Case 1:19-cv-00859-RTH Document 69-5 Filed 01/21/22 Page 1 of 59
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`1
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`
` IN THE UNITED STATES COURT OF FEDERAL CLAIMS
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`
`
`
`
`Plaintiffs,
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`
`
`v.
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`E-NUMERATE SOLUTIONS, INC. and
`E-NUMERATE, LLC,
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`
`
`
`
`THE UNITED STATES,
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`
`
`
`
`
`Defendant.
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`
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`
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`
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`No. 19-859 C
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`Judge Ryan T. Holte
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`DECLARATION OF DR. DAVID MARTIN IN SUPPORT OF DEFENDANT’S
`PROPOSED PRELIMINARY CLAIM CONSTRUCTIONS
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`
`TABLE OF CONTENTS
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`Personal Qualifications ........................................................................................................3
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`Scope of Opinion and Legal Standards ................................................................................5
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`I.
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`II.
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`III.
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`Patent Backgrounds .............................................................................................................9
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`IV.
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`Technology Background ....................................................................................................10
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`V.
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`Person of Ordinary Skill in the Art ....................................................................................11
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`VI.
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`Terms from the ’355 Patent ...............................................................................................11
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`A.
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`“the step of receiving…” (claims 15, 42 of the ’355 Patent) .................................11
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`VII. Terms from the ’816 Patent ...............................................................................................12
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`A.
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`B.
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`C.
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`D.
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`“markup language” (claim 12 of the ’816 Patent) .................................................12
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`“means for receiving a first markup document…of the
`second markup document” (claim 26 of the ’816 Patent)......................................13
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`“means for automatically transforming the numerical
`values…a common format;” (claim 26 of the ’816 Patent) ...................................16
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`“means for combining the first markup document and the
`second markup document into a single data” (claim 26, ’816
`Patent) ....................................................................................................................20
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`2
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`E.
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`“means for displaying the single data set” (claim 26 of the
`’816 Patent) ............................................................................................................21
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`VIII. Terms from the ’383 Patent ...............................................................................................24
`
`A.
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`B.
`
`C.
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`“means for identifying a first markup document including
`first numerical values and first tags reflecting … associated
`with the second unit of measure” (claim 18 of the ’383
`Patent) ....................................................................................................................24
`
`“means for automatically transforming at least a portion of
`the first or second numerical values… have a common unit
`of measure” (claim 18 of the ’383 Patent) .............................................................28
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`“means for processing at least a part of the first markup
`document and at least a part of the second markup document,
`resulting in a single markup document” (claim 18 of the ’383
`Patent) ....................................................................................................................32
`
`D.
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`“means for causing a display of at least a portion of the single
`markup document” (claim 18 of the ’383 Patent) ..................................................34
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`IX.
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`Terms from the ’748 Patent ...............................................................................................37
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`“code for storing a plurality of original documents including
`a plurality of original values, including a first document
`including first values and a second document including
`second values” (claim 11 of the ’748 Patent) ........................................................37
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`“code for processing at least a part of the first document and
`at least a part of the second document, … of the plurality of
`original documents” (claim 11 of the ’748 Patent) ................................................39
`
`“code for receiving a user selection of one or more
`computer-readable semantic tags” (claim 11 of the ’748
`Patent) ....................................................................................................................42
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`“code for receiving a user selection of one or more of the
`original values” (claim 11 of the ’748 Patent) .......................................................44
`
`“code for mapping the one or more of the computer-readable
`semantic tags to the one or more of the original values”
`(claim 11 of the ’748 Patent) .................................................................................47
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`“code for outputting a report… results in a corresponding
`change in an instance of the report” (claim 11 of the ’748
`Patent) ....................................................................................................................49
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`3
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`G.
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`least one computer-readable
`“code for outputting at
`Extensible Markup Language
`(XML)-compliant data
`document… results in a corresponding change in an instance
`of the at least one computer-readable XML-compliant data
`document” (claim 11 of the ’748 Patent) ...............................................................51
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`X.
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`Terms from Multiple Patents .............................................................................................54
`
`A.
`
`B.
