PATENT OWNER
`
`PATENT OWNER
`EXHIBIT 2020
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`EXHIBIT 2020
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`

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`Docket No. l004293.005US
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`Serial No.:
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`11/112,990
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`Confirmation No.:
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`7098
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`App1icant(s): McNally, et al.
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`Group Art Unit:
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`2191
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`Filed:
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`April 22, 2005
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`Examiner:
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`Brophy, Matthew
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`Customer No.:
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`27123
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`For:
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`INFORMATION MANAGEMENT AND SYNCHRONOUS COMMUNICATIONS
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`SYSTEM WITH MENU GENERATION, AND HANDWRITING AND VOICE
`MODIFICATION OF ORDERS
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`DECLARATION UNDER 37 C.F.R. § 1.132
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`Commissioner for Patents
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`P.O. Box 1450
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`Alexandria, VA 22313-1450
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`Sir:
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`I, the undersigned, Keith R. McNally, declare and state that:
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`1.
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`I am an inventor of the subject matter claimed in the above—identified patent
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`application.
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`I have first—hand knowledge as to all of the facts, all of the referenced Exhibits
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`and all of the information contained herein.
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`2.
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`I make this declaration providing evidence of secondary factors to further
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`support and confirm the establishment of the uniqueness and breakthrough aspects of
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`Ameranth’s (the assignee of the present application) “menu wizard” and synchronous 21“
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`Century Communications technology innovations (first introduced at the 1998 Food Service
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`Technology show held in Atlanta, Georgia from November 14- 16, 1998 and then steadily
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`advanced and introduced into the hospitality marketplace thereafter) which are encompassed
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`by the presently—amended claims of the above—identified application. These technology
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`introductions and innovations marked Ameranth’s transformation from its previous product
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`focus on hardware/devices to software and systems integration, (which it has subsequently
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`maintained). All of the attached and referenced enclosures; including business relationships,
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`technology licenses, product announcements, press releases, strategic alliances and news
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`reports all revolve around Ameranth’s breakthrough technology innovations originally
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`introduced at the November 1998 FSTEC show and then steadily commercialized by
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`Ameranth on an on—going basis. The referenced Exhibits discussed herein and attached
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`hereto supporting this Declaration primarily focus on the years immediately following the
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`introduction of Ameranth’s “menu wizar ” and synchronous communications technology
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`(since I believe that this is the pertinent time period in which the contemporaneous market
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`reaction confirmed the novelty and nonobviousness of this innovation). This timeframe
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`focus is certainly not
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`intended to reflect that Ameranth did not continue to excel
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`in
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`subsequent years with additional technology awards and adoptions by the world’s largest
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`companies (e.g. Darden,
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`the world’s largest casual dining chain) and (Intercontinental
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`Hotels Group, the worlds largest hotel company) and with two additional major technology
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`awards achieved by Ameranth. Both of these subsequent awards were “best product”
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`awards, for the entire hospitality/wireless world/marketplace, one for the most innovative
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`wireless product and the other for the best customer service solution.
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`3.
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`The collective actions and decisions made by the world’s leading technology
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`companies, hospitality focused companies, national press, regional press, hospitality press,
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`major hospitality customers and the public alike clearly and indisputably confirmed that
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`Ameranth had invented an entirely new and truly unique solution to a previously unsolved
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`

