Case 4:18-cv-07229-YGR Document 59-1 Filed 04/06/20 Page 1 of 62
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`
`
`PAUL J. ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`AUSTIN MANES (State Bar No. 284065)
`amanes@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`QUALYS INC.,
`
`
`
`
`
`
`Defendant.
`
`
`
`OAKLAND DIVISION
`
`
`Case No.: 4:18-cv-07229-YGR
`
`DECLARATION OF MICHAEL T.
`GOODRICH, PH.D. REGARDING CLAIM
`CONSTRUCTION
`
`Date: May 1, 2020
`Time:
`10:00 AM
`Place: Courtroom 1, 4th Floor
`Before: Hon. Yvonne Gonzalez Rogers
`
`
`DECLARATION OF MICHAEL T. GOODRICH
`
`
`
`CASE NO. 4:18-cv-07229-YGR
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`I, Michael T. Goodrich, Ph.D., declare as follows:
`I am a Distinguished Professor1 in the Department of Computer Science at University of
`1.
`California, Irvine, where I have taught courses and performed research in Computer Science, including
`topics in Algorithms, Computer Security, Networking, Data Structures, and Parallel Computing, since
`2001. I am a retained technical expert on behalf of Plaintiff, Finjan, Inc., (“Finjan”) in the above
`captioned matter. I have personal knowledge of the facts disclosed herein and, if called as a witness, I
`could and would testify regarding the opinions disclosed herein.
`I submit this Declaration in support of Finjan’s claim construction brief and to rebut
`2.
`certain opinions of Dr. Aviel Rubin, who has been retained on behalf of Defendant, Qualys, Inc.
`(“Qualys”). I have been asked to provide opinions regarding the understanding that a person of
`ordinary skill in the art (“POSITA”) would have regarding the terms “receiver” and “transmitter” as
`they appear in U.S. Patent Nos. 8,141,154 (“the ’154 Patent”), 8,677,494 (“the ’494 Patent”), and
`6,965,968 (“the ’968 Patent”).
`In summary, it is my opinion that a POSITA would understand the terms “receiver” and
`3.
`“transmitter” to have sufficiently definite meanings as the names of structures within the context of the
`specifications and claims of the ’154, ’494, and ’968 Patents. Further, it is my opinion that the ’154,
`’494, and ’968 Patents disclose to a POSITA sufficient structures that correspond to the function of a
`receiver and transmitter in the claims of these patents.
`EXPERIENCE AND QUALIFICATIONS
`I.
`Curriculum Vitae
`A.
`4.
`Attached hereto as Appendix A is a true and correct copy of my Curriculum Vitae (CV).
`I summarize some of the relevant information regarding my CV as follows.
`I received a Bachelor of Arts degree in Mathematics and Computer Science from Calvin
`5.
`University in 1983 and a PhD in Computer Science from Purdue University in 1987.
`
`1 “The Distinguished Professor title is a campus-level distinction and is reserved for Above Scale
`faculty who have achieved the highest levels of scholarship over the course of their careers.
`Distinguished Professors will typically have earned national and international level distinctions and
`honors of the highest level.” https://ap.uci.edu/titles-of-distinction/distinguished-professor/ (last visited
`March 26, 2020).
`
`DECLARATION OF MICHAEL T. GOODRICH
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`I am a Distinguished Professor in the Department of Computer Science at the
`6.
`University of California, Irvine, where I have been a faculty member since 2001. In addition, I am
`technical director for the Center for Algorithms and Theory of Computation in the Donald Bren School
`of Information and Computer Sciences at University of California, Irvine. I was a professor in the
`Department of Computer Science at Johns Hopkins University from 1987-2001. I have also served as
`an associate dean in the School of Information and Computer Sciences and as department chair for the
`Department of Computer Science, at University of California, Irvine.
`I have over 30 years’ experience in computer science and I have authored or coauthored
`7.
