IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
` PATENT: 7,292,870
`INVENTOR: HEREDIA ET AL.
`TITLE:
`INSTANT MESSAGING TERMINAL ADAPTED FOR WIRELESS
`COMMUNICATION ACCESS POINTS
` TRIAL NO.: IPR2014-01507
`
`
`
`DECLARATION OF DR. ALON KONCHITSKY IN RESPONSE TO
`BLACKBERRY’S PETITION FOR AN IPR OF U.S. PATENT NO. 7,292,870
`AND THE BRODY DECLARATION (EX. 1003)
`
`ZIPIT EX. 2007, pg. 1
`
`

`

`TABLE OF CONTENTS
`
`
`
` Page
`I.
`INTRODUCTION ................................................................................................................ 1
`II. BACKGROUND AND QUALIFICATIONS ................................................................... 1
` A. Educational Background………………………………………………………………1
` B. Career and Experience ………………..………………………………………….……3
` C. Other Relevant Qualifications ……………………………………………….…..…8
`III.
`PRIOR EXPERT TESTIMONY AND COMPENSATION ......................................... 9
`IV. UNDERSTANDING OF THE LAW ................................................................................ 9
` A. A Person Having Ordinary Skill In The Art ……………………………………9
` B. Claim Construction ……………………..………………………………………….…10
` C. Anticipation…………………………………………………………………………….…11
` D. Non-Obviousness/Obviousness………………………………….………………11
`V. MATERIALS CONSIDERED ......................................................................................... 13
`VI.
`PERSON OF ORDINARY SKILL IN THE ART ........................................................ 14
`VII. CLAIM CONSTRUCTIONS ............................................................................................ 20
` A. “Textual Characters” and “Graphical Symbols”………………………….…20
` 1. The Invention Comprises “Textual Characters” and
` “Graphical Symbols” ................................................................................... 21
` 2. The Specification of the ‘870 Patent………………………...…………22
`VIII. CLAIM CONSTRUCTIONS ............................................................................................ 35
`A. Claims 1, 2, 5–8, 11, 12, 17, 18, 20, 21, 24–27, 30, 31, 36, 37, and
`– Allegedly Anticipation Under 35 U.S.C. § 102(b) Over The e740
` User’s Manual ......................................................................................................... 35
` 1. Independent Claim 1 ………………………………...…………...………….35
` i. Claim Elements 1[b] And 1[c] ........................................................ 35
`i
`
`
`
`ZIPIT EX. 2007, pg. 2
`
`

`

`
`
`
`
`
`
`
`
` a. Petitioner’s Petition .................................................................. 36
`
` 1. Alleged §102 – e740 User’s Manual .......................... 39
`
`
` i. The e740’s “Input Panel”....……………………..…40
`
`
`
` ii. The e740’s “Soft Keyboard”....………………...…40
`
`
`
` iii. The e740’s “Drawing Tool”....………………....…42
`
`
`
` iv. The e740’s “Pocket Excel” Application..…...44
`
`
`
` v. The e740’s “My Text” Feature...…….………..…46
`
`
`
` vi. The e740’s “MSN Messenger”…………….…….48
`
`
`
`
` b. Petitioner’s Expert – Dr. Brody ........................................... 50
`
` 2. All Claims Depending From Independent Claim 1…………….…56
`
` 3. Dependent Claim 2……………………………………………..………………56
` i. Petitioner’s Petition ........................................................................... 56
` ii. Petitioner’s Expert – Dr. Brody ..................................................... 58
`
` 4. Independent Claim 20………….……………………………..…………..…59
` i. Claim Elements 20[a] And 20[b] .................................................. 59
`
`
`
` a. Petitioner’s Petition .................................................................. 59
`
`
`
` b. Petitioner’s Expert – Dr. Brody ........................................... 61
`
` 5. All Claims Depending From Independent Claim 20………….….63
`
` 6. Dependent Claim 21…………………………………………..…………..….63
` i. Petitioner’s Petition ........................................................................... 63
` ii. Petitioner’s Expert – Dr. Brody ..................................................... 67
`B. Claims 1, 2, 5–8, 11, 12, 17, 18, 20, 21, 24–27, 30, 31, 36, 37, And
`40 Are Not Unpatentable For Obviousness Under 35 U.S.C. § 103(a)
`Over e740 User’s Manual And Symbol…………………………………...….69
`C. Claims 1, 2, 5–8, 11, 12, 17–21, 24–27, 30, 31, and 36–40 Are Not
`Unpatentable For Obviousness Under 35 U.S.C. § 103(a) Over Over
`e740 User’s Manual And Morrison;……………………………………..…..…70
`
` 1. Independent Claim 1………………...………………………..….………..…70
` i. Claim Element 1[b] ............................................................................. 70
` a. Petitioner’s Petition .................................................................. 70
`
`
`
`ii
`
`ZIPIT EX. 2007, pg. 3
`
`

