Paper No. 30
`Trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`GOOGLE LLC, SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`LG ELECTRONICS INC., and
`LG ELECTRONICS U.S.A., INC.,
`Petitioner,
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`v.
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`PARUS HOLDINGS, INC.,
`Patent Owner.
`________________
`
`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`________________
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`Record of Oral Hearing
`Held Virtually: Tuesday, July 27, 2021
`________________
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`
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`Before DAVID C. MCKONE, STACEY G. WHITE, and
`SHELDON M. MCGEE, Administrative Patent Judges.
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`Trials@uspto.gov
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`GOOGLE LLC, SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`LG ELECTRONICS INC., and
`LG ELECTRONICS U.S.A., INC.,
`Petitioner,
`
`v.
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`PARUS HOLDINGS, INC.,
`Patent Owner.
`________________
`
`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`________________
`
`Record of Oral Hearing
`Held Virtually: Tuesday, July 27, 2021
`________________
`
`
`
`Before DAVID C. MCKONE, STACEY G. WHITE, and
`SHELDON M. MCGEE, Administrative Patent Judges.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
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`Elisabeth Hunt, Gregory Nieberg & Richard Giunta
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue, 23rd Floor
`Boston, MA 02210
`Phone: (617) 646-8000
`ehunt-ptab@wolfgreenfield.com
`gnieberg-ptab@wolfgreenfield.com
`rgiunta-ptab@wolfgreenfield.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
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`Michael McNamara, Michael Renaud, & William Meunier
`MINTZ, LEVIN, COHN, FERRIS, GLOVSKY & POPEO, P.C.
`One Financial Center
`Boston, MA 02111
`Phone: (617) 542-6000
`mmcnamara@mintz.com
`mtrenaud@mintz.com
`wameunier@mintz.com
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, July 27,
`2021, commencing at 2:00 p.m. EST, by video/by telephone.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`P R O C E E D I N G S
` JUDGE MCKONE: Okay. Do we have counsel here for
`petitioner?
` MS. HUNT: Yes. Good afternoon, Your Honor. I'm
`Elisabeth Hunt from the firm Wolf, Greenfield & Sacks on
`behalf of the petitioners.
` JUDGE MCKONE: I'll take formal appearances just a
`minute. I just want to make sure everybody's on the -- on
`the line.
` MS. HUNT: I'm sorry. Yes, we're here.
` JUDGE MCKONE: And somebody here's for the patent
`owner as well, right?
` MR. MCNAMARA: Yes, sir.
` JUDGE MCKONE: Okay. I'll get started then. Good
`afternoon and welcome. We are here for a final hearing on
`inter partes reviews, IPR 2020-00846 and IPR 2020-00847, both
`captioned Google, Samsung, and LG versus Parus Holdings.
`I'll introduce the panel first. I am Judge McKone. With me
`are Judges White and McGee. Now, we can get the parties'
`appearances. Who do we have appearing on behalf of
`petitioner?
` MS. HUNT: Good afternoon again, Your Honors. I'm
`Elisabeth Hunt from Wolf, Greenfield & Sacks on behalf of the
`petitioners. With me are Gregory Nieberg and Richard Giunta,
`also from Wolf, Greenfield & Sacks.
` JUDGE MCKONE: Ms. Hunt, you'll be doing the
`speaking today?
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` MS. HUNT: Yes, Your Honor. Mr. Nieberg and I plan
`to each present a portion of our arguments today.
` JUDGE MCKONE: Okay. Do we have anyone here -- who
`do we have appearing on behalf of patent owner?
` MR. MCNAMARA: Good afternoon, Your Honor. This is
`Michael McNamara from Mintz, Levin on behalf of patent owner
`Parus. And with me today is my colleague Sean Casey, as well
`as Michael Renaud, who's the CEO of Parus.
` JUDGE MCKONE: And Mr. McNamara, you'll be doing the
`speaking today?
` MR. MCNAMARA: Yes, sir.
` JUDGE MCKONE: Okay. All right. So we set forth
`the procedure for today's hearing in our oral argument order.
`As a reminder, each party will have 60 minutes of total time
`to present its arguments.
` Petitioner has the burden of proof and will go
`first. Patent owner will then present opposition arguments.
