Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper No. 48
`Entered: July 13, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`CODE200, UAB, TESO LT, UAB, METACLUSTER LT, UAB, and
`OXYSALES, UAB, AND CORETECH LT, UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`______________
`
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`
`MAJOR DATA UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`______________
`
`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`______________
`
`Record of Oral Hearing
`Held: June 9, 2023
`______________
`
`
`571-272-7822
`
`
`
`
`Paper No. 48
`Entered: July 13, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`CODE200, UAB, TESO LT, UAB, METACLUSTER LT, UAB, and
`OXYSALES, UAB, AND CORETECH LT, UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`______________
`
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`
`MAJOR DATA UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`______________
`
`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`______________
`
`Record of Oral Hearing
`Held: June 9, 2023
`______________
`
`
`
`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`
`
`Before THOMAS L. GIANNETTI, KEVIN C. TROCK,
`SHEILA F. McSHANE, and RUSSELL E. CASS, Administrative Patent
`Judges.
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER, CODE200:
`
`
`CRAIG TOLLIVER, ESQ.
`Charhon Callahan Robson & Garza, PLLC
`3333 Lee Parkway
`Suite 460
`Dallas, Texas 75219
`(469) 587-7263
`ctolliver@ccrglaw.com
`
`
`
`ON BEHALF OF THE PETITIONER, MAJOR DATA:
`
`
`JASON BARTLETT, ESQ.
`LIANG (RAY) HUANG, ESQ.
`WENSHENG (VINCENT) MA, ESQ.
`Mauriel Kapouytian Woods, LLP
`450 Sansome Street
`Suite 1005
`San Francisco, California 94111
`(415) 738-6228
`rhuang@mkwllp.com
`vma@mkwllp.com
`
`
`
`
`
`
`2
`
`
`
`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`THOMAS M. DUNHAM, ESQ.
`ROBERT M. HARKINS, ESQ.
`ELIZABETH A. O'BRIEN
`Cherian, LLP
`1901 L Street NW
`Washington, D.C. 20036
`(202) 837-1726
`tom@dunham.cc
`elizabetho@cherianllp.com
`
`
`
`
`The above-entitled matter came on for hearing on Friday, June 9,
`
`2023, commencing at 1:00 p.m. EDT, via Video-conference.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`
`1:00 p.m.
`JUDGE McSHANE: Good afternoon. We are here to conduct the
`
`hearing in Code200 v. Bright Data. That's IPR2021-001492 and 001493,
`which IPR2022-00861 and 00862 have been joined into. We're also going to
`hear the cases Major Data UAB v. Bright Data -- those are IPR2022-00915
`and 00916 -- at this hearing.
`
`I'm Judge McShane. And Judges Giannetti, Cass, and Trock should be
`visible to you. We are convening these cases in a single hearing at the
`request of the parties because many of the issues overlap, and it will be more
`efficient to proceed in this manner.
`
`We have two separate Petitioners. The Petitioners have agreed to split
`their argument time.
`
`So can we have appearances, please? First, who do we have
`representing Petitioners? Let's start with the Code200 Petitioners.
`
`MR. TOLLIVER: Thank you, Your Honor. Craig Tolliver
`representing the Code200 Petitioners in IPR2021-001492 and 001493.
`
`JUDGE McSHANE: Thank you and welcome.
`
`And who do we have for Major Data?
`
`MR. HUANG: Yes, Your Honor. This is Liang Huang. I'm here with
`my colleagues, Mr. Jason Bartlett and Mr. Wensheng Ma. We represent
`Major Data in IPR2022-00915 and 00916.
`
`JUDGE McSHANE: Thank you and welcome.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`And who do we have for Patent Owner, please?
`
`MR. DUNHAM: For Patent Owner, Your Honors, you have Tom
`
`Dunham. And with me my colleagues, Bob Harkins and Elizabeth O'Brien.
`
`JUDGE McSHANE: Thank you and welcome to you.
`
`Just as a matter of housekeeping, we received an email this morning
`from the Petitioners in both sets of cases. They wanted to withdraw some
`motions to exclude that had been filed. The email indicated that the Patent
`Owner did not object to the withdrawal of the motions.
`
`Just to confirm, does Patent Owner agree to that?
