UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MAPLEBEAR INC. D/B/A INSTACART,
`Petitioner,
`v.
`FALL LINE PATENTS, LLC,
`Patent Owner.
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`Patent No. 9,454,748
`Filing Date: October 22, 2010
`Issue Date: September 27, 2016
`Title: SYSTEM AND METHOD FOR DATA MANAGEMENT
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`Inter Partes Review No.: IPR2025-00958
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`DECLARATION OF DR. HENRY HOUH IN SUPPORT OF PETITION
`FOR INTER PARTES REVIEW OF U.S. PAT. NO. 9,454,748
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`Instacart, Ex. 1002
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`PROFESSIONAL BACKGROUND AND QUALIFICATIONS .................. 1
`II.
`III. MATERIALS REVIEWED ............................................................................ 9
`IV. UNDERSTANDING OF APPLICABLE LEGAL STANDARDS ................ 9
`V. OVERVIEW OF THE ʼ748 PATENT .......................................................... 14
`VI. PROSECUTION HISTORY ......................................................................... 15
`VII. RELATED LITIGATION ............................................................................. 18
`A.
`IPRs Involving the ’748 Patent ........................................................... 32
`VIII. TECHNICAL BACKGROUND ................................................................... 35
`A.
`Computer Hardware, Software, and Firmware ................................... 35
`B.
`Graphic Images and Graphical User Interfaces .................................. 36
`C.
`Computer-Based Questionnaires ......................................................... 36
`D.
`Tokens and Tokenizing ....................................................................... 38
`E.
`Global Positioning System (GPS) and Location Identification .......... 40
`F.
`Data Synchronization .......................................................................... 41
`G. Making Data Available Over the Internet ........................................... 41
`IX. OVERVIEW OF THE RELIED UPON PRIOR ART .................................. 42
`A.
`Barbosa ................................................................................................ 42
`B.
`Falls ..................................................................................................... 43
`C.
`Heath .................................................................................................... 44
`D.
`Short .................................................................................................... 45
`E.
`Torrance ............................................................................................... 46
`F.
`Bandera ................................................................................................ 46
`G.
`Pinera ................................................................................................... 47
`H. Morris .................................................................................................. 48
`I.
`Hamlin ................................................................................................. 49
`THE RELEVANT ART AND LEVEL OF ORDINARY SKILL IN
`THE RELEVANT ART ................................................................................ 50
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`X.
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`i
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`B.
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`XI. CLAIM CONSTRUCTION .......................................................................... 52
`A.
`Constructions from Related IPRs ........................................................ 52
`1.
`“GPS integral thereto” .............................................................. 52
`2.
`“token” ...................................................................................... 52
`3.
`“central computer”/“originating computer”/“recipient
`computer” .................................................................................. 53
`“loosely networked” .................................................................. 53
`4.
`“executable” .............................................................................. 53
`5.
`Constructions from District Court Litigations .................................... 53
`1.
`“customized for a particular location” ...................................... 54
`2.
`“questionnaire” .......................................................................... 54
`3.
`“when said loosely networked computer is at said
`particular location, executing said transferred
`questionnaire on said loosely networked computer,
`thereby collecting responses from the user” ............................. 54
`“requests location identifying information” ............................. 54
`4.
`“automatically transferring” ...................................................... 55
`5.
`XII. ANALYSIS .................................................................................................... 55
`A. Ground A: Barbosa in view of Falls Renders Obvious Claim 7 ......... 57
`1.
`Independent Claim 7 ................................................................. 60
`Ground B: Barbosa in view of Falls and Heath Renders
`Obvious Claim 7 ................................................................................ 111
`1.
`Independent Claim 7 ............................................................... 112
`Grounds C & D: Barbosa in view of Falls and Short, and
`Barbosa in view of Falls, Heath, and Short Render Obvious
`Claim 7 .............................................................................................. 123
`1.
