Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 1 of 27
`
`
`JARED BOBROW (Bar No. 133712)
`jared.bobrow@weil.com
`ANDREW L. PERITO (Bar No. 269995)
`andrew.perito@weil.com
`CHRISTOPHER S. GEYER (Bar No. 288527)
`christopher.geyer@weil.com
`WEIL, GOTSHAL & MANGES LLP
`Silicon Valley Office
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065-1134
`Telephone: (650) 802-3000
`Facsimile: (650) 802-3100
`
`Attorneys for Defendant
`eBay Inc.
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`ADVANCED AUCTIONS LLC,
`
`
`
`Plaintiff,
`
`
`v.
`
`EBAY INC.,
`
`
`
`Defendant.
`
`
`
`Civil Action No. 3:13-cv-1612-BEN-
`WMC
`
`EBAY INC.’S OPENING BRIEF
`REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT
`NO. 8,266,000
`
`Date: March 6, 2014
`Time: 9:30 AM
`Location: Courtroom 5A
`Judge: Hon. Roger T. Benitez
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`
`
`
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`CASE NO. 3:13-cv-1612-BEN-WMC
`
`eBay Ex. 1010, Page 1 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 2 of 27
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`TABLE OF CONTENTS
`
`Page
`
`
`
`I. 
`INTRODUCTION ............................................................................................ 1 
`LEGAL FRAMEWORK .................................................................................. 2 
`II. 
`III.  ARGUMENT ................................................................................................... 4 
`A. 
`Predetermined Set Time ......................................................................... 4 
`B. 
`After Set Time Before Ending Time ...................................................... 9 
`C. 
`Auction ................................................................................................. 12 
`D. 
`Information Representing a Webpage ................................................. 13 
`E.  Webpage Shows Bid Amounts ............................................................ 15 
`F.  Manual Request for Update Received from a Client ........................... 17 
`G. 
`Second Way Causes Information to Be Automatically Updated
`Based on a New Bid ............................................................................. 19 
`Information about at Least One Client Bidder ..................................... 21 
`
`H. 
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
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`- i -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 2 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 3 of 27
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`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Integrated Tech. Corp. v. Rudolph Techs. Inc.,
`734 F.3d 1352 (Fed. Cir. 2013) ........................................................................ 4, 8
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995) (en banc),
`aff'd 517 U.S. 370 (1996) ..................................................................................... 2
`Moba, B.V. v. Diamond Automation, Inc.,
`325 F.3d 1306 (Fed. Cir. 2003) ............................................................................ 3
`O2 Micro Int’l, Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ...................................................................... 2, 10
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .................................................... 2, 3, 4
`Spectrum Int’l, Inc. v. Sterilite Corp.,
`164 F.3d 1372 (Fed. Cir. 1998) ............................................................................ 4
`V-Formation, Inc. v. Benetton Grp. SpA,
`401 F.3d 1307 (Fed. Cir. 2004) ............................................................................ 3
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) .............................................................................. 3
`Regulations
`37 C.F.R. 1.75(d)(1) .................................................................................................. 3
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
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`- ii -
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`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 3 of 27
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`Pursuant to the Court’s Amended Scheduling Order (D.I. 43), Defendant
`eBay Inc. (“eBay”) submits this Opening Claim Construction Brief in support of its
`proposed constructions for claim terms in United States Patent No. 8,266,000 (“the
`’000 Patent”). There are eight terms or groups of terms to be construed by the
`Court.1
`I.
`INTRODUCTION
`The invention claimed in the ’000 Patent purports to provide “refinements”
`to the manner in which Internet auctions are conducted. Exh. A [’000 Patent] at
`1:44-49. As the patent recognizes, sites such as eBay had already popularized
`Internet auctions by delivering access to millions of users on the World Wide Web.
`Id. at 1:15-20. The principal focus of the ’000 Patent’s claimed refinements on
`such auctions is a two-mode auction that switches at a predetermined time before
`the end of the auction from a “display” mode to an “end game” mode that more
`closely resembles an in-person live auction. Id. at 1:44-57, 2:51-59.
