Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,049,574
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`WhatsApp Inc.
`Petitioner
`
`v.
`
`TriPlay Communications Ltd.
`Patent Owner
`
`U.S. Patent No. 9,049,574
`Filing Date: September 11, 2014
`Issue Date: June 2, 2015
`
`Title: MESSAGING SYSTEM AND METHOD
`
`
`
`DECLARATION OF DAVID KLAUSNER
`
`Inter Partes Review No. 2016-__
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`
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`WhatsApp's Exhibit No. 1102
`Page 1
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`1
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`PATENT OWNER'S EXHIBIT 2109
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`

`
`Table of Contents
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`
`Page
`
`
`I.
`
`INTRODUCTION AND QUALIFICATIONS .............................................. 1
`A. Qualifications and Experience ............................................................. 1
`B. Materials Considered ............................................................................ 6
`PERSON OF ORDINARY SKILL IN THE ART ......................................... 9
`II.
`III. RELEVANT TECHNOLOGY BACKGROUND ....................................... 10
`IV. THE ’574 PATENT’S MESSAGING SYSTEM AND METHOD ............. 13
`A.
`The Specification of the ’574 Patent .................................................. 13
`B.
`The Claims of the ’574 Patent ............................................................ 15
`C.
`Claim Construction............................................................................. 15
`1.
`“Message” ................................................................................ 16
`2.
`“Layout” ................................................................................... 17
`3.
`“Notification of the Initial Message that Includes the
`Audio File” ............................................................................... 18
`“Media Object” ........................................................................ 21
`4.
`“Template” ............................................................................... 22
`5.
`“Access Block” and “Media Block” ........................................ 23
`6.
`V. APPLICATION OF THE PRIOR ART TO THE CLAIMS OF THE
`’574 PATENT ............................................................................................... 24
`A.
`Claims 1, 2, 4-6, 9-13, 15 and 18-20 Are Obvious Over
`Bellordre in View of Han, Coulombe, and Ruppert .......................... 25
`1.
`Brief Summaries of Bellordre [Ex. 1003], Han [Ex.
`1004], Coulombe [Ex. 1005] and Ruppert [Ex. 1006] ............ 25
`Claim 1 ..................................................................................... 30
`Claim 9 ..................................................................................... 62
`Claim 11 ................................................................................... 63
`Claim 2 ..................................................................................... 63
`Claim 4 ..................................................................................... 66
`Claim 5 ..................................................................................... 71
`-i-
`
`
`2.
`3.
`4.
`5.
`6.
`7.
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`Table of Contents
`(continued)
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`Page
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`
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`Claim 6 ..................................................................................... 71
`8.
`Claim 10 ................................................................................... 71
`9.
`10. Claim 12 ................................................................................... 74
`11. Claim 18 ................................................................................... 97
`12. Claim 20 ................................................................................... 98
`13. Claim 13 ................................................................................... 98
`14. Claim 15 ................................................................................. 101
`15. Claim 19 ................................................................................. 102
`Claims 3 and 14 are Obvious Over Bellordre in view of Han,
`Coulombe, Ruppert and Huynh ........................................................ 102
`1.
`Brief Summary of Huynh [Ex. 1107] .................................... 102
`2.
`Claim 3 ................................................................................... 103
`3.
`Claim 14 ................................................................................. 111
`VI. CONCLUSION ........................................................................................... 115
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`
`B.
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`-ii-
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
`I, David Klausner, declare as follows:
`
`I.
`
`INTRODUCTION AND QUALIFICATIONS
`A. Qualifications and Experience
`I am currently employed as an independent computer expert and
`1.
`
`consultant. I have a bachelor’s degree in Mathematics, a master of science degree
`
`in Electrical Engineering, and over 49 years of professional experience in the
`
`areas of computer networking, security and software. During that time, I have
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`worked as a consultant, as an expert, as an engineer, as a software developer, as a
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`manager, as a company executive, and as a forensic investigator.