`
`MR. DUNHAM: Yes, Your Honor. Patent Owner agrees.
`
`JUDGE McSHANE: Okay. Thank you.
`
`And with that, the motions to exclude in all the cases are withdrawn.
`
`So let me proceed with some general guidance. If during this
`proceeding you have any technical problems or audio problems, please let us
`know or contact the team members who provided you with the connection
`information.
`
`We have the entire record including the demonstratives. When
`referring to the demonstratives, please refer to the slide numbers. It really
`helps us follow along and it makes a much clearer record if you can do that.
`
`The oral hearing order indicated that each side would have 60 minutes
`to present its arguments, and, again, with the Petitioner splitting their time.
`The order also noted that there are some portions of the record which appear
`to contain confidential information.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`We asked the parties to advise if they thought any confidential
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`information was going to be discussed at this hearing and we haven't heard
`back. So we're assuming that you anticipate you will have no confidential
`information discussed today.
`
`Is that correct? Let me ask that of Patent Owner, please.
`
`MR. DUNHAM: Yes, for Patent Owner, this is Tom Dunham. That is
`correct.
`
`JUDGE McSHANE: All right. And all the confidential information is
`your confidential information, correct?
`
`MR. DUNHAM: That is correct.
`
`JUDGE McSHANE: Thank you. Okay. So just to advise, we are on
`a public line. If something comes up by happenstance that will involve
`discussion of confidential information, please advise, and we'll figure out
`how to deal with it.
`
`What's going to happen here is Petitioner is going to go first with their
`argument and may reserve rebuttal time. Patent Owner will present its
`response and may reserve sur-rebuttal time. Sur-rebuttal is going to be
`limited to the issues that the Petitioners raised in their rebuttal.
`
`Any questions from anyone?
`
`MR. TOLLIVER: No, Your Honor.
`
`MR. DUNHAM: No, Your Honor.
`
`JUDGE McSHANE: Okay. Thank you. Petitioners, you may
`proceed. Do you wish to reserve rebuttal time?
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`MR. TOLLIVER: Yes, Your Honor. Craig Tolliver for the Code200
`
`Petitioner. We would like to reserve 15 minutes of rebuttal time.
`
`JUDGE McSHANE: Thank you.
`
`MR. HUANG: This is Liang Huang for Petitioner Major Data. We
`will reserve five minutes of the 15 minutes from Code200 Petitioner. On our
`side, Mr. Jason Bartlett will lead.
`
`JUDGE McSHANE: Okay. Thank you.
`
`MR. TOLLIVER: Okay. Thank you, Your Honor. Craig Tolliver
`again, presenting for the Petitioners. I would like to begin, please, with slide
`6 of the Petitioners' demonstratives.
`
`We have here on slide 6 what I refer to as really the two primary issues
`in these IPRs. These are the Patent Owner's attempts to change the role-
`based claim constructions that were put in place by the District Court.
`
`They try to do that with two separate arguments. One is an argument
`that client device and second server allegedly has some sort of a structural
`limitation. And their second claim construction argument is what I'm calling
`the at-every-moment change to the role-based construction.
`
`Both of these issues, these are dispositive here today. In other words,
`if the Board were to reject the Patent Owner's proposed claim constructions,
`there would be no basis to distinguish the prior art. That's the only basis on
`which the prior art's been distinguished, referring specifically to claim 1 -- I
`should be clear -- the one independent claim in both the 319 and the 510
`patents.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`I am aware that the Board has heard these claim construction
`
`arguments now multiple times, I think at least four times, in IPRs that have
`gone to oral argument and in several final written decisions. So it's my intent
`-- and we'll see how successful I am -- it's my intent not to rehash a lot of
`details in our briefing that I think the Board has already heard multiple times.
`
`I think I might be able to do that, Your Honors, because the Petitioners
`in these IPRs have a slightly different angle, on particularly the first claim
`construction issue. Because of that, we have some deposition testimony from
`Patent Owner's expert, Dr. Williams, that I think is fairly illuminating. And I
`don't think the Board has encountered that same testimony in other IPRs.
`
`So if we could go, please, to slide 7. We'll deal first with client device.
` Again, the Patent Owner has said client device supposedly has some sort of a
`structural, physical limitation that they're trying to get in their claim
`construction.