`eBay proposes constructions for the disputed claim terms that provide
`definitions to the jury that are true to this alleged invention and consistent with both
`the specification and the well-understood meanings of those terms to persons of
`skill in the art. By contrast, Advanced Auctions proposes that the jury be told to
`give the terms their “plain and ordinary meaning” for all but a single disputed term.
`Advanced Auctions ostensibly argues that the meaning of the terms is plain on their
`face and would not benefit from construction. Yet Advanced Auctions’
`infringement contentions reveal that its “plain and ordinary” meaning for the terms
`in dispute is anything but “plain and ordinary.” Moreover, Advanced Auctions’
`
`1 On December 18, 2013, eBay filed a Petition for Covered Business Method
`(“CBM”) review of all asserted claims of the ’000 Patent under Section 18(b) of the
`Leahy-Smith America Invents Act. Six days later, eBay filed a motion to stay this
`action pending that CBM review. See D.I. 42. For the reasons set forth in that
`motion and because eBay expects that the examiner and the patent-owner Advanced
`Auctions will create evidence relevant to claim construction during the CBM
`proceeding, eBay respectfully requests that the Court stay this action rather than
`proceed with claim construction now, which risks the waste of scarce judicial
`resources. See D.I. 42-1 at 7-8, 12.
`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`CASE NO. 3:13-cv-1612-BEN-WMC
`
`- 1 -
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`eBay Ex. 1010, Page 4 of 27
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`“plain and ordinary meaning” proposals fail even to address—much less to
`resolve—the parties’ disputes as to claim scope. This approach robs the Court of
`its essential role as the construer of claims and fails to provide the jury with the
`necessary guidance to decide the parties’ disputes. See O2 Micro Int’l, Ltd. v.
`Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008) (“A
`determination that a claim term ‘needs no construction’ or has the ‘plain and
`ordinary meaning’ may be inadequate when a term has more than one ‘ordinary’
`meaning or when reliance on a term’s ‘ordinary’ meaning does not resolve the
`parties’ dispute.”). By not taking a position on what the claims mean, Advanced
`Auctions is improperly pushing claim construction to the jury. Id. at 1360 (“When
`the parties raise an actual dispute regarding the proper scope of these claims, the
`court, not the jury, must resolve that dispute.”) (citing Markman v. Westview
`Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd 517 U.S. 370
`(1996)).
`As demonstrated below, eBay’s proposed constructions should be adopted by
`the Court to resolve the parties’ claim scope disputes and to guide the jury as to the
`proper meaning of the claims.
`II. LEGAL FRAMEWORK
`The language of the claims themselves and the patent specification provide
`critical context for determining the proper meaning of disputed claim terms. See
`Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)
`(“Importantly, the person of ordinary skill in the art is deemed to read the claim
`term not only in the context of the particular claim in which the disputed term
`appears, but in the context of the entire patent, including the specification.”); id. at
`1314 (“the claims themselves provide substantial guidance as to the meaning of
`particular claim terms”).
`Notably, the specification is “the primary basis for construing the claims”
`because, in most cases, it serves as “the best source for discerning the proper
`
`
`
`
`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 2 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 5 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 6 of 27
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`context of claim terms.” Id. at 1315. Because the ’000 Patent issued nearly thirteen
`years after filing of the application to which the patent claims priority, see Exh. A
`[’000 Patent], recourse to the specification is especially important here to ensure
`that the claims are construed as they would have been understood by a person of
`ordinary skill at the time of the invention. V-Formation, Inc. v. Benetton Grp. SpA,
`401 F.3d 1307, 1310 (Fed. Cir. 2005) (intrinsic record usually provides the right
`“temporal context to enable the court to ascertain the meaning of the claim to one of
`ordinary skill in the art at the time of the invention”); see also Moba, B.V. v.
`Diamond Automation, Inc., 325 F.3d 1306, 1315 (Fed. Cir. 2003) (“[T]he best
`indicator of claim meaning is its usage in context as understood by one of skill in
`the art at the time of invention”). Advanced Auctions’ repeated reliance on “plain
`and ordinary meaning” in its proposed constructions attempts to disguise and
`preserve potential ambiguity in claim terms that, if not construed, might allow
`Advanced Auctions to capture territory beyond the boundary supported by the
`specification. See 37 C.F.R. 1.75(d)(1) (requiring issuable claims to “find clear
`support or antecedent basis” in the patent’s description to render the meaning of
`their terms “ascertainable by reference to the description”); see also Phillips, 415
`F.3d at 1317 (holding that it is “entirely appropriate for a court, when conducting
`claim construction, to rely heavily on the written description for guidance as to the
`meaning of the claims”) (citing 37 C.F.R. 1.75(d)(1)).2
`Furthermore, this Court should consider other parts of the intrinsic record
`that “provide[] evidence of how the PTO and the inventor understood the patent.”