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`2. Specific computer-related technologies that I have worked with
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`include networks, network devices such as routers and switches, internet, web
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`technologies (such as servers, clients, messaging, scripts, applets, and
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`applications), protocols, videoconferencing systems, operating systems, computer
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`hardware, source code, and programming languages.
`
`3.
`
`In addition, my working experience includes developing software for,
`
`among other things, network data communications, business applications, data
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`management, database design, client/server, compilers, parsers, programming
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`languages, user interfaces, quality assurance, real-time applications, artificial
`
`intelligence, utility programs, diagnostics, machine simulators, performance
`
`1
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`analyzers, EDI applications, general ledger, inventory control, software auditing,
`
`manufacturing processes, insurance, financial, and statistical process control. I
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`have designed and developed, as well as managed and assisted in the design and
`
`development of, computer hardware and software systems. Some of my clients
`
`have been computer software companies, including Symantec, Adobe, Nortel,
`
`Intel Corp., Hewlett-Packard, and IBM.
`
`4. My experience includes decades of software development, consulting
`
`and expert testimony experience in many aspects of the computer field, from
`
`microcomputers to mainframes, and in all areas of programming. I also have
`
`experience as an engineer, developer, supervisor, project manager, department
`
`manager, middle manager, and company executive, as well as experience in
`
`forensic investigation and reverse engineering.
`
`5.
`
`I possess many years of experience designing and implementing
`
`messaging systems between user devices. A sampling of my experience in
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`designing, implementing, deploying, and maintaining systems for exchanging
`
`messages between user devices is as follows:
`
`6. My early introduction to computer-based messaging occurred from
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`1967 to 1974, while working at the University Applications Processing Center in
`
`Brooklyn, NY. While there, I worked on the deployment and maintenance of
`
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`computer systems and software programs for electronic messaging between user
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`terminals and systems. Two such computer systems were “WYLBUR” and the
`
`IBM Time Sharing Option (“TSO”). WYLBUR and TSO were time-sharing
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`software systems that provided a number of features, including allowing a user at
`
`one terminal to send electronic messages to a user at another terminal (on the
`
`same computer system or on a different computer system). The user terminals in
`
`those software and computer systems (which were typewriter-like devices) were
`
`connected to the computer system mainframe(s) through telephone or other
`
`communication lines. The TSO product also provided a “SEND” command that
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`allowed a user to send a message to a recipient, which would be received
`
`immediately if the recipient was logged-in. I modified the WYLBUR source
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`code, and maintained the WYLBUR software system after deployment by
`
`applying software updates, including fixes and patches. I also maintained the
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`TSO software system after deployment by applying software updates, including
`
`fixes and patches.
`
`7. During the late 1970s and the 1980s, I directly worked on a variety of
`
`messaging systems. From 1974 to 1982, for example, while an employee at
`
`IBM, I worked as a member or manager on several teams that designed and
`
`developed COBOL and PL/I source code using the IBM VM/CMS product.
`
`3
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`VM/CMS was a virtual machine mainframe operating system that allowed
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`mainframe and PC users, among other things, to send and receive electronic notes
`
`and messages (functionally similar to modern day instant messaging and email).
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`I also installed and tested VM/CMS on IBM mainframes as part of managing the
`
`development of mainframe computer language compilers to ensure compatibility
`
`between VM/CMS and the compilers I was writing. I also designed and
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`developed source code scripts that I ran on the VM/CMS to perform instant
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`messaging.
`
`8. From 1983 to 1985, I worked on the design and development of a
`
`version of the computer software product called “PC-Talk,” which was
`
`introduced in or about 1982. PC-Talk was a computer program that allowed a PC
`
`to establish a connection (e.g., using a modem) with other PCs equipped with
`
`communications facilities. Once a connection was established between two PCs,
`
`electronic messages could be exchanged. My work on PC-Talk included refining
`
`and enhancing the capabilities of the program by modifying and rewriting
`
`portions of its source code. The refinements and enhancements for which I was
`
`responsible include reformatting of instant messages, scanning of content for
`
`data, and alteration of the display of messages to include time stamps and
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`columniation.