`
`The first problem is there's nothing in the specification whatsoever
`about any type of specific structural components that go in a client device.
`So what Patent Owner did -- on slide 7, these are quotes that come from their
`expert's declaration, but it was also included again at pages 25 through 27 of
`their response. Patent Owner says that a client device is defined by these
`eight characteristics.
`
`Well, the problem here is none of these are in the specification either.
`And in fact, none of these are even alleged to be in the specification save for
`the first one, consumer computer, but we'll see that even that does not have
`any kind of support in the specifications.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`Williams, their expert, testified that he came up with these eight
`
`characteristics in discussion with attorneys. That was at page 22, lines 10
`through 13, of his deposition testimony. We can see just by looking on their
`face at these characteristics how subjective, vague, and indefinite they are.
`
`We see lots of relative terms. For example, we see comparisons to the
`client device being, quote-unquote, like a server. We see terms like “easily
`moved,” “relatively few connections,” “only a limited number of requests.”
`And their last characteristic has the word “lesser,” apparently in comparison
`to a server, multiple times.
`
`Dr. Williams testified, as shown in our briefing, multiple times that he
`has no metrics, no numbers, that one can use to assess how he would apply
`these characteristics to a client device for purposes of claim construction to
`determine whether something met this proposed construction from Patent
`Owner.
`
`We'll turn to slide 8, please. We're not going to go through all of these
`characteristics, but I would like to talk about consumer computer. You can
`rightly ask what is a consumer computer because we don't know that from
`the specification. And in fact, one can ask what's a consumer because Dr.
`Williams testified, as shown on slide 8, that being owned and operated by a
`consumer is the test here.
`
`And in fact, when I asked him if owned and operated by a consumer
`was his eighth characteristic of client device, he corrected me and said eight
`and nine. He was pretty specific about that.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
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`So what is a consumer? We still don't know. Dr. Williams himself
`
`couldn't even say whether he was a consumer. He said sometimes he's a
`consumer. Sometimes he operates as a business and so sometimes he's not.
`So we really don't even have an answer to that basic question. We're left
`with this vague, amorphous standard that their expert's trying to apply.
`
`We can go to slide 9, please. In trying to decide whether something is
`owned and operated by a consumer, we can really get into some very thorny
`issues. And I gave an example of one here on slide 9.
`
`During deposition -- this is pages 195 and 196, and some of the
`background is in the pages earlier -- Dr. Williams was presented with a
`hypothetical. It was basically, well, what if you had a bank or any company,
`and that company gave employees a cell phone they could use during the day
`but had to give it back? Would that be a consumer computer? Is that being
`owned and operated by a consumer or by a business?
`
`He said, as shown on this slide, if the employee could put on software
`that caused it to supposedly meet the claims, then it would be owned and
`operated by the employee.
`
`I changed the hypothetical and said, what if the bank installed the
`software on the phone? You can see his answer changed. He was very
`specific. He said, then I would say that that cell phone was not operating as a
`consumer computer and is not a first client device. So you have some fairly
`arcane facts that are completely changing how one would even interpret this
`claim term client device.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
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`We can go to slide 10, please. I was asking Dr. Williams in deposition
`
`again about an instance where a business gives a phone to an employee or
`gives it to a customer, I guess, in this situation. I wanted to know whether
`that was owned and operated by a consumer. And I think he rightly said,
`you're asking me a legal question.
`
`But when he was asked, okay, be that as it may, do you actually have
`to resolve that legal issue to decide whether something is owned and operated
`by a consumer, he admitted yes, that that might impact a person of ordinary
`skill in the art's decision.
`
`Slide 11, please. We're going to talk about portable and easily moved,
`which is another characteristic he gives for client device. I'm talking about
`Dr. Williams now and, of course, the Patent Owner itself.
`
`Again, I'm not going to through all of these, but Dr. Williams says that
`whether something is portable and easily moved doesn't depend on any of the
`factors that I think any person would immediately consider to decide if
`something was easily moved.
`
`For example, who would be moving the device? Dr. Williams said,
`quote-unquote, it doesn't matter. You can see the deposition transcript cites
`on slide 11. So apparently, whether you have an Olympic weightlifter or a
`six-year-old child, I guess that doesn't matter as to whether something is
`easily moved. It just doesn't make sense.