`Phillips, 415 F.3d at 1317. This includes the prosecution history, which can
`“inform the meaning of the claim language by demonstrating how the inventor
`understood the invention and whether the inventor limited the invention in the
`course of prosecution, making the claim scope narrower than it would otherwise
`be.” Id. (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed.
`
`2 Emphasis supplied throughout except as otherwise noted.
`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`- 3 -
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`eBay Ex. 1010, Page 6 of 27
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`eBay Ex. 1010, Page 7 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 8 of 27
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`“a set time which is a
`constant and
`predetermined time before
`said ending time” (17)
`
`“a set and predetermined
`time before the auction
`ending time, where said
`set time is a constant time
`before the stored auction
`ending time” (23)
`
`the beginning of the
`auction”
`“a constant time before
`auction close that is
`determined at or before
`the beginning of the
`auction”
`“a constant time before
`auction close that is
`determined at or before
`the beginning of the
`auction”
`
`and ordinary meaning.
`
`No construction is
`necessary. This language
`should be given its plain
`and ordinary meaning.
`
`No construction is
`necessary. This language
`should be given its plain
`and ordinary meaning.
`
`The parties dispute whether the plain and ordinary meaning of these terms
`requires that the time for switching from one mode to the next must be determined
`at or before the beginning of the auction (eBay’s proposal) or could be determined
`at any time during the auction (as Advanced Auctions apparently contends). As
`explained above, the ’000 Patent discloses an alleged improvement to Internet
`auctions in which the auction switches from a “display” mode to an “end game”
`mode at a fixed time before the end of the auction. See Exh. A [’000 Patent] at
`1:52-57, 2:51-59. eBay’s proposed construction gives meaning to the claim term
`“predetermined” whereas Advanced Auctions would read “predetermined” entirely
`out of the claim. See id. at claims 1, 10, 17, 23.
`The independent claims all require a “predetermined time before [the] ending
`time.” Use of the term “predetermined” suggests the following question: before
`what point in time must the claimed time be determined? As the prosecution
`history clearly shows, the answer is that the time at which the mode changes must
`be determined at or before the beginning of the auction. Indeed, this question was
`raised by the examiner during the prosecution of the ’000 Patent. During
`prosecution of the ’000 Patent, the claims initially did not say “predetermined,” but
`instead recited “determining a specified time.” The examiner rejected the claims as
`
`
`
`
`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 5 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
`
`eBay Ex. 1010, Page 8 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 9 of 27
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`indefinite, stating:
`
`Regarding claims 11-19 and 36-39, the Applicant recites,
`‘determining a specified time’. However, this appears to
`be counterintuitive and confusing. In other words, if the
`time is specified, it need not be determined and if the
`time is determined, it need not be specified. Therefore
`the claims are indefinite.
`
`Exh. B [Non-final Rejection, 1/20/12] at AA000166. The patentee initially
`replaced the word “specified” with “set” in response to this rejection. See Exh. C
`[Applicant Remarks in Support of Amendment, 4/16/12] at AA000200. Following
`the May 15, 2012, interview between the patentee and the examiner Thomas M.
`Hammond
`III, an examiner’s amendment was made
`to add
`the
`term
`“predetermined” to further limit the meaning of the claims:
`
`However, neither the cited references nor the prior art
`disclose carrying out an auction in two distinct modes
`based on a predetermined time prior to the predetermined
`end of an auction wherein the distinct modes affect the
`presentation of a webpage representing the auction.
`
`Exh. D [Statement of Reasons For Allowance, 6/08/12] at AA000221. The prior art
`being distinguished provided for extending the duration of the auction during the
`course of the auction. That is, at some point during the auction, when certain
`conditions were met, the prior art disclosed that the auction would end later than the
`originally specified time. Exh. C [Applicant Remarks in Support of Amendment,
`4/16/12] at AA000202. According to both the applicant and the examiner, this was
`not a “set” time, much less a “predetermined set” time. Id.; Exh. D [Statement of
`Reasons For Allowance, 6/08/12] at AA000221.
