UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`AVEPOINT, INC.,
`Petitioner,
`
`v.
`
`ONETRUST, LLC,
`Patent Owner.
`__________
`
`Case PGR2018-00056
`Patent 9,691,090 B1
`__________
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`Record of Oral Hearing
`Held: June 28, 2019
`__________
`
`Before BART A. GERSTENBLITH, CARL M. DeFRANCO, and
`MATTHEW S. MEYERS, Administrative Patent Judges.
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`
`
`
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`AVEPOINT, INC.,
`Petitioner,
`
`v.
`
`ONETRUST, LLC,
`Patent Owner.
`__________
`
`Case PGR2018-00056
`Patent 9,691,090 B1
`__________
`
`Record of Oral Hearing
`Held: June 28, 2019
`__________
`
`Before BART A. GERSTENBLITH, CARL M. DeFRANCO, and
`MATTHEW S. MEYERS, Administrative Patent Judges.
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`Case PGR2018-00056
`Patent 9,691,090 B1
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`
`
`NATHAN A. EVANS, ESQ.
`JOSH F. P. LONG
`Woods Rogers PLC
`10 S. Jefferson Street
`Suite 1400
`Roanoke, Virginia 24011
`(540) 983-7725
`nevans@woodsrogers.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`DAVID A. REED, ESQ.
`NITA GRAY, ESQ.
`Kilpatrick Townsend
`1100 Peachtree Street, N.E.
`Suite 2800
`Atlanta, Georgia 30309
`(404) 745-2548
`dreed@kilpatricktownsend.com
`
`
`
`ALSO PRESENT:
`
`
`ANDREW SAUL
`
`The above-entitled matter came on for hearing on Friday, June 28, 2019,
`commencing at 1:00 p.m. at the U.S. Patent and Trademark Office, 600
`Dulany Street, Alexandria, Virginia
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`P-R-O-C-E-E-D-I-N-G-S
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`1:00 p.m.
`JUDGE GERSTENBLITH: Good afternoon, everyone. We are here
`for oral argument in PGR2018-00056, AvePoint, Inc. vs. OneTrust, LLC.
`I'm Judge Gerstenblith. Let's see, to my left up here is Judge Meyers,
`and on the phone is Judge DeFranco.
`Let's see, starting with Petitioner, let's have each party come up to the
`podium and introduce yourself and who's with you, please.
`MR. EVANS: Good afternoon, Your Honors. My name is Nathan
`Evans from the law firm of Woods Rogers, PLC. I'm here to present the case
`on behalf of the Petitioner, AvePoint, Inc.
`I am joined by my colleague from Woods Rogers, Mr. Joshua Long.
`MR. LONG: Hello, Your Honors.
`JUDGE GERSTENBLITH: Welcome.
`MR. LONG: Thank you.
`MR. REED: Good afternoon, Your Honors. My name is David Reed.
`I'm here on behalf of the Patent Owner OneTrust, LLC. With me are my
`colleagues, Nita Gray and Andrew Saul. And Ms. Gray will be assisting me
`with exhibits and demonstratives.
`JUDGE GERSTENBLITH: Welcome.
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`MR. REED: Thank you.
`JUDGE GERSTENBLITH: We set forth the procedure for today's
`hearing in our trial order which is Paper 37. Each side will have 60 minutes
`of total argument time.
`We'll begin with Petitioner who will start with its case in chief. And
`Petitioner may reserve time for rebuttal. Then we will turn to Patent Owner,
`who may respond to the case in chief and also reserve time for rebuttal. And
`then we will go to whatever time folks have reserved for rebuttal.
`Let's see here. I have a timer up here that, let's see, must show you up
`in front. I can set it for any time you want up to 60 minutes. And so if you
`wanted to say reserve 15, I can set it for 45 or whatever interval you want, so
`it can count down from there and let you know.
`Has everybody -- I'm sorry, Petitioner. Petitioner, have you handed a
`copy of demonstratives to the Court Reporter?
`MR. EVANS: So, Your Honor, I apologize. It's a dubious way to
`start today, but we had technical difficulties and did not print a hard copy. I
`can, as soon as this is over, get a hard copy printed and bring it back to the
`Board if that works for the Board. I apologize, I don't have a hard copy.
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`JUDGE GERSTENBLITH: It looks like the Patent Owner wants to
`say something. Okay.
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`MR. REED: Yes, Your Honor, we have hard copies of both parties'
`demonstratives. So we're happy to provide hard copies for both parties.