`Independent Claim 7 ............................................................... 124
`D. Grounds E-H: Barbosa in view of Falls and Torrance, Barbosa
`in view of Falls, Heath, and Torrance, Barbosa in view of Falls,
`Short, and Torrance, and Barbosa in view of Falls, Heath,
`Short, and Torrance Render Obvious Claim 8 .................................. 133
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`B.
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`C.
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`ii
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`1.
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`4.
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`5.
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`E.
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`Dependent Claim 8: “The method for collecting survey
`data according to claim 7 further comprising: ........................ 133
`Grounds I-J: Barbosa and Barbosa in view of Bandera Render
`Obvious Claims 3, 4, 9-11, and 13-15 .............................................. 143
`1.
`Independent Claim 9 ............................................................... 143
`2.
`Dependent Claim 10 ............................................................... 171
`3.
`Dependent Claim 11: “The method for managing data
`according to claim 9, wherein said originating computer
`and said recipient computer are a same computer.” ............... 177
`Dependent Claim 13: “The method for managing data
`according to claim 9, wherein said questionnaire
`comprises at least one question that requests location
`identifying information and at least one other Question.” ...... 179
`Dependent Claim 14: “The method for managing data
`according to claim 13, wherein at least one of said at
`least one other question is selected from a group
`consisting of a food quality question, a service quality
`question, a waiting time question, a store number
`question, a location question, a time question, a date
`question, a temperature question, and a time of day
`question.” ................................................................................ 180
`Dependent Claim 15: “The method for managing data
`according to claim 9, wherein step (a) comprises the step
`of establishing communications via a global computer
`network between said handheld computing device and
`said originating computer.” ..................................................... 181
`Dependent Claim 3 ................................................................. 182
`7.
`Dependent Claim 4 ................................................................. 191
`8.
`Grounds K-L: Barbosa in view of Heath and Barbosa in view of
`Bandera and Heath Render Obvious Claim 6 ................................... 200
`1.
`Dependent Claim 6 ................................................................. 200
`G. Grounds M-N: Barbosa in view of Heath and Pinera and
`Barbosa in view of Bandera, Heath, and Pinera Each Renders
`Obvious Claim 6 ................................................................................ 209
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`6.
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`F.
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`iii
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`I.
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`H. Grounds O-P: Barbosa in view of Morris and Barbosa in view
`of Bandera and Morris Each Renders Claim 12 Obvious ................. 215
`1.
`Dependent Claim 12 ............................................................... 215
`Grounds Q-R: Barbosa in view of Hamlin and Barbosa in view
`of Bandera and Hamlin ..................................................................... 221
`XIII. EVIDENCE OF NON-OBVIOUSNESS .................................................... 225
`XIV. CONCLUSION ............................................................................................ 225
`Appendix A…………………………………………………………………...…A-1
`Appendix B…………………………………………………………………...…B-1
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`I, Dr. Henry H. Houh, declare that I have personal knowledge of the facts set
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`forth in this declaration and, if called to testify as a witness, could and would do so
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`competently.
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`I.
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`INTRODUCTION
`I have been retained as an expert witness on behalf of the Petitioner,
`1.
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`Maplebear Inc. d/b/a Instacart (“Instacart”), for the above-referenced inter partes
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`review proceeding.
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`2.
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`I have been asked to provide a declaration with my opinions regarding
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`certain matters pertaining to the patentability of U.S. Patent No. 9,454,748 (“the ʼ748
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`Patent”). I understand that the ’748 Patent is owned by Fall Line Patents, LLC
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`(“Patent Owner”).
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`3.
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`I am being compensated at my usual consulting rate for my work on
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`this matter. My compensation is in no way dependent upon my opinions or
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`testimony or the outcome of this proceeding. I have no financial interest in the
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`parties or in the outcome of this proceeding.
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`II.
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`PROFESSIONAL BACKGROUND AND QUALIFICATIONS
`4. My complete qualifications and professional experience are described
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`in my Curriculum Vitae, a copy of which can be found in Exhibit 1003. The
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`following is a brief summary of my relevant qualifications and professional
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`experience.