`over 300 publications, including several widely adopted books, such as Introduction to Computer
`Security and Algorithm Design and Applications. My research includes contributions to data structures
`and algorithms, information security and privacy, networking, graph algorithms, computational
`geometry, distributed and parallel algorithms, and cloud security. For example, I have published peer-
`reviewed research articles, including (using the numbering scheme in my CV) publications J-63, J-71,
`J-78, C-80, C-83, C-85, C-91, C-100, and C-108, on stopping viruses in email attachments and on
`authenticating data downloaded from untrusted repositories. I have also published peer-reviewed
`research articles on the use of parallelism in computer systems, including publications J-5, J-7, J-12, J-
`16, J-19, and J-24. In addition, in my publication J-61, “Probabilistic Packet Marking for Large-Scale
`IP Traceback,” I published a scheme for marking packets on the Internet, using network routers and
`other network devices in a packet-by-packet basis, so as to determine the source of distributed denial-
`of-service attacks. Furthermore, I have publications dealing with networking and mobile devices,
`including journal articles J- 56, J-61, J-62, J-66, J-69, J-78, and J-84, book chapter Ch-9, and peer-
`reviewed conference publications C-80, C-101, C-117, C-133, C-136, C-156, and C-181. For instance,
`in my journal article J-56, my coauthors and I study methods for partitioning data into push and pull
`regions so as to optimize communication costs between a server and several clients.
`In my capacity as a Distinguished Professor at University of California, Irvine, my
`8.
`responsibilities include teaching undergraduate and graduate students, performing research in
`computer science, mentoring PhD students and postdoctoral fellows, and serving on various university
`
`DECLARATION OF MICHAEL T. GOODRICH
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`committees. According to Google Scholar, I have an h-index of 66, meaning that I have at least 66
`publications that have each been cited at least 66 times.
`My research has been supported by grants from the Defense Advanced Research
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`Projects Agency (DARPA), the National Security Agency (NSA), the Office of Naval Research
`(ONR), the Army Research Office (ARO), and the National Science Foundation (NSF).
` In addition, I have consulting experience as an expert witness and/or technical expert in
`10.
`matters involving algorithms, cryptography, machine learning, digital rights management, computer
`security, networking, software, and storage technologies.
` I am a Fellow of the American Association for the Advancement of Science (AAAS), a
`11.
`Fellow of the Institute of Electrical and Electronics Engineers (IEEE), and a Fellow of the Association
`for Computing Machinery (ACM), as well as being named as a Foreign Member of the Royal Danish
`Academy of Sciences and Letters. I am also a recipient of a Fulbright Scholarship (for senior specialist
`service to University of Aarhus, Denmark). In addition, I am a recipient of the IEEE Computer Society
`Technical Achievement Award and the Pond Award for Excellence in Undergraduate Teaching. Also,
`I am an ACM Distinguished Scientist.
` I am familiar with computer security, malware techniques, intrusion detection, virus
`12.
`detection, and anti-virus software around the time of the inventions of the patents-in-suit. For example,
`my study of computer security topics began in the 1980s as an undergraduate student and continued in
`graduate school, where my Ph.D. research involved the study of computer system components
`operating in parallel. My study and interest in computer security continued after my Ph.D., as detailed
`above and in my CV. In addition, I have reviewed and evaluated research papers on computer security,
`including cryptography, beginning with work as an associate editor for Journal of Computer & System
`Sciences, as well as my service on program committees of peer-reviewed Computer Science
`conferences, including the Conference on Electronic Publishing and the Information Superhighway
`and the ACM Symposium on Theory of Computing (STOC), the latter for which I chaired and edited
`the conference proceedings in 1994.
`
`DECLARATION OF MICHAEL T. GOODRICH
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`Prior Testimony
`B.
`A list of cases in which I have testified at deposition or trial or in written reports and
`13.
`declarations during at least the past five years is part of Appendix A of this Declaration.
`Compensation
`C.
`14. My compensation for my work in this case is based solely on the amount of time that I
`devote to activity related to this case (I am paid on an hourly basis) and is in no way affected by any
`opinions that I render. I receive no other compensation from work on this action. My compensation is
`not dependent on the outcome of this matter. I have no financial interest in the outcome of this matter.
`II. MATERIALS CONSIDERED
`15. My opinions, expressed herein, are based on information I have reviewed to date
`including the materials referenced herein and in the exhibits attached to this declaration, and are based
`on my knowledge and experience in the fields of computer science, computer and network security,
`network optimization, Internet communications, and software development.
