IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 12-cv-1701-RGA
`
`
`
`C.A. No. 12-cv-1702-RGA
`
`
`
`C.A. No. 12-cv-1703-RGA
`
`
`CALLWAVE COMMUNICATIONS,
`LLC,
`
`Plaintiff,
`
`v.
`
`AT&T MOBILITY, LLC, and GOOGLE
`INC.,
`
`Defendants.
`
`
`
`CALLWAVE COMMUNICATIONS,
`LLC,
`
`Plaintiff,
`
`v.
`
`SPRINT SPECTRUM L.P., SPRINT
`COMMUNICATIONS COMPANY L.P.,
`and GOOGLE INC.,
`
`Defendants.
`
`
`CALLWAVE COMMUNICATIONS,
`LLC,
`
`Plaintiff,
`
`v.
`
`T-MOBILE USA INC., and GOOGLE
`INC.,
`
`Defendants.
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`CALLWAVE COMMUNICATIONS,
`LLC,
`
`Plaintiff,
`
`v.
`
`VERIZON SERVICES CORP., CELLCO
`PARTNERSHIP, D/B/A VERIZON
`WIRELESS, and GOOGLE INC.,
`
`Defendants.
`
`
`
`CALLWAVE COMMUNICATIONS,
`LLC,
`
`Plaintiff,
`
`v.
`
`AT&T MOBILITY, LLC, BLACKBERRY
`LTD, and BLACKBERRY CORP.
`
`Defendants.
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`C.A. No. 12-cv-1704-RGA
`
`
`
`C.A. No. 12-cv-1788-RGA
`
`
`DECLARATION OF DAVID KOTZ, PH.D. IN SUPPORT OF CALLWAVE
`COMMUNICATIONS, LLC’S OPENING CLAIM CONSTRUCTION BRIEF
`
`
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`I, David Kotz, Ph.D. do hereby declare as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`I am the Champion International Professor in the Department of Computer
`
`Science at Dartmouth College in Hanover, New Hampshire. My business address is 6211
`
`Sudikoff Laboratory, Hanover, New Hampshire 03755-3510. I am over eighteen years of age,
`
`and I would otherwise be competent to testify as to the matters set forth herein if I am called
`
`upon to do so.
`
`2.
`
`I have been retained by Callwave Communications, LLC (“Callwave”) to
`
`provide expert testimony in the above captioned matters. In particular, I have been asked to
`
`provide my expert opinions on the proper constructions of claim terms in U.S. Patent Number
`
`6,771,970 (“the ‘970 Patent”) and the understanding that a person of ordinary skill in the art at
`
`the time of the invention claimed in the‘970 Patent would have had with respect to those terms.
`
`I am being compensated at the rate of $650 per hour.
`
`II.
`
`BACKGROUND AND EXPERIENCE
`
`3.
`
`My background and experiences that qualify me as an expert in this case are set
`
`forth in my curriculum vitae attached as Appendix A.
`
`III. MATERIALS REVIEWED
`
`4.
`
`In performing the analysis that is the subject of this Declaration, I have
`
`reviewed the ‘970 Patent and its prosecution history. I have also reviewed the joint claim
`
`construction table and the relevant portions of the associated joint appendix that the parties
`
`filed with the Court. A complete list of the materials I have reviewed is attached as
`
`Appendix B.
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`IV. UNDERSTANDING OF THE LAW TO BE APPLIED TO INTERPRET
`
`CLAIMS
`
`5.
`
`In formulating my opinions and conclusions in this declaration, I have been
`
`provided with an understanding of some of the prevailing principles of United States patent
`
`law that govern the issues of patent claim interpretation applicable to my declaration.
`
`V.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`6.
`
`It is my understanding that my analysis of the interpretation of a claim term
`
`must be undertaken from the perspective of what would have been known or understood by a
`
`person having ordinary skill in the art at the time of the invention.
`
`7.