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`“multiple hierarchical relationships between two line items
`of corresponding numerical values” (claims 7, 8, 15, of the
`’383 Patent; claim 1 of the ’748 Patent; claim 29 of the ’842
`Patent; claims 1, 10, 17 of the ’708 Patent) ...........................................................54
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`“rule” (claims 9, 10 of the ’383 Patent; claims 1, 12, 13, 14
`of the ’748 Patent; claim 29 of the ’842 Patent; claims 1, 10,
`and 17 of the ’708 Patent) ......................................................................................58
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`XI.
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`Signature ............................................................................................................................59
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`I, David Martin, declare and state as follows:
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`1. I am over the age of twenty-one, competent to make this declaration and have personal
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`knowledge of the matters stated herein. I make this declaration in support of Defendant United
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`States’ (“U.S.” or “Government”) preliminary claim constructions.
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`I.
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`Personal Qualifications
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`2. I have over 40 years of professional experience with computer software. Following
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`informal study in computer science at Iowa State University in the late 70s, I was first hired as a
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`programmer in 1979. After high school in 1984, I worked for two startups as a software designer
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`and programmer and delivered custom software to Lucasfilm Ltd. under contract. I have worked
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`with the Internet and associated technologies since the late 1980s. I began using web browsers in
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`1993. I taught computer science to graduate and undergraduate computer science students for 10
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`years. I earned a Ph.D. in Computer Science from Boston University in 1999. My Ph.D. research
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`was in the area of Internet security and privacy. I earned a Bachelor of Science degree with
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`distinction in Computer Science and Mathematics from Iowa State University in 1993. I have
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`worked at the University of Denver as an Assistant Professor, at Boston University as a Research
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`Assistant Professor, and at the University of Massachusetts Lowell as an Assistant Professor. In
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`4
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`these positions, I performed research in the areas of computer security and privacy on the Internet.
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`I am currently an independent software consultant.
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`3. My experience also includes teaching courses in Introduction to Object Oriented
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`Programming (C++); Foundations of (Theoretical) Computer Science; Computer Security I:
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`Principles of Cryptography and Network Security; Computer Security II: Applied Computer
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`Security; Unix Software Tools; Computer Networking; Introduction to Computer Science II
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`(C++); Introduction to Computer Science I (C++); Special Topics in Systems: Computer Security;
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`Advanced Unix Programming; Formal Languages and Automata; Introduction to Computer
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`Science (C).
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`4. I have received the following honors throughout my academic and professional career:
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`Teaching Excellence Award for U. Mass Lowell Computer Science Department (2007); Teaching
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`Excellence Award for U. Mass Lowell Computer Science Department (2004); One of four
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`nominees for Outstanding Research in Privacy Enhancing Technology Award (2003);
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`Outstanding Teaching Fellow, Department of Computer Science, Boston University (1996);
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`University Graduate Fellowship, Boston University (1993-1994); Top Graduating Senior in
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`Mathematics, Iowa State University, Spring (1993); Top Graduating Senior in Computer Science,
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`Iowa State University, Spring (1993); Honorable Mention, National Science Foundation Graduate
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`Fellowship (1993); Honorable Mention, Department of Defense Graduate Fellowship (1993); Phi
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`Beta Kappa membership (liberal arts honor society) (1990); Phi Kappa Phi membership
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`(engineering honor society) (1990); Pi Mu Epsilon (mathematics honor society) (1990); Upsilon
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`Pi Epsilon (computer science honor society) (1990); Arthur Collins Foundation Scholarship,
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`Spring (1992); Dio L. Holl Award for Outstanding Senior, Spring (1992); Shell Oil Foundation
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`Scholarship, Spring (1991); Barry Goldwater Scholarship (1989-1990).
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`5. I have been a member of the following professional societies: the Association for
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`Computing Machinery and the Institute for Electrical and Electronics Engineers.
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`6. I was first engaged as a software expert over 20 years ago. I have extensive experience
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`analyzing software and descriptions of software. For example, I have analyzed source code from
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`Amazon, Apple, Google, Microsoft, Samsung, Yahoo!, Zillow, and other companies, and have
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`written expert reports and testified about their implementations.
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`7. In patent litigation, I have submitted expert reports at least 11 cases, I have testified in
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`deposition in at least 10 cases, and have testified at trial at least 5 times. I have also testified in
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`trade secret and anti-trust litigation.