`

` ii. Claim Element 1[c] ............................................................................. 70
`
`
`
` a. Petitioner’s Petition .................................................................. 70
`
`
`
` b. Petitioner’s Expert – Dr. Brody ........................................... 77
`
` 2. All Claims Depending From Independent Claim 1……...…….….79
`
` 3. Dependent Claim 2……………………………………………………....….….80
` i. Petitioner’s Petition ........................................................................... 80
` ii. Petitioner’s Expert – Dr. Brody ..................................................... 80
`
` 4. Independent Claim 20………………………………………………...………81
` i. Claim Element 20[a] ........................................................................... 81
`
`
`
` a. Petitioner’s Petition .................................................................. 81
`
`
`
` b. Petitioner’s Expert – Dr. Brody ........................................... 88
` ii. Claim Element 20[b] .......................................................................... 90
`
`
`
` a. Petitioner’s Petition .................................................................. 90
`
`
`
` b. Petitioner’s Expert – Dr. Brody ........................................... 91
`
` 5. All Claims Depending From Independent Claim 20……....………92
`
` 6. Dependent Claim 21…….................................................................……....93
` i. Petitioner’s Petition ........................................................................... 93
` ii. Petitioner’s Expert – Dr. Brody ..................................................... 94
`D. Claims 9, 10, 28, and 29 Are Not Unpatentable For Obviousness
`Under 35 U.S.C. § 103(a) Over The e740 User’s Manual And The
`e750 User’s Manual……………………..………………………………………..….99
`E. Secondary Considerations Of Obviousness – Widespread Acclaim
`And Nexus ……………………...…………..…………………………………….……100
`
` 1. Zipit Wireless, Inc.’s “Zippy” Instant Messaging Device ……...101
` 2. Zipit Wireless, Inc.’s “Z2” Instant Messaging Device …….........223
`
`CONCLUDING STATEMENTS .................................................................................. 296
`IX.
`
`iii
`
`
`
`ZIPIT EX. 2007, pg. 4
`
`

`

`I.
`
`INTRODUCTION
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`I, Alon Konchitsky, Ph.D., hereby declare, affirm, and state the
`1.
`following: I make this Declaration in response to Petitioner’s Petition to IPR
`U.S. Patent No. 7,292,870 (the “‘870 Patent”) and the accompanying
`“Declaration Of Dr. Arthur T. Brody” (Ex. 1003), and also in support of
`Patentee Zipit Wireless Inc.’s, (“Zipit”) opposition thereto.
`2.
`Attached hereto as Exhibit A is a copy of my curriculum vitae,
`detailing my education, experience, and publications
`in the field of
`telecommunications. Additionally, I provide the following overview of my
`background as it pertains to my qualifications for providing expert testimony
`in this matter.
`3.
`In 1992, I joined the Israeli Air Force. I was assigned to a
`technology and intelligence unit that was very well known within the Air
`Force for successfully developing advanced technologies and excellent
`training. There, I worked on developing systems and products for high-speed,
`real-time software applications such as networking, moving maps, high
`processors
`definition
`video,
`video
`and multimedia messaging
`communications.
`1
`
`
`
`A.
`
`Educational Background
`
`
`
`ZIPIT EX. 2007, pg. 5
`
`