`
`I have been informed by counsel for Callwave that the date of the invention of
`
`the ‘970 Patent is not later than October 4, 1999, which is the filing date of provisional
`
`application number 60/157,643 from which the ‘970 Patent relates.
`
`8.
`
`A person of ordinary skill in the art would have at least an undergraduate degree
`
`or its equivalent in computer science and/or software technology and at least two years of
`
`experience in location-tracking technology. In the alternative to an undergraduate degree or its
`
`equivalent in computer science and/or software technology, a person of ordinary skill in the art
`
`would have four years of experience in computer programming and location-tracking
`
`technology.
`
`VI.
`
`THE ‘970 PATENT
`
`9.
`
`The ‘970 Patent discloses systems and methods for locating mobile platforms
`
`using different tracking service providers. Thus, as shown in Figure 1 of the ‘970 Patent,
`
`mobile platforms (21-24) may be located using location-tracking systems (11-14). In one
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`embodiment, location information is combined with map information, and the resultant map is
`
`sent to the subscriber.
`
`VII. CLAIM TERMS
`
`A.
`
`Location
`
`Claim Term
`location
`(14, 15, 16, 17, 18,
`19)
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`“Specific geographic position”
`No construction is necessary.
`
`If the Court determines
`construction is necessary: “position
`or whereabouts.”
`
`10.
`
`“Location” is not a technical term with specialized meaning. A person having
`
`ordinary skill in the art would understand “location” to mean “position or whereabouts” for at
`
`least the reasons set forth below.
`
`11.
`
`The specification discloses a variety of maps including raster maps in various
`
`scales, vector maps, topographical maps and aerial photographs. (JA0228-29 at 4:12-22, 4:64-
`
`5:5.) Those skilled in the art would recognize that these maps may identify locations in non-
`
`geographic terms. For example, a vector map may include non-geographic features such as
`
`roads, buildings, businesses, parks, cities, elevations, etc., and location may be identified
`
`relative to those features.
`
`12.
`
`Those skilled in the art would also recognize that “the top of the Empire State
`
`Building” represents a location, as does the “City of Wilmington” and “the intersection of
`
`Third Street and Main.” Such “locations” are not “geographic positions.”
`
`13.
`
`Furthermore, the specification describes the use of several location tracking
`
`technologies, at least some of which are capable of determining non-geographical locations.
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`(JA0227 at 1:12-31.) For example, technologies such as EOTD (Enhanced Observed Time
`
`Difference), Cell ID, GSM (Global System for Mobile Communication), CDPD (Cellular
`
`Digital Packet Data), EDACS (Enhanced Digital Access Communication System) and MSAT
`
`(Mobile Satellite communications) can provide non-geographical locations. As one example, a
`
`cellular telephony system may report the location as a cell number, rather than as coordinates
`
`of a geographical position.
`
`14.
`
`Defendants’ proposed construction also adds the term “specific,” which implies
`
`a relative level of precision. For example, latitude and longitude may be expressed in varying
`
`degrees of precision e.g., degrees, minutes, seconds and decimals. If expressed in degrees
`
`alone, it is not as specific as if described in degrees and minutes.
`
`15.
`
`Furthermore, the specification states that the tracking system may “include the
`
`optional fields of Accuracy (320) indicating the location accuracy.” (JA0229 at 6:3-11.) That
`
`is, the location returned by the tracking system would include both a location and an accuracy
`
`field expressing the uncertainty about the location information. Thus, a person of ordinary
`
`skill in the art would understand that the location may not be “specific.”
`
`16.
`
`The specification also teaches that the “location” could be a relative location or
`
`non-specific location such as a street name or other location data. (JA0229 at 5:46-50.) And
`
`the specification discloses that location data may be used for a variety of map types or formats
`
`disclosed in the specification, including raster maps in various scales, vector maps,
`
`topographical maps and aerial photographs. (JA0228-29 at 4:12-22, 4:64-5:5.) Those skilled
`
`in the art would recognize that location for such maps might be relative to the features
`
`described therein (e.g., on North Main Street, on top of the Empire State building, or at Row D,
`
`Column 3 of a map.). (JA0229 at 5:46-50.)
