18–21 depend from claim 1. We have considered
`Petitioner’s showing as to these dependent claims. See Pet. 35–39.
`Nevertheless, Petitioner’s evidence and argument for the dependent claims
`do not cure the above-noted deficiencies as to Petitioner’s analysis of the
`independent claims. Accordingly, Petitioner has not demonstrated that it is
`reasonably likely to prevail in showing that Abburi anticipates claims 3–5, 8,
`and 18–21.
`
`
`2. Alleged Obviousness of Claims 1–8, 18, 19, 22, and 25 over
`Gilder and Hu
`Petitioner contends that claims 1–8, 18, 19, 22, and 25 would have
`been obvious over Gilder and Hu. Pet. 45–61. For the reasons given below,
`Petitioner has not demonstrated a reasonable likelihood that it would prevail
`on this ground.
`
`
`a. Overview of Gilder
`Gilder describes a DRM technique that allows for copying and file
`sharing between licensed devices. Ex. 1003 ¶ 1. In Gilder’s technique, in
`general, copies of a license are limited, for example, to three copies.
`Id. ¶ 49. Nevertheless, Gilder describes an exception for “float” licenses,
`which allow copies beyond the normal number or count permitted by the
`DRM scheme. Id. ¶ 51.
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`The components of Gilder’s system are shown in Figure 1 of Gilder,
`reproduced below:
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`Figure 1 is a block diagram of digital content delivery system 10 for
`delivering content 12 to users 14 (and their associated user devices 20).
`Id. ¶¶ 12, 32. Content provider 16 is located remotely from users 14 via
`network 18. Id. ¶ 34. A user device 20 includes memory circuit 30, which
`can store client applications 34 and license registry 36. Id. ¶ 37. License
`registry 36 can include a database that stores information related to the
`user’s account, licensed or active devices, licensed or active content, and the
`number or copies currently authorized for play by the user. Id. Content
`provider 16 includes license server 42, which stores and processes sales,
`licenses, and license requests. Id. ¶ 38.
`Gilder describes its invention in the context of flow charts, shown in
`the Figures, which “include a series of ‘lanes’ that generally indicate on
`which component the various steps or operations are performed, along with
`certain processing operations that may be included in typical transactions or
`activities.” Id. ¶ 41 (referencing Figs. 2–20). Petitioner relies primarily on
`the embodiment of Gilder described with respect to Figures 3, 4, and 6.
`Pet. 41–42. The individual figures depict logic that may be incorporated
`into the logic of other figures. For example, box 90 of Figure 6 represents
`the logic of Figure 3 and box 92 of Figure 3 represents the logic of Figure 4.
`Thus, a process following the logic of Figure 6 could incorporate portions of
`the logic of Figure 3, which could incorporate portions of the logic of
`Figure 4.
`Figure 6 of Gilder is reproduced below:
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`Figure 6 is a flow chart of logic for playing content. Id. ¶ 17. A user
`attempts play content on a PC (e.g., corresponding to user device 20 of
`Figure 1) by first initiating the operation of a client application (e.g., a multi-
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`media application or player, corresponding to client application 34 of
`Figure 1) on the device. Id. ¶ 66. Client application 34 obtains account
`information for the user, information about the content to be played, and
`information about particular devices (step 192). Id. Client application 34
`determines licensing rights associated with the content by consulting a
`license registry (corresponding to license registry 36 of Figure 1) on the
`device (step 194). Id. The user presses a play button on client application
`34, for example, to initiate play of the content (step 196). Id.
`Client application 34 then evaluates the license rights to determine if
`the content can be played on user device 20 (box 198). Id. ¶¶ 66–67. In
`particular, the client application determines whether a valid license is
`associated with the content, user, and device and, if so, the device is allowed
`to play the content (steps 200, 212). Id. ¶ 67. If user device 20 is not
`licensed, client application 34 determines whether user device 20 is online
`and, if not, disables the content from playing and notifies the user (steps 202,
`204, 206). Id. If user device 20 is online, client application 34 attempts to
`acquire a license using the procedure of Figure 3 (box 90). Id.
`Figure 3 of Gilder is reproduced below:
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`Figure 3 is a flow chart of logic for regulating the number of copies allowed
`to be simultaneously used by a licensed user or family of devices. Id. ¶ 14.
`Figure 3 depicts aspects that can be applicable to multiple embodiments of
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`Gilder, although not all of the features of Figure 3 are applicable to each
`embodiment. Id. ¶ 65. For example, Figure 6 incorporates aspects of Figure
`3, but only invokes the logic of Figure 3 if the device attempting to acquire a
`license is online and does not already have a license. Id. ¶ 67, Fig. 6
`(showing the “ACQUIRE LICENSE” operation input to box 90). Thus, the
`aspects of Figure 3 pertaining to “float” licenses are not applicable to the
`logic of Figure 6. Id. ¶ 68 (“It should be noted that in the logic summarized
`in FIG. 6, a ‘float’ copy was not feasible to avoid the consequence of block
`198 because no valid license was detected. . . . Float copies are only
`allowed, however, if a valid license for the content does exist for a user on
`the device playing the content.”).
