Case 3:17-cv-02402-CAB-MDD Document 161-3 Filed 07/26/18 PageID.2796 Page 1 of 89
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`EXHIBIT 2
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`1
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`APPLE 1023
`Apple v. Qualcomm
`IPR2018-01282
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`Plaintiff,
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`
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`vs.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
` CASE NO. 3:17-cv-2402-CAB-MDD
`QUALCOMM INCORPORATED,
`
`
`DECLARATION OF JOHN
`VILLASENOR, PH.D. REGARDING
`CLAIM CONSTRUCTION
`
`
`Judge: Cathy Ann Bencivengo
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`APPLE INCORPORATED,
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`Defendant.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ............................................................................................. 1 
`I. 
`BACKGROUND AND QUALIFICATIONS ................................................... 1 
`II. 
`III.  APPLICABLE LEGAL STANDARDS ........................................................... 4 
`IV.  LEVEL OF ORDINARY SKILL IN THE ART ............................................... 9 
`V. 
`PATENTS CONSIDERED ............................................................................. 11 
`A. 
`Background of the ’861 Patent ............................................................. 11 
`B. 
`Background of the ’865 Patent ............................................................. 18 
`C. 
`Background of the ’132 Patent ............................................................. 22 
`VI.  CONSTRUCTION OF TERMS ...................................................................... 24 
`A.  U.S. Patent No. 8,971,861 ..................................................................... 24 
`1. 
`“host computer” (Claim 1) / “one or more processors” ............. 27 
`2. 
`“mobile device” (Claims 1, 4, 5, 10, 13, 14, 26) ........................ 33 
`3. 
`means for analyzing the physiological state data collected
`from the user of the mobile device (Claim 26) ........................... 34 
`means for selecting content from a plurality of predefined
`content to deliver to the mobile device at least partially
`based on the physiological state data collected from the
`user, the selected content not including the physiological
`state data collected from the user (Claim 26) ............................. 40 
`U.S. Patent No. 8,768,865 ..................................................................... 45 
`1. 
`The intrinsic record provides sufficient guidance to
`understand both “condition” and “pattern” ................................ 47 
`The relationship between the claimed “condition” (Claims
`1, 5, 21) and “pattern” (Claims 1, 3, 4, 5, 6, 21, 22) is
`understandable to a person of ordinary skill in the art ............... 50 
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`4. 
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`2. 
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`B. 
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`C. 
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`U.S. Patent No. 8,447,132 ..................................................................... 53 
`1. 
`“object detection unit” ................................................................ 56 
`2. 
`“correction unit” ......................................................................... 63 
`3. 
`“means for making a determination that a first group of
`adjacent pixels in a digital image represents a physical
`object of a predetermined type” .................................................. 64 
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`I.
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`INTRODUCTION
`1. My name is John Villasenor. I have been retained by counsel for
`Plaintiff, Qualcomm, Inc. (“Qualcomm”), as an expert in this litigation to provide
`opinions concerning certain claim terms in U.S. Patent No. 8,971,861 (the ’861
`Patent), U.S. Patent No. 8,768,865 (the ’865 Patent), and U.S. Patent No. 8,447,132
`(the ’132 Patent).
`2.
`I am being compensated at a rate of $800 per hour for time spent on this
`matter. I am also being reimbursed for expenses that I incur during the course of this
`work. My compensation is not contingent upon the results of my study, the substance
`of my testimony, or the outcome of this case.
`II. BACKGROUND AND QUALIFICATIONS
`3. My work focuses on innovative, high-performance communications,
`networking, media processing, and computing technologies and their broader
`implications. Since well before the respective priority dates of the ’132, ’865, and
`’861 Patents, I have performed research in areas including image processing, machine
`learning, and delivering content to mobile devices. For example, at UCLA I created
`and have on many occasions taught courses in image processing that address, among
`other topics, techniques used in object detection and dynamic range correction. I have
`also performed research in image processing, and published many papers on various
`aspects of image processing. I have also done research in machine learning, with
`substantial experience developing algorithms that adapt in response to changing
`characteristics in the environment as reflected, for example, through data measured
`through sensors. In addition, I have performed research in relation to mobile devices
`since the 1990s. This research included multiple aspects of mobile devices, including
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`wireless communications, sensing information (such as orientation) on mobile
`devices, and methods for delivering content to mobile devices, including
`considerations such as the selection of type of content for transmission to the mobile
`device. In addition, well prior to the claimed priority date of the ’132 Patent, I was
`engaged in writing graphics applications to run on Silicon Graphics workstations.
