`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`SNAP INC.,
`Petitioner
`
`v.
`
`BLACKBERRY LIMITED
`Patent Owner
`
`____________________
`
`Case No. IPR2019-00714
`Patent No. 8,825,084
`____________________
`
`REBUTTAL DECLARATION OF DR. SAMRAT BHATTACHARJEE
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`
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`Snap Inc. Ex. 1011 Page 0001
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`SNAP INC. v. BLACKBERRY LIMITED
`IPR2019-00714
`
`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`B.
`
`C.
`
`
`TABLE OF CONTENTS
`TABLE OF CONTENTS ........................................................................................... i
`I.
`INTRODUCTION .......................................................................................... 1
`II. MATERIALS REVIEWED ........................................................................... 2
`III. LEVEL OF ORDINARY SKILL IN THE ART ............................................ 5
`IV. CLAIM CONSTRUCTION ........................................................................... 5
`A.
`“action spot” ......................................................................................... 6
`B.
`“determine at least one action spot within a predetermined
`distance from the current location of first mobile device” ................. 11
`V. ANALYSIS OF GROUNDS 2 AND 3: OBVIOUSNESS IN VIEW
`OF LEMMELA AND CROWLEY (GROUND 2) / IN VIEW OF
`LEMMELA, CROWLEY, AND WINKLER (GROUND 3) ........................... 14
`A.
`The Lemmela-Crowley combination discloses the “determine at
`least one action spot” recited in claims 1 and 9 ................................. 14
`The Lemmela-Crowley combination
`teaches “a
`server
`configured to receive data indicative of a current location of a
`first mobile device,” as recited in claim 1 .......................................... 24
`The Lemmela-Crowley combination teaches the “activity level”
`and “level of activity” recited in claims 1 and 9 ................................ 32
`The Lemmela-Crowley combination teaches the activity level
`“identifying a relative level of documenting action occurring at
`the at least one action spot,” as recited in claim 6 ............................. 37
`A person of ordinary skill in the art would have been motivated
`to combine Lemmela and Crowley ..................................................... 38
`The
`combination
`teaches
`Lemmela-Crowley-Winkler
`“displaying a graphical item . . . identifying a direction,” as
`recited in claim 9 ................................................................................ 43
`VI. ANALYSIS OF GROUND 1: OBVIOUSNESS IN VIEW OF
`WINKLER AND ALTMAN ........................................................................... 50
`A.
`The Winkler-Altman combination discloses the “determine at
`least one action spot” recited in claims 1 and 9 ................................. 50
`i
`
`
`D.
`
`E.
`
`F.
`
`
`
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`Snap Inc. Ex. 1011 Page 0002
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`1.
`
`Patent Owner improperly refers to different features in
`Winkler as distinct embodiments and ignores Winkler
`express
`statement
`that
`these
`features may be
`implemented in tandem ............................................................ 51
`The Winkler-Altman combination discloses a map
`element corresponding to a “a location where at least one
`mobile device has engaged in documenting action” ................ 57
`The Petition does not fail by neglecting to show that the
`combination discloses
`setting
`a
`Winkler-Altman
`“predetermined distance” before determining “the at least
`one action spot” ........................................................................ 58
`The Petition describes how to combine Winkler and Altman and
`why a POSITA would have been motivated to do so ........................ 70
`The Winkler-Altman combination teaches “a graphical item
`identifying a direction, relative to the current location, in which
`to travel in order to arrive at the determined at least one action
`spot” as recited in claim 10 ................................................................ 73
`CONCLUSION ............................................................................................. 74
`
`2.
`
`3.
`
`B.
`
`C.
`
`ii
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`
`
`
`
`I.
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`Snap Inc. Ex. 1011 Page 0003
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`

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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`
`I, Dr. Samrat Bhattacharjee, declare as follows:
`
`I.
`
`INTRODUCTION
`As I testified in my declaration signed February 22, 2019, which I
`1.
`
`understand has been labeled as Exhibit 1002 in this proceeding, I have been
`
`retained by Snap Inc. (“Petitioner”) as an independent expert consultant in this
`
`proceeding before the United States Patent and Trademark Office (“PTO”). I
`
`previously provided testimony in this proceeding in my February 22, 2019
`
`declaration. (See Ex. 1002). As with my previous work relating to this
`
`proceeding, no part of my compensation is contingent on the nature of my findings,
`
`the presentation of my findings in testimony, or the outcome of this or any other
`
`proceeding. I have no other interest in this proceeding. Relevant aspects of my
`
`qualifications were provided in my February 22, 2019 declaration. (See id. at ¶¶ 3-
`
`16; see also Ex. 1003 (curriculum vitae)).
`
`2.
`
`On November 18, 2019, counsel for BlackBerry Limited (“Patent
`
`Owner”) took my deposition based on my previous declaration.
`
`3.
`
`I was told by Petitioner that, after I submitted my previous
`
`declaration, on November 27, 2019, Patent Owner filed a Response to the ’084
`
`petition. (Paper 13).
`
`
`
`
`
`1
`
`
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`Snap Inc. Ex. 1011 Page 0004
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`I have been asked to provide my opinions on the patentability of the
`
`4.
`
`originally challenged claims 1-2, 5-6, 9-10, 12-13, and 15 (“the challenged
`
`claimed”) of the ’084 patent, in light of Patent Owner’s Response. My opinions
`
`are set forth below.
`
`II. MATERIALS REVIEWED
`The opinions in this Declaration are based on the documents I
`5.
`
`reviewed, my knowledge and experience, and my professional judgment.
`
`6.