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`8. I have done substantial work with XML. In i4i Limited Partnership v. Microsoft
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`Corporation, I analyzed Microsoft Word’s support for “custom XML” in its source code, wrote
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`an expert report, and testified at trial. In August of 2021 I submitted an expert report describing
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`products and their reliance on AJAX (Asynchronous JavaScript and XML) and XHR
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`(XMLHttpRequest). I have written and used XML software variously in my own general
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`computing work. As a computer science faculty member, I also regularly taught a formal languages
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`course that explored the expressiveness and capabilities of computer languages specified by
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`different kinds of grammars. A Document Type Definition (DTD) is a grammar intended to
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`describe a certain set of XML documents conforming to that specification.
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`9. I am being compensated at my regular rate of $600 per hour. No part of my compensation
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`is dependent on the outcome of this proceeding or otherwise has any influence on my opinions in
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`this proceeding. I have no other interest in this proceeding.
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`II.
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`Scope of Opinion and Legal Standards
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`10. This declaration does not set forth all my conclusions regarding the Patents-In-Suit or the
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`claim terms found therein. However, my analysis is of the issues that appear most relevant based
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`on the claim constructions proposed by the parties.
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`11. I have been instructed by counsel that claim construction is for the Court to decide as a
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`matter of law. I understand that the claims of a patent are to be interpreted according to their plain
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`and ordinary meaning as would be understood by a person of ordinary skill in the art at the
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`timeframe of the claimed invention. I understand that claims should be construed based on intrinsic
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`evidence such as the claim language, the patent’s specification, and the patent’s prosecution file
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`history. I understand I am also free to consider extrinsic evidence to help interpret the meaning
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`and construction of the claims, including but not limited to sources such as appropriate
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`dictionaries, the general knowledge of one skilled in the art, treatises, white papers, relevant
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`journals, etc., as long as that extrinsic evidence does not contradict the evidence intrinsic to the
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`patent.
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`DECLARATION OF DAVID MARTIN
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`12. I understand that the claims of a patent define the scope of the rights conferred by the
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`patent. The claims particularly point out and distinctly claim the subject matter that the patentee
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`regards as the invention. Because the patentee is required to define precisely what the invention is
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`claimed to be, it is improper to construe claims in a manner different from the plain import of the
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`terms used consistent with the specification. Accordingly, a claim construction analysis must begin
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`and remain centered on the claim language itself. Additionally, the context in which a term is used
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`in the asserted claim can be highly instructive. Likewise, other claims of the patent in question,
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`both asserted and unasserted, can inform the meaning of a claim term. For example, because claim
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`terms are normally used consistently throughout the patent, the usage of a term in one claim can
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`often illuminate the meaning of the same term in other claims. Differences among claims can also
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`be a useful guide in understanding the meaning of particular claim terms.
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`13. I understand that the claims of a patent define the purported invention. I understand that
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`the purpose of claim construction is to understand how one skilled in the art would have understood
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`the claim terms at the time of the purported invention.
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`14. I understand that a person of ordinary skill in the art is deemed to read a claim term not
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`only in the context of the particular claim in which the disputed term appears, but in the context of
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`the entire patent, including the specification. For this reason, the words of the claim must be
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`interpreted in view of the entire specification. The specification is a primary basis for construing
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`the claims and provides a safeguard such that correct constructions closely align with the
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`specification.
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`15. I understand that the usual and customary meaning of a claim term can be altered by a
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`patent applicant who takes on the role of “lexicographer” and clearly sets forth in the patent a
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`different meaning for a claim term.
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`16. I understand that it is improper to place too much emphasis on the ordinary meaning of the
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`claim term without adequate grounding of that term within the context of the specification of the
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`asserted patent. Hence, claim terms should not be broadly construed to encompass subject matter
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`that is not supported when the claims are read in light of the invention described in the
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`specification. Art incorporated by reference or otherwise cited during the prosecution history is
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`also highly relevant in ascertaining the breadth of claim terms.
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`17. I understand that claim terms must also be construed in a manner consistent with the
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`context of the entire intrinsic record. To that end, in addition to consulting the patent’s
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`specification, one should also consider the patent’s prosecution history. The prosecution file
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`history provides evidence of how both the Patent Office and the inventors understood the terms of
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`the patent, particularly in light of what was known in the prior art. Further, where the specification
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`describes a claim term broadly, arguments and amendments made during prosecution may require
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`a narrower interpretation.