`MR. EVANS: Thank you. If that please the Court, I'd appreciate it,
`David. Thank you.
`MR. REED: Of course.
`JUDGE GERSTENBLITH: Okay, that would be great.
`MR. EVANS: Thank you. And I apologize again, Your Honors.
`JUDGE GERSTENBLITH: Understood, understood. So we'll let
`Patent Owner go ahead and help you hand those out.
`MR. EVANS: Thanks, David.
`MR. REED: These are Petitioner's demonstratives.
`JUDGE GERSTENBLITH: Okay. I have a set.
`MR. REED: You have a set?
`JUDGE GERSTENBLITH: Yes, thank you. Thank you, Mr. Reed,
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`right?
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`MR. REED: Yes, Your Honor, thank you.
`JUDGE GERSTENBLITH: Now, because we have two judges
`appearing remotely, and even if we had one this would still apply, they're not
`able to see the slide screen here.
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`So as you walk through it, please be careful to call out the slide number
`we're on. And if you're talking about a figure or some testimony, call out the
`figure that it is and what document it's from by exhibit number.
`And if there's a page and line number that you're reading from, please
`call that out so not only can they both follow along as if they're here, but that
`the transcript is as clear as possible.
`Are there any questions about what I talked about today from the
`Petitioner?
`MR. EVANS: No, Your Honor.
`JUDGE GERSTENBLITH: Any questions from the Patent Owner?
`MR. REED: No, Your Honor.
`JUDGE GERSTENBLITH: Okay. With that then, Petitioner, I'll give
`the floor to you. And you can let me know if I should set some time on the
`clock for you.
`MR. EVANS: Thank you, Your Honors. Petitioner would request 15
`minutes for rebuttal, Your Honor. So my opening statement will be 45, and
`I'll save 15 at the end.
`JUDGE GERSTENBLITH: Sounds good.
`MR. EVANS: Thank you, Your Honors.
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`Your Honor, we're here today about U.S. Patent Number 9,691,090.
`What is the patent? The 090 Patent claims a method for calculating the risk
`level of a privacy campaign.
` What is a privacy campaign? According to the patent itself at Column
`2, Line 52 to 56, it's any business function -- and I'm paraphrasing, system,
`process, it literally used the words et cetera -- that may use personal data.
`It performs a generic mathematical calculation that rates risk based on
`human inputs in mental processes. In other words, it uses a computer as a tool
`to collect human inputs or mental processes for well known risk factors.
`What are those risk factors? They're all common sense from the
`perspective of one of ordinary skill in the art. I'll go through each one briefly.
`The first is the nature of the data. In essence, that is the more sensitive
`the data, the riskier. In other words, medical or financial data versus publicly
`available information is considered more risky.
`The physical location of that data, the less secure, the riskier. In other
`words, if you have a network computer or a cloud computing server versus a
`private local computer that's not networked, that's considered more risky.
`The number of individuals with access, the more people with access,
`the riskier.
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`The length of time the data is stored, the longer the data's stored, the
`riskier it might be compromised.
`The type of individual, the more need for protection, the riskier. So a
`minor would require more protection than an adult and therefore is considered
`riskier.
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`The country of residence, the stricter the privacy laws, the riskier.
`The Board referred to these factors as conventional wisdom in the
`industry of data protection. That's at Page 12 of the institution decision.
`How do we know that these risk factors are well known? Because the
`patent itself says so in the background section where it acknowledges the
`claimed risk factors were a common aspect of existing data protection risk
`assessments and privacy audits performed by many companies handling
`personal data such as Google and Facebook. This is in Column 2, Lines 9
`through 39.
`Importantly, the factors considered by those companies in assessing
`the risk of privacy breach included -- again, this is a quote from the
`background section, Your Honors, this is Column 2, Lines 29 through 34 --
`where the personal data comes from, where it is stored, who is using it, where
`it has been transferred, and for what purpose it is being used.
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`That might sound familiar, because that's virtually identical to the risk
`factors recited in the claims of the Patent at 35, Lines 10 through 23.
`The Board recognized this in its institution at Page 12 where it stated,
`thus, we find that the 090 Patent itself, in describing the existing knowledge
`in the art, serves as further proof of the routine and conventional nature of the
`claim's method.
`In essence, Your Honors --
`JUDGE DeFRANCO: Counsel?
`MR. EVANS: Yes?
`JUDGE DeFRANCO: This is Judge DeFranco.
`MR. EVANS: Hi, Your Honor.