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` and for which there was a very significant market need. Both Microsoft and
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`Symbol Technologies,
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`(the respective and recognized world leaders in software and
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`rugged/mobile computing/LAN Wireless technology) not only partnered with Ameranth,
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`but they both made strategic multi million dollar investments into Ameranth in 1999 and
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`2000 (their only ones in this market segment). Obviously, Microsoft and Symbol could
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`have chosen fly systems integrator in the world — yet they chose Ameranth, thus further
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`confirming what the leading contemporaneous experts also confirmed, i.e., that Ameranth’s
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`innovations were unique and breakthrough ones unavailable, at the time, from any other
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`source.
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`The totality of the evidence submitted herewith shows compelling industry
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`recognition and adoption of Ameranth’s breakthrough technologies as encompassed by the
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`claims of the present application.
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`4.
`
`Ameranth’s significant impact in this marketplace was succinctly captured
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`and summarized by Bill Gates’ (Microsoft’s founder and Chairman at the time) testimonial
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`in personally nominating Ameranth for the 2001 Computerworld Honors Program award,
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`which it subsequently won:
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`[Ameranth] is one of the leading pioneers of the information technology
`revolution for the betterment of mankind.
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`5.
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`Further, many of
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`the leading Hospitality “point of sale” companies
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`(including Micros Systems) as well as Food.com (the leading intemet food ordering
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`company) and many others also recognized the breakthrough innovations of Ameranth’s
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`technology and either partnered with or sought to partner with Ameranth to obtain that
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`technology. Ameranth was also recognized as the hospitality market wireless leader by
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`numerous National (e.g., The New York Times, Wall Street Journal, USA Today, Time
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`Magazine, Information Week and more) and Hospitality Market publications (Nations
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`

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`Restaurant News, Hotel Business, Franchise Times, Hospitality Technology and more) for
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`its many revolutionary breakthroughs and innovations encompassed by the claims of the
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`present application.
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`6.
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`Ameranth has also been repeatedly recognized with and awarded numerous
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`“best product” technology awards as well as numerous technology grants/awards from the
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`National Science Foundation.
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`7.
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`Supporting materials confirming the above points are attached as Exhibits
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`hereto and summarized in the following paragraphs.
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`8.
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`Exhibit 1 is a November 14-16, 1998 photograph of Ameranth introducing
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`its revolutionary “menu wizar ” and data synchronization technologies as part of its 21“
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`Century RestaurantTM product vision at the 1998 FSTEC (Food Service Technology
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`Show held in Atlanta, Georgia).
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`I am seated, second from the left at the front table, with
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`representatives of several of Ameranth’s strategic customers/partners.
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`9.
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`Exhibit 2 is a November 14-16, 1998 system diagram that was shown in
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`the booth at the November 1998 FSTEC show in Ameranth’s booth as shown in Exhibit
`
`1. This system diagram reflected Ameranth’s inventive breakthroughs and was shown in
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`the center of the booth as well as being distributed to key strategic partners, such as
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`Symbol Technologies. A working demonstration of Ameranth’s invention accompanied
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`this diagram and was shown concurrently in the booth.
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`10.
`
`As detailed in my original and supplemental inventorship declarations
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`under 37 C.F.R. l.l3l, Ameranth’s display and demonstration at the November 1998
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`FSTEC show was of the subject matter encompassed by the claims of the present
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`application. Moreover, the products displayed and demonstrated by Ameranth at the
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`

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`November 1998 FSTEC show and thereafter were the same technology referred to in all
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`of the Exhibits referenced herein. My 1.131 Declarations together with the present
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`Declaration thus establish a nexus between the evidence submitted herein and the claimed
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`invention, i.e., the objective evidence of nonobviousness presented herein is attributable
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`to the claimed invention.
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`11.
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`Exhibit 3 is another system diagram from December 1998/January 1999
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`further reflecting Ameranth’s synchronous communications inventive aspects as part of
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`Ameranth’s trademark for its 21“ Century CommunicationsTM. This was shown to and
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`discussed with Symbol and John Major, the then CEO of Wireless Knowledge (the joint
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`venture between Qualcomm and Microsoft).
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`12.
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`Exhibit 4 is a February 3, 1999 signed Memorandum of Agreement
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`between Ameranth and Symbol (who had seen Ameranth’s inventions at the November
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`1998 FSTEC show and subsequently and who made this partnering decision and
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`subsequently a major investment decision based largely on the value of Ameranth’s
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`inventive “menu wizard” and synchronous communications technology). At this time,
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`Symbol was the world leader in mobile/rugged handheld devices and in 802.11 wireless
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`technology. The fact that such a company would sign a strategic agreement with
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`Ameranth less than 60 days after first seeing it at the FSTEC show is indisputable
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`confirmation of industry recognition of the breakthrough aspects of Ameranth’s
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`inventions
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`13.
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`Exhibit 5 is an April 19, 1999 press release formally announcing the
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`formation of the Strategic Alliance between Symbol and Ameranth.
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`14.
`
`Exhibit 6 is a May 17, 1999 press release formally announcing the
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`