`

`I received a P.Eng in Electrical Engineering from the Tel Aviv
`4.
`Institute of Technology in 1992 and a B.A. in Computer Science from the
`Academic College of Tel Aviv University in 1997. My coursework and research
`work for these two programs involved, among many subjects, software
`development
`for real-time protocols and
`implementing multimedia
`communication functions such as messaging, voice and video.
`5.
`In 1998, I received an M.A. in Management with a focus in
`Business from Bournemouth University. Based on my research for my M.A.
`dissertation, I was able to forecast a global shift in computing systems from
`mainframe architectures to personal computers. I described my research
`results and forecast in my dissertation.
`6.
`In 2002, I received a Ph.D. in Engineering from Bournemouth
`University. My Ph.D. research focused on a RF semiconductor transmitter,
`and required a strong understanding of semiconductor physics, wireless
`circuit design, and wireless systems analysis. I subsequently had the
`opportunity to continue working on this multi-mode, multi-band transmitter
`in a Post Graduate program in CDMA Engineering at the University of
`California San Diego. My Ph.D. thesis research ultimately led to a transmitter
`design that is now affiliated with Stanford University and a corresponding
`2
`
`
`
`ZIPIT EX. 2007, pg. 6
`
`

`

`
`
`B.
`
`Career and Experience
`
`letter of recognition from Professor Bruce Lusignan, who was the Director of
`Wireless Design at the Department of Electrical Engineering.
`7.
`Over the past 20+ years, I have personally developed, modified, or
`analyzed software/firmware for many different applications, and I have
`supervised engineers performing such tasks.
` I have implemented or
`supervised the implementation of software code or hardware description
`language (HDL) for many different communications protocols across protocol
`layers. I have also developed or supervised the development of integrated
`circuits for wireless baseband communications and embedded processors. I
`am very comfortable with several programming languages, including C, C++,
`Assembler, Basic, Pascal, Matlab, many of which I have taught to others. I have
`developed products with HDL code including VHDL and Verilog. I also have
`firsthand experience with assembly language programming. I personally
`designed a wide variety of analog, RF, and digital circuit elements at both the
`IC and board level using various netlist-driven, schematic capture and manual
`or automated layout CAE/CAD tools.
`8.
`Over my many years of developing products that provide voice
`and data communications, I have acquired a deep understanding of cellular
`mobile systems and their protocols. Networking and telephony protocols that
`3
`
`
`
`ZIPIT EX. 2007, pg. 7
`
`

`

`I am familiar with include UMTS, HSDPA, WCDMA, GSM, EDGE, GPRS, TCP, IP,
`LTE, GPS, IS-95, CDMA2000, 1xRTT, 1xEvDo, 1xEvDv, 802.16, and 802.12,
`among others. I have also been involved with voice band communications for
`both wireless and wired networks on multiple occasions and I am familiar
`with many voice band communications codecs including AMR, EVRC, and SIP.
`9.
`In 1997, I took the position of Senior DSP Engineer at DSP
`Communications, Inc. (“DSPC”) headquartered in Cupertino, CA. I was hired to
`develop products for wireless cellular networking applications. Some of the
`components I developed early in my career at DSPC were used for 2G and 3G
`wireless products, voice band modem equipment, cellular handsets, and base
`stations. 10. During my time at DSPC, I participated in the Third Generation
`Partnership Project (3GPP). 3GPP is an organization consisting of six
`telecommunications standard development groups (ARIB, ATIS, CCSA, ETSI,
`TTA, TTC, also known as “Organizational Partners”). Members of 3GPP
`develop complete network system specifications by exchanging information
`regarding cellular telecommunications network technologies, including radio
`access, non-radio access, the core transport network, Wi-Fi integration, and
`service capabilities—such as codecs, security, quality of service. 3GPP’s
`thus contribution-driven by member
`specifications and studies are
`4
`
`
`
`ZIPIT EX. 2007, pg. 8
`
`

`

`companies. The 3GPP technologies from these groups are constantly evolving
`through Generations of commercial cellular/mobile systems (such as UMTS
`WCDMA). Since the completion of the first LTE and the Evolved Packet Core
`specifications, 3GPP has become the focal point for mobile systems beyond
`3G. 11. When Intel acquired DSPC in 1999, I worked for Intel in various
`roles such as IC Designer, Mobile Chipset Development, and System Architect.
`In 2000, Intel assigned me to work on the 3G project, which was a major
`multi-division effort to build 3G products for mobile communications. That
`project continues today, and has been extended to 4G LTE.
`12. While I was at Intel, I also developed and later led the
`development of multiple chipsets for cellular systems based on UMTS WCDMA
`and CDMA 1xRTT2000 standards. A number of these chipsets were directed
`solely to cellular mobile stations and were specifically created for major
`customers.
`13. For my last role at Intel, I was responsible for the base band
`mobile platform sold in Asia. I managed all aspects of the software protocol
`stack, hardware and mechanics integration (such as systems controlled by
`mobile phones, battery savings algorithms), and multimedia (such as text,
`graphics, voice, GPS, interface, music, MP3, WMA, displays, and GUIs).
`5
`
`
`
`ZIPIT EX. 2007, pg. 9
`
`

