UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`SHOPIFY, INC.,
`Petitioner,
`
`v.
`
`DDR HOLDINGS, LLC,
`Patent Owner.
`____________
`
`Case No.: Unassigned
`INTER PARTES REVIEW OF U.S. PATENT NO. 9,639,876
`________________
`
`DECLARATION OF MICHAEL SHAMOS IN SUPPORT OF PETITIONS
`FOR INTER PARTES REVIEW OF U.S. PATENT NO. 9,639,876
`
`
`
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`SHOPIFY, INC.,
`Petitioner,
`
`v.
`
`DDR HOLDINGS, LLC,
`Patent Owner.
`____________
`
`Case No.: Unassigned
`INTER PARTES REVIEW OF U.S. PATENT NO. 9,639,876
`________________
`
`DECLARATION OF MICHAEL SHAMOS IN SUPPORT OF PETITIONS
`FOR INTER PARTES REVIEW OF U.S. PATENT NO. 9,639,876
`
`
`
`1.
`
`My name is Michael I. Shamos. I am over the age of twenty-one (21)
`
`years, of sound mind and capable of making the statements set forth in this
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`declaration. I am competent to testify to matters set forth herein. All the facts and
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`statements contained herein are within my personal knowledge and they are, to the
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`best of my knowledge, true and correct.
`
`2.
`
`I have been retained on behalf of Shopify, Inc. (“Petitioner”) to offer
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`opinions relating to the invalidity of U.S. Patent No. 9,639,876 (the “’876 Patent”),
`
`U.S. Patent No. 9,043,228 (the “’228 Patent), U.S. Patent No. 8,515,825 (the “’825
`
`Patent”) (collectively, the “DDR Patents”), which are assigned to DDR Holdings,
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`LLC (“Patent Owner”), as well as opinions concerning references presented by
`
`Petitioner in this inter partes review (“IPR”).
`
`3.
`
`I am being compensated at the rate of $600 per hour for my work
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`performed in connection with this matter. My compensation does not depend on
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`the contents of this declaration, any testimony I may provide, or the ultimate
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`outcome of this IPR proceeding or any other related proceeding involving the
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`parties. I do not have a financial interest in any of the parties.
`
`I.
`
`Education and Experience
`
`4.
`
`I hold the title of Distinguished Career Professor in the School of
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`Computer Science at Carnegie Mellon University in Pittsburgh, Pennsylvania. I
`
`am a member of two departments in that School, the Institute for Software
`
`1
`
`
`
`Research and the Language Technologies Institute. I was a founder and Co-
`
`Director of the Institute for eCommerce at Carnegie Mellon from 1998-2004 and
`
`since 2004 I have been Director of the eBusiness Technology graduate program in
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`the Carnegie Mellon University of Computer Science.
`
`5.
`
`I received an A.B. (1968) from Princeton University in Physics; an
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`M.A. (1970) from Vassar College in Physics; an M.S. (1972) from American
`
`University in Technology of Management, a field that covers quantitative tools
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`used in managing organizations, such as statistics, operations research and cost-
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`benefit analysis; an M.S. (1973), an M.Phil. (1974) and a Ph.D. (1978) from Yale
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`University in Computer Science; and a J.D. (1981) from Duquesne University.
`
`6.
`
`I have taught graduate courses at Carnegie Mellon in Electronic
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`Commerce, including eCommerce Technology, Electronic Payment Systems,
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`Electronic Voting and eCommerce Law and Regulation, as well as Analysis of
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`Algorithms. Since 2007, I have taught an annual course in Law of Computer
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`Technology. I currently also teach Internet of Things and Electronic Payment
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`Systems.
`
`7.
`
`Since 2001, I have been a Visiting Professor at the University of Hong
`
`Kong, where I teach an annual course entitled Electronic Payment Systems.
`
`2
`
`
`
`8.
`
`From 1979-1987, I was the founder and president of two computer
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`software development companies in Pittsburgh, Pennsylvania: Unilogic, Ltd. and
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`Lexeme Corporation.
`
`9.
`
`I am an attorney admitted to practice in Pennsylvania and have been
`
`admitted to the Bar of the U.S. Patent and Trademark Office since 1981. I have not
`
`been asked to offer any opinions on patent law in this review.
`
`10.