`In the process of forming my opinions, I have reviewed and considered documents and
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`items including: the declaration of Dr. Rubin, including all documents cited in his declaration, the
`’154, ’494, and ’968 Patents and their file histories, and Finjan’s Opening Claim Construction Brief
`and exhibits referenced therein.
`III. LEGAL STANDARDS
`Counsel for Finjan has informed me of the following legal standards that I have used as
`17.
`a framework in forming my opinions contained herein:
`Claim Construction
`A.
`18.
`I have been informed that claim construction is a legal issue for the Court to decide. I
`understand that patent claim terms are to be interpreted based on their meaning to a POSITA at the
`time of the invention. I further understand that, where the meaning of a term is not immediately
`apparent, one must look at those sources available to the public that show what a POSITA would have
`understood the claim language to mean, including the words of the claims themselves, the remainder of
`the specification, the prosecution history, and extrinsic evidence concerning relevant scientific
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`DECLARATION OF MICHAEL T. GOODRICH
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`principles, the meaning of technical terms, and the state of the art. I also understand that in
`interpreting a patent claim, the focus is first on the intrinsic evidence of record, i.e., the patent and its
`prosecution history, including the claims.
`B. Means-Plus-Function
`I have been informed that a claim element may be expressed as a means for performing
`19.
`a specified function without express recital of the structure of the element. Such means-plus-function
`elements are to be construed to cover the corresponding structure described in the specification and
`equivalents to that structure.
`I have been further informed that if a claim element does not use “means for” language,
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`it is strongly presumed not to be a mean-plus-function element. Such elements are only deemed to be
`means-plus-function elements if the words in the element, in view of the specification, would not be
`understood by a POSITA to have a sufficiently definite meaning as the name for structure.
`I am yet further informed that what is important is whether the term used is one that is
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`understood to describe structure, in which case the element is not a means-plus-function element,
`although it might not bring to mind any particular structure. For example, I understand that the Federal
`Circuit held “detector,” although broad, is still structural for purposes of means-plus-function analysis
`because it is not a generic structural term nor is it a coined term lacking a clear meaning. The fact that
`more than one structure may be described by the term, or even that the term may encompass a
`multitude of structures, does not make it any less structural and transform it into a mean-plus-function
`element.
`Indefiniteness
`C.
`I have been informed that claims of a patent must distinctly claim the subject matter
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`which an applicant considers as his or her invention. I understand that a patent is invalid for
`indefiniteness if a patent’s claims do not reasonably apprise a POSITA of the claimed invention.
`I have been informed that if a claim element is deemed to be a means-plus-function
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`element for a computer-implemented function the specification must include the algorithm needed to
`perform the claimed function. The sufficiency of the disclosed algorithm is determined in view of
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`whether a POSITA would know how to program the computer to achieve the claimed function in view
`of the disclosure of the specification.
`Person of Ordinary Skill in the Art
`D.
`24.
`I understand in determining the level of ordinary skill in the art the following factors go
`into consideration:
`the educational level of active workers in the field, including the named inventors of the
`•
`patent;
`the type of problems encountered in the art;
`•
`• prior art solutions to those problems;
`the rapidity with which innovations are made; and
`•
`•
`the sophistication of the technology in the art.
`25.
`Based on my review of the ’154, ’494, and ’968 Patents, in addition to my consideration
`of the above factors outlined above, my understanding of a POSITA at the time of the invention would
`be a person with a bachelor’s degree in computer science, or equivalent, who also has either (1) two or
`more years of experience in computer security and/or (2) an advanced degree, such as a master’s
`degree, in computer science. For example, these patents address the problem of stopping malware
`included with downloadables using techniques that include clients and servers, policy-based caching,
`and runtime analysis. My understanding of a POSITA differs slightly from that of Dr. Rubin, as given
`in his Declaration (“Rubin Decl.”) but my opinions contained herein would not change were I to adopt
`his understanding of a POSITA.
`BACKGROUND OF THE ’154, ’494, AND ’968 PATENTS
`IV.
`In this section, I provide background information about related technologies with
`26.