`
`The named inventor’s own notes from the May 2012 interview with the
`patent examiner confirm that the examiner agreed that the time at which the mode
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
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`- 6 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 9 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 10 of 27
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`change occurs must be set at or before the auction begins.3 In these interview notes,
`the inventor summarizes the interview as follows:
`
`parameters, set what the ending time and the set time
`maybe receiving a fixed ending time
`wherein, and define what the two terms mean
`
`he [the examiner] thinks we have support for the
`parameter and how you define it.
`these parameters are set at / prior to the auction, so it
`says
`
`we receive a set time and an auction closing time (bottom
`of page 5), both of those terms are predetermined
`
`draft, send in a word document.
`
`Thomas.Hammond@uspto.gov
`
`Exh. E [Harris Production] at HARRIS002689. The phrase “bottom of page 5”
`appears to refer to the specification of the original application from which the ’000
`Patent issued, which states in the last paragraph on that page:
`
`This bid form continues until some specified time period
`(x) before auction close, e.g. one hour prior to auction
`closing. Step 205 shows detecting that predetermined
`time, shown as time T-X.
`
`Exh. F [App. No. 12/880,110] at AA000097. As noted above, following the
`interview, an examiner’s amendment was made to add the term “predetermined” to
`the claims. The inventor’s notes reveal the inventor’s and the examiner’s clear
`understanding that the “predetermined time” in the patent is “set at / prior to the
`auction” and that adding “predetermined” to the claims distinguished the patent
`from the prior art at issue. Thus, a “predetermined” time cannot be a time
`
`3 Documents from named inventor Scott C. Harris responsive to an eBay subpoena
`were produced on January 21, 2014, bearing bates numbers with the prefix
`“HARRIS.”
`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`CASE NO. 3:13-cv-1612-BEN-WMC
`
`- 7 -
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`eBay Ex. 1010, Page 10 of 27
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`

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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 11 of 27
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`determined during the course of the auction (i.e., that which was disclosed in the
`prior art). See, e.g., Integrated Tech. Corp., 734 F.3d at 1358 (holding that where
`the plain language of an amendment made to overcome indefiniteness and prior art
`rejections narrowed the scope of the claim, as in the present case, the patentee
`“surrendered the territory between the original and issued claims”). The time must
`be determined at or before the start of the auction.
`This understanding is consistent with both the balance of the claims and the
`specification. The claims require, for example, storing a “predetermined set time
`before the ending time.” Exh. A [’000 Patent] at claim 1. A construction that
`would allow the time to be set at any time during the auction reads out the prefix
`“pre” from “predetermined.” The examiner’s amendment precludes this reading by
`replacing “determining” a time with a “predetermined” time to make clear that the
`time had to be established at or before the start of the action rather than during the
`auction, which was disclosed by the prior art reference before the examiner. Exh. D
`[Statement of Reasons For Allowance, 6/08/12] at AA000214-221. Nowhere does
`the specification disclose or even suggest setting this predetermined time while the
`auction is being conducted.
`Advanced Auctions’ proposal that no construction be provided is likely to
`result in juror confusion because there are variations in these disputed claim terms
`across the claims in which they appear. eBay’s proposed construction provides
`clarity that all of the variations of the predetermined time phrases refer to the same
`process of setting before the auction begins a fixed time before the auction close at
`which the mode change will occur.
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 8 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 11 of 27
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`eBay Ex. 1010, Page 12 of 27
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`pm until the end of the work day to take a call, whether that is 2:00 pm or 3:00 pm
`or 4:00 pm, for example. Yet, if a father tells his 8 year old son at 9:30 pm, “go to
`bed after this TV show is over,” the father quite clearly is telling his son to go to
`bed at the time the show comes to an end—not at any time after the show is over.
`Or consider the statement: “the rules of soccer require the teams to change sides
`after halftime.” In this context, the statement is quite clear that the teams are
`expected to switch sides at the time when halftime comes to an end, not 20 minutes
`into the second half of play.