`

`I left Intel to join Nokia Mobile Phone in 2001. At the time, Nokia
`14.
`lead the mobile phone development industry with a worldwide market share
`of over 60 percent. I began my career at Nokia as a system design and
`integration engineer. In that capacity, I successfully managed product
`programs that were developing machine-to-machine terminal platforms and
`related software. I also supervised the development of Nokia’s mobile
`platforms, which involved writing “C” code for the project, designing electrical
`circuitry, writing technical specifications, and writing protocol specifications
`for the mobile protocol stack layers.
`15. My responsibilities at Nokia also involved supporting Nokia’s
`Business Unit. To that end, I conducted an extensive, global study of the
`mobile platform market and the M2M market, interviewing over 100 systems
`engineers in the process. I also translated market requirements to product
`requirements and wrote product specifications to facilitate Nokia’s entry into
`new high-speed data markets.
`16.
`I also supported Nokia’s largest production facility in the USA,
`which was located in Dallas, Texas. I developed different test channels and
`collaboration networks for the facility with various companies working in the
`mobile business, including GSM carriers, system integrators, hardware and
`software vendors, distributors, consultants, and installation companies.
`6
`
`
`
`ZIPIT EX. 2007, pg. 10
`
`

`

`17. My last role at Nokia was a Radio System Architect. In that
`capacity, I prepared system design specifications for critical radio chips in
`mobile phones. This work was a collaborative effort with Stanford University.
`18.
`In 2003, I started providing consulting services to a large number
`of companies, hedge funds, venture capitals, law firms, and investment
`bankers on intellectual property matters relating to telecommunication
`technologies. As shown by my involvement in this matter, I continue to offer
`consulting services today.
`19.
`In 2004, I joined IP Valuations Inc., where my role focused on
`licensing and valuation of patents relating
`to
`telecommunications.
`Specifically, I focused on patents relating to wireless technologies and
`evaluated infringement claims concerning mobile standards and products.
`20.
`In 2006, I founded Noise Free Wireless, Inc., a company that
`developed integrated circuits and embedded firmware for several voice
`communications systems. I served as Noise Free’s Chairman of the board and
`Chief Executive Officer for several years, and today, I continue to serve as a
`regular board member and Chief Technology Officer for the company. At
`Noise Free, I crafted solutions mainly
`for cellular and VoIP voice
`communications such as LTE, WCDMA, GSM. Fortune 50 companies are
`currently using my Noise Cancellation, Acoustic Echo Canceller, Voice Activity
`7
`
`
`
`ZIPIT EX. 2007, pg. 11
`
`

`

`Detector, Voice Recognition, IVR and proprietary Voice band coders
`algorithms.
`21.
`In the end of 2011, I founded Patent Hive and have since been
`serving as the company’s Chairman and Chief Technology Officer. At Patent
`Hive, I devised patent analytics and patent intelligence solutions based on
`huge, multi-dimensional “big data”-bases.
`22. Also at Patent Hive, I designed a platform to support “cloud”
`software as a service tool and designed a number of “artificial intelligence”-
`based algorithms to analyze intellectual property by using large scale
`databases of information, including patents and related financial information.
`23.
`I am a Senior Member of the Institute of Electrical and Electronics
`Engineers (IEEE) and an active member of the Circuits and Systems Society,
`the Communications Society,
`the Signal Processing Society
`(voice
`communications), and the Solid-State Circuits Society.
`24.
`I was formerly a Member of the Components, Packaging, and
`Manufacturing Technology Society, the Consumer Electronics Society, the
`Microwave Theory and Techniques Society, and the Robotics and Automation
`Society.
`8
`
`Other Relevant Qualifications
`
`
`
`
`
`C.
`
`ZIPIT EX. 2007, pg. 12
`
`