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`4
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
`
`9. Throughout the 1990s and continuing to this day, I have designed and
`
`built heterogeneous messaging networks for my own business, which I continue
`
`to maintain to this day. I also have consulted on a number of matters involving
`
`messaging systems between user devices. Through the course of consulting in
`
`these matters, I repeatedly studied in detail messaging systems between user
`
`devices, including e-mail systems, videoconferencing systems, and instant
`
`messaging systems. Moreover, the messaging systems I studied involved a
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`variety of user devices, including computers and mobile phones. These
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`consulting experiences have provided me with a deep understanding of networks
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`(e.g., public switched and private fixed line networks, cellular networks, Internet,
`
`cable networks), devices (e.g., computers, cellular phones, TV set-up boxes), and
`
`communications protocols (e.g., XMPP, HTTP, WAP, SMS, MMS, SMTP) used
`
`in modern messaging systems.
`
`10. The above outline of my experience with messaging systems between
`
`user devices is not comprehensive of all of my experience over my years of
`
`technical experience. Additional details of my background are set forth in my
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`curriculum vitae, attached as Exhibit A to this Declaration, which provides a
`
`more complete description of my educational background and work experience.
`
`5
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`11. I am being compensated for the time I have spent on this matter at the
`
`rate of $650 per hour. My compensation does not depend in any way on the
`
`outcome of this proceeding.
`
`B. Materials Considered
`12. The analysis that I provide in this Declaration is based on my
`
`education and experience in the field of computer systems, as well as the
`
`documents I have considered, including U.S. Patent No. 9,049,574 (“’574
`
`patent”) [Ex. 1001], which states on its face that it issued from an application
`
`filed on September 11, 2014. The filing date of the earliest application appearing
`
`on the face of the ’574 patent is August 22, 2005. I also reviewed the prosecution
`
`histories of the ’574 patent, its parent, U.S. Patent No. 8,874,677 (“’677” or “the
`
`‘677 patent”), and its grandparent, U.S. Patent No. 8,332,475 (“’475” or “the ’475
`
`patent”).
`
`13. I reviewed various documents dated prior to August 2005 describing
`
`the state of the art at the time of the alleged invention of the '574 patent. As I
`
`explain below, some of these documents I relied on as actually disclosing the
`
`limitations of the ’574 patent, while others I relied on primarily for background
`
`purposes. The prior art documents that I rely on in this Declaration as actually
`
`disclosing the limitations of the claims are:
`
`6
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
`
`Ex. No. 1
`1003 U.S. Patent App. Pub. No. 2006/0176902 to Bellordre et al.
`
`Description of Document
`
`1004 U.S. Patent No. 7,464,337 to Han et al.
`
`1005 U.S. Patent App. Pub. No. 2003/0236892 to Coulombe
`
`1006 U.S. Patent App. Pub. No. 2001/0054073 to Ruppert et al.
`
`1007 U.S. Patent App. Pub. No. 2005/0060381 to Huynh et al.
`
`14. This Declaration also cites the following documents for purposes such
`
`as describing the relevant technology, including the relevant state of the art at the
`
`time of the alleged invention of the ’574 patent:
`
`Exhibit
`No.
`
`Description of Document
`
`1008
`
`U.S. Patent No. 7,593,991 to Friedman et al. (“Friedman”)
`
`
`
` 1
`
` The exhibit numbers listed in the charts take the form of “10xx”, representing the
`
`exhibits for the Petition corresponding to claims 1-6, 9-11 of the ’574 patent. These
`
`same exhibits are used in the Petition corresponding to claims 12-15, 18-20 but the
`
`exhibit numbers are listed as “11xx”. Thus, you may see references to exhibits
`
`“10xx” and/or “11xx” throughout, but understand that, for example, Exhibit 1001
`
`is the same exhibit as 1101.