`Then to the extent that petitioner has reserved time,
`petitioner will present arguments in rebuttal.
` Thereafter, to the extent that patent owner has
`reserved surrebuttal time, patent owner may present its
`surrebuttal.
` For clarity in the transcript and since all of the
`judges and the counsel are appearing remotely, when you refer
`to an exhibit on the screen, please identify the exhibit
`number and the page number; and when you refer to your
`demonstrative slides, please identify the slide number.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` Please do not assume that we can
`see what you're presenting on your screen, but we are able to
`follow along with the documents that you've filed. Counsel
`should unmute only when speaking and I'll try to do the same.
`The remote nature of the hearing may also result in a bit of
`an audio lag and thus the parties are advised to observe a
`pause prior to speaking, if you can, so as to avoid speaking
`over others.
` If at any time during the hearing you encounter
`technical or other difficulties, please let the
`panel know immediately so that we can make adjustments.
`There are technical support listening in and we will
`also try to keep our eyes out for technical problems.
` As we noted in the hearing order, although we are
`all appearing remotely here and there is no physical
`courtroom, members of the public do have the option to attend
`remotely as well.
` In the oral hearing order, we requested that if
`there were any concerns about the disclosure of confidential
`information at this hearing, you were to contact the Board,
`and we did not receive any notice of any such issues. Could
`petitioner confirm that you do not intend to discuss any
`confidential information today?
` MS. HUNT: Yes, Your Honor. That's confirmed.
` JUDGE MCKONE: And patent owner, could you also
`please confirm?
` MR. MCNAMARA: Confirmed, Your Honor.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` JUDGE MCKONE: Are there any other questions on
`behalf of patent owner at this time before we begin?
` MR. MCNAMARA: None on behalf of patent owner, Your
`Honor.
` JUDGE MCKONE: Are there any questions on behalf of
`petitioner before we begin?
` MS. HUNT: No, Your Honor.
` JUDGE MCKONE: Okay. Petitioner, would you like to
`reserve any time for rebuttal?
` MS. HUNT: Yes. We would like to reserve 15
`minutes, please.
` JUDGE MCKONE: Okay. You can proceed whenever
`you're ready.
` MS. HUNT: Thank you, Your Honor. So I know Your
`Honors have been familiar with the two Parus patents, so I
`will start on our slide three. Our petitions challenged each
`patent under two sets of grounds. One is a combination based
`on Kovatch. The other is based on the patents' parent
`publication, Kurganov-262.
` I plan to cover the disputed issues in the Kovatch
`grounds today and then Mr. Nieberg will address the Kurganov-
`262 grounds. Turning to slide five.
` In the Kovatch grounds, there's only one disputed
`claim limitation. Parus did not dispute that Kovatch teaches
`a voice-based system, and that it has a plurality of pre-
`selected websites that the system accesses to retrieve
`requested information, for example.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` The only dispute is whether the combination of
`Kovatch with Neal meets this highlighted limitation in both
`patents; which recites that if the information is not found
`at a first website, the system sequentially accesses the
`other websites until the information is found. And that's
`the limitation where the petition modified Kovatch based on
`Neal.
` Slide six. In a bit more detail, Kovatch's system
`obtains information from websites that can be weather
`information, just like the example in the Parus patents. And
`another example in Kovatch is shopping information, like
`prices for buying a CD. Kovatch has a database that lists
`websites for multiple known suppliers for a given type of
`information.
` For example, a user can buy CDs from Amazon or from
`CD Now, and we've colored those two websites blue and purple
`in Kovatch's figure four on slide six. Kovatch also says it
`learns the user's preferences for how to rank the websites.
` So if the user prefers Amazon best, Kovatch will go
`to Amazon's website first when the user requests an item.
`The only thing Kovatch doesn't explicitly discuss is what
`happens if it goes to Amazon first and it turns out Amazon
`doesn't have the CD that the user wants?
` Now, it's simple common sense, that if you don't
`find what you're looking for in the first place you look,
`then an obvious thing to do is try looking in the next place
`that's on your list. And that's exactly what Neal says.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` Slide seven. Neal says in the same scenario that
`Kovatch has where you have multiple known suppliers of a
`desired item, you should look in the suppliers’ data sets
`sequentially in order of preference and stop once you find
`what you're looking for. So if the first preferred supplier
`in blue -- that would be Amazon in Kovatch -- if they have
`the desired item, then you're done.