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`formation of the Strategic Alliance between Ameranth and Comtec Information Systems.
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`At this time, Comtec was the world leader in mobile printing devices.
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`15.
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`Exhibit 7 is a May 22, 1999 press release formally announcing the
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`formation of the Strategic Alliance between Ameranth and Hospitality Systems Inc (HSI)
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`with HSI being designated as Ameranth’s charter POS partner. At this time HSI was one
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`of the top ten largest restaurant POS companies.
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`16.
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`Exhibit 8 is a May 22, 1999 press release formally announcing the
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`introduction of Symbol’s new wireless devices as part of Ameranth’s 21“ Century
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`RestaurantTM system at the Chicago, Illinois National Restaurant Association (NRA)
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`show.
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`17.
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`Exhibit 9 is a May 22, 1999 copy of the updated 21“ Century RestaurantTM
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`system brochure reflecting the addition of Symbol’s new Windows CE handhelds and
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`Comtec’s mobile printers. This was demonstrated with the HSI POS software.
`
`18.
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`Exhibit 10 is a photograph of Ameranth’s booth at the May 22, 1999 NRA
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`show in Chicago taken on or about May 22, 1999.
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`19.
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`Exhibit ll is a set of photographs (Nos. 205, 206) from the 1999 NRA
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`Show taken on or about May 22, 1999. In photos 205 and 206 I am shown with Manny
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`Negreiro, President of Aloha POS and Bill Schwartz, President of Foodtrak, along with
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`Larry Hausman, the then Publisher of Hospitality Technology magazine. Both Aloha and
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`Foodtrak subsequently partnered with Ameranth to obtain the technology encompassed
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`by the claims of the present application, further confirming industry recognition of the
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`breakthrough aspects of Ameranth’s claimed inventions.
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`20.
`
`Exhibit 12 is a second set of photographs (Nos. 201, 202, 226) from the
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`

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`1999 NRA Show taken on or about May 22, 1999. In photos 201/202, Dan Drummond,
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`an Ameranth executive, is shown on the left, with John Harker, Director of Hospitality
`
`for Symbol on the right and a Comtec executive in the center. In photo 226, Kathie
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`Sanders, Ameranth’s Director of Marketing, is shown on the left, I am shown in the
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`center and various executives from other Ameranth partners/customers are standing with
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`us.
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`21.
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`Exhibit 13 is a May 24, 1999 daily publication from the May 1999 NRA
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`show in which one of the restaurant owners clearly confirms that Ameranth’s wireless
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`point—of—sale system was “really cool.” While not precisely the same wording used in
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`other confirmations from leading technology companies, the fact that a “non
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`technologist” would also recognize the breakthrough aspects of Ameranth’s inventions is
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`additionally compelling.
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`22.
`
`Exhibit 14 is a June 17, 1999 signed Strategic Alliance Agreement
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`between Ameranth and Food.com. Food.com was the then leading intemet food ordering
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`company and had raised $100M in venture funding. It too had seen Ameranth’ s
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`inventive technology at the May 1999 NRA show and also concluded that it needed
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`Ameranth’s inventive technology. The fact that such a company would sign a strategic
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`alliance agreement with Ameranth less than 30 days after first seeing it at the NRA show
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`is yet another indisputable confirmation of the breakthrough aspects of Ameranth’s
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`inventions and shows conclusively the high degree of industry recognition and adoption
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`of Ameranth’ s technology encompassed by the present patent claims.
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`23.
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`Exhibit 15 is a June 22, 1999 formal press release of the introduction of
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`Ameranth’s 21“ Century HotelTM system at the June 1999 HITEC show in Atlanta,
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`