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`1
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`5.
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`I received a Ph.D. in Electrical Engineering and Computer Science
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`from the Massachusetts Institute of Technology (“MIT”) in 1998. I also received a
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`Master of Science degree in Electrical Engineering and Computer Science in 1991,
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`a Bachelor of Science degree in Electrical Engineering and Computer Science in
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`1989, and a Bachelor of Science degree in Physics in 1990, all from MIT.
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`6.
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`I am currently self-employed as an independent technical consultant. I
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`am also president of a company, Einstein’s Workshop, that provides supplemental
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`science, technology, engineering, and mathematics (“STEM”) education to children
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`of all ages.
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`7.
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`I
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`first
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`entered
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`the
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`fields of
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`computer networking
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`and
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`telecommunications in 1987 when I worked as a summer intern at AT&T Bell
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`Laboratories as part of a five-year dual degree program at MIT. I continued to work
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`at AT&T Bell Laboratories as part of this MIT program. While at MIT, I was a
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`teaching assistant (“TA”) in the Electrical Engineering and Computer Science
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`Department’s core Computer Architectures course. I first was a TA as a senior for a
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`role typically reserved for graduate students. I later became head TA. The course
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`covered various topics in computer architectures, as well as programming. As a TA,
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`I helped write homework assignments, lab assignments (including those that
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`involved programming), and exams. I also taught in the recitation sections.
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`2
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`8.
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`Later, as part of my doctoral research at MIT from 1991-1998, I was a
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`research assistant in the Telemedia Network Systems (“TNS”) group at the
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`Laboratory for Computer Science. The TNS group built a high-speed gigabit
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`computer networks and created applications that ran over the network. Example
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`applications included ones for remote video capture, processing, and display of
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`video on computer terminals. In addition to working on the design of core network
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`components, designing and building the high-speed links (which included
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`programmable logic devices), and designing and writing the device drivers for the
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`interface cards (which included programmable logic devices), I also set up the
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`group’s web server. Also, I helped to maintain, install, and upgrade the networking
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`devices used within the group, along with other graduate students.
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`9.
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`I also helped to build the web pages that initiated the above-mentioned
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`video sessions via a web interface. Vice President Al Gore visited our group in 1996
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`and received a demonstration of—and remotely drove—a radio-controlled toy car
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`with a wireless video camera mounted on it that was built by our group. Using a
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`network-based application, this toy car device received commands transmitted over
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`a network from a remote computer, and video data from the toy car was transmitted
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`wirelessly then over a computer network back to the user controller. On occasion,
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`we allowed users visiting our web site to drive the toy car from their remote
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`computer, over a network, while they watched the video on their computer. The
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`3
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`video stream was encoded by TNS-designed hardware, streamed over the TNS-
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`designed network, and displayed using TNS-designed software. We interfaced to the
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`car’s remote controller via a computer’s serial port. Similarly, I also have experience
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`interfacing programmatically with other devices via the serial port, such as an
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`external GPS device, using an API for example, to retrieve GPS data.
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`10.
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`I defended and submitted my Ph.D. thesis, titled “Designing Networks
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`for Tomorrow’s Traffic,” in January 1998. As part of my thesis research, I analyzed
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`local area and wide area flows to show a more efficient method for routing packets
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`in a network, based on traffic patterns at the time. The traffic flow data included
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`Ethernet, IP, TCP or UDP, and RTP header information, which I analyzed to come
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`to the conclusions in my thesis.
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`11. From 1997 to 1999, I was a Senior Scientist and Engineer at NBX
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`Corporation, a start-up that made business telephone systems for streaming
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`packetized audio over data networks instead of using traditional telephone lines.
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`NBX was later acquired by 3Com Corporation.