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`18. I understand that while intrinsic evidence is of primary importance, extrinsic evidence, e.g.,
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`all evidence external to the patent and prosecution history, including expert testimony, dictionaries,
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`and learned treatises, can also be considered. For example, technical dictionaries may help one
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`better understand the underlying technology and the way in which one of skill in the art might use
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`the claim terms. Extrinsic evidence should not be considered, however, divorced from the context
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`of the intrinsic evidence. Evidence beyond the patent specification, prosecution history, and other
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`claims in the patent should not be relied upon unless the claim language is ambiguous in light of
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`these intrinsic sources. Furthermore, while extrinsic evidence can shed useful light on the relevant
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`art, it is less significant than the intrinsic record in determining the legally operative meaning of
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`claim language.
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`19. I understand that in general, a term or phrase found in the introductory words of the claim,
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`the preamble of the claim, should be construed as a limitation if it recites essential structure or
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`steps, or is necessary to give life, meaning, and vitality to the claim. Conversely, a preamble term
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`or phrase is not limiting where a patentee defines a structurally complete invention in the claim
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`body and uses the preamble only to state a purpose or intended use for the invention. In making
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`this distinction, one should review the entire patent to gain an understanding of what the inventors
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`claim they actually invented and intended to encompass by the claims.
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`20. I understand that while absolute precision is unattainable in patented claims, the
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`definiteness requirement mandates clarity. If, a claim interpreted in light of the specification and
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`the prosecution history fails to inform those skilled in the art about the scope of the invention with
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`reasonable certainty then it is indefinite.
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`21. Certain claim terms at issue in this case recite “means for” performing a particular function.
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`Additionally, certain claim terms at issue in this case claim “code” that is programmed to perform
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`particular functions. As explained in more detail below, the claim term “code” in such a context
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`may amount to a mere verbal construct that is the equivalent to the use of the “means” language
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`in a claim. Stated differently, in such contexts, the use of the term “code” is effectively a
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`DECLARATION OF DAVID MARTIN
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`placeholder for any structure that is capable of performing the recited functions. I understand that
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`for such claim terms, they should be construed under pre-AIA 35 U.S.C. § 112, ¶ 6, or, depending
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`on the filing date of the patent, AIA 35 U.S.C. § 112(f), which recites the same language as pre-
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`AIA 35 U.S.C. § 112, ¶ 6. Both versions state the same thing:
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`An element in a claim for a combination may be expressed as a means or step for
`performing a specified function without the recital of structure, material, or acts in
`support thereof, and such claim shall be construed to cover the corresponding
`structure, material, or acts described in the specification and equivalents thereof.
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`22. I have been informed that if a person of ordinary skill in the art would understand that the
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`“code” term in a claim to refer to a conventional program or code that existed at the time of the
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`inventions, then that term is more likely not to be construed under § 112, ¶ 6. However, if a person
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`of ordinary skill in the art would understand the “code” in a claim to refer to generic or black–box
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`functionality than it would more likely be construed under § 112, ¶ 6.
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`23. To construe such claims, the claimed function must be first identified, and then a
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`corresponding structure clearly linked to the performance of that function must be found in the
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`specification. I understand that terms written in this format cover that corresponding structure
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`described in the specification in addition to any equivalent structure.
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`24. For computer-implemented means-plus-function claim terms, I am aware that a distinction
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`is made as to whether the claimed function is of a fundamental nature such that it can be performed
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`by a general-purpose computer without the need for special programming, or if a specially
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`programmed computer is necessary to implement the claimed function. I understand that with the
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`former, i.e., where the claimed function can be performed by any general-purpose computer
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`without any special programming, disclosure of any general-purpose processor to perform the
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`function is sufficient. On the other hand, for functions requiring specially programmed computers,
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`I have been informed that an algorithm to perform or implement the claimed function on a
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`computer must be disclosed in the specification.
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`25. I am aware that algorithmic disclosures may be in any form sufficient to inform one of
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`ordinary skill in the art, including source code, a mathematical formula, prose, a diagram or flow
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`chart, and/or any other manner that provides sufficient structure to those of skill in the art.
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`III.