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`Georgia. Ameranth again partnered with Symbol on this introduction.
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`24.
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`Exhibit 16 is the June 22, 1999 system brochure for Ameranth’s 21“
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`Century HotelTM System introduced at the June 1999 HITEC show. The 21“ Century
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`RestaurantTM and Ameranth’s core inventive concepts were integral to all aspects of the
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`hotel market expansion as well.
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`25.
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`Exhibit 17 is a July/August 1999 article from Hospitality Technology
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`Magazine highlighting the introduction of Ameranth’s technology at the May 1999 NRA
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`show and concluding that Ameranth had generated the most “buzz” from the convention
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`floor at the NRA show, yet further confirming the industry recognition of the
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`breakthrough nature of Ameranth’s menu generation and synchronization inventions.
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`26.
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`Exhibit 18 is a July 7-29 1999 article from Hotel Business about the
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`introduction of Ameranth’s 21“ Century RestaurantTM wireless technology.
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`27.
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`Exhibit 19 is a July 15, 1999 Food.com press release formally announcing
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`their Partnership with Ameranth. Food.com’s recognition of the power of Ameranth’s
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`technology (despite their having had a patent of their own, Cupps) is confirmed by the
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`following statement from their then Chairman/CEO Rich Franks:
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`Our partnership with Ameranth fits perfectly into our plans for the
`delivery of online orders from a consumers keyboard to a restaurant
`kitchen.
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`This clearly confirmed that even the then world’s largest online food ordering company
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`had instantly recognized the breakthrough Ameranth inventions and immediately
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`concluded that they needed it too.
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`28.
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`Exhibit 20 is a July 26, 1999 formal press release announcing the Strategic
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`Alliance between Ameranth and Aloha POS. Aloha POS was then one of the top ten
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`

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`largest POS companies and it was the single largest WindowsTM based POS company at
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`that time. This further confirms the value, importance and breakthrough nature of
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`Ameranth’s inventions.
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`29.
`
`Exhibit 21 is an August 2, 1999 article from Nations Restaurant News
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`(NRN) about the Food.com and Ameranth partnership. It is especially noteworthy that in
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`this article it is confirmed that Ameranth was, at that time, in fact already targeting its
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`technology and inventive concepts toward the ”wirelessly enabled smart devices” market.
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`This is yet another confirmation of Ameranth’s unique systemic vision and innovations.
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`30.
`
`Exhibit 22 is an August 7-20, 1999 article from Hotel Business magazine
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`confirming Ameranth’s launch of its 21“ Century HotelTM system at the June 1999
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`HITEC show.
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`31.
`
`Exhibit 23 is a September 1999 article from Quick Service Restaurant
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`(QSR) magazine about the Ameranth and Food.com Partnership and includes yet another
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`confirmation of Ameranth’ systemic vision including “wirelessly enabled smart devices.”
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`32.
`
`Exhibit 24 is a Fall 1999 case study about Ameranth’s 21“ Century
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`Restaurant included in the Microsoft Hospitality Solutions supplement and which focused
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`on “Real World Solutions for the Hospitality Industry.” Tony Barbargallo, then Group
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`Product Manager Productivity Appliances Division for Micros stated “With Symbol’s
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`proven expertise in mobile computing and wireless networks, Ameranth’s vision and
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`integration skills and Microsoft’s innovative family of software products and solutions,
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`we share in their vision for the 21“ Century RestaurantTM.”
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`John Harker, Director of
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`Hospitality for Symbol added, “[W]ith its 21“ Century Restaurant Ameranth is providing
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`a system solution that makes Symbol’s wireless technology more accessible to the
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`