`
`7
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
`
`Exhibit
`No.
`
`Description of Document
`
`1009 Meech et al., A Multi-Agent System for Personal Messaging, NRC
`Publications Archive (NPArC), Poster presentation at the Fourth
`International Conference on Autonomous Agents (Agents’ 2000)
`(“Meech”)
`
`1010
`
`1011
`
`1012
`
`U.S. Patent No. 6,167,441 to Himmel (“Himmel”)
`
`Excerpts from Webster’s II New College Dictionary (3d ed. 2005)
`
`Excerpts from Webster’s New World Computer Dictionary (10th ed.
`2003)
`
`1013 May 18, 2102 Amendment for Application No. 12/064,489
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`Report and Recommendation, filed in Triplay, Inc. v. WhatsApp, Inc.,
`No. 13-1703-LPS-CJB (June 30, 2016 D. Del.)
`
`Excerpts from The American Heritage Dictionary of the English
`Language (4th ed. 2000)
`
`Excerpts from Random House Webster’s Unabridged Dictionary (2d
`ed. 2001)
`
`Excerpts from Collins English Dictionary (7th ed. 2005)
`
`Plaintiff’s Objections to Magistrate Judge Burke’s Report and
`Recommendation Regarding Claim Construction, filed in Triplay, Inc.
`v. WhatsApp, Inc., No. 13-1703-LPS-CJB (July 28, 2016 D. Del.)
`
`1019 WhatsApp Inc. v. TriPlay, Inc., IPR2015-00740, Final Written
`Decision, Paper No. 61 (P.T.A.B. Aug. 17, 2016)
`
`1020 WhatsApp Inc. v. TriPlay, Inc., IPR2015-00740, Declaration of
`Rajeev Surati, Ph.D. (P.T.A.B. Dec. 9, 2015)
`
`1021
`
`Excerpts from Bodic, Multimedia Messaging Service: An Engineering
`Approach to MMS (2003) (“Bodic”)
`
`8
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
`
`Exhibit
`No.
`
`1022
`
`1023
`
`1024
`
`1025
`
`Description of Document
`
`Screenshots from Computer Desktop Encyclopedia, The Computer
`Language Company Inc. (2005)
`
`Plaintiff TriPlay, Inc.’s Opening Claim Construction Brief as to
`Terms Bearing on Patentability Under 35 U.S.C. § 101, filed in
`Triplay, Inc. v. WhatsApp, Inc., No. 13-1703-LPS-CJB (Oct. 6, 2015
`D. Del.)
`Excerpts from Newton’s Telecom Dictionary (21st Ed. 2005)
`
`Excerpts from Random House Concise Dictionary of Science &
`Computers (2004)
`
`
`II.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`15. I understand that an assessment of claims of the ’574 patent should be
`
`undertaken from the perspective of a person of ordinary skill in the art as of the
`
`earliest claimed priority date, which I understand is August 22, 2005.
`
`16. In my opinion, a person of ordinary skill in the art as of August 2005
`
`would possess at least a bachelor’s degree in electrical engineering or computer
`
`science (or equivalent degree or experience) with at least two years of experience
`
`in the design and implementation of systems for sending and receiving messages
`
`over a communications network, such as the Internet. This experience would
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`include an understanding of (a) network communications protocols used to
`
`exchange messages over a network (such as the Hypertext Transport Protocol
`
`9
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`(HTTP), Simple Mail Transfer Protocol (SMTP) or Session Initiated Protocol
`
`(SIP)), and (b) formats that can be used to encode the messages exchanged over
`
`the network.
`
`17. Although my qualifications and experience exceed those of the
`
`hypothetical person having ordinary skill in the art defined above, my analysis
`
`and opinions regarding the ’574 patent have been based on the perspective of a
`
`person of ordinary skill in the art as of August 2005.