` But if they don't have it, then you try the second
`most preferred supplier in purple, and that would be CD Now,
`in Kovatch. And once you find the item, you're done. You
`don't have to try any more suppliers. That's what Neal
`teaches.
` Slide eight. So the petition's combination is very
`simple. The only teaching needed from Neal is that generic
`teaching to try the next supplier if the first supplier
`doesn't have what the user wants and then stop once you find
`it. That's the hierarchical ordering and search technique
`from Neal that the petition applied to Kovatch.
` Slide nine. And this simple combination meets the
`claim sequential access limitation because everything else is
`already in Kovatch. Kovatch already has two suppliers'
`websites, Amazon and CD Now. It already has its own
`methodologies for accessing those websites to retrieve the CD
`information and it already knows to try Amazon first. So the
`simple teaching Neal supplies is just try the next one if the
`first one doesn't succeed.
` Slide 10. Now, Parus' POR tried a few different
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`IPR2020-00846 (PATENT 7,076,431 B2)
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`flavors of this argument that Neal doesn't teach accessing
`websites. And we explained in our reply at pages 16 to 21,
`why all those arguments are wrong or irrelevant.
` And by the way, when I provide citations today, I'm
`citing to the 846 proceeding if I don't say otherwise.
` As I said, the petitions relied on Neal's generic
`technique of accessing suppliers sequentially. Neal doesn't
`need to teach accessing websites; Kovatch already teaches
`that.
` Now, Parus seems fixated on the fact that Neal
`happens to describe a specific example where the supplier's
`data sets are in a particular database format. And in that
`format, they can be searched using specific examples of
`search methodologies like string matching or fuzzy logic or
`whatever else Neal might describe in specific embodiments.
` But that's all irrelevant to the petition's
`combination. We didn't rely on any specific examples of
`search methodologies for specific database types in Neal.
`Neal says generically at column three, line 66 to 67, to use
`a search algorithm designed for each data set. As Your
`Honors correctly found in the institution decision, Kovatch
`accesses websites. Those are Kovatch's datasets.
` And Kovatch already teaches what specific
`methodologies to use to retrieve information from a website
`in Kovatch's database. So the simple teaching POSA would
`have applied to Neal is just to try again at the next
`supplier if the first one didn't have what you want. We
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`believe this is very clear. Your Honors, unless you have
`questions, I'll just briefly address what else Parus said in
`their surreply.
` Slide 11. So after we reiterated in our reply that
`we aren't relying on specific database searched methodologies
`from Neal, Parus' surreply tried to argue that Kovatch
`doesn't teach how to search a website for desired
`information. That's clearly wrong. Kovatch says its system
`is programmed to retrieve website information pretty much the
`same way the Parus patents discuss.
` For example, it inputs a zip code to a weather
`website. It retrieves and formats the results. It gets out
`just the relevant information and it plays it. That's just
`like the 431 patent at column seven, lines 26 through 34.
` Slide 12. The surreply made this new argument that
`Kovatch's website parser doesn't search for the requested
`information. They have no support for that attorney argument
`and our expert testified that Kovatch system does search
`websites. Kovatch even calls it a "search" for weather,
`that's at the bottom right of slide 12.
` JUDGE MCKONE: Now, does Kovatch -- is
`Kovatch’s searching of a website a simple keyword search?
` MS. HUNT: Your Honor, so what Kovatch discloses, we
`have it here on slide 12 in the bottom right. It has
`applications that are designed and programmed for a specific
`website. So for a specific website, it would have a specific
`methodology.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` And the example of this weather website, it's
`programmed to know how to put a zip code in the right place,
`execute the form to retrieve the results that come back,
`select and format and parse the results and obtain what the
`relevant information is to play it. So Kovatch is not saying
`that it's a keyword search, but it is disclosing that the
`methodology that would make sense for that website, a
`programmer can program it.
` JUDGE MCKONE: So Kovatch is not specific as to
`what search methodologies it might be using for any
`particular website, is that correct?
` MS. HUNT: Well, we believe this is specific here.