`JUDGE DeFRANCO: I've noticed in a couple of arguments lately
`that parties are citing to our institution decision and somehow inferring that
`we're locked into that decision. Is that what you're doing?
`MR. EVANS: Absolutely not, Your Honor. I understand that the
`institution decision is, in essence, a first step in that the Patent Owner has a
`chance to respond. And in some ways, we revisit these arguments anew. And
`I'm absolutely in no way, shape, or form stating that the Board is locked in by
`it institution decision.
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`Just as way of introduction, I'm introducing some of the quotes from
`there, Your Honor. But I am in no way implicating that, of course, you are
`stuck in terms of what was in the institution decision.
`And in fact, the bulk of what I go through today in my analysis in my
`presentation will be a recitation of the evidence that was in the petition, and
`what has happened since the Board decision to show that there should be no
`change in the institution decision, in the decision that the patent is, more likely
`than not, invalid and, in this case, ultimately would hopefully be held under
`101 and obviousness as invalid.
`Your Honors, does that adequately address that question?
`JUDGE DeFRANCO: Yes. So long as it's clear that we're not locked
`into the institution decision. You can go ahead.
`MR. EVANS: Okay, thank you, Your Honor. I absolutely am not
`implying or expressly saying that whatsoever, just this is by way of recap. But
`thank you, Your Honor.
`So to back up again, those risk factors that I mentioned that are from
`the background section of this very patent, might sound very familiar, because
`they are virtually identical to the risk factors recited in the claims at Column
`35, Lines 10 through 23.
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`In essence, the patent invalidates itself. It acknowledges use of any
`generic computer hardware and the existing knowledge in the art of the risk
`factors and even refers to its own terminology as generic at Column 34, Line
`30.
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`The risk factors are well known, routine, conventional, and the
`weighting, this is important, the weighting is based solely on subjective
`human judgement and opinion.
`How else do we know that these risk factors are all well known in
`addition to the patent itself? The Petitioner's evidence, Your Honors.
`While the patent itself answers the question, we also have two experts,
`Dr. Zonouz and Dr. Cole, in rebuttal, prior art, a plethora of exhibits that show
`this, plus the admissions of Patent Owner's own expert, Jodi Daniels, that the
`factors are well known.
`The Board cited Dr. Zonouz's testimony in several places but, in
`essence, that the recited steps are underlying principle of a fundamental risk
`analysis. That was in the institution decision. They also cited Dr. Zonouz.
`And Dr. Zonouz himself cited to numerous contemporaneous documents
`showing the routine conventional nature of the claimed risk factors. And his
`testimony --
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`JUDGE DeFRANCO: Well, Counsel, does the Patent Owner dispute
`that the risk factors aren't well known -- are well known, I mean? Is there a
`dispute over that? It seems like they seem to be focusing on the weighting of
`those factors as opposed to the risk factors themselves.
`MR. EVANS: I certainly don't want to speak for Mr. Reed. And you
`might be right. Maybe they aren't disputing that those are well known risk
`factors.
`And if that is the case, then what they're left with is a two-factor risk
`assessment when their own expert, their own patent, states that those two
`numbers are dictated by the subjective mental processes, opinions, and
`judgement of a human being using a computer in a very generic way.
`So while I don't want to speak for them --
`JUDGE DeFRANCO: Are you speaking to Ms. Daniel's testimony?
`MR. EVANS: I am speaking to -- yeah, I am, to a large degree Your
`Honor, speaking to the testimony of Ms. Daniels where she, time and time
`again, mentions that the risk factor and the weighting factors are determined
`by humans.
`I'm referring to the patent itself, Your Honor, where it states in the
`claims and in the specification, and in fact, in Claim 1, that the risk factors
`and the weighting factor are entered by a user, a privacy officer, a collaborator.
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`In other words, those numbers are dictated by the subjective knowledge,
`opinion, and judgement of a human being.
`If that's what they're left with, Your Honor -- and I will go through
`this further in my presentation, but that is clearly abstract. And it's also
`obvious, based on prior art references that teach the same thing, Your Honor.
`JUDGE DeFRANCO: Well, I think that's what I want to hear, where
`the weighting is actually taught in the prior art or any evidence you can show
`that it's not a technical improvement or that it's well understood, routine, and
`conventional.
`MR. EVANS: Sure, well --
`JUDGE DeFRANCO: But specific to the weighting, not necessarily
`to the risk rating.