`
`I have previously testified in numerous cases concerning computer
`
`technology. My C.V. in Appendix 1 contains a list of cases in which I have
`
`testified in the last ten years. I have been involved in multiple cases involving
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`Internet technology and electronic messaging.
`
`II. Technology Background
`
`11. While the overview touches on a number of technology issues, it is
`
`out of necessity that provide only a brief overview in this declaration. I am
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`prepared to explain these technological principles as they relate to the ’876 Patent
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`in further detail should I be asked to do so.
`
`12.
`
`In the section that follows, I discuss some of the general principles
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`that are pertinent to the invalidity of the DDR Patents and of the related art.
`
`A. Historical Evolution of Web-Based Commerce Systems
`
`13.
`
`The modern, public Internet dates to 1993, when the Government began
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`permitting its commercial use. As the number of Internet users increased, businesses
`
`3
`
`
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`saw an opportunity to serve them, and by 1994 many new ecommerce companies
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`were launched, such as CDnow.com.
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`14. Amazon.com took its first order in 1995, by which time the ecommerce
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`revolution was well under way. Significantly, 1994/1995 saw the beginning of a
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`significant ecommerce-service market, in which companies began providing
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`software products and services to merchants in order to assist them in doing business
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`online, such as “shopping cart” software, transaction-processing software, and
`
`ecommerce Web hosting.
`
`15.
`
`For instance, Viaweb was founded in 1995, providing ecommerce
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`software and hosting, enabling small merchants to set up ecommerce sites with little
`
`or no technical knowledge. The founder of Viaweb had been inspired by another
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`company, marketplaceMCI (owned by the telecommunications company, MCI)
`
`which had started operations the year before serving mostly large companies. Both
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`firms were ecommerce outsourcing companies; that is, a merchant would contract
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`with these companies to operate the ecommerce systems required to run an online
`
`store on the merchant’s behalf. Many merchants would maintain their own websites
`
`elsewhere, but let the outsource provider manage the more complicated ecommerce
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`component for them.
`
`4
`
`
`
`B.
`
`Ecommerce and Affiliate Marketing Systems
`
`16. Very soon after ecommerce took off on the Internet, entrepreneurs and
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`merchants realized that applying a very old offline concept to online commerce
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`would be helpful: that is, paying sales commissions to third parties who generated
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`sales for a merchant. The concept of a sales commission is a familiar one, and thus
`
`it was a natural extension to pay commissions for online sales. Commonly known
`
`as affiliate marketing (though the world’s largest system, owned by Amazon.com,
`
`actually uses the term associate rather than affiliate), the concept is simple. If
`
`website owner A sends a visitor from his website to the ecommerce site owned by
`
`website owner B, and if that visitor makes a purchase from B’s website, then B
`
`pays A a commission on the sale. A merchant could multiply sales many times by
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`having affiliates market his products.
`
`17. Affiliate marketing on the Internet dates to at least 1994, when
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`CDnow launched its first such program. However, some observers argue that
`
`online affiliate marketing really dates to 1989, when PC Flowers & Gifts launched
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`a store on the Prodigy online network, and paid Prodigy a commission on all sales.
`
`In January of 1996, the founder of PC Flowers & Gifts filed for an affiliate-related
`
`5
`
`
`
`patent, U.S. Patent No. 6,141,666 (“’666 Patent”)1, and in July of that year
`
`Amazon.com launched its affiliate program, which would eventually recruit over a
`
`million affiliates.
`
`C.
`
`Site Cobranding and Design Matching
`
`18. One issue that arose soon after online activities began was that of
`
`brand identification. Web pages have a definitive look and feel, as do physical
`
`stores, and the customer must be given a consistent online experience. If an
`
`affiliate sells the products of many different merchants, it is critical for the
`
`customer to believe that he is shopping at the affiliate, not at the individual stores
`
`of multiple merchants. Otherwise, the affiliate’s identity would be lost. It was
`
`therefore common for an affiliate to display product web pages using the affiliate’s
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`consistent look and feel, even if the product information was being provided from
`
`web servers belonging to different merchants.
`
`19.
`
`Thus, very early on, as companies began splitting functions between
`
`Web servers, they would serve pages having the same design from the various
`
`1 The ’666 Patent was applied in a rejection against claims of the ’399 Patent, to
`
`which the ’876 Patent claims priority, and Patent Owner traversed the rejections
`
`asserting, in various ways, that the ’666 Patent did not disclose an outsource
`
`provider.