`I'm not sure how finely you're parsing the term search
`methodology, but this is specifically saying that for the
`Yahoo website, for example. You can put in a zip code,
`execute the form, format the results, parse them, and the
`application would be programmed to determine what information
`is relevant in order to play it.
` JUDGE MCKONE: Okay.
` MS. HUNT: Does that answer the question?
` JUDGE MCKONE: I think so.
` MS. HUNT: All right. So slide 13. Parus' surreply
`then tried to argue that Kovatch's website data can't be
`separated and ordered hierarchically. Again, that's clearly
`wrong. As we already discussed, Kovatch has separate
`websites for different suppliers, and Kovatch explicitly
`teaches that those websites can be ordered by the user's
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`IPR2020-00846 (PATENT 7,076,431 B2)
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`preference.
` Slide 14. Finally, Parus' surreply also made this
`new argument that wasn't in their POR. They now try to say
`that Kovatch doesn't have more than one website. Your
`Honors' already rejected that at institution and even Parus'
`own POR admits that Kovatch has multiple websites for buying
`CDs.
` So Your Honors, all Parus' arguments on this sole
`disputed limitation fail, unless Your Honors have questions
`on that, I will move on to the motivation to combine.
` Slide 16. So the petition's motivation to combine
`comes directly from Neal. Neal says that searching suppliers
`sequentially and stopping when you find the item, that
`maximizes the likelihood of finding the information you want;
`while efficiently using computing resources, because you
`don't have to keep searching every site once you've already
`found the item.
` Parus didn't dispute that the combination
`accomplishes those benefits and even their own experts said
`it would save resources if you can search fewer sites.
` Slide 17. Parus only made two arguments against
`motivation to combine, based on their demonstratives, they
`don't even seem to be focusing on those today so I'll only
`cover them briefly unless Your Honors have questions.
` Their first argument was that Kovatch allegedly
`needs "dead space" to play advertisements and therefore it
`wouldn't want to speed up its search. Our expert explained
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`that Parus had completely misread Kovatch, and Parus' surreply
`applied didn't challenge his testimony on that so it's
`unrebutted.
` Slide 18. Parus' second argument was that Kovatch
`is already fault-tolerant because it could search all the
`websites it knows about, but their own experts said that
`Kovatch is not fault-tolerant and that Kovatch can't find the
`information if it's not at the first site. So their own
`expert refuted that.
` Then they tried to argue that if the first site
`doesn't have the information, Kovatch would have to ask the
`user for permission before it could search the second site.
`And our expert explained that nothing in Kovatch supports
`that argument. Their expert didn't cite anything because
`it's not there in Kovatch. So the second of their two
`motivation arguments also has no support.
` Slide 19. Finally, Parus' surreply, again,
`complains about the fact that the petition’s combination
`doesn't rely on the specific examples of database search
`techniques that Neal describes, but that's not the test for
`obviousness. It's black letter law that obviousness doesn't
`require bodily incorporation of a reference's implementation
`details.
` The test is what the combined teachings of the
`references would have suggested to a person of skill and Neal
`clearly teaches to try the next supplier. It's not rocket
`science and it's all that's needed here for obviousness. So
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`those are all Parus' arguments against the combination and
`they all fail.
` Unless Your Honors have questions, I will move on to
`Parus' antedating allegation. So slide 21.
` Now, antedating a reference is an issue for which
`Parus has the burden to prove its case. Our reply pointed
`out multiple independent failures in Parus' attempts to
`antedate Kovatch. I may not have time to reach all of them
`today, but if Your Honors agree with any of our independent
`arguments, then Parus failed to meet its burden and
`[inaudible] prior art.
` JUDGE MCKONEI do want to make
`sure we're on the same page. When you say that Parus
`has the burden here, do you mean -- what do you mean by that?
` MS. HUNT: So we have the Federal Circuit's General
`Access Solutions case here, which we've abbreviated GAS,
`where they noted the patentee bears the burden of
`establishing that its invention is entitled to an early --
`earlier priority date.
` JUDGE MCKONE: Yeah. But when you
`unpack that -- when you unpack that a little bit,
`that's a non-precedential case that refers to the Magnum
`Oil Tools case, as your slide shows, which in turn refers
`back to the Dynamic Drinkware case.