`

`III. PRIOR EXPERT TESTIMONY AND COMPENSATION
`
`I have published a number of papers and I am listed as an
`25.
`inventor on more than 30 patents that have issued in areas such as voice and
`wireless communications.
`26.
`Included in Exhibit A is a listing of all other cases in which, during
`the previous 4 years, I have testified as an expert at trial or by deposition.
`27.
`I am compensated for my time in this case at my hourly rate of
`$400.00. My compensation is not dependent on or related in any manner to
`the outcome of this matter. I have no financial interest whatsoever in the
`outcome of this matter.
`28. For the purposes of this declaration, I have been informed about
`certain aspects of patent law that are relevant to my analysis and opinions, as
`set forth in this section of my declaration.
`29.
`I understand that the disclosure of patents is to be viewed from
`the perspective of a person having ordinary skill in the art (“PHOSITA”) as of
`the filing dates of the applications leading up to the ‘870 patent.
`30. The ‘870 patent relates to devices and methods for instant
`messaging (“IM”) from a handheld terminal accessing a wireless network.
`9
`
`
`
`
`
`IV. UNDERSTANDING OF THE LAW
`
`A.
`
`A Person Having Ordinary Skill In The Art
`
`ZIPIT EX. 2007, pg. 13
`
`

`

`In determining whom a PHOSITA would be, I considered the ‘870
`31.
`patent, the types of problems encountered in accessing wireless networks and
`communication protocols used for real-time communications, the prior art
`solutions to those problems, the rapid pace of innovation in the fields of
`wireless networks and communication protocols used
`for real-time
`communications, the sophistication of wireless networks and communication
`protocols used for real- time communications, and the educational level of
`workers active in the field. Based on these factors, I have concluded that a
`PHOSITA would have an accredited bachelor’s degree in computer science,
`electrical engineering, or a related discipline that included coverage of
`wireless communications and the use of communication protocols used for
`real-time communications, and also at least two years of industry experience.
`In lieu of specific academic training, a PHOSITA may draw upon appropriate
`industry experience to meet the foregoing requirements. Given my extensive
`industry experience, I exceed the requirements needed to be a PHOSITA.
`32.
`I understand that “claim construction”
`is the process of
`determining a patent claim’s meaning. I also have been informed and
`understand that the proper construction of a claim term is the meaning that a
`PHOSITA would have given to that term.
`10
`
`Claim Construction
`
`B.
`
`
`
`ZIPIT EX. 2007, pg. 14
`
`

`

`C.
`
`Anticipation
`
`I understand that claims in inter partes review proceedings are to
`33.
`be given their broadest reasonable interpretation in light of the specification,
`which is what I have done when performing my analysis in this declaration.
`34.
`I understand that a patent claim is unpatentable as anticipated if a
`PHOSITA would have understood a single prior art reference to teach every
`limitation of the claim, as those limitations are combined within the claim.
`The disclosure in a reference does not have to be in the same words as the
`claim, but all of the requirements of the claim must be described, or
`necessarily implied by or inherent in the reference, in the same arrangement
`as the limitations appear in the claim. I understand that when performing the
`anticipation analysis, the claims may not be viewed as lists of separate
`elements without consideration of the relationships between the elements
`stated in the claims.
`35.
`I understand that a patent claim is unpatentable as obvious if the
`subject matter of the claim as a whole would have been obvious to a PHOSITA
`as of the time of the invention at issue. I understand that the following factors
`must be evaluated to determine whether the claimed subject matter is
`obvious: (1) the scope and content of the prior art; (2) the difference or
`11
`
`Non-Obviousness/Obviousness
`
`D.
`
`
`
`ZIPIT EX. 2007, pg. 15
`
`

`

`differences, if any, between the scope of the claim of the patent under
`consideration and the scope of the prior art; and (3) the level of ordinary skill
`in the art at the time the patent was filed.
`36.
`I understand that prior art references can be combined to reject a
`claim under 35 U.S.C. §103 when there was an apparent reason for one of
`ordinary skill in the art, at the time of the invention, to combine the
`references, which includes, but is not limited to: (A) identifying a teaching,
`suggestion, or motivation to combine prior art references; (B) combining
`prior art methods according to known methods to yield predictable results;
`(C) substituting one known element for another to obtain predictable results;
`(D)using a known technique to improve a similar device in the same way; (E)
`applying a known technique to a known device ready for improvement to
`yield predictable results; (F) trying a finite number of identified, predictable
`potential solutions, with a reasonable expectation of success; or (G)
`identifying that known work in one field of endeavor may prompt variations
`of it for use in either the same field or a different one based on design
`incentives or other market forces if the variations are predictable to one of
`ordinary skill in the art.
`37. Moreover, I have been informed and I understand that so-called
`indicia of non-obviousness
`objective
`(also known as
`“secondary
`12
`
`
`
`ZIPIT EX. 2007, pg. 16
`
`