`
`6
`
`
`
`servers, and when ecommerce service providers began providing hosted
`
`ecommerce services to companies that already had websites, it was clear that
`
`customization was necessary so that visitor to the site would encounter a consistent
`
`look and feel. In addition, the concept of design matching was apparent to
`
`companies involved in affiliate marketing very early on; Company A could sell its
`
`products through an online store that appeared to be on Company B’s website, and
`
`pay Company B a sales commission. Company A could easily operate hundreds, if
`
`not thousands, of customized stores for hundreds or thousands of different
`
`websites, and each store could match the appearance of the associated website.
`
`20.
`
`The inventors of the DDR Patents were not the first to come up with
`
`the idea of design matching or providing a consistent online interface or, as the
`
`patents-in-suit describe it, maintaining “look and feel.” For example, as explained
`
`below, certain claims of the ’572 Patent, of which the ’876 Patent is a continuation,
`
`were found by the Federal Circuit to be anticipated over Digital River’s Secure
`
`Sales System (DR SSS). Digital River was in the business of managing software
`
`sales and software downloads for software publishers, wholesalers, and retailers
`
`and its DR SSS was publicly operating at least as early as April 1997. The DR
`
`SSS is an outsource ecommerce system that provides all ecommerce functions for
`
`the sale of software. Links from a software publisher’s website would point to
`
`pages on the DR SSS server. Clicking one of these links would load a page from
`
`7
`
`
`
`the DR SSS server into the visitor’s Web browser, but, as the pages are customized
`
`to match the referring site, visitors would be unaware that the new pages were, in
`
`fact, coming from a separate ecommerce server. Digital River advertised, and a
`
`person of ordinary skill in the art would have understood, that the DR SSS enabled
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`“the entire transaction [to] take[] place in the selling environment you’ve created,
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`surrounded by the look and feel of your identity, with your products presented the
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`way you want them presented . . . customers simply hit the purchase icon at your
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`site and the whole process unfolds smoothly. There’s no sensation of being
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`suddenly hustled off to another location.” December 1997 Website.
`
`21.
`
`In fact, the inventors of the DDR Patents appear to have derived their
`
`idea, at least in part, from a company called e-Merchant Group, Inc. For example,
`
`I have reviewed a document titled “MicroShopsTM Business Plan”, which
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`references two of the inventors named in the DDR Patents (e.g., Delano Ross, Jr.
`
`and Joseph Michaels) on the first page. I understand that MicroShops was a
`
`predecessor system to the Nexchange system disclosed in the ’876 Patent. The
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`MicroShops Business Plan identifies e-Merchant Group as a competitor and
`
`describes e-Merchant Group’s system as follows, as:
`
`e-Merchant Group’s technology creates a mall-like template
`that allows various merchants and manufacturers to sell their
`products within a consistent online interface. Websites that
`wish to create a private label store can select from e-Merchant
`Group’s list of merchant clients and build a customized, co-
`branded store by e-Merchant Group. e-Merchant Group can
`
`8
`
`
`
`handle all order and payment processing, including credit card
`transactions, and can even take responsibility for warehousing
`and order fulfillment through e-Merchant Group partners.
`
`In many ways, e-Merchant Group offers a very similar service
`to that offered by MicroShopsTM. The company’s private label
`stores concept bears great similarity to MicroShopsTM and the
`value propositions they present to merchants and
`manufacturers closely resemble those offered by MicroShopsTM.
`However, e-Merchant Group has built an extremely limited
`number of private label stores and has chosen to focus only on
`merchants with two industries: toys and outdoor gear.2
`D. Outsourced Web Hosting and Ecommerce Hosting
`
`22. At the time of the alleged invention, hosting merchant sites on an
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`outsourced Web server was not novel; it was quite simply the norm. That is, the
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`vast majority of companies had their websites, and the ecommerce functions of
`
`their websites, hosted by third-party, outsource companies known as Web-hosting
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`companies and ecommerce hosting companies. This was necessary because most
`
`companies simply did not maintain their own server farms.
`
`23.
`
`The use of outsourcing companies was not simply well known to one
`
`skilled in the art by early 1997—the first Web-hosting companies date to at least
`
`1994—but was the most common way of setting up a website. Relatively few
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`companies set up and managed their own Web servers, for either basic
`
`informational sites or for more complicated, transactional, ecommerce sites,
`
`2 Appendix 2 - MicroShopsTM Business Plan, at 46-47.