` In my readings of those earlier cases, Dynamic
`Drinkware and Magnum Oil, is that it's a petitioner
`that always bears the burden of a persuasion and that
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`never changes. And I think never changes is the word that
`the Federal Circuit uses. Are you reading that
`differently in light of General Access?
` MS. HUNT: Your Honor, no, we don't. We're not
`reading it differently. So Dynamic Drinkware said that the
`petitioner retains the burden of persuasion, but the
`patent owner, in a case where they're trying to antedate a
`reference, bears the burden of production to come forward,
`producing evidence and presenting persuasive arguments,
`showing that they antedate the reference. So that's in
`Dynamic Drinkware 800 F.3d 1379.
` JUDGE MCKONE: And how much do they have to
`present before the burden then would switch
`over to petitioner to, I guess, prove its case
`according to the burden of persuasion?
` MS. HUNT: So Your Honor, they have to at least
`present -- so Dynamic Drinkware says they have to present
`persuasive argument. The burden is on the patentee to have,
`you know, not only evidence, but argument showing that the
`claim limitations are met by this earlier
`invention.
` Here, they've alleged actual reduction to practice,
`right? So I don't have Dynamic Drinkware on a slide, but if
`we turn to slide 23, we have the GAS case which is, you know,
`applying that specifically to this situation. They bear the
`burden of establishing that there is prior conception and
`here actual reduction of practice of every claim limitation.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` They have to present that in their briefing to meet
`this burden and explain with specificity why their evidence
`shows that each limitation of the challenge claims is shown
`to have been previously reduced to practice before the
`critical date that they are trying to antedate.
` And so in this case, we have presented argument that
`they did not meet this burden of production in any sense and, you know,
`even if you want to move past that,
`we believe we've certainly sufficiently rebutted on the
`burden of persuasion.
` But going back to burden of production, if you look
`at slide 22, this is all they presented in their POR, in
`their briefing on their case for antedating Kovatch; all
`right? This is a fundamental point. They made no case in
`their briefing to establish that the requirements for
`antedating are met and that all the claim limitations are
`present in what they allege is an actual reduction of
`practice. Okay.
` Instead they seek to violate the rules that prohibit
`incorporating by reference arguments from other documents.
`You can see here on slide 22, they have a sentence alleging
`conception, a sentence alleging reduction of practice, and
`they just say this is shown through their inventor's
`declaration and some other exhibits which they don't even
`cite by exhibit number. And they don't say anything to
`explain how those documents allegedly demonstrate all the
`requirements they need to meet.
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
` The POR doesn't even mention the legal prongs for
`actual reduction of practice. It doesn't map a single claim
`limitation to any specific evidence and this is for all the
`challenge claims of two different patents that POR is just
`leaving it to Your Honors.
` And to us to sift through over 23,000 words of
`argument made in declarations and 100 pages of claim charts
`attached to those declarations, that the rules are quite
`clear they're not allowed to incorporate by reference all of
`that argument in their briefing.
` So looking back at slide 23, what Parus did here is
`precisely what the patent owner did in the GAS case. The
`Board soundly rejected it, the Federal Circuit affirmed to
`the Board in this excerpt here on slide 23, the block sided
`paragraph on the left is what GAS said in their POR. They
`said their prior invention was "as demonstrated in the
`inventor's declaration and the claim chart attached" that's
`strikingly similar to Parus POR.
` And the court noted that to identify the patent
`owner's substantive arguments, mapping the claim limitations,
`the Board was forced to turn to a declaration by the inventor
`and further delve into a claim chart attached to that
`declaration. And the Federal Circuit said, "This exercise of
`playing archeologist with the record is precisely what the
`rule against incorporation by reference was intended to
`prevent."
` And so the court agreed with the Board that the
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`conclusionary assertions in the POR were insufficient to meet
`the patentee's burden, which, again, under the burden of
`production, it's a burden to show with specificity, how they
`alleged every claim limitation was antedated.
` And this was only one of multiple cases our reply
`cited on how Parus' POR is fatally deficient. Parus'
`surreply didn't even try to distinguish any of those cases or
`even acknowledge the rule against incorporation by reference.
`They cite no authority that they can meet their burden this
`way. Their POR's conclusory antedating allegation should be
`rejected outright. Do Your Honors have any questions on
`this?