`4.
`I have also performed work on mapping complex computational
`processes into pipelined hardware implementations, subject to constraints on factors
`including speed, chip area, power consumption, memory access, and the precision of
`the computations.
`5.
`I received my B.S. in Electrical Engineering from the University of
`Virginia in 1985, and M.S. and Ph.D. in Electrical Engineering from Stanford
`University in 1986 and 1989, respectively.
`6. While at Stanford, I concentrated my research on digital signal
`processing and communications.
`7.
`Between 1990 and 1992, I worked for the Jet Propulsion Laboratory in
`Pasadena, CA, where I helped to develop techniques for imaging and mapping the
`earth from space. Since 1992, I have been on the faculty of the Electrical Engineering
`Department of the University of California, Los Angeles (UCLA). Between 1992 and
`1996, I was an Assistant Professor; between 1996 and 1998, an Associate Professor;
`and since 1998, I have been a full Professor.
`8.
`For several years starting in the late 1990s, I served as the Vice Chair of
`the Electrical Engineering Department at UCLA. I also hold an appointment in the
`Department of Public Policy within the UCLA School of Public Affairs. In addition,
`I teach in the UCLA Anderson School of Management.
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`9.
`Since joining the UCLA faculty in 1992, my research has addressed
`software, algorithms, hardware, networking, protocols, and other aspects of systems
`and devices that acquire, store, process, transmit, and display information.
`10.
`I am an inventor on approximately 20 issued and pending U.S. patents in
`including signal processing, data compression, communications, and
`areas
`cybersecurity. I have published over 150 articles in peer-reviewed journals and
`academic conference proceedings.
`11.
`In addition to my work at UCLA, I am a nonresident senior fellow at the
`Brookings Institution in Washington, D.C. Through Brookings I have examined a
`wide range of topics at the technology/policy intersection including cybersecurity,
`wireless mobile devices and systems, intellectual property, financial inclusion for
`“unbanked” populations, digital media policy, “drones,” critical infrastructure
`security, driverless cars, and digital currencies and emerging payment methods. I
`have published articles and commentary related to technology policy in venues
`including Billboard, the Brookings Institution, the Chronicle of Higher Education,
`Fast Company, Forbes, the Huffington Post, the Los Angeles Times, Scientific
`American, Slate, and the Washington Post.
`12.
`I also have substantial experience in early-stage technology venture
`capital, including in the years preceding and at approximately the same time frame as
`the priority dates for the ’132, ’865, and ’861 Patents. In that work I frequently
`engaged with, including performing technical due diligence on, companies working
`in the technical areas addressed by the ’132, ’865, and ’861 Patents.
`13. Further details of my background and experience are provided in my
`curriculum vitae, which is attached as Exhibit A.
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`III. APPLICABLE LEGAL STANDARDS
`14. Within this statement, I apply my understanding of certain legal
`standards to opine on the scope and meaning of certain disputed claim terms.
`However, I am not a lawyer or an expert in patent law. The following is my
`understanding of these legal standards.
`15.
`I understand that claim construction is for the Court to decide.
`16.
`I understand that the patent claims are the numbered sentences at the end
`of each patent and define what a patent covers. The figures and text in the rest of the
`patent provide a description and/or examples of the invention and provide a context
`for the claims, but it is the claims that define the breadth of the patent’s coverage.
`Each claim is effectively treated as if it was a separate patent, and each claim may
`cover more or less than another claim. Therefore, what a patent covers depends, in
`turn, on what each of its claims covers.
`17.
`I understand that the words of a claim are generally given the ordinary
`and customary meaning that the term would have to a person of ordinary skill in the
`art at the time of the invention. Because a claim is interpreted according to its
`meaning to a person of ordinary skill in the art, the knowledge, education, and
`experience of that person are also relevant to determining the scope and meaning of a
`patent claim.
`18.
`I understand that, in construing terms, Courts look first to the intrinsic
`evidence of record, which includes the patent itself (including the claims and
`specification) and the prosecution history. I also understand that Courts may consider
`extrinsic evidence, such as expert and inventor testimony, dictionaries, and learned
`treatises, though Courts should consider the intrinsic record first.
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`19.
`I understand that intrinsic evidence includes the prosecution history of a
`patent. The prosecution history of a patent provides the record of the examination of
`a patent application before the U.S. Patent and Trademark Office (PTO). The
`prosecution history provides evidence of how the patent examiner and the inventor
`understood the patent application and the claims, and can therefore be instructive on
`how to interpret the claims. It is my understanding that arguments or amendments
`made concerning one patent application can be instructive as to the meaning of like
`terms in another related patent application.