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`foodservice industry so that restaurants can move away from fixed terminals and gain the
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`benefits of wireless that other industries have enjoyed.” These two statements from
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`recognized industry leaders clearly confirmed the breakthrough aspects of Ameranth’s
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`inventions as presently claimed.
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`33.
`
`Exhibit 25 is a September 15, 1999 formal press release of Ameranth’s
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`strategic alliance with lnfogenesis, another one of the leading POS systems in the
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`foodservice market and arguably the strongest POS company in the gaming/casino
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`market area. This is yet another confirmation of the industry recognition and adoption of
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`Ameranth’s inventions.
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`34.
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`Exhibit 26 is a September 15, 1999 formal press release for the
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`introduction of Ameranth’s 21“ Century CasinoTM System at the World Gaming
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`Congress in Las Vegas.
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`35.
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`Exhibit 27 is a September 15, 1999 copy of the 21“ Century CasinoTM
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`system brochure, which also included the 21“ Century HotelTM and 21“ Century
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`RestaurantTM system concepts and the Ameranth core inventions as integral parts of the
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`solution.
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`36.
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`Exhibit 28 is an October 4, 1999 copy of the formal press release of
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`Ameranth’s winning the prestigious “Innovation of the Year” award at the European
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`Hospitality Technology Show. This is especially noteworthy in that it is rare for
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`Europeans to provide their very top award to an American company and this award was
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`not just for the technology area but rather for the most innovative new product in the
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`entire foodservice market. This is summed up by the judges for the award stating:
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`The way that Ameranth has set out to service the individual needs of the
`consumer greatly impressed the judges. What Ameranth offers is a means
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`10
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`of simplifying many routine tasks for hospitality consumers and users and
`ultimately provide a superior guest service. With all of these factors in
`mind, the judges agreed that award for ‘innovation of the year’ belongs to
`Ameranth.
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`This industry recognition certainly confirmed the breakthrough aspects of Ameranth’s
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`invention and validates many of the factors that clearly distinguished Ameranth’s
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`invention from firm solutions.
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`37.
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`Exhibit 29 is an October 7, 1999 copy of the formal press release
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`announcing the Partnership between Ameranth and Systems Concept Inc (SCI), the then
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`leading foodservice company for inventory management with its Foodtrak product line.
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`38.
`
`Exhibit 30 is a November l, 1999 copy of the formal press release from
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`Squirrel Systems announcing their strategic alliance with Ameranth. Squirrel is yet
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`another of the leading POS companies in the food service market and its desire to obtain
`
`Ameranth’s technology is yet another industry recognition and confirmation of the power
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`of Ameranth’ s inventions.
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`39.
`
`Exhibit 31 is a November/December 1999 article about Ameranth’s “new
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`technology automates traditional processes” featured in Franchise Times (a leading
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`Hospitality Publication). This is yet additional industry recognition.
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`40.
`
`Exhibit 32 is a November 6, 1999 article about Ameranth’s wireless 21“
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`Century HotelTM — that was shown at the International Hotel/Motel show in NYC in
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`November 1999.
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`41.
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`Exhibit 33 is a February 3, 2000 letter from Marriott International
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`expressing that they were “very interested” in Ameranth’ s 21“ Century RestaurantTM
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`system technology and that “they believed that many of its innovative features will
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`enhance the efficiency of our operations, increase customer satisfaction and help increase
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`ll
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`