`
`III. RELEVANT TECHNOLOGY BACKGROUND
`18. The ’574 patent, which is entitled “Messaging System and Method,”
`
`discloses a system and method for sending a message from an originating
`
`communication device to a destination communication device. (’574, Abstract.)
`
`In this section, I provide a brief background of the state of the art pertinent to the
`
`’574 patent as of August 2005.
`
`19. Computer communications networks have existed for decades. The
`
`network known today as the Internet, for example, was originally referred to as
`
`ARPANET when it started in 1969. By the late 1990s, computer networks were
`
`used by millions worldwide to send and receive messages and browse web sites
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`over the World Wide Web (WWW). Until the 1990s, most users of computer
`
`10
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`networks accessed them using the familiar “desktop” computer, which typically
`
`included a full-size keyboard and a display monitor (e.g. 15 inches or larger).
`
`20. But this started to change in the 1990s. Technological improvements
`
`in the 1990s enabled a new breed of smaller and more portable computing
`
`devices to emerge. These devices, like traditional desktop computers, had the
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`ability to connect to and send messages over computer networks. But because of
`
`their size and other physical limitations, they lacked the full-size keyboard and
`
`display monitor that desktop users take for granted.
`
`21. This issue was recognized as early as 1997, as shown in U.S. Patent
`
`No. 6,167,441 to Maria Azua Himmel (“Himmel”) [Ex. 1010] and assigned to
`
`IBM. Himmel describes a technique for sending HTML documents (web pages)
`
`to a destination device that are customized and tailored to the capabilities of that
`
`device. As Himmel explained:
`
`their display capabilities, e.g.,
`in
`The client devices differ
`monochrome, color, different color palettes, resolution, size. They
`also vary in the input devices which may be attached, e.g., mouse and
`keyboard, touch sensor, remote control for a TV set-top box.
`Furthermore, the browsers themselves can vary in the languages
`supported, e.g., HTML, dynamic HTML, XML, Java, JavaScript.
`Because of these differences, the web browsing experience of
`
`11
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`browsing the same web page may differ wildly depending on the
`client device.
`
`(Himmel, 1:56-64.) Himmel attempts to address this problem by providing a
`
`system for delivering customized web pages based on the capabilities of the
`
`requesting client device. (Id., 1:5-9, 2:25-27.)
`
`22. The problem described by Himmel in 1997 was not limited to the web
`
`browsing context. The diversity of client devices also created challenges for
`
`messaging systems as well. For example, in 2000, John F. Meech et. al
`
`attempted to address this issue in the messaging context through “a seamless
`
`messaging system” having “the ability to accept a message in one format and
`
`deliver it in another,” “depend[ing] upon the capabilities of the sending or
`
`receiving device, the bandwidth available to transmit the message and the
`
`preferences of the receiver and sender.” (John F. Meech et al., A Multi-Agent
`
`System for Personal Messaging (“Meech”) [Ex. 1009], at 4.)
`
`23. As another example, U.S. Patent Application Publication No.
`
`2003/0236892 to Stephane Coulombe (“Coulombe”) [Ex. 1005], which I discuss
`
`in detail later in this Declaration, explains that:
`
`Users expect that messages will reach their destination and will be
`handled properly by the recipient’s terminal. But emerging mobile
`terminals have made this requirement more challenging, due to the
`
`12
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`wide diversity of terminal characteristics: display size and resolution,
`available memory, formats supported, etc.
`
`(Coulombe, ¶ 0002.) As I explain below, Coulombe discloses a system for
`
`adapting the format and layout of an incoming message to suit the capabilities of
`
`the destination device. (Id., ¶¶ 0085-0091.)
`
`24. The “Background of the Invention” section of the ’574 patent
`
`acknowledges that these issues were well-known in the prior art.
