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`Case: 19-2389 Document: 37 Page: 1 Filed: 06/19/2020
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`2019-2389
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`United States Court of Appeals
`for the Federal Circuit
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`UNILOC 2017 LLC,
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`v.
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`APPLE INC.,
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`Appellant,
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`Appellee,
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`ANDREI IANCU, Director, U.S. Patent and Trademark Office,
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`Intervenor.
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`On Appeal from the United States Patent and Trademark Office,
`Patent Trial and Appeal Board in No. IPR2018-00294
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`REPLY BRIEF OF APPELLANT
`
`
`BRETT MANGRUM
`RYAN S. LOVELESS
`JAMES ETHERIDGE
`ETHERIDGE LAW GROUP
`2600 East Southlake Boulevard
`Suite 120-324
`Southlake, Texas 76092
`(817) 470-7249
`brett@etheridgelaw.com
`ryan@etheridgelaw.com
`jim@etheridgelaw.com
`Counsel for Appellant
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`COUNSEL PRESS, LLC
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` (888) 277-3259
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`Case: 19-2389 Document: 37 Page: 2 Filed: 06/19/2020
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`FORM 9. Certificate of Interest
`
` Form 9
` Rev. 10/17
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`Uniloc 2017 LLC
`Apple Inc.
`v.
`19-2389
`
`Case No.
`CERTIFICATE OF INTEREST
`
`Counsel for the:
`(cid:133) (petitioner) (cid:133) (appellant) (cid:133) (respondent) (cid:133) (appellee) (cid:133) (amicus) (cid:133) (name of party)
`
`Uniloc 2017 LLC
`certifies the following (use “None” if applicable; use extra sheets if necessary):
`
`1. Full Name of Party
`Represented by me
`
`Uniloc 2017 LLC
`.
`
`2. Name of Real Party in interest
`(Please only include any real party
`in interest NOT identified in
`Question 3) represented by me is:
`Uniloc 2017 LLC
`
`3. Parent corporations and
`publicly held companies
`that own 10% or more of
`stock in the party
`CF Uniloc Holdings LLC
`
`4. The names of all law firms and the partners or associates that appeared for the party or amicus now
`represented by me in the trial court or agency or are expected to appear in this court (and who have not
`or will not enter an appearance in this case) are:
`James L. Etheridge
`Ryan S. Loveless
`Brett A. Mangrum
`Etheridge Law Group, PLLC
`2600 East Southlake Blvd, Suite 120-324
`Southlake, TX 76092
`
`
`
`Case: 19-2389 Document: 37 Page: 3 Filed: 06/19/2020
`
`FORM 9. Certificate of Interest
`
` Form 9
` Rev. 10/17
`
`5. The title and number of any case known to counsel to be pending in this or any other court or agency
`that will directly affect or be directly affected by this court’s decision in the pending appeal. See Fed. Cir.
`R. 47. 4(a)(5) and 47.5(b). (The parties should attach continuation pages as necessary).
`Uniloc USA, Inc. et al v. Apple Inc., 2:17-cv-00708, (E.D. Texas)
`
`2/19/2020
` Date
`
`Please Note: All questions must be answered
`
`All counsel of record via CM/EC
`
`cc:
`
`/s/ Brett Mangrum
`Signature of counsel
`Brett Mangrum
`Printed name of counsel
`
`Reset Fields
`
`
`
`Case: 19-2389 Document: 37 Page: 4 Filed: 06/19/2020
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`TABLE OF CONTENTS
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`Page
`
`
`CERTIFICATE OF INTEREST ................................................................................ i
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`TABLE OF CONTENTS ......................................................................................... iii
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`TABLE OF AUTHORITIES ................................................................................... iv
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`INTRODUCTION ..................................................................................................... 1
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`ARGUMENT ............................................................................................................. 1
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`I. Uniloc’s arguments as to the scope of claims were presented to the Board. .. 1
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`II. Apple ignores the language of the claim. ........................................................ 2
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`III. Fry teaches intentional delay in displaying the claimed data. ......................... 3
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`IV. The Board’s findings as to Vock rely on its incorrect interpretation of the
`“displaying real-time data” limitations. ........................................................... 4
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`V. Uniloc’s Constitutional Challenge is timely.................................................... 7
`
`CONCLUSION .......................................................................................................... 9
`
`CERTIFICATE OF SERVICE ................................................................................11
`
`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,
`TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS ..........12
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`iii
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`Case: 19-2389 Document: 37 Page: 5 Filed: 06/19/2020
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`TABLE OF AUTHORITIES
`
`Cases
`
`Apple Inc. v. Uniloc 2017 LLC,
`Case IPR2018-00884, Paper 20 (PTAB Sept. 18, 2019) ....................................... 8
`
`Arthrex, Inc. v. Smith & Nephew, Inc,
`941 F.3d 1320 (Fed. Cir. 2019) .................................................................. 8, 9, 10
`
`BioDelivery Science Int’l, Inc. v. Aquestive Therapeutics, Inc.,
`898 F.3d 1205 (Fed. Cir. 2018) ............................................................................. 9