`MR. EVANS: Got it. Well, Your Honor, I will say this. To answer
`your question, I'm going to skip ahead in my slides for a second. If we can
`turn to Slide 31, actually, let me back up just a little bit, Your Honor, to answer
`your question, to Slide 30.
`The patent's field is extremely broad, based on the patent language
`itself that defines it as covering a possible privacy risk defining privacy
`campaign as any business function, system, product, et cetera, involving
`personal data related to the campaign being comprised.
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`In the first sentence it states, according to exemplary embodiments, a
`system for operationalizing privacy compliance is described herein.
`The field is very broad. So let me start with, just for example, Your
`Honor, McQuay, Exhibit 1005 on Slide 31. It's in the field of privacy
`protection measures to ensure proper handling of personal information.
`And the patent teaches methods for scoring privacy protection
`processes clearly within the same field as the 090 patent which covers any
`business function where there's privacy risk and involving personal data.
`McQuay, turning to Slide 32, Your Honor, teaches a combined metric
`of the degree of risk that would fail to protect privacy. The combined metric
`is calculated as the weighted sum of numerical values of those implementation
`metrics.
`Those implementation metrics, Your Honor, according to Slide 33
`from McQuay, is they measure a degree of risk that implementation of the
`protection processes would fail to protect the privacy.
`This degree of risk, like the risk rating or the weighting factor, in this
`case the rating factor, is taught on a numerical scale of between one and nine.
`Regarding weighting, Your Honor, if you turn to Slide 34, McQuay
`discloses that percentage weights reflective of the relative importance of each
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`pre-defined privacy processes have been entered. In other words, McQuay
`teaches a multi-factor risk assessment.
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`This is even more unclear. If we can turn to Slide 36, from, just by
`way of example, Your Honor, the Belani prior art reference which is Exhibit
`1006, it's clearly within the same field.
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`Methods and systems for rating privacy risk of applications, and the
`privacy risk assessment may involve determining a probability that the subject
`discrepancy poses, and I highlight here, for risk to the potential user's privacy.
`So again, it's about protecting privacy and the privacy of an individual.
`Turning to Slide 37, Belani expressly teaches a two-factor risk
`assessment using a relative risk rating and a weighting factor exactly like the
`090 patent. It teaches multiplying relative importance rating, which is the risk
`rating, by a relative weight.
`So Belani shows, by way of example, a weight of 2.5 is multiplied by
`a rating of one to yield an overall score of 2.5. And then those scores are
`added together. That's exactly what the patent teaches in terms of the two-
`factor risk assessment.
`You take a relative risk rating, you multiply that by the weighting
`factor, and you add that up to get a score. That is exactly what's talked about
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`in the 090 patent. And that's what's here in terms of a prior art reference, Your
`Honor.
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`So I would turn your attention to Slide 38. This is a table from Belani.
`It's Table 1 in the Exhibit 1006. It shows on the left the criteria. Those are
`the risk factors. It shows a weight, it shows a rating, and it shows multiplying
`that weight by the ratings and adding them up.
`And, Your Honors, I'm not making that up in terms of what the patent
`does. That's in the specification. That's in Claim 14, using the computer as a
`calculator to multiply two numbers together and add them up which, Your
`Honors, is really, in a lot of ways, the definition of any risk analysis where
`you assign a higher weight and higher numbers for the riskier the risk factor
`is. Your Honors --
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`JUDGE DeFRANCO: But, Counsel, that's what they're saying is their
`invention. They're not saying just because it's in Claim 14 it all of a sudden
`amounts to something that was well understood, routine, and conventional.
`MR. EVANS: Well, Your Honor, it's not an invention, because they
`talk about customization. And the argument of, I think, well over 50 percent
`of their response is that there's two factors multiplied together, and this allows
`for customization.
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`But here's the problem, Your Honors. It's not customized. It's not
`customizable. Those factors are determined by a human being. Subjectivity,
`in terms of their knowledge, their judgement, their opinion, using a human
`being to enter two numbers based on their opinion of how something is risky
`or not, and then multiplying those numbers together using a computer, is not
`inventive.
`It's not inventive according to the prior art. It's completely abstract in
`terms of the fact that it uses human mental processes. It uses a mathematical
`algorithm. And it's to mitigate risk which clicks off the three boxes that the
`USPTO has found are de facto abstract.
`So in other words -- and it adds nothing to the functionality of the
`computer, Your Honor. The claim ends with storing a number, full stop. It
`doesn't say what happens to the computer that it's entered on. It doesn't say
`what happens to any computer whatsoever.