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`profitability in our operations.” This provides yet additional evidence of industry
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`recognition for Ameranth’s solution which embodied the presently—claimed invention.
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`42.
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`Exhibit 34 is an April 19, 2000 copy of the formal press release
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`announcing the deployment of Ameranth’s Wireless Technology with Starwood Hotels.
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`43.
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`Exhibit 35 is an April 19, 2000 copy of the formal press release
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`announcing the deployment of Ameranth’s Wireless Technology with J amba Juice
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`restaurants .
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`44.
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`Exhibit 36 is an April 19, 2000 copy of the formal press release
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`announcing Ameranth’s wireless technology as having been selected by Microsoft to
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`represent “Service Sector Automation” in the launch of its Pocket PC Based Solutions.
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`45.
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`Exhibit 37 is a Spring 2000 Microsoft Case Study on the application of
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`Ameranth’s wireless and internet technology to uniquely modernize the operations of the
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`Improv Comedy Theatres.
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`46.
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`Exhibit 38 is a May 22, 2000 copy of the formal press release announcing
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`the integration of Ameranth’s 21“ Century CommunicationsTM solution with Microsoft’s
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`Pocket PC. Doug Dedo, Group Product Manager of the Mobile Device Division at
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`Microsoft stated:
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`Ameranth provides a total turnkey solution integrating PocketPC with
`wireless networks and linking them to PC servers and the internet.
`Through this integration, Ameranth’s customers are reducing costs and
`increasing productivity for their businesses and the customers they serve.
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`This is yet another confirmation of the power of Ameranth’s invention and its
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`applicability in uniquely linking wireless, web and central servers through a synchronous
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`real time system as claimed in the present application.
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`47.
`
`Exhibit 39 is a series of photographs taken during the Spring/Summer of
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`12
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`2000 of Ameranth demonstrating its 21“ Century RestaurantTM System at various
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`Hospitality Shows. Pictured are Kathie Sanders in the three photographs on the left and
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`bottom right and Richard Bergfeld (co—inventor) in the upper right photo (with a
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`customer).
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`48.
`
`Exhibits 40, 41 and 42 comprise a set of representative documents from
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`Micros (then the world’s largest POS company) from the Spring/Summer of 2000 which
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`evidence that Micros sought the exclusive rights to Ameranth’s inventive technology — in
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`the Spring and Summer of 2000. This quest by Micros had followed my personal
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`demonstration and detailed explanation of Ameranth’s inventive technology to Ed
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`Rothenberg and others from the Micros technology team in late 1999 and early 2000.
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`Exhibit 40 is a contemporaneous memo memorializing an Ameranth phone conference
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`with Ed Rothenberg conducted on May 9, 2000. From this call, among other points that
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`were made, it is clear that Ed Rothenberg, then the Director of Software for Micros,
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`stated that he “wants exclusivity” and to “ everage our IP.” Exhibit 41 is a copy of a July
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`1, 2000 agreement which was “being negotiated” at the time between Ameranth and
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`Micros (Micros/Ameranth Intellectual Property License, Development and Marketing
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`Term Sheet). The key aspects of Exhibit 41 include the statement that Micros will be
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`“Ameranth’s exclusive reseller of Ameranth’ s Intellectual Property in the Hospitality
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`industry.” (emphasis added). Exhibit 42 is an email sent by Curt Mcleland (then
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`Ameranth’s CEO) to Ed Rothenberg on June 22, 2000 (shortly after another phone
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`conversation with Ed Rothenberg) and which included Ameranth’ s pricing for Micros’ s
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`proposed licensing of Ameranth’s inventive software. Shortly after this, Ameranth
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`decided that with the broad applicability and widespread acceptance of Ameranth’ s
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`13
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`inventions, that it would not make good business sense to pursue an exclusive deal with
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`any company and Ameranth elected @ to agree to an exclusive license of its intellectual
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`property with Micros. With almost all of the other leading POS companies already
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`partnered with Ameranth and the largest POS company (Micros) obviously seeking to
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`“exclusive y” license Ameranth’s intellectual property, this is yet further confirmation of
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`the uniqueness, industry recognition and industry adoption of the presently—claimed
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`inventions.
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`49.
`
`Exhibit 43 is a June 16, 2000 copy of the formal press release announcing
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`Microsoft’s strategic investment in Ameranth, Inc. Despite its vast wealth, Microsoft did
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`and does not make extensive investments in small companies and it very carefully
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`chooses them. The fact that the world’s largest and most powerful software company
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`chose Ameranth as its strategic wireless partner in the hospitality market and then elected
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`to invest in Ameranth as well is very compelling confirmation of the uniqueness and
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`innovative aspects of Ameranth’s technology.
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`50.
`
`Exhibit 44 is a July 21, 2000 San Diego Daily Transcript article about the
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`founding of Ameranth and how the founders moved from their previous military
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`backgrounds/experience to revolutionize the restaurant/hospitality business.
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`51.
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`Exhibit 45 is a September 13, 2000 copy of the formal press release
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`announcing Ameranth being selected for the prestigious Moby Award for its Wireless
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`Mobile Computing Application.
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`52.
`
`Exhibit 46 is a November 13, 2000 article from Microsoft about the
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`historic “Battle of the Century” in which the first ever public debate and face—to—face
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`showdown between Microsoft and Palm (the still then leading handheld) occurred at the
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`14
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`