`
`What about how far you have to move a device for it to be portable
`and easily moved? Dr. Williams didn't know. He had no opinion on that. Is
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
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`it across the room? Is it upstairs? Is it across town? He couldn't answer that
`question. What about a weight limit? No weight limit.
`
`And how many people would be moving the device to determine
`whether it's easily moved? I asked that because it actually had not occurred
`to me. But during deposition, Dr. Williams testified that if you had a six-
`year-old, who presumably could be a consumer, even if something was heavy
`to them, it could still be easily moved because they could, quote, ask their
`adult supervisor to move the device. That's page 26, lines 2 through 10.
`
`So what's the import of all this? It means that in determining
`portability, apparently, we don't even know how many people can be
`collaborating to move a device. So this is a textbook example, Your Honors,
`of vague, subjective, ad hoc, changing determinations which are not proper
`for claim construction determinations.
`
`We can go to slide 12. If you take all these factors and you give a
`concrete example, you should see the picture on slide 12 of a late 1980s/early
`1990s circa desktop, a bulky desktop computer. I had assumed that Williams
`would testify that this was not portable. He testified that it was portable on
`page 69. So again, I guess in the eye of the beholder, but this is not an
`appropriate claim construction standard.
`
`Slide 13, please, just to collate some of these on one slide and go over
`them quickly. Williams had no numbers or metrics as to how you would
`measure really any of the factors. So how many are relatively few
`connections? What does resource-limited mean? What is regularly switched
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
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`off and taken offline; what does that mean? And what does lesser mean?
`We don't know and he doesn't have any numbers to apply those.
`
`We'll go to slide 14, please. Slide 14 is a screenshot from column 2 of
`the specification. And I do know that the Board is familiar with this issue
`and has heard it before.
`
`One thing that I did want to point out, Your Honors, is the Patent
`Owner and their expert continually take the sentence that's highlighted in
`yellow on slide 14 and argue that a client device or all client devices, I guess,
`are consumer computers. One point I want to make that I'm not sure has
`been made is that this sentence does not even say that.
`
`In the example we gave in the brief, it was assumed it was said a
`motorcycle that is referred to as a vehicle or a motorcycle is a vehicle. You
`can't just take a sentence and flip it around under rules of logic. You can't
`say all vehicles are motorcycles. We all know that, but that's essentially what
`Patent Owner has done. It's proclaimed from this sentence that all client
`devices are consumers of computers. And that's just not what the line says.
`
`On slide 15, again, I know the Board is familiar with this argument. If
`you look at actually where this column 2 comes from, it's describing Figure
`2. Figure 2 is a prior art example. It's a prior art figure. There's no question
`about that.
`
`And it's describing a prior art network further, although Patent Owner
`usually likes to not include the 60 that I have the red box around on slide 15.
` It says client devices 60. Client devices 60 are in that prior art network.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
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`They are never, ever referenced again anywhere in the specification beyond
`this prior art Figure 2 discussion.
`
`And what's interesting is on the right-hand side of the slide 15, Your
`Honors, is given all the talk that Patent Owner has put at least in their
`briefing and some of the argument, they keep talking about their novel
`architecture or their novel devices.
`
`Well, Dr. Williams testified that the client device in claim 1 is not a
`prior art client device. I don't know what it is, but if that's true what he said,
`then how can the specification cite to client devices 60 that are prior art client
`devices? How can that be support for the supposedly new novel client device
`of the claims? It just doesn't make sense.
`
`So the end result, Your Honors, is there's no specification support at
`all, not only for a client device that has some type of particular structural
`limitations, but none of the eight characteristics that the Patent Owner and
`their expert offer as what allegedly defines a client device.
`
`We can move on to slide 16, please. We really have, Your Honors, the
`exact same issue for second server. And on slide 16, we're doing the same
`screenshots basically of Dr. Williams' declaration.
`
`You'll notice there's a lot of mirror image terminology. Instead of
`saying easily moved, it says not portable or moved about by a consumer.