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`17. Moreover, location is also relative with respect to accuracy. The specification
`
`teaches that location may also include information about the “accuracy” indicating the location
`
`accuracy, and “date” and “time” when the mobile device was at that location. (JA0229 at 6:3-
`
`11.) Thus, the location may not be the mobile device’s current specific location, but a general
`
`area in which the mobile device may exist at a given time.
`
`B.
`
`Remote Tracking System/Remote Tracking Service
`
`Claim Term
`remote tracking
`system
`(14, 16, 19)
`
`remote tracking
`service
`(18)
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`No construction is necessary.
`“A system physically separate
`
`from the mobile platform being
`If the Court determines
`tracked that determines and returns
`construction is necessary: “a system
`the location of the mobile
`platform”
`[service] for determining the
`location of one or more mobile
`platforms.”
`
`18.
`
`A person of ordinary skill in the art would understand “remote tracking system”
`
`and “remote tracking service” to mean “a system [service] for determining the location of one
`
`or more mobile platforms” for at least the reasons set forth below.
`
`19.
`
`Those skilled in the art would recognize that the exemplary tracking systems
`
`disclosed in the specification include portions that are partially located on the mobile platforms
`
`being tracked. That is, the remote tracking system might include both a server component and
`
`a mobile component (the tracking unit attached to the device), as the server and tracking units
`
`are designed to work together for the purpose of locating and tracking the mobile platform.
`
`(JA0228 at 3:58-67.) The portion of the remote tracking system equipped on the mobile
`
`device, known in the 970 Patent as the “tracking unit,” is there for the purpose of tracking
`
`mobile platforms.
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`20.
`
`The specification teaches that the portion of the remote tracking system
`
`equipped on the mobile device also “transmits data via a wireless data transmission protocol,
`
`such as GSM radio transmissions to the associated location tracking service provider.”
`
`(JA0228 at 3:58-67.) Those skilled in the art would know that the information transmitted is
`
`information about the location of the mobile platform.
`
`C.
`
`A Property That Is Predetermined For Each Mobile Platform
`
`Claim Term
`a property that is
`predetermined for
`each mobile platform
`(14, 16, 18, 19)
`
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`No construction is necessary.
`“A property of the mobile platform
`
`fixed before the time the mobile
`If the Court determines
`platform can first be tracked that is
`construction is necessary: “a
`used to determine the remote
`property of a mobile platform
`tracking system by which the
`determined before a remote
`mobile platform will be tracked”
`tracking system determines the
`location of the mobile platform.”
`
`21.
`
`A person of ordinary skill in the art would understand “a property that is
`
`predetermined for each mobile platform” to mean “a property of a mobile platform determined
`
`before a remote tracking system determines the location of the mobile platform” for at least the
`
`reasons set forth below.
`
`22.
`
`The specification teaches that a request protocol data unit sent to the remote
`
`tracking system “includes the field ItemID (200), which contains the location tracking system’s
`
`identifier of the item to be located.” (JA0229 at 5:63-67.) Thus, those skilled in the art would
`
`recognize that the predetermined property includes an identifier of the item to be located.
`
`23.
`
`In a preferred embodiment, the tracking unit is not necessarily fixed to the
`
`mobile device, allowing it to be changed at will. Thus, those of ordinary skill in the art would
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`recognize that the property need not be fixed before the time the mobile platform can first be
`
`tracked.
`
`D.
`
`Determining [Determine] For Each Mobile Platform One Of The
`Remote Tracking Systems That Is Capable Of Locating Said
`Mobile Platform
`
`Claim Term
`determining
`[determine] for each
`mobile platform one
`of the remote tracking
`systems that is
`capable of locating
`said mobile platform
`(14, 16, 19)
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`“Determining [determine] which
`No construction is necessary.