`
`9
`
`
`
`because of the resulting expense and complexity. It was—and remains to this
`
`day—simpler and cheaper to outsource these functions. In fact, it was well known
`
`in 1997 that setting up an ecommerce site was “a huge pain in the butt” (see Digital
`
`River Brochure, at page 2), and thus should be left to the experts.
`
`24.
`
`Ecommerce hosting began at least as early as July, 1995, as can be
`
`seen from the original business plan for Viaweb,3 and was well known and widely
`
`available by early in 1997. For instance, one ecommerce-software developer, iCat,
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`announced in April 1997 that it was working with 250 partner “Web development
`
`and Internet hosting companies”; that is, companies using its software to outsource
`
`ecommerce functions for businesses wishing to sell products online.4
`
`25.
`
`In 1996 and early in 1997, Peter Kent wrote a book called Poor
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`Richard’s Web Site: Geek-Free Commonsense Advice on Building a Low-Cost
`
`Web Site. This book explained to companies wishing to do business online just
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`how to do that, based on Peter Kent’s experiences since late 1993.
`
`26.
`
`In 1997 Que Computer Books published the book “Where to Put Your
`
`Web Site.” This book warned readers that they should not set up their own Web
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`server but rather should use the services of an outsource company—a Web-hosting
`
`company. (“If you don’t know what it takes to set up a Web server, don’t try it! ...
`
`3 http://paulgraham.com/vwplan.html
`4
`https://www.thefreelibrary.com/iCat+Electronic+Commerce+Suite+3.0+ships-
`a019351856
`
`10
`
`
`
`It’s obvious by now which method I think is the most suitable in most cases: you
`
`should set up a site with your own domain name at a Web-hosting company.”)
`
`27. Another chapter, titled “Taking Orders Online,” advises readers to set
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`up “shopping cart” software, and states: “Your Web-hosting company may already
`
`have such a system available for use. They may be using one of the free CGI
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`scripts, or perhaps have an arrangement with a company, such as WebMate, that is
`
`licensing shopping-cart software to Web-hosting companies and ISPs.” It also
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`explains that businesses could find their own ecommerce software and install it on
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`their Web server, which the book recommended should be an outsourced Web
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`server.
`
`28.
`
`The book also listed a number of shopping-cart systems readers could
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`use. One, for instance, was a system named ShopSite Manager. The publisher of
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`this software, iCentral, provided hosting services for companies wanting to
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`outsource the creation and management of their shopping-cart systems (“We offer
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`hosting for ShopSite software merchants. Everything you need for your site,
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`including web site development and technical support.”5) The company claimed
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`that by September 26th, 1996, it was already hosting ecommerce sites for “over 200
`
`merchants.”6
`
`5 https://web.archive.org/web/19961106085510/http://icentral.com:80/
`6 https://web.archive.org/web/19961106085726fw_/http://icentral.com:80/press/
`
`11
`
`
`
`29.
`
`It was common by 1997 for companies setting up online stores to
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`work with two outsourcing companies; one to host their primary, informational
`
`website and one to host the ecommerce portion of the site. For instance, in
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`November, 1996 Amnesty International opened its online store hosted by ViaWeb
`
`(at http://www.ishops.com/aipubs/).7 However, Amnesty International hosted its
`
`primary, informational website, elsewhere, on the Amnesty.org domain name.8
`
`30.
`
`It was natural for companies to split their sites between informational
`
`and shopping-cart sites, due to the complexity of setting up and managing
`
`shopping-cart sites. However, many companies wanted all their Web pages,
`
`whether on a simple Web-hosting outsource server or on the shopping-cart
`
`outsource server, to appear to be hosted on a single site.
`
`31.
`
`For example, Aardvark Cycles had a website identified using the
`
`domain name AardvarkCycles.com9; however, it also set up a store hosted by
`
`iCentral on the ShopSite.com domain in 199610. The company had the same logo
`
`on both sites11; the underlying code of these archived pages shows that both sites
`
`contained an image, below and to the right of the logo, named ad.fiber.jpg; both
`
`7 https://web.archive.org/web/19970103071227/http://www.ishops.com:80/aipubs/
`8 https://web.archive.org/web/19961223044657/http://www.amnesty.org:80/
`9 https://web.archive.org/web/19970109212349/http://aardvarkcycles.com:80/
`10 https://web.archive.org/web/19970110135511/http://www.shopsite.com:80/
`aardvark/index.html
`11 The WayBackMachine often does not save all components of a Web page; however, the page
`on shopsite.com contains code inserting aardvarklogo.gif into the page, the same file used on
`AardvarkCycle.com.