`respect to the ’154, ’494, and ’968 Patents.
`Distributed Computing
`A.
`27.
`Distributed computing involves the use of multiple processors that coordinate to
`perform computational tasks. Typically, these processors are connected via a communications network
`and this coordination is done using messages that are transmitted and received between the processors
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`over the network. Such a collection of processors can coordinate to collectively perform tasks by
`sending messages between the processors rather than, say, using a common shared memory space.
`Performing computations is therefore distributed, because it involves the processors performing tasks
`separately while they are also coordinating and communicating via the shared network.2
`As would be known to a POSITA, in the context of distributed computing, tasks are
`28.
`often partitioned between clients and servers, with clients requesting data or services by transmitting
`messages to servers, which receive those requests, process them, and transmit response messages back
`to the clients, which, in turn, receive those responses and act on them according to their programming
`instructions.3 Thus, in the context of distributed computing, “receive” and “transmit” would be
`understood as terms of art to a POSITA. For example, a plain-and-ordinary meaning of “receive” in
`this context is “to accept data from another component via a communications system or network.”4
`
`
`2 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“distributed computing n. See distributed
`processing.” and “distributed processing n. A form of information processing in which work is
`performed by separate computers linked through a communications network. …”) These definitions
`are unchanged from the third edition (1997).
`
`3 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“client/server architecture n. An arrangement
`used on LANs (local area networks) that makes use of distributed intelligence to treat both the server
`and the individual workstations as intelligent, programmable devices, thus exploiting the full
`computing power of each. This is done by splitting the processing of an application between two
`distinct components: a ‘front-end’ client and a ‘back-end’ server. The client component is a complete,
`stand-alone personal computer (not a ‘dumb’ terminal), and it offers the user its full range of power
`and features for running applications. The server component can be a personal computer, a
`minicomputer, or a mainframe that provides the traditional strengths offered by minicomputers and
`mainframes in a time-sharing environment: data management, information sharing between clients,
`and sophisticated network administration and security features. The client and server machines work
`together to accomplish the processing of the application being used. Not only does this increase the
`processing power available over older architectures but it also uses that power more efficiently. The
`client portion of the application is typically optimized for user interaction, whereas the server portion
`provides the centralized, multiuser functionality. See also distributed intelligence. Compare peer-to-
`peer network.”) This definition is unchanged from the third edition (1997).
`4 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“receive vb. To accept data from an external
`communications system, such as a local area network (LAN) or a telephone line, and store the data as a
`file.”) This definition is unchanged from the third edition (1997).
`7
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`DECLARATION OF MICHAEL T. GOODRICH
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`Likewise, a plain-and-ordinary meaning of “transmit” in this context is “to send data to another
`component via a communications system or network.”5
`B. Malware
`As is discussed in my coauthored book, Introduction to Computer Security, malicious
`29.
`software, which is also known as malware, is software whose existence or execution has negative
`consequences. Examples include backdoors, which allow unauthorized access to a system, logic
`bombs, which perform a malicious action based on a triggering event such as a date or time, computer
`viruses, which are software instances that can replicate themselves by injecting their code into other
`files for malicious purposes, Trojan horses, which appear to perform useful tasks, but also do actions
`with negative consequences, and computer worms, which are malicious programs that spread copies of
`themselves via a network without injecting code copies into other files. In some cases, the malicious
`intent of malware is to use system resources, like computer memory or network bandwidth, while in
`other cases the malicious intent is to cause deliberate harm, such as deleting or modifying data or
`crashing networks or computer systems.
`Because they can replicate themselves through other files, computer viruses have been
`30.
`particularly vexing to stop, and several techniques have been employed against them. Examples
`include finding patterns or “signatures” in the code of a virus so as to identify and remove it and
`keeping track of digital digests or “fingerprints” of existing files and noting when those digests or
`fingerprints change.
`These approaches are not as effective or applicable for downloadables, however, which
`31.
`are small executable or interpretable application programs that are downloaded from a source computer
`and run on a destination computer. For such software instances, the ’154, ’494, and ’968 Patents
`describe novel inventions for identifying and stopping malicious downloadables.