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`12. As part of my work at NBX, I designed the core audio reconstruction
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`software algorithms for the telephones, as well as the packet transmission
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`algorithms. I also designed and validated the core packet transport protocol used by
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`the phone system. The protocol was used for all signaling in the phone system,
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`including for the setup of conference calls. The NBX system also featured a
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`4
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`computer interface for initiating phone calls, which could also initiate conference
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`calls. The NBX system also supported the Telephony Application Programming
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`Interface (“TAPI”) that allowed other computer programs to integrate with our
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`system telephony features. We obtained U.S. Patent No. 6,967,963, entitled
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`“Telecommunication method for ensuring on-time delivery of packets containing
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`time-sensitive data,” as part of this work. I also programmed the first prototype of
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`our phone which communicated using IP, and I demonstrated our IP phones working
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`over the Internet when we attended a trade show in California. The phone connected
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`over the Internet to our headquarters in Andover, MA. I also programmed a data
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`capture and analysis system that provided data on the operation of the system. While
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`the NBX’s system’s telephones were initially used only over a wired connection,
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`later system releases also included a software telephone that could be utilized on a
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`computer that was not always connected to the network, such as a one in which the
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`system and/or the network interface could be put into a low power sleep mode.
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`13. From 1999-2004, I was employed by Empirix or its predecessor
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`company, Teradyne. Empirix was a leader in test tools for telecommunications
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`protocols and systems, providing functional testing tools as well as load testing tools.
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`From 2000-2001, I conceived and built a test platform for testing Voice-over-IP
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`(VoIP). The first application on this new test platform was a cloud emulator for
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`simulating the effects of transmitting VoIP over a busy network. The test platform
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`5
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`was based on a network processor chip, which could be programmed to cut-through
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`packets while processing packet data such as various protocol later headers including
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`addresses included therein and even packet data contents. I also designed a protocol
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`analyzer built on the same platform. The application captured and performed
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`protocol decoding at various layers in the protocol stacks of captured packets,
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`including detailed Ethernet header decoding, IP header decoding, TCP header
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`decoding, UDP header decoding, RTP header decoding, and many other specified
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`protocols. The application was also designed to reconstruct entire conversations that
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`spanned multiple packets.
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`14. At Empirix, I also rearchitected the design of the Web Test division’s
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`core product, e-Test Suite. E-Test Suite was a software program designed to perform
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`functional and load testing of network-based (e.g., client/server) web applications.
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`These applications were designed to receive user input and to process that input at a
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`server. Numerous e-Commerce companies used e-Test Suite software to test the
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`capabilities of their web sites. I was technical lead on the project, and also worked
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`on programming a JavaScript interpreter for the product. JavaScript is the flexible
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`programming layer that allows users to interact with web pages through actions such
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`as clicking and dragging that allows web page programmers to extend the
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`functionality of a web page beyond clicking on links. As part of implementing the
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`JavaScript interpreter, I personally designed and programmed the lexer and parser
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`6
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`for the interpreter. The lexer tokenized the JavaScript programs and I created the
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`grammar specification in modified Backus-Naur form used to create the internal
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`representation of the JavaScript program.
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`15.
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`In 2006, as part of my role at BBN Technologies, I helped found
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`PodZinger Inc., now known as RAMP Inc. PodZinger utilized BBN’s speech
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`recognition algorithms to search through the spoken words in audio and video
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`segments. While I was Vice President of Operations and Technology, PodZinger
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`followed its initial prototype with a full streaming audio and video search solution. I
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`also created a social networking web site, which BBN sold to a venture-funded
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`startup company. In the process of creating the web site, I designed and specified the
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`authentication and authorization protocols.
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`16.
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`I also worked with setting up accounting systems and integrating on-
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`line payment systems on numerous occasions. In 1994, I started a company, Agora
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`Technology Group, that set up web sites for targeted advertising, and later provided
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`consulting services to companies and organizations to set up their web sites. I
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`managed all the finances and bookkeeping for the company, including keeping all
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`the books and ledgers. Starting in the early 2000’s, I integrated web payment
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`systems with various web sites.