`one (and only one) of the remote
`
`tracking systems is appropriate for
`If the Court determines
`use to locate the mobile platform”
`construction is necessary:
`“determining [determine] for each
`mobile platform (as defined) one of
`the remote tracking systems (as
`defined) that is capable of locating
`said mobile platform (as defined).
`
`24.
`
`One of ordinary skill in the art would not understand this claim term to be
`
`limited to determining “one (and only one)” remote tracking system that is capable of locating
`
`the mobile platform.
`
`25.
`
`Those of ordinary skill in the art would recognize that some mobile devices
`
`might be tracked by multiple remote tracking systems. For example, the ‘970 Patent discloses
`
`a variety of location-tracking technologies such as GPS, EOTD, and Cell ID. (JA0228 at 1:12-
`
`21 and 3:44-57.) Furthermore, one of ordinary skill in the art would understand that a
`
`combination of these technologies could be used to track mobile devices, as shown in Figure 1
`
`and described in the specification. (JA0228 at 3:44-57.)
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`E.
`
`Claim Terms 6-8
`
`Claim Term
`communicating
`[communicate] the
`identity of the one or
`more mobile
`platforms to be
`located to the
`determined remote
`tracking system
`(14, 16, 19)
`
`at least one remote
`tracking service
`communicating with
`said respective
`mobile platform
`location system for
`receiving respective
`mobile platform
`identify and returning
`mobile platform
`location information
`(18)
`
`receiving [receive]
`the location of each
`mobile platform from
`the respective remote
`tracking system
`(14, 16, 19)
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`“providing [to provide], directly
`No construction is necessary.
`via the Internet, the identity of the
`
`mobile platform(s) to be located to
`If the Court determines
`the selected remote tracking
`construction is necessary:
`system”
`“communicating [communicate] the
`identity of the one or more mobile
`platforms (as defined) to be located
`to the determined remote tracking
`system (as defined).”
`
`No construction is necessary.
`
`If the Court determines
`construction is necessary:
`“one or more remote tracking
`service (as defined) communicating
`with said respective mobile
`platform location system for
`receiving respective mobile
`platform identify and returning
`mobile platform location
`information.”
`
`No construction is necessary.
`
`If the Court determines
`construction is necessary:
`“receiving [receive] the location (as
`defined) of each mobile platform
`(as defined) from the respective
`remote tracking system (as
`defined).”
`
`
`
`
`
`“at least one remote tracking
`service communicating with said
`respective mobile platform
`location system, directly, via the
`Internet, for receiving respective
`mobile platform identity and
`returning mobile platform location
`information.”
`
`
`“receiving [to receive], directly via
`the Internet, the location of each
`mobile platform from the selected
`remote tracking system”
`
`
`26.
`
`The ‘970 Patent specification discloses that communication is “preferably made
`
`using an open format communication protocol.” (JA0229 at 5:59-6:11.) One of ordinary skill
`
`in the art would understand that an “open format communication protocol” includes protocols
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`other than those associated with the Internet. For example, GSM is not a protocol associated
`
`with the Internet. Although modern telecom providers carry Internet protocol (IP) over GSM,
`
`it is also possible to carry other non-IP data formats over GSM, such as SMS (short message
`
`service).
`
`27.
`
`Defendants’ other requirement that the communication be “directly over the
`
`Internet” is unclear to one of ordinary skill in the art. Communication over the Internet is
`
`inherently indirect as it is a packet-switched network. Information is broken into ‘packets’,
`
`each of which is routed independently from one Internet endpoint to another Internet endpoint
`
`via a series of routers. Even if the packet-switched nature of the Internet is abstracted, indirect
`
`communication often occurs in higher-layer Internet protocols. One good example is SMTP
`
`(Simple Mail Transport Protocol) for routing and delivering information formatted as email
`
`messages: a given message may be delivered via SMTP to a first mail server, which in turn
`
`delivers it to another mail server, and so forth; eventually the message is delivered to the
`
`destination mail server. This communication occurs via the Internet, indirectly through a series
`
`of mail servers. Thus, communication over the Internet is not inherently “direct” but rather
`
`“indirect.”