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`Patent Backgrounds
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`9
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`26. In this litigation, e-Numerate has asserted U. S. Patent Nos. 7,650,355 (the “’355 Patent”),
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`8,185,816 (the “’816 Patent”), 9,262,383, (the “’383 Patent”), 9,262,384 (the “’384 Patent),
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`9,262,748 (the “’748 Patent”), 9,600,842 (the “’842 Patent”), 10,223,337 (the “’337 Patent”), and
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`10,423,708 (the “’708 Patent”) (collectively, the “Asserted Patents” or the “Patents-in-Suit”).
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`27. I understand that the ’355 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`28. I understand that the ’816 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`29. I understand that the ’383 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`30. I understand that the ’384 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`31. I understand that the ’748 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`32. I understand that the ’842 Patent traces its priority to provisional application No.
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`60/263,518, filed on Jan. 24, 2001
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`33. I understand that the ’337 Patent traces its priority to provisional application No.
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`60/135,525, filed on May 21, 1999 and provisional application No. 60/183,152, filed on Feb. 17,
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`2000.
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`34. I understand that the ’708 Patent traces its priority to provisional application No.
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`60/263,518, filed on Jan. 24, 2001.
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`IV.
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`Technology Background
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`10
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`35. XML, the Extensible Markup Language, is a framework for creating domain-specific
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`languages that describe data.1 Every XML document has similar high-level structure. Elements are
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`always specified using “tags” that include the so-called angle brackets “ < ” and “ > ”, elements
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`may “nest” within each other, and each element that appears in a document must have both an
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`opening tag (e.g., <author>) and a closing tag (e.g., </author>). As long as these and certain other
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`rules are followed, the names of the tags and elements are entirely up to the creators and users of
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`that particular kind of XML document. For example, an XML document used to describe books
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`might include an <author> element, while an XML document used to describe corporate revenues
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`might include various <sale> elements but no <author> elements.
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`36. The Patents-in-Suit are generally directed to the processing of “semantic tagged” data in
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`XML documents, in which the processing relies on the semantic information expressed with the
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`data. For example, consider the data encoded within the XML document fragment below:
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`<line_item
`li_unit='%'
`li_mod='of'
`li_measure='outstanding shares'>
`<data_y>
`0.65, 0.8, 0.75
`</data_y>
`</line_item>
`
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`This abbreviated example can be understood to represent the three data values 0.65, 0.8, and 0.75,
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`where each of these numbers is taken to indicate a percentage of outstanding shares of an
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`associated company; the “li_unit”, “li_mod”, and “li_measure” specifiers together indicate that
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`this is the meaning of the numbers.2
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`37. In this context, the Patents-in-Suit claim functionalities related to semantic tagged data
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`including performing macro (short processing instruction) operations; generating legend titles
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`from the semantic tags; combining and converting documents to express them in similar units;
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`1 See, e.g., “XML Essentials”, available from https://www.w3.org/standards/xml/core.
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`2 A complete example adhering to the Reusable Data Markup Language (RDML) of the Patents-in-Suit would be
`similar to this abbreviated example with additional attributes and context. A longer example can be found in the ’355
`patent at 20:24-44.
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`creating presentations, reports, and output documents; validating rules; adding semantic tags; and
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`identifying data that are related by “multiple hierarchical relationships”.
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`V.
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`Person of Ordinary Skill in the Art
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`38. In my opinion, the technologies described in the Asserted Patents draw on a combination
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`of skills from the computer science and engineering arts. Further, a person of ordinary skill in the
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`art (“POSITA”) would have a bachelor’s degree in computer science or computer engineering or
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`a similar field and/or four years of software development experience with a focus on data
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`manipulation and presentation including work with markup languages. Extensive experience and
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`technical training may substitute for educational requirements, while advanced education might
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`substitute for experience. I reserve the right to provide a narrower background for the POSITA
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`within this range as the litigation progresses, however for purposes of this Declaration my opinions
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`would not be affected if the POSITA’s background were within the range specified.
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`39. I note that in four separate inter partes review (IPR) petitions, e-Numerate did not challenge
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`the petitioner’s, Merrill Corporation, proposed background for a person of ordinary skill in the art
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`which “would have been someone with at least a bachelor’s or graduate degree in computer
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`science, computer engineering, or a related field, and at least 3 to 5 years of work experience in
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`developing software for data communication, manipulation, and reporting.”