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`17. At my educational company, Einstein’s Workshop, I created the initial
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`web site that included shopping cart technology and integrated it with online
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`payment solutions, that used client-server communications to execute a variety of
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`functions. I also evaluated, sourced, and configured the point-of-sale system for the
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`company, which also involved integration with and setup of mobile shopping
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`terminals. Furthermore, I set up the accounting system, built the web site, integrated
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`various web payment mechanisms with the web site, set up mobile payment systems,
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`and also set up a mobile point of sale system. These websites and network
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`applications collected and processed user responses in order to execute their
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`functions, such as mobile payment and order fulfillment. At Einstein’s Workshop,
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`we teach programming to children of all ages, starting with Scratch programming
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`for young elementary students and advancing through programming in Python and
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`for game development for high school students. I conceived many of the
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`programming classes and have taught programming to novice and more advanced
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`students. We also created an educational computer-aided design tool, called
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`BlocksCAD. We received a grant, on which I was the principal investigator, to
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`further develop BlocksCAD and successfully met our grant objectives. BlocksCAD
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`was spun-off from Einstein’s Workshop and has been part of various
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`incubator/accelerator programs in education as well as at the MIT Media Lab.
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`Today, BlocksCAD is used worldwide in makerspaces as well as in schools
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`throughout the U.S.
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`8
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`18.
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`I have been awarded several United States patents, including the
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`following examples:
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`• U.S. Patent No. 7,975,296, “Automated security threat testing of web
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`pages”;
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`• U.S. Patent No. 7,877,736, “Computer language interpretation and
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`optimization for server testing”;
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`• U.S. Patent No. 7,801,910, “Method and apparatus for timed tagging of
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`media content”;
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`• U.S. Patent No. 7,590,542, “Method of Generating Test Scripts Using a
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`Voice-Capable Markup Language”; and
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`• U.S. Patent No. 6,967,963, “Telecommunication method for ensuring
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`on-time delivery of packets containing time-sensitive data.”.
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`III. MATERIALS REVIEWED
`In connection with my study of this matter and reaching the opinions
`19.
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`stated herein, I have reviewed a number of documents including the exhibits listed
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`in Appendix A.
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`IV. UNDERSTANDING OF APPLICABLE LEGAL STANDARDS
`20. Although I am not an attorney, I have a general understanding of the
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`applicable legal standards pertaining to the patentability issues presented in this
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`proceeding.
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`9
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`21.
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`I understand that, in this inter partes review (IPR), Petitioner is
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`challenging the patentability of claims 3, 4, and 6-15 of the ’748 Patent. I understand
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`that Petitioner has the burden of proving that each challenged claim is unpatentable
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`by a preponderance of the evidence. I also understand that all claims of the ’748
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`Patent not challenged here have previously been found unpatentable.
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`22.
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`I understand that to be valid, a patent claim must be “novel,” and is
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`invalid if “anticipated” by a single prior art reference. I further understand that a
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`reference anticipates if it discloses each and every element as arranged in the claim,
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`so as to enable a person of ordinary skill in the art (“POSA”) to make and use the
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`claimed invention without undue experimentation.
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`23.
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`I understand that a patent claim is unpatentable if, at the time of the
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`invention, it would have been obvious to a POSA to combine the teachings of the
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`prior art to yield the patent claim. I also understand that it is not required (although
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`it is acceptable) that each element/limitation of a patent claim be found in a single
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`reference in order to find a patent claim obvious. For a patent claim to be found
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`obvious, all the elements/limitations of the patent claim may be found in a
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`combination of references at which a person of ordinary skill in the art would have
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`been reasonably expected to arrive. I understand that a proper analysis of whether
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`an invention is unpatentable for obviousness includes a review of the scope and
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`content of the prior art, the differences between the patent claims at issue and the
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`10
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`prior art, the level of ordinary skill in the field of the invention at the time of the
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`invention, and other objective considerations identified below.
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`24.