`And instead of saying unlike a server, of course it now says unlike a client
`device, referring specifically to the fourth and fifth characteristics on the left-
`hand side of slide 16. And there's a number of all of the same type of
`relative, vague terms that we had in the client device characteristics.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`This, I think, is what's known as a classic catch 22. You have the
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`Patent Owner saying to know what a server is, you have to compare it to a
`client device because some of the characteristics in particular say unlike a
`client device. Or they're relative, as Dr. Williams admitted, to what he thinks
`is a client device. But to know what a client device is, you have to compare
`it to a server.
`
`So you just go around in a circle. It's a catch 22. There's no
`explanation from Patent Owner as to what client device or what server would
`be used to do any of these comparisons.
`
`Slide 17, please. Again, we're not going to go through all of these
`characteristics. Dr. Williams testified that, flat out, a consumer cannot own a
`server. He said a consumer would not own a server per the claims and
`specifications.
`
`I think that last word there, I think there was a typo in the deposition
`transcript. It obviously should be claims, not clients. But Dr. Williams says
`that a server can't be owned by a consumer. Of course there's nothing in the
`claims or specifications that says a consumer can't own a server.
`
`On slide 18, again there's no numbers on whether a server is, quote-
`unquote, moved about. And as we know from what we just discussed a few
`minutes ago, apparently any number of people can collaborate to move
`something. So trying to decide whether a server is moved about if you have
`one, two, three, however many people, is sort of a fool's errand. And it's
`certainly not appropriate for a claim construction standard.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`As with client device, Your Honors, none of the characteristics of
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`second server proffered by Patent Owner in its construction are found
`anywhere in the patent specification.
`
`Slide 19 is Figure 3, how it's supposed to look. This is Figure 3 that's
`actually pulled from the patent. The figure is in accordance with the present
`invention, according to the words of the patent.
`
`Slide 20. Patent Owner's expert, Williams, candidly admitted that none
`of the figures in Figure 3, not one of them, correspond to what he thinks a
`second server is. So he just modified the figure.
`
`I know the Board has heard this issue before, but he pulled proxy
`server 6 out of Figure 1 and put it into Figure 3, dropped it in. The green box
`of proxy server 6 is what Patent Owner's expert did. That's, of course, not in
`Figure 3. And in fact, nothing in Figure 3 as admitted by their expert
`corresponds to the definition of second server as he proffers it.
`
`And if you look back at slide 20, the proxy server 6 that Patent
`Owner's expert dropped into Figure 3 is between client 102 and agent 122.
`Given that proxy server 6 is only discussed with respect to a prior art figure
`and never else in the patent, it goes without saying, and it's in fact true, that
`proxy server 6 is never, ever disclosed anywhere in the specification as
`communicating with a client 102 or an agent 122 as Dr. Williams drew it into
`the figure.
`
`Let's skip to slide 23, please. Dr. Williams, as I mentioned before,
`testified that when you look at a server you need to compare it to a client and
`have a client be compared to a server. So I was referring him to his
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`paragraph 132 in his declaration as shown on slide 23, at page 97 of his
`transcript.
`
`That's one of the ones that said unlike a typical client device. He said
`there's no particular make or model of client device that you would look at to
`decide what a server is. And what I think is noteworthy, Your Honors, is if
`you look on the left-hand side of slide 23, look how client device is defined.
`A desktop, a laptop, a tablet, a smartphone.
`
`So Patent Owner's construction would require one to figure out what a
`typical client device is when you could potentially have an iPhone or you
`could have a desktop computer, and that makes no sense. That makes no
`sense to try to figure out what one needs to look at to compare it to an alleged
`server under Patent Owner's construction. As this slide indicates at the top,
`Patent Owner is trying to compare unidentified devices to figure out what a
`client and a server is.
`
`As slides 24 and 25 show -- we'll start with 24 -- there's not even a
`point in time. If we're looking at a server or a client under Patent Owner's
`construction to figure out how they relate to one another, when are we doing
`this?
`I anticipated that Williams might say the filing date of the priority date
`
`and he didn't. He said at page 33, it's the point in time at which that POSA
`was determining infringement. I think that in his answer he realized that he
`had a bit of a problem because if you're looking at different times, how do
`you know that you're having some sort of a halfway-consistent claim
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`construction position since this is supposed to be a claim construction
`position.
`
`And so if you see slide 25, Dr. Williams threw in sort of at the end of
`his answer, the relative change between the two types of devices will stay
`relatively constant. There's no cite for that.