`
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`5 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“transmit vb. To send information over a
`communications line or circuit. …” and “transmitter vb. Any circuit or electronic device designed to
`send electronically encoded data to another location.”) These definitions are unchanged from the third
`edition (1997).
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`The ’494 Patent
`C.
`The ’494 was filed November 7, 2011 and was issued March 18, 2014. I understand that
`32.
`this patent claims priority to January 29, 1997.
`The ‘494 Patent discloses systems and methods for protecting computers and other
`33.
`network accessible devices from undesirable or otherwise malicious operations of downloadables. It
`discloses a protection engine that provides for monitoring information received, determining whether
`the received information is likely to include executable code, and, if so, causes what the patent calls
`“mobile protection code’’ to be transferred to a receiving device, which then makes a determination as
`to whether the downloadable will attempt malicious operations and, based on that determination,
`causes predetermined corresponding operations to be executed in response to such attempts. See, e.g.,
`the ‘494 Patent at Abstract.
`The ’968 Patent
`D.
`34.
`The ’968 Patent was filed February 27, 2003 and was issued November 15, 2005.
`35.
`The ’968 Patent describes a policy-based cache manager, which allows for cached
`content to be subject to multiple policies according to an index, so that digital content can be
`determined if it is allowable relative to a given set of policies when it is being cached. The ’968 Patent
`at Abstract.
`The ’154 Patent
`E.
`The ’154 Patent was filed September 30, 2010 and was issued March 20, 2012.
`36.
`The ’154 Patent describes a method for protecting a client computer from dynamically
`37.
`generated malicious content. It discloses receiving content, where that content includes a call to a
`function, which may then be replaced with a call to a replacement function, which transmits the
`content to a security computer for inspection, transmitting the content to the client computer,
`processing the content, transmitting the input to the security computer where a first function is
`invoked, determining at the security computer whether the call is safe, transmitting a response
`regarding this determination to the client computer, and invoking a second function only if a security
`computer indicates that it is safe to do so. See, e.g., the ’154 Patent at Abstract.
`
`DECLARATION OF MICHAEL T. GOODRICH
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`V.
`
`CLAIM INTERPRETATION OF “RECEIVER” AND “TRANSMITTER”
`The Terms “Receiver” and “Transmitter” Connote Structure
`A.
`38.
`Dr. Rubin opines in his declaration that a POSITA would not understand the terms
`“receiver” and “transmitter” to connote structure. Rubin Decl. at paragraphs 35-37. I disagree.
`As mentioned above, a POSITA would understand the terms “receive” and “transmit”
`39.
`to be terms of art in the context of distributed computing, with plain-and-ordinary means that are,
`respectively, “to accept data from another component via a communications system or network”6 and
`“to send data to another component via a communications system or network.”7 Likewise, a POSITA
`would understand the terms “receiver” and “transmitter” to be terms of art. This understanding is
`supported, for example, by the Microsoft Computer Dictionary, as I cite above and in the footnotes.
`This understanding is further supported by the Dictionary of Computing, which I also cite in the
`footnotes.8 Thus, a POSITA would understand that in the context of distributed computing, a plain-
`and-ordinary meaning of “receiver” is “a component that accepts data from another component via a
`communications system or network” and a “transmitter” is “a component that sends data to another
`component via a communications system or network.”
`
`
`6 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“receive vb. To accept data from an external
`communications system, such as a local area network (LAN) or a telephone line, and store the data as a
`file.”) This definition is unchanged from the third edition (1997).
`
`7 See, e.g., Microsoft Computer Dictionary, 5/e, 2002. (“transmit vb. To send information over a
`communications line or circuit. …” and “transmitter vb. Any circuit or electronic device designed to
`send electronically encoded data to another location.”) These definitions are unchanged from the third
`edition (1997).
`
`8 See, e.g., Dictionary of Computing, 4/e, Collin, 2002. (“receive verb to accept data from a
`communications link”, “receiver noun electronic device that can detect transmitted signals and present
`them in a suitable form”, “transmit verb to send information from one device to another, using any
`medium, such as radio, cable, wire link, etc.”, “transmitter (TX) noun device which will take an input
`signal, process it (modulate or convert to sound, etc.) then transmit it by some medium (radio, light,
`etc.).”)