`
`Hormel v. Helvering,
`312 U.S. 552 (1941) .............................................................................................10
`
`In re DBC,
`545 F.3d 1373 (Fed. Cir. 2008) .........................................................................8, 9
`
`In re Micron Tech., Inc.,
`875 F.3d 1091 (Fed. Cir. 2017) ...........................................................................10
`
`Paragon Solutions, LLC v. Timex Corp.,
`566 F.3d 1075 (Fed. Cir. 2009) .................................................................... 1, 2, 6
`
`Riggin v. Office of Senate Fair Emp’t Practices,
`61 F.3d 1563 (Fed. Cir. 1995)................................................................................ 8
`
`Square, Inc. Unwired Planet LLC,
`Case IPR2014-01165, Paper 32 (PTAB Oct. 30, 2015) ....................................7, 8
`
`
`
`Other Authorities
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`U.S. Const. Art. II, § 2, Cl. 2 (Appointments Clause) ...................................... 7, 8, 9
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`
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`iv
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`Case: 19-2389 Document: 37 Page: 6 Filed: 06/19/2020
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`INTRODUCTION
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`For the reasons stated in Appellant Uniloc’s Opening Brief (“Uniloc Br.”), the
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`Board erred in determining Appellee Apple met its burden to prove the challenged
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`claims of the ’759 patent are unpatentable. Uniloc submits this reply to briefly
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`respond to issues raised in Apple’s Response Brief (“Apple Br.”) particularly related
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`to the “displaying real-time data” limitations recited in the claims, and to the brief
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`filed for Intervenor, Director of the U.S. Patent and Trademark Office (“Intervenor
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`Br.”).
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`ARGUMENT
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`I. Uniloc’s arguments as to the scope of claims were presented to the Board.
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`Apple incorrectly asserts that “Uniloc improperly seeks to circumvent the
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`Board’s fact-finding by requesting further claim construction,” and that “Uniloc did
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`not argue claim construction before the Board.” Apple Br. 24. Apple’s assertions are
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`false.
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`In Patent Owner’s Response filed with the Board, the first several pages of
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`Uniloc’s argument as to Fry and Newell explains how the Board’s Institution
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`Decision misconstrues the claims, despite stating that it adopted this Court’s
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`construction in Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075 (Fed. Cir.
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`2009). See Appx279-285. For example, Uniloc argued, as it does on appeal:
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`The Federal Circuit did not, however, state that its construction
`“displaying data without intentional delay” only excludes delay arising
`from “storing [GPS data] for later review.” Had the Court intended to
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`1
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`Case: 19-2389 Document: 37 Page: 7 Filed: 06/19/2020
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`so limit the negative aspect of its construction (i.e., “without intentional
`delay”), and thereby significantly broaden claim scope, surely the Court
`would have made that explicit. The Court did not. The only
`qualification expressed in the construction itself is the instructive
`phrase “given the processing limitations of the system and the time
`required to accurately measure the data [to be displayed].” EX1023, at
`14. Thus, while the intrinsic evidence reveals that one example form of
`“intentional delay” may arise where GPS data is stored for later review,
`nothing in the Court’s opinion suggests that is the only possible
`“intentional delay” excluded by the Court’s construction of the “real-
`time” claim language
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`Appx280. Accordingly, despite Uniloc basing its response to the Petition on this
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`Court’s construction as expressed in Paragon, there remained a dispute as to the
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`construction of “displaying data without intentional delay” that the Board was
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`required to resolve.
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`As explained in Uniloc’s Opening Brief, Uniloc Br. 13-28, the Board
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`addressed the claim construction dispute by incorrectly determining that any data
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`collection activity can be considered “processing” as expressed in Paragon, such
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`that it does not count as “intentional delay,” and also incorrectly determined that the
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`only relevant “intentional delay” is storing for later review after the activity is over.
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`See Appx18-23. It is Apple that improperly seeks to frame the dispute as one of
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`fact-finding to avoid this Court’s de novo review of the Board’s incorrect
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`interpretation of “displaying without intentional delay.”