`20.
`I understand that particular embodiments appearing in the written
`description will not be used to limit claim language that has broader effect. I
`understand that even where a patent describes only a single embodiment, claims are
`not to be read restrictively unless the patentee has demonstrated a clear intention to
`limit the claim scope using words or expressions of manifest exclusion or restriction.
`21.
`I understand that a person of ordinary skill in the art is deemed to read
`the claim term not only in the context of the particular claim in which it appears, but
`also in the context of the entire patent, including the specification, the other claims,
`and the prosecution history.
`22.
`I understand that while claim terms are understood in light of the
`specification, the scope of the claims is not necessarily limited to inventions that look
`like the ones shown in the figures and described in the specification. I realize that
`limiting claims from the specification is generally not permitted absent a clear
`disclosure that the patentee intended the claims to be limited as shown.
`23.
`I understand that differences among claims can be a useful guide in
`understanding the meaning of particular claim terms. For example, I am familiar with
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`the doctrine of “claim differentiation” where the presence of dependent claims that
`add a particular limitation to an independent claim gives rise to a presumption that the
`limitation in question is not present in the independent claim. It is also my
`understanding that language in a claim should not be construed so as to render claim
`language superfluous.
`24.
`I understand that, through the use of “means-plus-function” limitations,
`patentees may claim an element of a combination functionally, without reciting
`structures for performing those functions. Such limitations are construed to cover the
`corresponding structure described in the specification and equivalent structure. This
`process requires first determining the function of the means-plus-function limitation,
`and then determining the corresponding structure disclosed in the specification. A
`structure is corresponding if the specification or file history clearly links or associates
`it to the function recited in the claim.
`25. When disclosing and linking corresponding structure for a means-plus-
`function element, my understanding is that the specification may identify or refer to
`standard components, structure, and material that are known in the art. This includes
`referring to standard electronic components without detailing the components’
`internal circuitry or operation, when the standard electronic components have
`structure that is well known in the art.
`26.
`I understand that there is a rebuttable presumption that a claim term is
`not a means-plus-function limitation if it does not recite “means.” To determine
`whether such a limitation is nonetheless subject to 35 U.S.C. § 112, ¶ 6, the inquiry is
`whether the limitation, read in light of the claim language, specification, prosecution
`history, and relevant extrinsic evidence, has sufficiently definite structure to a person
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`of ordinary skill in the art. The inquiry is whether one of skill in the art would
`understand the specification itself to disclose a structure, not simply whether that
`person would be capable of implementing a structure. A bare statement that known
`techniques or methods can be used does not disclose structure.
`27.
`I understand that, for means-plus-function limitations where the
`disclosed structure is a computer, or microprocessor, programmed to implement an
`algorithm, the patent must disclose enough of an algorithm to provide the necessary
`structure under 35 U.S.C. § 112, ¶ 6. Language that simply describes the function to
`be performed is not the algorithm by which it is performed, and describing the
`outcome does not disclose the structure of the claimed device, but is only another way
`of describing the claimed function. The patentee may disclose an algorithm in any
`understandable manner, including as a flowchart or in prose or in any other manner
`that provides sufficient structure. The patentee need not disclose details of structures
`well known in the art. Sufficient structure must simply permit one of ordinary skill in
`the art to know and understand what structure corresponds to the means limitation so
`that he may perceive the bounds of the invention. That is, the patent need only disclose
`sufficient structure for a person of skill in the field to provide an operative software
`program for the specified function.
`28.
`I understand that there is an exception to the requirement that an
`algorithm must be disclosed for a general-purpose computer to satisfy the disclosure
`requirement under 35 U.S.C. § 112, ¶ 6 when the function can be achieved by any
`general purpose computer without special programming. That is, a general-purpose
`computer is sufficient structure if the function of a term requires no more than that
`which any general purpose computer may do without any special programming.
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`29.
`I understand that an issued patent is presumed valid. I also understand
`that the standard for indefiniteness is whether a person having ordinary skill in the art
`would understand what is claimed when the claim is read in light of the specification
`and prosecution history. A claim term is definite if, when viewed in light of the
`specification and prosecution history, it informs one skilled in the art about the scope
`of the invention with reasonable certainty.