`These examples illustrate that “after” has different meanings based on the
`context in which it is used. eBay and Advanced Auctions clearly dispute the
`appropriate plain and ordinary meaning for these terms in the context of the ’000
`Patent. Accordingly, the Court should construe these terms to resolve their dispute.
`See O2 Micro Int’l., 521 F.3d at 1361 (“A determination that a claim term ‘needs
`no construction’ or has the ‘plain and ordinary meaning’ may be inadequate when a
`term has more than one ‘ordinary’ meaning or when reliance on a term’s ‘ordinary’
`meaning does not resolve the parties’ dispute.”).
`eBay’s construction is the proper construction for these terms because it is
`consistent with the claim language and the specification. The claims recite an
`auction having two modes which are clearly delineated as occurring before and
`after a predetermined time. Before the predetermined time, the auction operates in
`a first mode. See Exh. A [’000 Patent] at claim 1 (“prior to said set time before said
`ending time, said computer carrying out the auction in a first mode”). After the
`predetermined time, the auction operates in a second mode. See id. at claim 1
`(“after said set time before said ending time, said computer changing a mode of
`carrying out the auction to a second mode”). If the term “after” were to be broadly
`construed to mean “at any time after,” the claim would become nonsensical. The
`first mode would then occur both before the predetermined time and after the
`predetermined time until some undetermined time when the auction changed to the
`
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`
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
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`
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`- 10 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 13 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 14 of 27
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`second mode. The more common sense reading of “after,” which is also true to the
`nature of the alleged invention here, is the one proposed by the eBay—that the
`mode change occurs at the predetermined time.
`The patentee confirmed that eBay’s reading is the correct one when, during
`prosecution, he distinguished prior art that formed that basis of an examiner’s
`rejection:
`
`Note however that the point of claim 11 [which issued as
`claim 1] is that a set time before the ending time, the
`system runs in a different mode, called the endgame in
`the current specification and e.g. in figure 2 of this
`current specification. During that endgame, things
`operate differently.
`
`Exh. C [Applicant Remarks in Support of Amendment, 4/16/12] at AA000201.
`Moreover, the patentee’s “NOTES FOR INTERVIEW,” which apparently refer to
`the interview conducted with the examiner one month after submission of the
`Applicant Remarks quoted above, explain that the claim has:
`
`2 modes, one before the set time (before the set ending
`time), one after.
`
`during one you auto, during the other you don’t.
`Exh. G [“NOTES FOR INTERVIEW”] at HARRIS002670-71. Plainly, the
`applicant was representing to the examiner that the first mode does not continue to
`operate after the predetermined set time occurs, because the operations in the two
`modes are different. If the first mode could continue or start again at any time after
`the predetermined time, the applicant’s statement would make no sense.
`The specification is definitive that the mode switch of the ’000 Patent occurs
`at the predetermined set time of the claims: “[a]s described above, at the specified
`time, AUCTION_ END–x, the end game routine is called, and the auction form
`changes.” Exh. A [’000 Patent] at 4:42-43; see also id. at 2:51-56 (describing
`Figure 2 in which the set time is detected in step 205, “DETECT T-X BEFORE
`
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 11 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
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`eBay Ex. 1010, Page 14 of 27
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`eBay Ex. 1010, Page 15 of 27
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`eBay Ex. 1010, Page 16 of 27
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`Advanced Auctions seeks to read the claim language on applications other than
`webpages. Indeed, this is a ripe dispute, because Advanced Auctions’ contentions
`try to read this limitation on native applications running on mobile devices, see,
`e.g., Exh. I [Infringement Contentions, Exh. C], even though those applications do
`not utilize webpages to provide the accused functionality.
`The term “information representing a webpage” is found in independent
`claims 1, 10, and 17 and is consistently used by both the claims and the
`specification as the means with which to display electronic data to an auction
`participant. Claim 10, for instance, recites an auction participant’s computer
`“receiving information representing a webpage indicative of an electronic auction.”