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`II. Apple ignores the language of the claim.
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`Apple argues that “Uniloc unduly focuses on the language of the claim
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`2
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`Case: 19-2389 Document: 37 Page: 8 Filed: 06/19/2020
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`construction instead of the claim itself and the context in which it was construed.”
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`Apple Br. 24. It is Apple, however, that is ignoring the claim language. As
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`explained in Uniloc’s Opening Brief (pp. 22-23), claim 1 recites the claimed “data”
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`in the specific context of “data provided by said electronic positioning device and
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`said physiological monitor.” In other words, the “data” that must be displayed in
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`“real time” (i.e., “without intentional delay”) is specifically claimed as that which is
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`provided by “said electronic positioning device and said physiological monitor.”
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`Accordingly, unrelated steps, even if they could be considered “system processing,”
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`that would intentionally delay displaying the specifically-claimed “data” cannot
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`reasonably be disregarded as “processing limitations of the system and the time
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`required to accurately measure the data” as claimed.
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`III. Fry teaches intentional delay in displaying the claimed data.
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`Apple does not dispute that Fry teaches several steps that take priority over
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`displaying the claimed GPS data. As Patent Owner explained in its Response,
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`Appx279-285, in Fry’s Figure 3 the “numerous, higher-priority processing blocks
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`that Fry purposefully implements before ultimately tending to its ‘least critical
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`function’ (displaying the GPS data) cannot reasonably be considered to be
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`implemented ‘without intentional delay,’ as required under the construction adopted
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`by the Board,” Appx284. Apple’s arguments relate to whether the claim phrase
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`“displaying real-time data provided by said electronic positioning device and said
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`3
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`Case: 19-2389 Document: 37 Page: 9 Filed: 06/19/2020
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`physiological monitor” could include deliberate collection of other data or
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`performance of other steps prior to displaying the recited data. See Apple Br. 30-32.
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`For example, Apple criticizes Uniloc’s observation that Fry describes display as the
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`least critical function, arguing that this simply relates to Fry’s “order of operations.”
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`Apple Br. 31. But Fry’s “order of operations” is relevant to whether the claimed data
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`is displayed without intentional delay, because interjecting additional operations in
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`their prescribed order results in delay in the claimed displaying. Apple fails to
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`explain how Fry could possibly teach no intentional delay in display of the claimed
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`data when the phrase “displaying real-time data provided by said electronic
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`positioning device and said physiological monitor” is properly interpreted.
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`IV. The Board’s findings as to Vock rely on its incorrect interpretation of the
`“displaying real-time data” limitations.
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`Apple’s Response Brief obfuscates the purported basis for the Board’s
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`determination that Vock teaches “a display unit for displaying real-time data
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`provided by said electronic positioning device and said physiological monitor,” as
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`recited in the claims. The Board’s determination, however, is demonstrably
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`premised on interpreting this limitation merely to require that the data is displayed
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`during the activity. As explained in Uniloc’s Opening Brief and herein, such an
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`interpretation is incorrect.
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`The Board’s decision refers to the display unit limitation beginning at the first
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`full paragraph of page 47 (Appx47). The decision states that Petitioner notes that
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`4
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`Case: 19-2389 Document: 37 Page: 10 Filed: 06/19/2020
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`Vock’s watch 744 in Figure 27 allows the user “to monitor performance data in near-
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`real time.” Appx47 (emphasis omitted). The decision states “Petitioner also notes
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`that Vock discloses that its sensing unit ‘can provide real-time performance data to
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`the user, via a connected display or via a data unit.’” Id. The decision then recounts
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`Petitioner’s argument that a person of ordinary skill in the art would have recognized
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`that the sensing unit of Vock’s Figure 27 embodiment includes a GPS receiver and
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`that it would have been obvious to implement features described in the Figure 27 or
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`Figure 28 embodiment in a single system. Appx47-48. This argument is important
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`to Petitioner’s challenge because Petitioner and the Board rely on Figure 28 for the
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`data acquisition unit recited earlier in the claim. See Appx46.