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`It is my understanding that the prior art and claimed invention should
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`be viewed through the knowledge and understanding of a POSA – one should not
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`use his or her own insight or hindsight in deciding whether a claim is obvious. I
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`further understand that a claim may be rendered obvious if a POSA can implement
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`the claimed invention as a predictable variation of a known product. I also
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`understand that a POSA is presumed to have knowledge of the relevant prior art at
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`the time of the claimed invention, which comprises any prior art that was reasonably
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`pertinent to the particular problems the inventor faced.
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`25.
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`I understand that a showing of obviousness requires some articulated
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`reasoning with a rational underpinning to support the combination of the references.
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`I understand that in consideration of the issue of obviousness it is important to
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`identify whether a reason existed at the time of the invention that would have led a
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`POSA to combine elements of the references in a way that yields the claimed
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`invention.
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`26.
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`I understand that a claim may be considered unpatentable for
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`obviousness for various reasons. I have been informed that the following exemplary
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`rationales may support a finding of obviousness:
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`11
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`(A) combining prior art elements according to known methods to yield
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`predictable results;
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`(B) simply substituting one known element for another to obtain predictable
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`results;
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`(C) use of a known technique to improve similar devices in the same way;
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`(D) applying a known technique to a known device ready for improvement
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`to yield predictable results;
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`(E) choosing from a finite number of identified, predictable solutions with a
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`reasonable expectation of success;
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`(F) known work in a field that prompts variations in the work in the same or
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`a different field that leads to predictable results; and
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`(G) some teaching, suggestion, or motivation in the prior art that would have
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`led a person of ordinary skill in the art to modify a prior art reference or
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`combine multiple prior art references or teachings to arrive at the
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`claimed invention.
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`27.
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`I understand that various objective or “real world” factors, also referred
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`to as secondary considerations, may be indicative of non-obviousness. I understand
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`that such factors/considerations include:
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`(A)
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`the commercial success of the claimed invention;
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`12
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`(B)
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`the existence of a long-felt, unresolved need for a solution to the problem
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`solved by the claimed invention;
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`(C) failed attempts to solve the problem solved by the claimed invention;
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`(D) copying of the claimed invention;
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`(E) unexpected results of the claimed invention;
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`(F) praise for the claimed invention by others in the relevant field; and
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`(G) willingness of others to accept a license under the patent because of the
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`merits of the claimed invention.
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`28.
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`It is my understanding that the prior art references themselves may
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`provide a suggestion, motivation, or reason to combine, but other times the link may
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`be common sense. I further understand that the obviousness analysis recognizes that
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`market demand, rather than scientific literature, often drives innovation, and that is
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`sufficient motivation to combine references.
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`29.
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`It is my understanding that a particular combination may be proven
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`obvious merely by showing that it was obvious to try the combination. For example,
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`common sense is a good reason for a person of ordinary skill to pursue known
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`options when there is a design need or market pressure to solve a problem and there
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`are a finite number of identified, predictable solutions.
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`30.
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`I further understand that a proper obviousness analysis focuses on what
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`was known or obvious to a person of ordinary skill in the art, not just the patentee.
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`13
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`Accordingly, it is my understanding that any need or problem known in the field at
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`the time of invention and addressed by the patent can provide a reason for combining
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`the limitations in the manner claimed.
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`V. OVERVIEW OF THE ʼ748 PATENT
`31. The ’748 Patent Specification generally relates to the distribution of
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`electronic forms via the Internet or to mobile devices, and in particular, to a method
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`for the management of data collected from a remote computing device. Ex. 1001,
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`Abstract. In particular, the ’748 Patent describes using computerized questionnaires
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`to allow a user to complete a form on a wireless device for transmission to a server.
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`Ex. 1001, 10:44-54. A client can design a questionnaire by creating a list of
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`questions, with corresponding tokens, and may include follow-up questions
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`depending on responses to other questions. Ex. 1001, 8:51-9:2. When the
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`questionnaire is complete, the questions and tokens can be transmitted to a handheld
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`device, whose user can provide responses to the questions. Ex. 1001, 9:3-13. The
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`responses can be stored on the handheld device and transmitted to the server, and
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`the server can store the data in a database. Ex. 1001, 9:58-10:8. The ’748 Patent
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`describes that one question may be a location question that automatically obtains a
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`Geographic Position System (GPS) information as a response to the question. Ex.