`
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`DECLARATION OF MICHAEL T. GOODRICH
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`This understanding is further supported by the textbook, Computer Networks, by
`40.
`Tanenbaum,9 which is a widely adopted textbook used in many undergraduate computer science
`curricula. Tanenbaum uses the terms “receiver” and “transmitter” without needing to provide to the
`reader further structural definition for the concepts he is discussing, confirming that the terms are
`sufficient to convey structure to a POSITA.
`For example, Tanenbaum writes in the introductory chapter describing networking,
`41.
`“Point-to-point transmission with exactly one sender and exactly one receiver is sometimes called
`unicasting.” Tanenbaum at 17 [bold-italics added, bold as in the original] (see also Tanenbaum 4/e at
`20). Tanenbaum also writes, “An allocation problem that occurs at every level is how to keep a fast
`sender from swamping a slow receiver with data.” Tanenbaum at 34 [emphasis added] (see also
`Tanenbaum 3/e at 21). Further, Tanenbaum writes, “The essential aspect of a connection is that it acts
`like a tube: the sender pushes objects (bits) in at one end, and the receiver takes them out at the other
`end.” Tanenbaum at 35 [emphasis added] (see also Tanenbaum 3/e at 23). In addition, Tanenbaum
`writes, “Another issue that arises in the data link layer (and most of the higher layers as well) is how to
`keep a fast transmitter from drowning a slow receiver in data.” Tanenbaum at 43 (see also Tanenbaum
`3/e at 30). Moreover, in this same introductory chapter, Tanenbaum writes, “The most practical
`approach [to connect office and laptop computers to the Internet] is to equip both the office and laptop
`computers with short-range radio transmitters and receivers to allow them to talk.” Tanenbaum at 70
`[emphasis added] (see also Tanenbaum 4/e at 58). Tanenbaum illustrates this idea, along with a
`concept known as “multipath fading” that can occur in such scenarios, in a figure, which I excerpt
`below:
`
`
`9 Tanenbaum, Computer Networks, 5/e, Prentice Hall, 2011, 2003 (4/e), 1996 (3/e), 1989 (2/e), 1981
`(1/e).
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`DECLARATION OF MICHAEL T. GOODRICH
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`Tanenbaum at 71 [highlighting added].
`A POSITA would understand that the context of the ’154, ’494, and ’968 Patent
`42.
`includes distributed computing; hence, the terms “receiver” and “transmitter” connote structure in the
`context of these patents, as disclosed, for instance, in the exemplary dictionary and textbook citations
`given above.10 For example, the ’494 states that the field of its invention “relates generally to computer
`networks, and more particularly provides a system and methods for protecting network-connectable
`devices from undesirable downloadable operation.” ’494 Patent at 1:59-63. The ’968 Patent states that
`the field of its invention “relates to cache management and content filtering” (’968 Patent at 1:5-6) and
`that “Internet browsers cache web pages so that these pages do not have to be re-transmitted when a
`user returns to view the same page a second time.” ’968 Patent at 1:11-14, emphasis added. The ’154
`Patent states that the field of its invention “relates to computer security, and more particularly to
`protection against malicious code such as computer viruses” (’154 Patent at 1:8-10) and “With the
`advent of the Internet and the ability to run executable code such as scripts within Internet browsers, a
`new type of virus formed; namely, a virus that enters a computer over the Internet and not through the
`computer’s file system.” ’154 Patent at 1:34-37. Therefore, the context of the ’154, ’494, and ’968
`Patents includes distributed computing; hence, a POSITA would understand the terms “receiver” and
`
`
`10 It is further my opinion, as I explain elsewhere herein, that the ’154, ’494, and ’968 Patent
`specifications themselves disclose structure for “receiver” and “transmitter.”
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`DECLARATION OF MICHAEL T. GOODRICH
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`“transmitter” to connote structure in the context of these patents. I also note that nothing in the file
`histories for all three of these patents indicates that the examiner questioned or challenged the structure
`of the claimed “receiver” or “transmitter” elements, which further supports that these terms connote
`structure in the context of these patents.
`Dr. Rubin admits that “[t]ransmitting and receiving are