`
`F.
`
`Subscriber
`
`Claim Term
`Subscriber
`(14, 15, 16, 17, 18,
`19)
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`No construction is necessary.
`“A user that can request the
`
`location of a plurality of mobile
`If the Court determines
`platforms, from which the user is
`construction is necessary: “user.”
`physically separate, through an
`intermediary location system with
`which the user is registered”
`”
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`28.
`
`A person of ordinary skill in the art would understand “subscriber” to mean
`
`“user” because a subscriber inherently uses the location tracking system. Furthermore, a
`
`person of ordinary skill in the art would understand that a “subscriber” (or “user”) is not
`
`limited to a person and could be a machine, computer, or other entity because the claims,
`
`specification, and file history do not require that a “user” be a person.
`
`29.
`
`A person of ordinary skill in the art would understand the disclosed remote
`
`tracking systems described in the specification were often used when the subscriber was not
`
`physically separate from the mobile platform being located in accordance with the claimed
`
`invention.
`
`G.
`
`Plurality Of Remote Tracking Systems
`
`Claim Term
`plurality of remote
`tracking systems
`(14, 16, 19)
`
`
`
`
`Plaintiff’s Proposed Construction Defendants’ Proposed
`Construction
`No construction is necessary.
`“Multiple remote tracking
`
`systems, each supervising a
`If the Court determines
`different group of mobile
`platform”
`construction is necessary:
`“more than one remote tracking
`systems (as defined).”
`
`30.
`
`The phrase “plurality of remote tracking systems” is not a technical term with a
`
`specialized meaning. One of ordinary skill in the art would have understood this phrase to
`
`mean “more than one remote tracking systems” for at least the reasons set forth below.
`
`31.
`
`The specification describes an embodiment with “a plurality of remote tracking
`
`systems communicating with [a] communication system for determining the location of the
`
`remote platform” identified by the subscriber. (JA0227 at 2:14-16.) Those of ordinary skill in
`
`the art would recognize that a plurality of remote tracking systems in this embodiment can
`
`determine the location of a single remote platform. (See above Section VI D.)
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`32.
`
`Furthermore, the disclosed embodiments are not limited to each tracking system
`
`supervising a different group of mobile platforms. The specification teaches that the “vehicles
`
`or other entities may be spread among more than one company (e.g., they may belongs [sic] to
`
`different groups (21) to (24), each supervised by a respective different location company.)”
`
`(JA0229 at 6:19-31 (emphasis added).) Thus, one skilled in the art would recognize they may
`
`not belong to different groups supervised by a different company.
`
`H. Map Information
`
`Claim Term
`map information
`(18)
`
`
`
`Defendants’ Proposed
`Construction
`“data which represents a map
`image”
`
`Plaintiff’s Proposed
`Construction
`No construction is necessary.
`
`If the Court determines
`construction is necessary:
`“information relating to a
`map.”
`
`33.
`
`“Map information” is not a technical term with a specialized meaning.
`
`However, the specification does teach that maps may be in a variety of different “formats such
`
`as Raster, Vector, Topographic or aerial photographs.” (JA229 at 5:3-5; 4:20-22.) Those of
`
`ordinary skill in the art would recognize that maps include a variety of information in addition
`
`to data about the map image. For example, a vector map may include the names of roads,
`
`which is information relating to a map but not data which represents a map image. A raster
`
`map is a map made up of pixels. Thus, a person of ordinary skill in the art would understand
`
`“map information” to mean “information relating to a map.”
`
`
`
`
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`I declare under penalty of perjuiy that the foregoing is true and correct.
`
`David Kotz, Ph.D.
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