`
`12
`
`
`
`had a smaller logo in the top-left corner of the page, little.bluelogo.125.gif; both
`
`had the same navigation links on the left side of the page (on the ShopSite.com
`
`server pointing back to the AardvarkCycles.com server); both had the same footer
`
`text and links at the bottom of the page; both used the same background image
`
`(blueback.gif); and so on.
`
`E. Common Features of Ecommerce Websites
`
`32.
`
`The DDR Patents use a variety of Web-design terms that merit
`
`explanation.
`
`1.
`
`HTML
`
`33.
`
`The DDR Patents describe the use of HTML to create Web pages.
`
`HTML (HyperText Markup Language) is a human readable coding language with
`
`which a Web designer can create Web pages. When a Web browser loads a Web
`
`page, it loads the HTML “instructions” that tell the browser how to display
`
`(“render”) the Web page and include such information as the background color of
`
`the page, the text that will appear in the page, the color of the text and the typeface
`
`used, where images should be placed, a background image or a background color
`
`for the Web page, and so on. It is a set of instructions to the browser that describes
`
`the “page layout.”
`
`34. By the time of the alleged invention of the DDR Patents, the use of
`
`HTML was well understood by Web designers; indeed, it was not possible to
`
`13
`
`
`
`create Web pages without an understanding of HTML. Furthermore, the idea of re-
`
`using HTML code from one page on other pages within the same website—or even
`
`on different websites—was not a novel concept or difficult task; rather, it was
`
`something that any Web designer could and routinely did implement.
`
`2.
`
`Headers & Footers
`
`35.
`
`It was common in Web development at the time of the alleged
`
`invention of the DDR Patents, and remains so today, for a Web page to have a
`
`“header” and a “footer.” (In fact, it is more common for Web pages to contain
`
`these features than not to contain them.)
`
`36.
`
`The term “header” refers to the top portion of a Web page, which
`
`typically contains the name of the website or the company that owned the website;
`
`a company logo (usually either centered in the middle of the header or on the left
`
`of the header); and other components such as a phone number and contact email
`
`address. The header also frequently contains several links to other pages within
`
`the site; this collection of links is known in the Web-design business as a “navbar”
`
`(navigation bar).
`
`37.
`
`The term “footer” refers to the bottom portion of a Web page, which
`
`frequently contains elements such as a copyright notice, more links to Web pages
`
`within the site, perhaps links to other websites owned by the site owner or partner
`
`sites, contact information, and so on.
`
`14
`
`
`
`38. Headers and footers were typically “site-wide.” That is, a Web
`
`designer would create one header layout and one footer layout, and then use the
`
`same layout on all pages within the site; regardless of which page in the site a
`
`visitor was viewing, he or she would see the same information at the top and
`
`bottom of each page, and would be provided with the same “navigation” options,
`
`thus creating a consistent look and feel.
`
`39. Any Web designer would have known how to create a header and a
`
`footer that could be used on all the pages of the website, or even on different
`
`websites.
`
`40.
`
`41.
`
`3.
`
`Navigation Links
`
`In several claims, the DDR Patents refer to “navigation links.”
`
`The World Wide Web (WWW) is based on the use of “hyperlinks”
`
`(also known as “links”) to assist users in loading pages; the WWW is a “web” of
`
`pages linked together. In fact, it is the hyperlinks that create the “web” by
`
`allowing a user to move from one page to another by clicking links. A link is a
`
`mechanism by which a Web designer can associate one page with another, and by
`
`which a user may view the referenced page. Links are most commonly “activated”
`
`through the use of a computer mouse; the user points at a link in a Web page and
`
`clicks the mouse button to because the browser to request and load the referenced
`
`page.
`
`15
`
`
`
`42.
`
`Links can be with associated various different objects within a Web
`
`page (that is, different objects may be “hyperlinked”). A link may be associated
`
`with an image displayed within the page, or on a piece of text—one or more
`
`words—within the page. (These are the two most commonly “linked” elements in
`
`a Web page, though links may be added to other objects, such as videos.) So, for
`
`example, the Web designer creating Page X could put a link on an image in that
`
`page referencing Page Y; a user viewing Page X may point at the image and click
`
`the mouse button to load Page Y.