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`40. The opinions I offer herein regarding construction of disputed terms would not be
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`materially impacted under either POSITA standard.
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`VI.
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`Terms from the ’355 Patent
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`A. “the step of receiving…” (claims 15, 42 of the ’355 Patent)
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`41. The term “the step of receiving comprises receiving tags” appears in claims 15 and 42 of
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`the ’355 Patent. Claim 15 in turn depends from independent claim 1 while claim 42 depends from
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`independent claim 28.
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`42. However, independent claim 1 recites two different “step of receiving” clauses: “receiving
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`a series of numerical values having tags indicating characteristics of the numerical values;” and
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`“receiving a macro defined to perform an operation on the series of numerical values.”
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`Case No. 19-859C
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`DECLARATION OF DAVID MARTIN
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`43. Similarly, independent claim 15 recites “receiving a series of numerical values having tags
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`indicating characteristics of the numerical values.” and “receiving a macro defined to perform an
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`operation on the series of numerical values.”
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`44. For this term, e-Numerate has proposed “In claim 15, the step referred to is ‘receiving a
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`series of numerical values having tags indicating characteristics of the numerical values’ in claim
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`1. In claim 42, the step referred to is ‘receiving a series of numerical values having tags indicating
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`characteristics of the numerical values’ in claim 28.”
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`45. However, it remains unclear which is the proper antecedent basis for the term “the step of
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`receiving comprises receiving tags” as recited in claims 15 and 42 as it could refer to either the
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`first or second “receiving” clause in the relevant independent claim. The first “receiving” clause
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`makes sense, because a “series of numerical values having tags” could be sensibly supplemented
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`with tags having further “characteristics selected from the group consisting of: (1) value, (2)
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`semantics, (3) format, (4) measurement, (5) structure, and (6) provenance.” The second
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`“receiving” clause also makes sense, because a “macro defined to perform an operation” could be
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`sensibly supplemented with tags having “characteristics selected from the group consisting of: (1)
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`value, (2) semantics, (3) format, (4) measurement, (5) structure, and (6) provenance.”
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`46. In light of the foregoing, in my opinion a person or ordinary skill in the art would be unable
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`to determine with reasonable certainty the scope of the term “the step of receiving” as recited in
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`claims 15 and 42 of the ’355 Patent and therefore this term is indefinite.
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`VII. Terms from the ’816 Patent
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`A. “markup language” (claim 12 of the ’816 Patent)
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`47. The term “markup language” appears in claim 12 of the ’816 Patent. Claim 12 depends
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`from independent claim 10.
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`48. For this term, e-Numerate has proposed “Not indefinite. Antecedent basis is implied, inter
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`alia, by the use of the term ‘markup document’ in claim 10. No additional construction of ‘markup
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`language’ is needed. To the extent ‘markup language’ is construed, it should be construed as
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`Plaintiffs propose for the ’337 patent. The Defendant is referred to that construction.” The
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`proposed construction of “markup language” being referred to in claim 1 of the ’337 Patent is “A
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`markup language is a computer language that uses tags to define elements within a document. It is
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`DECLARATION OF DAVID MARTIN
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`human-readable, meaning markup files contain standard words, rather than typical programming
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`syntax. Examples of markup languages include HTML, XML and XBRL.”
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`49. Firstly, a person of ordinary skill in the art would dispute e-Numerate’s contention that a
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`markup language is differentiated from other languages by being “human-readable” and by its use
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`of “standard words, rather than typical programming syntax.” This statement is imprecise as it is
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`unclear as to what are “standard” words and what is “typical” syntax. Furthermore, for a person
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`of ordinary skill in the art, all of typical programming syntax is “human-readable.” Computer
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`programming languages are designed to be read and written by human beings while being
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`structured in a way that permits computers to read them as well.
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`50. Secondly, the term “markup language” does not appear in claim 10. It also does not appear
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`in claim 12 prior to the first time it is listed as “the markup language.” Accordingly, there is an
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`improper antecedent basis issue.
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`51. Additionally, even if one were to presume that either the “first markup document” or the
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`“second markup document” recited in claim 1 of the ’816 Patent was composed using a markup
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`language, it is