`30. When assessing whether a claim phrase is definite, I understand courts
`must take into account the inherent limitations of language in often not providing
`absolute certainty. At the same time, a patent must be precise enough to afford clear
`notice of what is claimed in order to appraise the public of what remains available. I
`understand that the degree of precision necessary for adequate claims is a function of
`the nature of the subject matter, and that absolute precision is not required.
`31.
`I further understand that given the imprecision of language, a claim may
`properly recite terms of degree, rather than fixed or definite values. Moreover, where
`relative terms and words of degree are used, those terms do not render patent claims
`invalid as long as they inform those skilled in the art about the scope of the invention
`with reasonable certainty. I understand that when a term of degree is used, reasonable
`certainty of a claim’s scope may be found if a skilled artisan would understand the
`parameters of the invention after reviewing the intrinsic record.
`32.
`I understand that indefiniteness is an invalidity defense, and that a
`Defendant bears the burden to demonstrate a term is indefinite by clear and
`convincing evidence. I further understand that indefiniteness is a legal question with
`underlying factual determinations.
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`IV. LEVEL OF ORDINARY SKILL IN THE ART
`33.
`I understand that claim interpretation is from the perspective of a person
`of ordinary skill in the art at the time of the invention.
`34. The application leading to the ’861 Patent was filed on April 16, 2013,
`and is a continuation of U.S. Application No. 13/222,615, filed August 31, 2011. The
`’861 Patent also claims priority to Prov. Appl. No. 61/499,596 filed on June 21, 2011.
`I have been informed by counsel that Qualcomm is asserting that Claims 1, 4, 5, 10,
`13, 14, and 20 were each conceived at least as early as September 28, 2010, with
`conception continuing on October 1, 2010, and conception continuing on October 30,
`2010. However, in relation to issues of claim interpretation of the ’861 Patent I do not
`believe there is any difference in the knowledge of a person of ordinary skill in the art
`between September 10, 2010 and April 16, 2013. Accordingly, my opinion presented
`in this declaration is the same regardless of whether the date of the invention is
`September 10, 2010 or April 16, 2013.
`35.
`In my opinion, a person of ordinary skill in the art relevant to the ’861
`Patent at the time of its invention would have had a Bachelor’s of science degree in
`electrical engineering, computer science, computer engineering, or a closely-related
`field, and at least two years of work or research experience in the field of content
`delivery to a mobile device or a closely related field. More work experience could
`compensate for less education, and vice versa.
`36. The application leading to the ’865 Patent was filed on October 7, 2011.
`The ’865 Patent claims priority to Prov. Appl. No. 61/434,400 filed on January 19,
`2011. I have been informed by counsel that Qualcomm is asserting Claims 1, 3, 4, 5,
`6, 21, and 22 were each conceived as early as August 22, 2010. However, in relation
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`to issues of claim interpretation of the ’865 Patent I do not believe there is any
`difference in the knowledge of a person of ordinary skill in the art between August
`22, 2010 and October 7, 2011. Accordingly, my opinion presented in this declaration
`is the same regardless of whether the date of the invention is August 22, 2010 or
`October 7, 2011.
`37.
`In my opinion, a person of ordinary skill in the art relevant to the ’865
`Patent at the time of its invention would have had a Bachelor’s of science degree in
`electrical engineering, computer science, computer engineering, or a closely-related
`field, and at least 2 years of work or research experience in the field of machine
`learning or a closely related field. More work experience could compensate for less
`education, and vice versa.
`38. The application leading to the ’132 Patent was filed on December 6,
`2010. The ’132 Patent claims priority to Prov. Appl. No. 61/285,063 filed on
`December 9, 2009. I have been instructed to use December 9, 2009 as the date of
`invention. However, in relation to issues of claim interpretation of the ’132 Patent I
`do not believe there is any difference in the knowledge of a person or ordinary skill
`in the art between December 9, 2009 and December 6, 2010. Accordingly, my
`opinion presented in this declaration is the same regardless of whether the date of the
`invention is December 9, 2009 or December 6, 2010.
`39.
`In my opinion, a person of ordinary skill in the art relevant to the ’132
`Patent at the time of its invention would have had a Bachelor’s of science degree in
`electrical engineering, computer science, computer engineering, or a closely-related
`field, and at least two years of work or research experience in the field of image
`processing or a closely related field. More work experience could compensate for less
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`education, and vice versa.
`V.
`PATENTS CONSIDERED
`40.
`I have been asked to consider the construction of certain terms in the
`’861, ’865, and ’132 Patents. My opinions regarding the meaning of the terms in
`dispute are provided below. My opinions are based on my review of the intrinsic
`record of the ’861, ’865, and ’132 Patents, the documents cited in this Declaration,
`and my experience as detailed in this Declaration and my CV.