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`1001, 5:33-48, 10:55-65. In addition, the ’748 Patent teaches that the handheld
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`device and server may be “loosely networked,” such that the server and handheld
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`devices are “tolerant of intermittent network connections.” Ex. 1001, 4:64-5:7.
`
`VI. PROSECUTION HISTORY
`I understand that the ’748 Patent was filed as U.S. App. No. 12/910,706
`32.
`
`(“the ’706 Application”) on October 22, 2010. I understand that the ’748 Patent
`
`claims priority to U.S. App. No. 10/643,516, which issued as U.S. Patent No.
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`7,822,816 (“the ’816 Patent”). I further understand that all claims of the ’816 Patent
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`were canceled on June 10, 2014 as a result of ex parte reexamination Control No.
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`90/012,829. Ex. 1017, 1-2; Ex. 1021, 3. I understand that the ’748 Patent also claims
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`priority back to U.S. Prov. App. No. 60/404,491 (“the ’491 Provisional”), which has
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`a filing date of August 19, 2002. I understand that the Patent Owner has alleged
`
`conception of the claims to date to “prior to… January 1, 2002” and has further
`
`alleged diligent reduction to practice from the ’491 Provisional to the ’748 Patent.
`
`Ex. 1004, 99.
`
`33.
`
`I understand that the Examiner issued a first Non-Final Office Action
`
`for the ’706 Application on March 16, 2011. Ex. 1004, 62. The Examiner rejected
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`claims 1-11, encompassing all of the claims then presented in the ’706 Application,
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`for obvious-type double patenting over U.S. Patent No. 7,822,816 (“the ’816
`
`Patent”), the parent of the ’706 Application. Id., 64-67. The Examiner also rejected
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`claims 1, 5, and 7 under pre-AIA U.S.C. § 102 and claims 2-4, 6, and 8-11 under
`
`pre-AIA U.S.C. § 103 over various references. Id., 67-75.
`
`34.
`
`I understand that the applicant for the ’706 Application (“Applicant”)
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`filed a response to the first Non-Final Office Action on September 16, 2011. Id., 81-
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`106. In the response, Applicant filed a terminal disclaimer covering claims 1-11.
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`Id., 98. Applicant also argued that the ’706 Application was conceived “at least as
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`early as January 1, 2002.” Id., 99.
`
`35.
`
`I understand that the Examiner issued the second Non-Final Office
`
`Action for the ’706 Application on September 20, 2012. Id., 142. The Examiner
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`issued rejections under pre-AIA 35 U.S.C. § 103 on new grounds (id., 149-171), but
`
`also rejected Applicant’s arguments regarding the date of conception and maintained
`
`the previous 35 U.S.C. § 103 rejections. Id., 171-172.
`
`36.
`
`I understand that Applicant filed a response to the second Non-Final
`
`Office Action on December 28, 2012. Id., 191-224. I understand that Applicant
`
`again argued that the ’706 Application was entitled to a conception date “at least as
`
`early as January 1, 2002” and that the rejections under 35 U.S.C. § 103 should be
`
`withdrawn. Id., 216-217. I understand that Applicant also filed a terminal
`
`disclaimer, this time covering all pending claims. Id., 248.
`
`37.
`
`I understand that the Examiner issued a first Final Office Action on
`
`April 9, 2013. Ex. 1004, 337. I understand that in the first Final Office Action, the
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`16
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`Examiner accepted Applicant’s arguments regarding the date of conception and
`
`withdrew some of the prior art rejections. Id., 355. I understand that the Examiner
`
`maintained the prior art rejections first issued in the second Non-Final Office Action.
`
`Id., 341.
`
`38.
`
`I understand that on May 9, 2014, Applicant filed a Request for
`
`Continued Examination. Id., 411-412. I understand that Applicant amended the
`
`independent claims, including claim 7, to re