`So in other words, Your Honor, to answer your question, if that's their
`argument, if that's the heart of their argument, that a two-factor risk
`assessment is inventive when the two-factor risk assessment is shown by the
`prior art, when the two-factor risk assessment has been shown as routine and
`conventional by technical experts offered by the Petitioner, when the law says
`that human mental processes using generic computer elements, in this case a
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`computer, to prompt entering of information which is then multiplied together
`and added, like a calculator, then there's no invention at all.
`And that really is the crux of the argument from Petitioner, Your
`Honor, is that if that is the crux of their invention, it's not only hopelessly
`abstract, according to the law, it's also hopelessly obvious according to the
`prior art that is of evidence in this case, Your Honor.
`JUDGE DeFRANCO: So, Mr. Evans, you seem to think that it
`qualifies as an abstract idea under all three buckets there in our guidance,
`meaning the mental process or mathematical algorithm, as well as a method
`of organizing human activity. So which one do you think is the strongest
`category as far as your position goes?
`MR. EVANS: Your Honor, if I had to pick a strongest, I would choose
`mental processes. And the answer that I came up with is because that is so
`crystalized in the law, it's so crystalized in USPTO guidance from earlier this
`year.
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`And if the heart of the invention is supposedly a two-factor risk
`assessment, which really is the heart of any risk assessment since cave men
`were scrawling on walls, when you give a higher risk number to something
`that's more risky, and it can't be performed in Microsoft Excel or on pen and
`paper, and that's the heart of their argument so say, oh well, this adds
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`something new to a computer when it truly doesn't, because it's a human
`entering that information, and it's completely reliant on a human's input in
`terms of their subjective opinion and judgement which are words directly from
`the new USPTO guidance, I would say that's the strongest one to show that
`this patent is abstract, Your Honor.
`JUDGE DeFRANCO: Well, Mr. Evans, there's a lot going on in this
`claim. And I'm hesitant to believe that all of this can be performed mentally.
`MR. EVANS: Well, Your Honor, if we could turn -- Josh, if you could
`take me to Slide 12, in Slide 12, Your Honor, I agree with the Board that
`despite the prolixity, admittedly a word I had to look up, this claim is still
`abstract. In fact, I couldn't actually fit the claim on one page. I had to put it
`on two.
`But if you look at the claim, what's going on here is everything is
`generic computer functionality, and just basically including words like
`electronically and digitally to basically try to fancy-up a claim that is about
`displaying graphical user interfaces to prompt a human to enter information,
`that human to enter information, a two-factor risk assessment that fits based
`on human input, and then adding that together to come up with that score.
`And in fact, it's the generic functionality of any computer, because it's doing
`the processing.
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`Your Honor, back to your earlier point, I mean, I really haven't seen
`that Patent Owner has put much attention in terms of showing these other
`elements are not abstract or not obvious, as they've said time and time again
`in their responses about the two-factor risk assessment, which as I mentioned
`is abstract and obvious.
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`So, Your Honor, again despite the prolixity, these are basically
`explaining how a computer prompts a person to enter in information, as you'll
`see halfway through the Slide on Page 12, it even says electronically receiving
`campaign data input by one or more users.
`So we're talking about a computer prompting you, hey, enter
`information. You entered information. Then you enter your judgement in
`terms of riskiness, based on well known risk factors. They're multiplied
`together, added up, and they're stored, full stop.
`So, Your Honor, while it might be a long claim, it's reciting generic
`computer functionality, an abstract and obvious two-factor risk assessment,
`and it's storing that data. And unlike some of the cases they cite, including
`Finjan, it stops with storing the data.
`It has nothing to do with the Step 2 of the Alice Analysis which would
`be affecting the functionality of a computer. Because it's reciting generic
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`computer functionality with no end result other than it stores the information
`which, again, is generic computer functionality.
`It doesn't say, for example, like Finjan, where Finjan there was a new
`kind of file, if you give me a second, Your Honor --
`JUDGE DeFRANCO: So you're really just saying, Counsel, this is
`implementing a conventional practice of risk assessment, but
`just
`implementing it in a new environment, meaning a computer type
`environment?
`MR. EVANS: Thank you for --
`JUDGE DeFRANCO: Is that your argument?
`MR. EVANS: Thank you for explaining it better than me. But that's
`exactly right, Your Honor. And according to the new USPTO guidance, if for
`example we can turn to Slide 15, their argument is that this is a practical
`application.