`
` It
`
`acknowledges that “[t]he versatility of contemporary electronic messaging
`
`services [has been] growing and giving rise to new message formats and new
`
`devices with messaging capabilities.” (’574, 1:10-12.) Existing message
`
`formats, for example, are not always compatible with newer devices. (See id.,
`
`1:16-22.) The ’574 patent also acknowledges that prior art is replete with
`
`messaging systems that address these issues – in fact, it contains more than four
`
`columns describing various prior art approaches. (See id., 1:20-5:20.)
`
`IV. THE ’574 PATENT’S MESSAGING SYSTEM AND METHOD
`A. The Specification of the ’574 Patent
`25. The ’574 patent, entitled “Messaging System and Method,” generally
`
`describes a messaging system and method that receives a message from an
`
`originating communication device and adapts the received message for delivery
`
`to a destination communication device that may not have the same capabilities as
`
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`the originating communication device. (See ’574, 8:53-60.) For example, the
`
`destination device “may have different communication and displaying
`
`capabilities.” (Id., 11:53-56.) A “generalized diagram” of the messaging system
`
`is shown in Figure 1 below. (Id., 9:1-4, Fig. 1.)
`
`
`26. In one embodiment, an originating communication device sends a
`
`message having an initial format and layout, and including a media item, to the
`
`messaging system. (’574, 5:24-32, 19:62-65, 20:30-32.) The messaging system,
`
`before transmitting to the destination device, adapts the format and/or layout of
`
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`the message based on at least one criterion selected from a group comprising: (i)
`
`the communication capabilities of the destination device; (ii) the display
`
`capabilities of the destination device; and (iii) the communication media. (Id.,
`
`5:22-47.) The messaging system also replaces the media item with a clickable
`
`icon so that the media item itself is not attached to the message sent to the
`
`recipient. (Id., Table 2 (see “General” template and “Layout for cell-phone”),
`
`5:22-47, Fig. 11, 10:55-58.) The media item and its metadata are instead stored in
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`the messaging system’s media storage device for future streaming. (Id., 14:1-22.)
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`Therefore, media items “with too large volume for successful downloading[] may
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`be transmitted to the destination device with the help of streaming protocols”
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`initiated when the clickable icon is activated by the recipient at the destination
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`device. (Id., 14:7-10; see also 17:6-12.)
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`The Claims of the ’574 Patent
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`B.
`27. This Declaration addresses claims 1-6, 9-11, 12-15, and 18-20.
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`C. Claim Construction
`28. I have been informed by counsel that invalidity involves a two-step
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`analysis. In the first step, the scope and meaning of a claim is determined by
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`construing the terms of that claim. In the second step, the claim as interpreted is
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`compared to the prior art. Therefore, before I address the application of the prior
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`art to the claims of the ’574 patent below, I provide proposed constructions for
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`certain terms in the claims addressed in this Declaration, from the perspective of
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`a person of ordinary skill in the art.
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`29. I have been informed by counsel that a claim in an unexpired patent
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`subject to inter partes review must be given its broadest reasonable construction
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`that is consistent with the specification of the patent in which it appears, which is
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`different from the manner in which the scope of a claim is determined in
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`litigation. I have applied this standard in my analysis below.
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`“Message”
`1.
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`30. In my opinion, the broadest reasonable interpretation of “message” is
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`“any kind of communication object capable of being exchanged between
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`communication devices.”
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`31. The specification explicitly defines “message”: “The term ‘message’
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`used in this patent specification should be expansively construed to include any
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`kind of communication objects capable to be [sic] exchanged between
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`communication devices.” (’574, 10:43-46.) Therefore, the broadest reasonable
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`construction of “message” is “any kind of communication object capable of being
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`exchanged between communication devices.”
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`“Layout”
`2.
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`32. In my opinion, the broadest reasonable interpretation of “layout” is
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`“visual arrangement.”