`Exh. A [’000 Patent] at claim 10. The same computer is then responsible for
`“displaying said information received as a webpage on the computer.” Id. The
`claim language underscores not only that the received information “represents” a
`webpage but also that it is, indeed, an actual webpage: “said information received
`as a webpage.” Id. Claim 17 contains nearly identical language: “receive
`information representing a webpage,” and “display said information received as a
`webpage on the computer.” Id. at claim 17. In short, “information representing a
`webpage” refers to webpages displayed to auction participants.
`As was well understood at the time of filing in 1999, webpages consist of
`Hypertext Markup Language (“HTML”) code and the graphics and script files
`associated with that code, if any. See Exh. J [Microsoft Computer Dictionary,
`1999] at EBAA00000731 (“Web page n. A document on the World Wide Web. A
`web page consists of an HTML file, with associated files for graphics and scripts, in
`a particular directory on a particular machine (and thus identifiable by a URL).
`Usually a Web page contains links to other Web pages.”); Exh. K [Newton’s
`Telecom Dictionary, 2000] at EBAA00000727 (“Web Page: An HTML document
`on the Web, usually one of many that together make up a Website.”). Webpages so
`comprised are displayed in web browsers, as recognized by U.S. Patent No.
`
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 14 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
`
`eBay Ex. 1010, Page 17 of 27
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`eBay Ex. 1010, Page 18 of 27
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`the plural, which supports eBay’s position that the webpage displays each bidder’s
`current bid (i.e., more than one bid). See Exh. A [’000 Patent] at claims 1, 10, 17.
`Moreover, eBay’s proposed construction aligns with the specification. The
`specification discloses that the current winning bid and each bidder’s current bid
`are displayed on the auction participant’s screen. See id. at 6:63-7:6. When a new
`bid exceeding any previous bid is placed, i.e., the current winning bid, “the new
`amount is displayed and the bidder is moved to the top of the screen showing the
`forum.” Id. at 7:1-3. The “previously-winning bid is placed to the current bidder’s
`area.” Id. at 7:5-6; see also Fig.4 (step 424 involves moving a bidder placing a new
`bid, from step 420, to the “Current Bids” area). The language of the ’000 Patent
`also clearly differentiates the display of multiple bid amounts from the display of
`other information, such as an auction participant’s name, on the same screen: the
`auction display disclosed in the ’000 Patent has both a “Current Bids” area and a
`“New Bidder” area. See, e.g., id. at Fig.4. In conjunction with the disclosure that
`“the previously winning bid is placed to the current bidder’s area,” the patent’s
`disclosure of a “Current Bids” area only makes sense if that area displays the bids
`of all bidders who have placed previously winning bids. Id. at 7:5-6.
`In sum, the plural term “amounts” and the unqualified requirement that bids
`be displayed, when read in light of the specification, make clear that that this phrase
`refers to the display of each participating bidder’s current bid.
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`EBAY’S OPENING BRIEF REGARDING CLAIM
`CONSTRUCTION OF U.S. PATENT NO.
`8,266,000
`
`
`
`- 16 -
`
`CASE NO. 3:13-cv-1612-BEN-WMC
`
`eBay Ex. 1010, Page 19 of 27
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`eBay Ex. 1010, Page 20 of 27
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`Case 3:13-cv-01612-BEN-KSC Document 46 Filed 01/24/14 Page 21 of 27
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`1, where in the manual mode of claim 1, the update occurs “based on a manual
`request for update received from a client.” Id. at claim 1. Advanced Auctions
`seeks to treat these two limitations as requiring the same thing: a request made by a
`user. The language is materially different, however, and should be treated as such.
`The language uniquely used in claim 1 addresses how requests for updates
`are passed (or not passed) between computers (i.e., between the server and the
`clients), and does not address the role of the user. This makes sense, as claim 1 is a
`server-side claim that focuses on the server hosting the auction (“A method of
`hosting a computer-based auction over the internet …”) and the relationship
`between that server and a client computer (“sending said new information over the
`internet to each of a plurality of clients”). Id. By contrast, client-side claim 10
`focuses on the “client computer” displaying the auction to a user (“on a client
`computer … displaying said information received as a webpage on the computer”)
`and the relationship between the user and the client computer (“information that
`represents the webpage with information about the auction is updated only based on
`a manual request for update that is received from a user”).
`Advanced Auctions’ proposed construction (“a request for update made by a
`person that is received from a client (computing device or application)”) is
`improper because it attempts to read language i