`

`considerations” and or the real world factors) like the following are also to be
`considered when assessing obviousness: (1) widespread acclaim; (2)
`commercial success; (3) long-felt but unresolved needs; (4) copying of the
`invention by others in the field; (5) initial expressions of disbelief by experts
`in the field; (6) failure of others to solve the problem that the inventor solved;
`and (7) unexpected results, among others. I also understand that evidence of
`objective indicia of non-obviousness must be commensurate in scope with the
`claimed subject matter. I understand this is commonly referred to as a
`“nexus.” V. MATERIALS CONSIDERED
`38.
`I have reviewed Petitioner’s Petition, including all exhibits, the
`PTAB’s Decision to institute this IPR (Paper No. 6), and the Deposition of Dr.
`Brody (Exhibit 2006). I also reviewed the three patents cited in the
`background section of the ‘870 patent, U.S. Patent No. 6,539,421 issued to
`Appelman et al. (Exhibit 2001), U.S. Patent No. 6,665,173 issued to
`Brandenberg et al. (Exhibit 2002), and U.S. Patent No. 6,629,793 issued to
`Miller (Exhibit 2003). In addition, I reviewed Zipit Wireless, Inc.’s instant
`messaging device known as “Zippy,” its User’s Guide (Exhibit 2044) and its
`User Interface Specification (Exhibit 2046); and Patentee Zipit Wireless, Inc.’s
`instant messaging device known as “Z2,” its User’s Guide (Exhibit 2045) and
`13
`
`
`
`ZIPIT EX. 2007, pg. 17
`
`

`

`VI. PERSON OF ORDINARY SKILL IN THE ART
`
`its Software Specification (Exhibit 2047). I also reviewed Zipit’s website
`(http://www.zipitwireless.com/). I also reviewed several awards, newspaper
`stories, television stories, and articles regarding Patentee Zipit Wireless, Inc.’s
`“Zippy” and “Z2” devices (Exhibits 2009-2043 and 2048-2080), including
`those listed in the claim charts near the end of this Declaration.
`39.
`It is my understanding that a PHOSITA is presumed to think along
`conventional lines without undertaking to innovate, and that a PHOSITA is not
`a specific real individual, but rather a hypothetical individual having the
`qualities reflected by the factors discussed above.
`40.
`I believe that the level of ordinary skill in the art would be met by
`a person with a bachelor’s degree in computer science or electrical
`engineering with two years of industry experience. In addition, as of
`approximately the time of the invention, I was at least a person of ordinary
`skill in the art under this definition.
`41.
`I reject Dr. Brody's claim of his exceeding the requirements
`needed to be a PHOSITA in the areas of the claims of the '870 Patent. Dr.
`Brody's academic background is in the field of Physics and his professional
`background centers on marketing and consulting and exhibits no evidence of
`his experience nor ability to create devices such as are taught in the '870
`14
`
`
`
`ZIPIT EX. 2007, pg. 18
`
`

`

`Patent. His failure in proper use of various terminology further evidences his
`lack of essential background and expertise.
`
`42. A PHOSITA as of the priority date is presumed to know about U.S.
`Patent No. 6,629,793 to Miller, which is also cited in the background section of
`the ‘870 Patent. See Exhibit 1001, ‘870 Patent at Col. 2, Lines 60-67. For this
`reason, a PHOSITA would have known that there were two types of
`emoticons, “text emoticons” and “graphic emoticons.” See Exhibit 2003, Miller,
`U.S. Patent No. 6,629,793 (Col. 1, Lines 37-38: “An emoticon can be a text
`emoticon, such as the smiley face :) or it can be a graphic emoticon.”), (Col. 9,
`Lines 50-53: “An emoticon can also be a graphic such as the emoticon faces
`shown in section the pull-down menu 606 of FIG. 6 below. As an example,
`Table 7 below shows a commonly known list of text emoticons.”), (Col. 13,
`Lines 33-36: “displaying a text emoticon in the dominant display window in
`step 820, displaying a graphic emoticon in the dominant display window in
`step 822”), (13:54-57: “the application 114 uses the character map described
`in Table 9 and determines that a particular graphic emoticon, such as those
`shown in pull-down menu 606 of FIG. 6,”) (14:51-52: “a text emoticon or a
`graphic emoticon.”).
`
`43. Figures 3 and 6 of Miller also show what a PHOSITA understood
`to be “graphical emoticons” by 2003:
`15
`
`
`
`ZIPIT EX. 2007, pg. 19
`
`