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`In explaining why it is not persuaded by Uniloc’s arguments, the Board’s
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`decision “note[s] that Vock appears to use ‘real-time’ and ‘near real time’
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`interchangeably to indicate presentation of performance data to the user during the
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`performance of the associated activity.” Appx52. The Board states that “Vock’s
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`discussion of ‘near-real time’ data, therefore, is consistent with the construction of
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`‘displaying real-time data’ discussed in section II.C.1 above.” Appx53. The Board
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`thus makes clear that it interprets both “real-time” and “near-real time” in Vock to
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`mean that the performance data is presented to the user during the performance of
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`the associated activity. This is insufficient to meet the interpretation adopted by the
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`Board, which includes the negative limitation that the data is displayed without
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`5
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`Case: 19-2389 Document: 37 Page: 11 Filed: 06/19/2020
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`intentional delay. Paragon, 566 F.3d at 1092–93 (construing “displaying real-time
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`data,” as used in the claims of this case, as “displaying data without intentional delay,
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`given the processing limitations of the system and the time required to accurately
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`measure the data”).
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`In addition, even if “real time” or “near real time” in Vock satisfied the
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`construction given by this Court in Paragon, as Uniloc observed in its Opening
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`Brief, there is no merit to the speculative conclusion in the Petition that a POSITA
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`would have been motivated to combine disparate embodiments within Vock.
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`Pointing to the admittedly distinct embodiments of Figures 27 and 28 of Vock,
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`Petitioner argues “a PHOSITA would understand that it would have been obvious to
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`implement features described with respect to either embodiment in a single system.”
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`Appx196. The Board determines that because Figure 27 of Vock teaches monitoring
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`performance data in near-real time, that the data from the GPS receiver in Figure 28
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`must also be monitored in “near-real time.” See Appx53-54. The Board states that
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`watch 810 and watch 744 are described “in similar terms,” Appx 54, but the Board’s
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`decision ignores that the primary difference in description is the absence of the GPS
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`data being described as monitored in near-real time. The Board also misreads Vock’s
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`use of the phrase “such as discussed herein.” The Board states that “by disclosing
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`that data is transmitted ‘such as discussed herein,’ Vock further likens watch 810 to
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`the previously-discussed watch 744.” Appx54. But Vock’s use of “such as discussed
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`6
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`Case: 19-2389 Document: 37 Page: 12 Filed: 06/19/2020
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`herein” clearly refers to other displays or data units, or to the base station, and not to
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`the manner of near-real time monitoring disclosed in connection with Figure 27. See
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`Appx858 (“A data transmit section 816 (e.g., the section 22, FIG. 1A) transmits data
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`via an antenna 816a (or other technique), as desired, to the watch 810 or to other
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`displays or data units, or to the base station, such as discussed herein.” (emphasis
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`added)). There is simply no teaching that the GPS data in Figure 28 can be monitored
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`in near-real time. Petitioner and the Board lack substantial evidence and engage in
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`hindsight reasoning in casually suggesting everything in Vock must be “real-time.”
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`V. Uniloc’s Constitutional Challenge is timely.
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`Apple and the Intervenor argue that by not raising an Appointments Clause
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`challenge before the agency, Uniloc forfeited its Appointments Clause challenge.
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`The argument strains credulity under the circumstances of this case.
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`The Board has previously “declin[ed] to consider . . . constitutional
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`challenge[s] as, generally, ‘administrative agencies do not have jurisdiction to
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`decide the constitutionality of congressional enactments.’” Square, Inc. Unwired
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`Planet LLC, Case IPR2014-01165, Paper 32 at 25 (PTAB Oct. 30, 2015) (quoting
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`Riggin v. Office of Senate Fair Emp’t Practices, 61 F.3d 1563, 1569 (Fed. Cir.
`
`1995)). Indeed, the Board has relied on the Square case in not reviewing the
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`Appointments Clause issue presented by Uniloc in another case, Apple Inc. v.
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`Uniloc 2017 LLC, Case IPR2018-00884, Paper 20 at 25 (PTAB Sept. 18, 2019).
`
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`7
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`Case: 19-2389 Document: 37 Page: 13 Filed: 06/19/2020
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`Based on the merits of the Board’s determinations in Square and Apple, as well as
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`the inequity of the Patent Office changing position now on the same issue in this
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`case, the “forfeiture” argument should be rejected.