`
`Because a device performing the process of Figure 6 is online and
`attempting to acquire a license, the pertinent portion of Figures 3’s process
`begins at step 110, in which client application 34 checks local license
`registry 36 for the number of copies of the content made by the user on
`various devices. Id. ¶ 55. If the number of copies is at a maximum (e.g.,
`three), the user is prompted to select a device to be disabled (step 112) and
`the device selected for disabling is removed from local license registry 36
`(steps 114, 116). Id. If the number of copies is less than the maximum (or
`the user has disabled a device to bring the number below the maximum), the
`application requests a license from the license service, which verifies the
`license rights based on the information stored in the local license database
`(steps 118, 120, 122, 124, 126). Id. ¶¶ 57–58. If user device 20 is able to
`acquire a license (Figure 6, step 208), the license is added to local license
`registry 36 (step 210), and user device 20 is allowed to play the content
`(Figure 6, step 212). Id. ¶ 67.
`
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`IPR2016-01271
`Patent 8,566,960 B2
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`Although not applicable to the process of Figure 6, Figure 3 includes
`
`additional logic for acquiring license rights while a device is offline. In
`particular, Figure 3 illustrates an example in which additional “float” copies
`of a license are available. Id. ¶ 52. If the number of float copies of the
`license has not been exceeded (step 96), the user requests making a copy of
`the license on another device, and the procedure determines that the number
`of permanent copies is greater than or equal to the three-copy limit (step
`110), the user is prompted to identify a device to disable (steps 112, 114).
`Id. ¶ 55. Because the user is offline and not able to disable a device
`immediately, the user is permitted to maintain temporary float licenses up to
`the float license limit (in this example, three). Id. ¶ 56. When the device to
`disable eventually is back online, its license is removed. Id. Thus, “a device
`on which content is newly loaded for playing must nevertheless obtain the
`license, while a device from which the copy will need to be removed may
`continue to play (at least until the next synchronization) the content based
`upon the number of allowed float copies.” Id. ¶ 68.
`Petitioner also relies on the description in Gilder corresponding to
`Figure 4. Pet. 51 (citing Ex. 1003 ¶ 61). As shown in Figure 3, the logic of
`Figure 3 starts with certain pre-process commands (step 92), which are
`illustrated in more detail in Figure 4, reproduced below:
`
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`IPR2016-01271
`Patent 8,566,960 B2
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`Figure 4 is a flow chart of pre-processing logic for the copy management
`scheme of Figure 3. Ex 1003 ¶ 15. The client application first determines if
`the user device is online (Step 136) and, if not, determines whether a
`synchronization of the local license registry of the device with the content
`provider registry has been performed within a particular time span (e.g.,
`thirty days) (step 138). Id. ¶ 61. The number of float licenses can be limited
`if the device has not synchronized with the content provider during that time
`span (step 140). Id.
`
`
`b. Claims 1–8, 18, 19, 22, and 25
`With the exception of one aspect of claim 25 (Pet. 51–52, discussed
`below), Petitioner argues independent claims 1, 22, and 25 together.
`
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`IPR2016-01271
`Patent 8,566,960 B2
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`Pet. 45–53. We focus on claim 1, although our analysis applies equally to
`claims 22 and 25.
`Regarding claim 1, Petitioner contends that Gilder’s digital content
`delivery system is a “system for adjusting a license for a digital product over
`time,” with Gilder’s content 12 being a “digital product.” Pet. 45–46. As to
`“the license comprising at least one allowed copy count corresponding to a
`maximum number of devices authorized for use with the digital product,” as
`recited in claim 1, Petitioner points to Gilder’s disclosure of a limit on the
`number of copies of a license that can be accessed simultaneously (e.g., the
`“3-copy business rules” shown in Figure 6 and referenced in Figure 3).
`Id. at 46. Petitioner contends that components of Gilder’s user device 20,
`including processor 38 and memory circuit 30, satisfy claim 1’s
`“communication module,” “processor module,” and “memory module”
`limitations. Id. at 46–47.
`Petitioner contends that the limitation “verify that license data
`associated with the digital product is valid based at least in part on a device
`identity generated by sampling physical parameters of the given device,” as
`recited in claim 1, is taught by Gilder’s description of Figure 6, in which
`user device 20 initiates client application 34, which obtains account
`information, user identification, device identity, and other information on
`particular devices and content (steps 192, 194). Id. at 41 (citing Ex. 1003
`¶¶ 66, 67), 47–48 (citing Ex. 1003 ¶¶ 37, 66–67). According to Gilder, at
`step 200 of Figure 6, client application 34 determines whether a valid license
`is associated with the particular content, user, and device. Ex. 1003 ¶ 67.
`Petitioner also cites to Gilder’s Figure 8, in particular its transfer of
`“DeviceID” (step 232), as further evidence of “physical parameters of the
`
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`IPR2016-01271
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`given device,” as recited in claim 1. Pet. 41, 48. Nevertheless, Figure 8 is
`directed to a separate embodiment, and depicts logic for adding content to a
`virtual “locker.” Ex. 1003 ¶¶ 70–71. Petitioner does not adequately explain
`how the description of Figure 8 corresponds to retrieval of information in
`Figure 6. In any case, Petitione
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