`

`
`
`As shown by Miller, as of December 24, 2003 a PHOSITA knew the differences
`between text emoticons and “graphical emoticons.”
`44. Miller also clearly shows that as of December 24, 2003 (the
`
`priority date of the ‘870 Patent), a PHOSITA knew the difference between a
`“textual character” and a “graphical symbol:”
` As explained above, the popularity of
`
`instant messaging has spawned the
`creation of emoticons and
`abbreviations. The term ‘emoticon’
`stands for ‘emotion icon’ and refers to
`a symbol used to represent an
`emotion. As users engage in instant
`messaging they sometimes desire to
`include an emoticon to convey an
`emotion, a state of mind or other
`concept. One of the earliest emoticons
`16
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`ZIPIT EX. 2007, pg. 20
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`emoticon can also be a graphic such
`as the emoticon faces shown in
`section [sic] the pull-down menu 606
`
`was the smiling face represented by
`the characters :) comprising only
`text. Another early emoticon was the
`frowning face represented by the
`characters :( comprising only text.
`Emoticons, however, have grown to
`represent any symbol used to
`represent a graphic concept. An
`emoticon can be a set of text
`characters, such as the smiling and
`frowning faces shown above. An
`of FIG. 6 below.
` See Exhibit 2003, Miller, U.S. Patent No. 6,629,793 at Col. 9, Lines 37-53 and
`Figure 6 (emphasis added). Miller also states that:
`FIG. 3 shows a component 302 of keyboard 104, which
`corresponds to the standard 108-key keyboard of FIG. 2. FIG. 3
`also shows component 306 of keyboard 104, which includes keys
`representing emoticons, [i.e. “graphical symbols”]:
`17
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`ZIPIT EX. 2007, pg. 21
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` See Exhibit 2003, Miller, U.S. Patent No. 6,629,793 at Col. 4, Lines 7-12
`(emphasis added); and Figure 3.
`45. Miller also clearly teaches that the characters on “the standard
`108-key keyboard of FIG. 2,” such as a colon “:”, semicolon “;”, open
`parentheses “(“, closed parentheses “)”, ampersand “&”, and dollar sign “$”,
`etc. are NOT “graphical emoticons:”
`
`
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`18
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`ZIPIT EX. 2007, pg. 22
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`For these reasons, as of the priority date of the ‘870 Patent, a PHOSITA knew
`that: (1) a colon “:”, semicolon “;”, open parentheses “(”, closed parentheses
`“)”, ampersand “&”, and dollar sign “$”, etc. are “textual characters” that may
`be combined to form “textual emoticons”; and (2) that “textual emoticons” are
`distinct from “graphical emoticons.”1
`1 I note that further evidence of Dr. Brody’s lack of qualifications is revealed by
`his admission that he (and presumably the knowledge of Dr. Brody’s
`PHOSITA) is not familiar with the term “text emoticon.” See Exhibit 2006,
`Brody Deposition at 116 (“I don’t think – I couldn’t tell you what a text -- what
`a person having ordinary skill in the art would think a text emoticon is. I don’t
`19
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`ZIPIT EX. 2007, pg. 23
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`A.
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`“Textual Characters” and “Graphical Symbols”
`
`VII. CLAIM CONSTRUCTIONS
`46.
`I reject Dr. Brody's statement that “Graphical symbols may be
`single graphical or text elements used for pictorial meaning, or combinations
`of graphical or text elements (e.g., “$”, “=”, “:-)”, “;-D”).” A “graphical symbol” is
`distinct from a textual character. I also reject BlackBerry’s statement that the
`individual text characters “:”, “-”, and “)” are “graphical symbols” and I note
`that even Dr. Brody rejects BlackBerry’s statement. See, e.g., Petition at 28 n3;
`Exhibit 2006, Brody Deposition at 77-79 (“The colon by itself is a text
`character”; “would not be a graphical