`
`It doesn't even really make logical sense that somehow servers and
`clients will develop linearly and have a relatively constant difference between
`them in order to compare them. And in fact, Patent Owner's expert actually
`contradicted himself just pages later in the transcript.
`
`If you go to slide 26, this illustrates it. I know there's a lot of
`testimony on this slide, but in essence, Williams was asked to consider a
`hypothetical. And the hypothetical is shown at the top.
`
`The question was you have a 60-pound computer. It's bulky. It's not a
`dedicated network element. It has three connections. It has 500 gigs of
`storage. And is that a client device?
`
`He asked what time, so I said today. And he said, is it owned and
`operated by a consumer? I said yes. And in his second to last answer he
`said, I think it's a client device. But then when the time period was changed
`to 2012, as you see in the yellow highlighted section, his opinion changed.
`He said, I don't know what the characteristics were, essentially. I can't
`express an opinion.
`
`So on the one hand, the expert testifies that time doesn't really matter.
`And then on the other hand, it matters a lot. It changed his answer essentially
`180 degrees. So again, not an appropriate claim construction standard.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`Slide 27. I just want to make the point that we had those eight
`
`characteristics for client device, 11 characteristics for server. Well, the
`expert doesn't even know how many need to be met. Is it one, three, four, all
`of them, eight, seven? No answer.
`
`He said he's not putting a number even on that, which to me seems like
`a pretty basic determination that one would need to have some type of
`potentially workable claim construction position even if it didn't have all the
`other difficulties we've discussed.
`
`Slide 28, please. Williams could not even apply his own proposed
`construction to his own devices in his own home in a way that it makes any
`kind of coherent, logical sense. Dr. Williams testified that he had a server in
`his home. It's a home server. He said it's a Mac Mini server and that's what
`he uses. Yet he testified that, as shown in yellow, the server in his home
`would not be a server under the terms of the patent, he thinks.
`
`And later on in the deposition, as shown at the very bottom -- this is on
`page 102 -- he was given an Apple data sheet. That's Exhibit 1110, a Mac
`Mini server data sheet, a specification with a bunch of different
`characteristics on it and data. And he still needed more information. He
`wasn't quite sure whether that Mac Mini server would be a server or not.
`
`Your Honors, it's not on the slide but I should say, as shown at pages
`11 through 12 of Petitioners' reply brief, he also couldn't say whether an
`iPhone 14 or an Apple MacBook Pro were client devices, even after being
`given the data sheets for those. And he in fact testified that they might
`possibly be servers.
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`IPR2022-00915 (Patent 10,257,319 B2)
`IPR2022-00916 (Patent 10,484,510 B2)
`IPR2021-01492 (Patent 10,257,319 B2)
`IPR2021-01493 (Patent 10,484,510 B2)
`
`So again, we have to remember that the whole purpose for Patent
`
`Owner's constructions was supposedly to provide a structural limitation or
`structural construction for these terms. And it's frankly a mess in terms of
`how Williams or anybody else could even attempt to apply the construction.
`
`Next, Your Honors, I think what I'm going to do is skip over some of
`the spec support for the District Court's claim construction and the District
`Court's claim construction itself. I believe the Board is quite familiar with
`those. All I could really do is repeat what's in the briefing and repeat what
`you've already heard.
`
`However, one point I would like to make on this issue is on slide 34.
`Slide 34, I think the Board's familiar with this figure that Dr. Rhyne, the
`Patent Owner's expert, and the District Court, where he marked up the role-
`based components in Figure 3 to actually correspond the client device and
`second server.
`
`The reason I'm showing this is I want to make this very clear that that
`figure was filed in multiple briefs at the District Court, one of them actually
`being a claim construction brief. Not just a claim construction a brief; a
`claim construction brief for the 319 and 510 patents that we're talking about
`here today. You can see on slide 34 it's Exhibit 1126.
`
`Now, on slide 35, the Patent Owner said at footnote 4 on page 9 of its
`sur-reply that somehow the figure was being misconstrued or it wasn't
`relevant. They said that it was, quote, merely used to illustrate the lines of
`communication. But what do they tell the District Court in the claim
`construction brief?
`
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