`A. Background of the ’861 Patent
`41. The ’861 Patent describes relevant content delivery to a mobile device
`from a host computer system, based on information provided by the mobile device.
`Information provided by the mobile device can include physiological state data and/or
`environmental data. Content provided by the host computer system may be selected
`at least partially based on the physiological state data and/or the environmental data.
`42. One example of relevant content delivery described in the ’861 Patent
`concerns monitoring the health of a user. See ’861 Patent at 9:13–32. Physiological
`sensors are utilized to monitor the health of a user, including monitoring heart rates,
`and a message may be provided recommending a course of action.
`43. Figure 1 illustrates a system 100 that includes host computer system 140
`that communicates with mobile device 110 “via network 130 and/or wireless network
`120” to receive “physiological state data received from mobile device 110.” Id. at
`10:15–24. Host computer system 140 can also “analyze environmental and
`physiological state data received from mobile device 110, and select content to be
`transmitted “to mobile device 110.” Id. Mobile device 110 includes physiological
`sensor 112 that can be, for example, an electrocardiogram (ECG) sensor, galvanic
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`skin response (GSR) sensor, plethysmography (PPG) sensor, skin temperature sensor
`(SKT), and/or electromyogram (EMG) sensor. Id. at 7:56–61 and 9:44–47. Figure 1
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`44. Figure 2 illustrates an exemplary mobile device 200 that includes
`physiological sensor 210. Id. at 11:20–44. Figure 2 is reproduced below:
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`45. Figure 8 illustrates computer system 800, which “can represent
`components of the mobile devices and/or the host computer system” (id. at 21:14–
`17), includes communication subsystem 830. Communication subsystem 830
`includes a network device (e.g., a modem, a network card (wireless or wired), an
`infrared communication device, a wireless communication device and/or chipset
`(such as a Bluetooth™ device, an 802.11 device, a WiFi device, a WiMax device,
`cellular communication facilities, etc.), and/or
`the
`like). Id. at 21:48–58.
`Communication subsystem 830 receives signals including information, such as
`physiological state data, from a network, other computer systems, and/or any other
`devices described in the ’861 Patent, such as a mobile device The ’861 Patent also
`shows the corresponding structure at Figure 8: Id. at 23:15–22. Computer system 800
`further includes processors 810 that can execute sequences of instructions. Id. at
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`21:13–33 and 22:38–47. Figure 8 is reproduced below:
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`46. Figure 4 “illustrates an embodiment of a method for delivering relevant
`content to a mobile device” (id. at 14:38–39) and includes steps and associated
`descriptions for receiving environmental and physiological state data (id. at 15:6–7),
`analyzing physiological state data (id. at 15:13–39), selecting content (id. at 15:40–
`52), transmitting content (id. at 15:47–52), and collecting physiological state data (id.
`at 14:52–65). Figure 4 is reproduced below:
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`47. Figure 5 is directed, in part, to “a method for delivering relevant content
`selected from a category of content to a mobile device” (id. at 16:11–14) that includes
`steps and associated descriptions for receiving environmental and physiological state
`data (id. at 15:56–57), analyzing physiological state data (id. at 17:7–11), selecting
`content (id. at 17:11–26), transmitting content (id. at 17:26–30), and collecting
`physiological state data (id. at 16:34–48). Figure 5 is reproduced below:
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`48. Figure 6 is directed to “a method 600 for delivering relevant content
`selected to a mobile device” (id. at 18:15–16) that includes steps and associated
`descriptions for receiving environmental and physiological state data (id. at 19:1–2),
`analyzing physiological state data (id. at 19:15–41), selecting content (id. at 19:42–
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`50), transmitting content (id. at 19:50–55), and collecting physiological state data (id.
`at 18:46–59).). Figure 6 is reproduced below:
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`49. Claim 1 of the ’861 Patent recites:
`1. A method for selecting content for delivery, the method
`comprising:
`receiving, by a host computer system, from a mobile device,
`physiological state data collected from a user of the mobile device;
`analyzing, by the host computer system, the physiological state
`data collected from the user of the mobile device;
`selecting, by the host computer system, content from a plurality of
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`predefined content to deliver to the mobile device at least partially
`based on the physiological state data collected from the user, the
`selected content not including the physiological state data
`collected from the user; and
`transmitting, by the host computer system, the selected content to
`the mobile device.
`B.
`Background of the ’865 Patent
`50. The ’865 Pat