`
`4.
`
`Left-Hand Navigation
`
`43.
`
`It was very common at the time of the alleged invention of the DDR
`
`Patents to have a “left-hand navbar”; that is, a collection of links in a box on the
`
`left side of Web pages, effectively serving as a table of contents. This collection of
`
`links was typically placed onto all the various Web pages within a website. The
`
`links in the navbar would typically be used by site visitors to load different areas of
`
`a website and commonly needed Web pages, such as a Contact Us page, an About
`
`Us page, and so on. A left-hand navbar would likely be considered a primary
`
`element to carry over if one were to design a Web page to maintain the appearance
`
`of another website.
`
`5.
`
`Company Logos
`
`16
`
`
`
`44.
`
`It was common in Web development at the time of the alleged
`
`invention of the DDR Patents, and remains so today, for Web pages owned by
`
`companies to include the company logo image at the top of the Web page, in the
`
`page header. This logo would typically be in the middle of the header, or on the
`
`left side of the header.
`
`45.
`
`The company logo itself was frequently “hyperlinked”; that is, using
`
`the HTML code that formats the page, a hyperlink was associated with the logo
`
`image, so that when a visitor to the website pointed at the logo with his or her
`
`mouse pointer and then clicked the mouse button, the Home page (the main page)
`
`of the website would be loaded into the browser.
`
`6. Web Page Data Storage
`
`46. A Web page is created through the use of computer files; typically an
`
`HTML file (which is a form of text file containing the HTML instructions),
`
`perhaps Cascading Style Sheet files (text files containing more sophisticated page-
`
`layout instructions) and JavaScript files (text files containing programming
`
`instructions for interactive Web pages), graphic-image files for the pictures within
`
`the Web page, and so on. (At the time of the alleged invention of the DDR Patents
`
`Cascading Style Sheet files and JavaScript files were available but not frequently
`
`used.)
`
`17
`
`
`
`47.
`
`The DDR Patents refer to the storage of these files. When a user
`
`requests a Web page (by entering the page address—the URL—into a Web
`
`browser or by clicking on a link referencing the page), a message is sent to the
`
`Web server that hosts the Web page. The Web server retrieves the HTML file
`
`from its storage and sends this page to the user’s browser.
`
`48.
`
`The user’s browser then reads the file. If the file references other
`
`files, then the browser requests them from the server, also. For example, perhaps
`
`the finished Web page (the “rendered” page, as it is known in the industry) will
`
`contain a composite of text and several images. The individual components do not
`
`need to come from the same Web server. The HTML will contain references to
`
`those images, instructions telling the browser where the images are stored and
`
`where they should be placed on the Web page. The browser will request those
`
`images from the Web server, and on receipt will insert the images into the Web
`
`page that is displayed in the user’s browser window.
`
`49. While all these files—the original HTML file and the associated
`
`image files—are often stored on hard-drive data storage inside the Web-server
`
`computer, or on hard-drive data storage connected to the Web-server computer,
`
`this is not always the case. One or more of those images, for instance, could be
`
`stored on a completely separate computer, perhaps in a completely different area of
`
`the world. (This is typically the case with advertising in Web pages; the images
`
`18
`
`
`
`are loaded from a Web server owned by the advertising company; not the server,
`
`owned by the Web-site owner, that delivered the HTML file to the server.)
`
`7. Web-Based Ecommerce and Shopping Cart Technology
`
`50. By the time of the alleged invention of the DDR Patents, Web-based
`
`ecommerce and shopping-cart technology had been in use for several years.
`
`Online commerce, on networks other than the World Wide Web, dates to as early
`
`as 1979, and on the Internet to as early as 1994 (both Books.com and CDNow.com
`
`launched in that year).12
`
`51. By 1997, there were thousands of commercial websites selling both
`
`digital and tangible products, and many different ecommerce software programs
`
`were available that merchants could use to sell their products (see, for instance, a
`
`discussion of ViaWeb and iCat earlier in this report). Over time, various common
`
`features and conventions developed and were well known to persons of ordinary
`
`skill in the art.
`
`52.