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`In re DBC, 545 F.3d 1373 (Fed. Cir. 2008), does not suggest that this Court
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`has ruled that it will not consider an Appointments Clause challenge to the statutory
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`method of administrative patent judges’ appointment raised for the first time on
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`appeal unless the appellant showed that the situation was “exceptional.” In re DBC
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`is distinguishable, and the present case is exceptional, at least because, as noted in
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`the Arthrex panel decision, 941 F.3d 1320 (Fed. Cir. 2019), In re DBC dealt with
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`an appointments issue that could have been remedied by assignment to other
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`administrative patent judges that were not argued to have been unconstitutionally
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`appointed and Congress had taken remedial action in that case. As in Arthrex,
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`“[n]o such remedial action has been taken in this case and the Board could not have
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`corrected the problem.” Arthrex, 941 F.3d at 1327. The Arthrex Court correctly
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`decided that “[b]ecause the Secretary continues to have the power to appoint APJs
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`and those APJs continue to decide patentability in inter partes review, we conclude
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`that it is appropriate for this court to exercise its discretion to decide the
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`Appointments Clause challenge here.” Id. The Board issued its final written
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`decision in the IPRs on appeal here prior to the Arthrex decision, and Uniloc raised
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`the issue here prior to the filing of its opening appeal brief.
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`8
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`Case: 19-2389 Document: 37 Page: 14 Filed: 06/19/2020
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`In addition, even if Apple and the Intervenor were correct that Uniloc should
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`have raised this Appointments Clause issue before the Board, the Arthrex decision
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`is an intervening change in law that justifies Uniloc raising the issue for the first
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`time on appeal. “[A] party does not waive an argument that arises from a
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`significant change in law during the pendency of an appeal.” BioDelivery Science
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`Int’l, Inc. v. Aquestive Therapeutics, Inc., 898 F.3d 1205, 1208–09 (Fed. Cir. 2018)
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`(citation omitted); see also Hormel v. Helvering, 312 U.S. 552, 558–59 (1941)
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`(waiver does not apply in “those [cases] in which there have been judicial
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`interpretations of existing law after decision below and pending appeal—
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`interpretations which if applied might have materially altered the result”). As this
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`Court has emphasized, “a sufficiently sharp change of law sometimes is a ground
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`for permitting a party to advance a position that it did not advance earlier in the
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`proceeding when the law at the time was strongly enough against that position.” In
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`re Micron Tech., Inc., 875 F.3d 1091 (Fed. Cir. 2017).
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`Accordingly, Uniloc’s constitutional challenge is timely.
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`CONCLUSION
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`For the foregoing reasons, and those provided in Uniloc’s opening brief, the
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`Board’s judgment should be reversed, or at least vacated and remanded. The
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`Board’s decision should also be vacated and this appeal dismissed because APJs
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`are unconstitutionally appointed principal officers. In light of Arthrex, Patent
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`9
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`Case: 19-2389 Document: 37 Page: 15 Filed: 06/19/2020
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`Owner also requests that the Board’s decision be vacated and this appeal be
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`remanded to the Board consistent with Arthrex.
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`
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`
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`Respectfully submitted,
`
`/s/ Brett A. Mangrum
`Brett A. Mangrum
`Ryan Loveless
`Jim Etheridge
`ETHERIDGE LAW GROUP
`2600 East Southlake Boulevard
`Suite 120-324
`Southlake, TX 76092
`P. 817-470-7249
`brett@etheridgelaw.com
`ryan@etheridgelaw.com
`jim@etheridgeLaw.com
`Attorneys for Patent Owner-Appellant
`
`
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`10
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`Case: 19-2389 Document: 37 Page: 16 Filed: 06/19/2020
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`CERTIFICATE OF SERVICE
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`I caused this brief to be electronically filed with the Clerk of Court using the
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`CM/ECF System, which will serve via e-mail notice of such filing to all counsel
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`registered as CM/ECF users.
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`
`
`Dated: June 19, 2020
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`
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`/s/ Brett A. Mangrum
`Brett A. Mangrum
`
`Counsel for Patent Owner-Appellant
`Uniloc 2017 LLC
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`11
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`Case: 19-2389 Document: 37 Page: 17 Filed: 06/19/2020
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
`LIMITATION, TYPEFACE REQUIREMENTS
`AND TYPE STYLE REQUIREMENTS
`
`
`
`1.
`This brief complies with the type-volume limitation of Federal Circuit
`Rule 32(a).
`
`
`The brief contains 2,223 words, excluding the parts of the brief exempted by
`Federal Rule of Appellate Procedure 32(f) and Fed. Cir. R. 32(b).
`
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`This brief complies with the typeface requirements of Federal Rule of
`2.
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`Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
`Appellate Procedure 32(a)(6).
`
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`The brief has been prepared in proportionally spaced typeface using MS Word
`– Office 365 in Times New Roman 14 Point Font.
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`Dated: June 19, 2020
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`/s/ Brett A. Mangrum
`Brett A. Mangrum
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`Counsel for Patent Owner-Appellant
`Uniloc 2017 LLC
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`12
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`
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