` JUDGE MCKONE: Nothing yet. Thank you.
` MS. HUNT: All right. So I'll move to slide 24. So
`we don't believe that the declarations Parus attempted to
`improperly incorporate should be considered at all, but even
`if Your Honors were to weight into them where Parus' own
`brief made no effort to do so, those materials also fail to
`meet Parus' burden.
` Now, Parus alleged actual reduction to practice and
`that's a two-prong test. Parus has to show number one, that
`the inventors actually constructed a physical embodiment that
`meets all the claim limitations; and number two, that the
`embodiment they constructed worked for its intended purpose.
` And that has to be prior to the critical date of
`Kovatch. Now, we showed in our reply that Parus' exhibits,
`even if they're considered failed both prongs, again for
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`multiple independent reasons. And I'll start with prong one;
`slide 25.
` Now, in alleging that the claim limitations were
`met, Parus' inventor relies on source code files to show
`functionality of an alleged prototype. But source code is
`not a constructed embodiment of these claims. They require a
`computer configured to perform the recited functions.
` And in order to program a computer
`to do things, source code has to be compiled to create an
`executable program that the computer runs. There's no
`dispute about that. And what's also undisputed is that for
`all the claimed functionality about accessing and retrieving
`information from websites, the only way this alleged
`prototype could do that is if it calls and executes a
`function named getWeather.
` It's also undisputed that the only line in the
`source code that the inventor sites for the getWeather
`function call is not a line of actual code, it's a comment;
`and that's why it's green and it's surrounded by these slash-
`asterisks in the source code on the bottom left of slide 25.
`And both sides’ experts agree that if this source code were
`compiled into an executable that can actually program the
`claimed computer, the compiler ignores all comments in the
`compiling process.
` So there would be no getWeather function call in any
`executable program produced from the source code. So any
`system constructed from this source code would fail to meet
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`multiple limitations in the independent claims.
` Okay. So this commenting out is one failing
`on prong one, which is constructing an embodiment that meets
`the claims. If there aren't questions on that, I will move
`on to the next failing. Slide 27.
` Now, another independent failing on prong one is
`that the inventor didn't even allege that the various source
`code files he submitted as evidence were compiled together
`and executed on the claim's computer prior to the critical
`date. So to meet the first few claim limitations, he had to
`rely on a particular server in a particular location to be
`the claimed computer.
` And then he relied on multiple different source code
`files to meet the rest of the limitations, but he explained
`those files were being worked on somewhere else. And he
`never demonstrated that those specific code files were
`compiled and used to program that server early enough to beat
`Kovatch's date.
` So there's no evidence that a physical embodiment of
`these claims to a programmed computer was constructed by the
`date Parus alleges.
` Going to slide 30. In their surreply, Parus tried
`to belatedly allege that there's evidence showing that the
`code that allegedly meets the claim limitations was executed
`by the claimed server.
` But the only evidence they could find to cite was
`the inventor's testimony about the first version of the
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`Webley Assistant, the WA1, and that didn't have the claimed
`functionality of accessing websites. That's not disputed.
` Slide 31. The only testimony the surreply cites
`that discusses the WA2 is just the inventor saying that there
`was a press release.
` And the only Webley press release in the record is
`from a month too late to antedate Kovatch. Okay. So even in
`their surreply, they could find no evidence showing that the
`claimed system was actually physically built by the critical
`date that they allege and that they need to beat Kovatch.
` Slide 32. Another independent failing is that there
`isn't a single source code file that's alleged to meet the
`claims. Instead it's a patchwork of multiple different files
`in different versions with different dates that the inventor
`says would have to be used together in order to meet the
`claim.
` And there's no evidence corroborating that these
`specific versions were compiled together and deployed to the
`claim server before the critical date.
` Slide 33. One of the key files has no date at all
`and the inventor admitted he was relying on the dates on the
`documents to determine when they existed.
` And so this file, weather.ini, is a critical
`file because it's the one the inventor relies on as
`sequentially accessing and retrieving information from
`websites and given that it has no date, he has no basis for
`his testimony that a system using this version of this file
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`IPR2020-00846 (PATENT 7,076,431 B2)
`IPR2020-00847 (PATENT 9,451,084 B2)
`was constructed by the date he alleged.
` Sl
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