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`Comdex Show in Las Vegas in November 2000. Each company could have chosen any
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`software applications partner in the world to join them in this demonstration/debate.
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`Microsoft chose me with the 21“ Century RestaurantTM application to represent it,
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`operating on the then Compaq Ipaq Pocket PC handheld devices. As this article
`
`confirms, the consensus was that Microsoft/Ameranth won the “battle” and many in the
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`computing industry believe that this marked the turning point when the marketplace knew
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`that Microsoft would soon overtake and displace Palm (which in fact did soon occur).
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`Ameranth’s role in such a prestigious and historic event is yet another confirmation of its
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`innovations and is an unassailable industry recognition of the importance of Ameranth’s
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`technology encompassed by the present application.
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`53.
`
`Exhibit 47 is a November 13, 2000 Information Week article about
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`various applications of wireless and bar code technology and significant mention of
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`Ameranth and its inventive technology as deployed with the Irnprov Comedy Theatres is
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`included in the right half of the article.
`
`54.
`
`Exhibit 48 is a January 28, 2001 copy of the formal press release of the
`
`introduction of Ameranth’s wireless housekeeping/Room Inspection product to Starwood
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`Hotels.
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`55.
`
`Exhibit 49 is an April 16, 2001 copy of the formal press release of
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`Ameranth’ s winning a Computerworld Laureate Medal (after having been personally
`
`nominated by Bill Gates/Microsoft).
`
`5 6.
`
`Exhibits 5 0 and 51 further relate to Ameranth’s Computerworld Award.
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`Exhibit 50 is a July 5, 2001 copy of the letter received from Computerworld’s “A search
`
`for new Heroes” confirming that Ameranth’ s award was formally included in their
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`15
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`archives. Exhibit 51 is a copy of the archive award summary.
`
`57.
`
`Exhibit 52 is an August 6, 2001 copy of a Wall Street Journal article about
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`Ameranth’s 21“ Century RestaurantTM wireless innovations, yet further confirming the
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`overwhelming industry recognition of Ameranth’ s technology encompassed by the
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`present claims.
`
`5 8.
`
`Exhibit 53 is an October 2001 copy of an article about Ameranth’s 21“
`
`Century Restaurant in Time Magazine.
`
`59.
`
`Exhibit 54 is a December 12, 2001 copy of a New York Times article
`
`about Ameranth’s “brainstorm” to revolutionize restaurant operations with its wireless
`
`inventive technology and innovations.
`
`60.
`
`Exhibit 55 is a May 16, 2005 Memorandum for Record signed by John
`
`Major confirming that he had been briefed by me in January 1999 and shown a copy of
`
`Exhibit 3 at that time.
`
`61.
`
`Exhibit 56 is a March 29, 2008 memorandum signed by John Harker of
`
`Symbol which confirmed all previous statements herein regarding Mr. Harker and the
`
`events and actions that occurred between Ameranth/S ymbol arising from the November
`
`1998 FSTEC show. Mr. Harker clearly confirms that he received a demonstration of
`
`Ameranth’ s 21“ Century Restaurant “wizard” technology from me and Kathie Sanders
`
`and that this led him and Symbol to promptly partner with Ameranth. Several
`
`attachments to the signed memorandum are duplicative of previous exhibits, since this
`
`document was intended to be a “stand alone” document at the time of its signing.
`
`62.
`
`I respectfully request that the Examiner consider this Declaration as rebuttal
`
`evidence of nonobviousness and that the presently pending claims as amended be allowed.
`
`16
`
`