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`33. The plain and ordinary meaning of the term “layout” is “visual
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`arrangement”. For example, the 2005 Webster’s II New College Dictionary
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`defines “layout” as “[t]he act of planning or laying out;” “[t]he arrangement or
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`plan of something laid out;” “[t]he spread and juxtaposition of printed matter, as
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`of a newspaper, book, or magazine page.” (Webster’s II New College Dictionary
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`(3d ed. 2005), [Ex 1011], at 3.) Similarly, the 2003 Webster’s New World
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`Computer Dictionary defines it as “[i]n desktop publishing and word processing,
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`the process of arranging text and graphics on a page.” (Webster’s New World
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`Computer Dictionary (10th ed. 2003), [Ex. 1012], at 3.)
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`34. This plain and ordinary meaning is consistent with the patent
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`specification and prosecution history. As the applicants explained during
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`prosecution of the grandparent application: “‘Layout’ as explained in the present
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`application, includes visual components (such as basic frame graphics, sender’s
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`avatar vs. name, text, full vs. reduced images, appropriate control buttons, etc.).”
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`(5/18/12 Amendment, [Ex.1013], at 24.)
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`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`35. Additionally, Figure 11 of the ’574 patent “illustrates an exemplary
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`layout of a message displayed on cellphone screen in accordance with certain
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`embodiments of the present invention.”
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`(’574, 9:32-34, Fig. 11 (underlining
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`added).) Figure 11 (reproduced at right)
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`shows
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`a
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`visual
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`arrangement
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`of
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`components of a message for display.
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`The broadest reasonable construction of
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`“layout”
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`is
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`therefore
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`“visual
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`arrangement.”
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`3.
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`“Notification of the Initial Message that Includes the Audio
`File”
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`36. This phrase is recited in claims 1 and 12. In my opinion, the broadest
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`reasonable interpretation of “notification of the initial message that includes
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`the audio file” is a “message that gives notice of content (of the initial
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`message that includes the audio file) for downloading.”
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`37. The term “notification” generally refers to something that gives
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`notice. (See, e.g., American Heritage Dictionary (4th ed. 2000) [Ex. 1015], at 4
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`(“[s]omething, such as a letter, by which notice is given”); Random House
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`Webster’s Unabridged Dictionary (2d ed. 2001), [Ex. 1016], at 7 (“an act or
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
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`instance of notifying, making known, or giving notice;” “a written or printed
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`notice, announcement, or warning”); Collins English Dictionary (7th ed. 2005),
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`[Ex. 1017], at 3 (“something that notifies”).) The specification further explains
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`that in the context of the patent, the “notification” is a message communicated by
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`the messaging system to a device used by the recipient. (’574, 12:21-23 (“The
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`messaging system is configured to facilitate delivery of the message and/or
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`notification thereof to the destination device.”); 17:13-14 (“The converted
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`message and/or notification thereof are delivered 67 to the destination device . . .
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`.”); 19:47-48 (“The gateway sends 922 the message notification to Subscriber
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`B.”).) Therefore, one of ordinary skill in the art would have understood the
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`claimed “notification” to be a message that gives notice to its recipient. The term
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`“message,” in turn, is separately defined above.
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`38. The specification further explains that after the notification is
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`received, the recipient can download content. (’574, 18:7-8 (“Subscriber B
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`receives 722 a notification about the message and may download its content.”);
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`18:61-65 (“The traffic server passes 824 the message to the SMTP gateway 83
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`sending notification 825 to the Subscriber B. The Subscriber B will receive the
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`notification via local SMTP client embedded in the TV client and download the
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`message.”).) The recipient is therefore given notice of content for downloading.
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`Declaration of David Klausner in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,094,574
`
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`Here, because the notification is “of the initial message,” one of ordinary skill in
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`the art would have understood that the notification gives notice that content of the
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`initial message is available for download.
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`39. Finally, the patent makes clear that it is the initial message, rather than
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`the notification, that must “include[]