`Now, according to the new guidance, a practical application would be
`improvements to the function of a computer, okay, which was the case law
`before. And as I've argued, that's just not the case here. It doesn't say what it
`does to the computer. It just said it stores it, full stop.
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`But in Slide 15, Your Honor, it goes to the point that you just made.
`It's not a practical application if it's the following, if it's mere instructions to
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`implement an abstract idea on a computer, that is not a practical application.
`That is abstract.
`And that is exactly what I'm arguing, Your Honor, is the case here,
`where they're taking fundamental risk assessment in terms of, hey, I'm going
`to give a higher weight to something that's more risky. But I'm going to carry
`it out on a computer using generic computer functionality.
`Further, to your point, is the second aspect of a practical application
`that is, I'm sorry, that is not a practical application, is merely using a computer
`as a tool to perform an abstract idea.
`They've admitted that the heart of their claim is this two-factor risk
`assessment which, again, is a fundamental risk analysis using a computer as a
`tool to prompt a human entering information and then calculating that using
`the computer as a calculator.
`And finally, Your Honor, perhaps more to your point is the final one,
`that is not a practical application, is generally linking the use of a judicial
`exception to a particular technological environment or field of use. Again,
`this is on Slide 15.
`This is from the USPTO 2019 guidance. And that's exactly what is
`happening here, is they are using a computer, and a fundamental risk analysis,
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`and using and applying this abstract notion of risk assessment to
`cybersecurity, Your Honor.
`And according to the rules, it's a mental process, it's abstract, and it's
`not saved by Step 2, because it's not a practical application. It doesn't go to
`the functionally of a computer. It actually ticks off the boxes of what the
`USPTO and what case law has said is not a practical application.
`And therefore, Your Honor, that is part and parcel why we have
`argued and submit to Your Honors, that this claim and all the claims -- and
`the Claim 1, Claim 21, both the independent claims, and all the dependent
`claims, each of which were painstakingly broken down in the petition, that's
`the submission of our argument, Your Honor, that we submit to you is part
`and parcel of why it's abstract.
`In fact, Your Honor, you know, this isn't something we're making up
`in terms of the humans entering information. Because the claims themselves
`and, again, the patent itself admit that it's a human entering information.
`Claim 3, for example, mentions a privacy officer, Claim 5 a
`collaborator, Claim 6 a business rep. And as I said before, Ms. Jodi Daniels,
`time and time again in her deposition, admits it's a human entering that
`information.
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`And it sounds routine and conventional, because it is, Your Honors.
`And the abstract concept plus generic computer hardware is unpatentable
`according to the case law and according to the new guidance.
`And if fact, these claims don't improve technology, because they're
`not directed to a technological problem. They don't do anything with respect
`to the way the computers operate.
`So how do we know that there's generic computer hardware, no
`improvement? Well, once again it's in the patent. Again, not bound by the
`institution decision, but the institution decision did note this. That, quote, and
`this is on Page 10 of the Board decision, the generic description of a general
`purpose processing device does not amount to an improvement in the way the
`processors operate to calculate risk levels.
`I added in, by the way, of general purpose processing device, because
`it wasn't in the sentence, but that's what the Board was talking about is that, at
`the time of the institution decision, the Board decided effectively that the heart
`of the invention was the processor which was explained in the specification
`as just a general purpose processing device.
`I would submit something a little bit different and take it even a step
`further, that the heart of this invention is the subjective opinions and
`judgement of a human being.
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`So back to what's changed since the Board decision? Nothing except
`the USPTO has handed down the guidance that I mentioned that crystalizes
`the case law that's actually in Petitioner's favor. And Petitioner now has more
`evidence supporting its abstract principle argument.
`As I mentioned, in addition to the patent itself, Dr. Zonouz, with a
`PhD in Computer Science, Dr. Cole, with a PhD in Network Security, two
`technical experts, both opine that it's not a technical improvement.
`And regarding the Patent Owner's expert, Ms. Daniels, she's a
`marketing specialist who openly admitted during her deposition she has no
`technical degree. She does not have a technical degree whatsoever, no
`technical training.
`And in fact, she openly admitted she's not an expert in computer
`science or data processing systems, even though literally the first three words
`of the title of this patent are data processing systems.
`Turning --
`JUDGE DeFRANCO: Yes, but Counsel, isn't this claim really talking
`about risk assessment more than necessarily getting into the guts of the
`computer or the processor?
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`MR. EVANS: I would say no. Excuse me, I would say no, Your
`Hono
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