`
`Ecommerce software must allow a buyer to indicate which products
`
`he or she wishes to buy. Some of the early ecommerce systems employed to sell
`
`products on the Web were crude, allowing a shopper to buy a only single product
`
`at a time; the buyer would find a product he or she wanted, click on a
`
`12 https://en.wikipedia.org/wiki/Timeline_of_e-commerce#Timeline,
`https://en.wikipedia.org/wiki/CDNow
`
`19
`
`
`
`representation of the product, and then enter purchasing information in the Web
`
`page that would subsequently appear. The buyer might print a form that would be
`
`mailed to the seller along with a check with payment, for instance. In some
`
`systems, a page listing all the store’s products would be displayed; the buyer would
`
`choose which of the products he or she wanted, and how many of each, and would
`
`then complete the purchase process by entering payment and shipping information.
`
`53.
`
`Such one-product-at-a-time and all-products-on-one-page mechanisms
`
`have obvious limitations, and were quickly superseded by more flexible software,
`
`including systems that allowed users to browse through catalogs, view each
`
`product’s details on a separate page, and select multiple products for purchase by
`
`placing them in a virtual “shopping cart.” The shopping-cart metaphor was
`
`developed to describe the process of storing products for purchase, while
`
`continuing to view other products sold by the store. In other words, a buyer would
`
`encounter a product he or she wanted to buy, and would indicate to the ecommerce
`
`software that he or she wished to buy the product; the desired-purchase
`
`information would be stored by the ecommerce system, while the shopper
`
`continued viewing the store’s other products, perhaps indicating the desired
`
`purchase of one or more additional products. The products for which the shopper
`
`indicated a desire to buy are said to be in the store’s “shopping cart.” It was also
`
`20
`
`
`
`common to allow a customer to remove products from the cart or to change the
`
`desired quantity of an item already in the cart.
`
`54.
`
`Thus, the typical online-shopping process was commonly as follows:
`
`(i) a shopper loads a Web page from the store, and begins “browsing” through the
`
`store, viewing pages that provide information about products for sale; (ii) on
`
`finding a product he or she wishes to buy, the shopper indicates a desire to buy,
`
`often by clicking an Add to Cart button or Add to Shopping Cart button, or
`
`equivalent; (iii) the ecommerce software saves information indicating that the
`
`shopper wishes to buy that product—the product is said to be “in the shopping
`
`cart”; (iv) the shopper continues viewing information about the other products for
`
`sale; (v) the shopper may again indicate the desire to purchase one or more
`
`products, in which case the ecommerce system adds the products to the list of
`
`products the shopper wishes to buy; (vi) the shopper may wish to view the
`
`products in his or her shopping cart, and is able to do so by clicking a View
`
`Shopping Cart button or equivalent; (vii) the Shopping Cart page contains a
`
`Continue Shopping button or equivalent; clicking this button takes the shopper out
`
`of the Shopping Cart page and back to a product page; (viii) when the shopper
`
`wants to finish his or her shopping and complete the process, the shopper clicks a
`
`Checkout button or equivalent, whereupon the shopper is able to finalize the
`
`purchase using a designated payment method.
`
`21
`
`
`
`55.
`
`Thus, by the time of the alleged invention of the DDR Patents, a
`
`person of ordinary skill in the art would have been aware of this overall sales
`
`process, including the concepts of a “shopping cart” and the ability to add a
`
`product to the shopping cart and the ability to utilize a checkout link to finalize the
`
`sales transaction.
`
`III. Level of Ordinary Skill in the Art
`
`56.
`
`In determining the characteristics of a hypothetical person of ordinary
`
`skill in the art of the ’876 Patent, I considered several factors, including the various
`
`approaches to outsourced ecommerce services employed in the prior art, the types
`
`of problems encountered, and the rapidity with which inventions were made. I also
`
`considered the sophistication of the technology involved, and the educational
`
`background and experience of those actively working in the field.
`
`57.
`
`The ’876 Patent defines its field of invention as follows:
`
`The invention relates to a system and method supporting
`commerce syndication. More specifically, the invention relates
`to a system and method for computer-based information
`providers to receive outsourced electronic commerce facilities
`in a context-sensitive, transparent manner.
`’876 Patent, 1:27-31.
`
`58. Based on the disclosure of the DDR Patents, a person of ordinary skill
`
`in the art (POSITA), in order to understand the DDR Patents and to be able to make
`
`and use the claimed inventions without undue experimentation, would need to be
`
`22
`
`
`
`familiar with the development of Web applications, including Web user-interface
`
`design, electronic catalogs and online paymen
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