`
`63.
`
`I hereby declare that all statements made herein of my own knowledge are
`
`true and that all statements made on information and belief are believed to be true; and
`
`further, that these statements are made with the knowledge that willful false statements, and
`
`the like so made are punishable by fine or imprisonment, or both, under Section 1001 of
`
`Title 18 of the United States Code, and that such willful false statements may jeopardize the
`
`Validity of the application or any patent issued thereon.
`
`Dated: August 19, 2009
`
`--
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`.
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`/7
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`Keith R. McNally
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`l7
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`

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`EXHIBIT 1
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`EXHIBIT 4
`
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`

`
`mm 51 “:19 12:32: FR Pw NY
`
`212 373 25'? TD 81-46918811415388 53.219
`
`PWRW&G Draft:
`
`[‘] 1/29/
`
`Memorandum Q1’ Aggeemgnt;
`
`This Memorandum of Agreement (the "Agreement") is entered into as
`of §_ February, 1999, between Symbol Technologies, Inc. ("Symbol'7, having its
`corporate offices at One Symbol Plaza Holtsville, NY 11742, and Atneranth
`Technology Systems, ["] I_I_1g_._ ("An1era.nth")% having its corporate offices at 16079 San
`Dieguito Road, suite A-1, Rancho Santa Fe, CA.
`
`WHEREAS, the parties believe that a mutually beneficial relationship
`should be established to leverage their respective capabilities toward the goal of
`maximizing sales of the parties’ products in the Hospitality/Gaming and selected
`DOD/Law Enforcement markets (the "Marltets"):
`
`THEREFQRE, the parties state and aggee as follows;
`
`The parties have signed a non—discl0sure agreement that is in force and
`1.
`will survive this Agreement.
`
`Attached as Exhibit A is a summary of the business greement §_e
`2.
`forth the respective responsibilities of the parties with respect 0
`‘s gtgreeme t
`V4 wrs-nu so M75
`‘L
`Ameranth and Symbol will also'execute a Symbo
`3.
`.
`Agreement, substantially in the form of Exhibit B, ["1 modified as the parties ghall
`aggeeg and each Qartx will adhere to all of the standard conditions [*1 g
`obligations get fog]: in the agreement.
`
`
`
`The term of this agreement will be one year from the date first written
`4.
`above, renewable [“] automaticall
`for successive one- ear
`eriods unless written
`
`itice of termina is under --_V__a Sf this Arn .
`
`
`This Agreement may be canceled upon six months written notice from
`5.
`either [*1 party setting forth the details of a breach of this Agreement or a default
`of any obligations under this Agreement, provided, however, that the defaulting party
`shall have ninety (90) days to cure ["1 the breach or default, unless the breach 05
`default cannot be cured in ninet da s in which case the A cement shall it t be
`canceled if the defauitin
`art
`hall have undertaken commercial]
`reasonable
`effgrts designed to cure the breach or default.
`If a cancellation of Ameranth’s role
`as the "master distributor" for Symbol products in the Markets occurs, Ameranth
`shall retain the right to purchase and {*1 & Symbol wirelgg products ["] within its
`gt-gdug.
`
`The nature of this agreement, the fluidity of technology, market
`6.
`evolution, the introduction of new products and related developments require an
`exceptional level of trust between the parties and flexibility in the implementation of
`
`Doc#:DS5;207966.t
`
`

`
`JQN 31 :99 12:21 FR Pu NY
`
`212 373 2678 To 8146‘31IZiEl1141S38@ P.1B
`
`2
`
`the Agreement to ensure that me relationship is fair and equitable to both paties. As
`the "master distributor" for Symbol in the Markets Ameranth will be committing
`assets and making investments to further the sales of Symbol products. In so doing,
`Ameranth will realize benefits in margins