`
`In forming my opinions expressed in this Declaration, I have reviewed
`
`the following materials:
`
`• the ’084 patent (Ex. 1001);
`
`• Declaration of Dr. Samrat Bhattacharjee (Ex. 1002)
`
`• U.S. Patent No. 8,750,906 to Winkler et al. (“Winkler”) (Ex.
`
`1004);
`
`• U.S. Patent Application Publication 2008/0250337 A1 to Lemmela
`
`et al. (“Lemmela”) (Ex. 1005);
`
`• U.S. Patent Application Publication 2007/0281716 A1 to Altman
`
`et al. (“Altman”) (Ex. 1006);
`
`• the file history for the ’084 patent (Ex. 1007);
`
`
`
`
`
`2
`
`
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`Snap Inc. Ex. 1011 Page 0005
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`• U.S. Patent No. 7,593,740 to Crowley et al. (“Crowley”) (Ex.
`
`1008);
`
`• Final Ruling On Defendant Snap Inc.’s Motion For Summary
`
`Judgment Of Invalidity Under Section 101 Of U.S. Patent Nos.
`
`8,825,084 And 8,326,327, Blackberry Limited v. Snap Inc., Case
`
`Nos. CV 18-1844-GW & 18-2693-GW (C.D. Cal. October 1,
`
`2019) (Ex. 1012)
`
`• Transcript of Deposition of Patrick McDaniel, IPR2019-00714 and
`
`IPR2019-00715 (March 6, 2020) (Ex. 1013)
`
`• Joint Claim Construction and Prehearing Statement, Blackberry
`
`Limited v. Snap Inc., Case Nos. CV 18-1844-GW & 18-2693-GW
`
`(C.D. Cal. February 14, 2019) (Ex. 1014);
`
`• Declaration of Patrick McDaniel (Ex. 2001);
`
`• Corrected Final Ruling on Claim Construction/Markman Hearing,
`
`Blackberry Limited v. Snap Inc., Case Nos. CV 18-1844-GW &
`
`18-2693-GW (C.D. Cal. April 5, 2019) (“Markman Order”) (Ex.
`
`2002)
`
`• Second Declaration of Patrick McDaniel (Ex. 2003);
`
`• Transcript of Deposition of Dr. Samrat Bhattacharjee (Ex. 2004);
`
`
`
`
`
`3
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`Snap Inc. Ex. 1011 Page 0006
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`• Petition for Inter Partes Review of U.S. Patent No. 8,825,084
`
`(Paper 1);
`
`• Patent Owner’s Preliminary Response (Paper 8);
`
`• Decision Instituting Inter Partes Review of U.S. Patent No.
`
`8,825,084 (Paper 9);
`
`• Patent Owner’s Response (Paper 13)
`
`7.
`
`All of the opinions contained in this Declaration are based on the
`
`materials I reviewed and my knowledge and professional judgment. In forming
`
`these opinions, I have also drawn on my knowledge and experience in the field of
`
`computer networking, and rely on my opinions and discussions set forth in my
`
`February 22, 2019 declaration. My opinions have also been guided by my
`
`appreciation of how a person or ordinary skill in the art would have understood the
`
`claims and the specification of the ’084 patent at the time of the alleged invention,
`
`which I assume is August 27, 2010. My opinions reflect how one of ordinary skill
`
`in the art would have understood the ’084 patent, the prior art to the patent, and the
`
`state of the art at the time of the alleged invention.
`
`8.
`
`As discussed in detail below, based on my experience and expertise, it
`
`is my opinion that certain references disclose or suggest all the features recited in
`
`the challenged claims.
`
`
`
`
`
`4
`
`
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`Snap Inc. Ex. 1011 Page 0007
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`
`III. LEVEL OF ORDINARY SKILL IN THE ART
`As I previously indicated in my February 22, 2019 declaration, based
`9.
`
`on the types of problems encountered in the art, prior solutions to those problems,
`
`the rapidity with which innovations are made, the sophistication of the technology,
`
`and the educational level of active workers in the field, I believe at the time of the
`
`alleged invention in August 2010, a person of ordinary skill in the art would have
`
`had at least a B.S. degree in computer science, electrical engineering, or equivalent
`
`thereof, and at least two years of experience in the relevant field, e.g., computer
`
`networking. More education can substitute for practical experience and vice versa.
`
`In its Institution Decision, the Board preliminarily adopted my characterization of
`
`the level of skill in the art. (Paper 9 at 15-16). I apply this understanding of the
`
`level or ordinary skill in the art to my analysis herein.
`
`10. My analysis of the ’084 patent and my opinions in this declaration are
`
`from the perspective of one of ordinary skill in the art, as I have defined it above,
`
`during the relevant time frame stated above. During this time frame, I possessed at
`
`least the qualifications of a person of ordinary skill in the art, as defined above
`
`IV. CLAIM CONSTRUCTION
`I understand that a claim subject to inter partes review is construed in
`11.
`
`accordance with the ordinary and customary meaning, as understood by one of
`
`
`
`
`
`5
`
`
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`Snap Inc. Ex. 1011 Page 0008
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`ordinary skill in the art at the time of the invention. I have followed this principle
`
`in forming my opinions in this declaration.
`
`12.
`
`I understand that the district court in a related proceeding involving
`
`the ’084 patent issued a Corrected Final Ruling on Claim Construction (“Markman
`
`Order”) on April 5, 2019. (Ex. 2002). I have reviewed the sections of the
`
`Markman Order that relate to the ’084 patent. I also understand that the district
`
`court issued a Final Ruling On Defendant Snap Inc.’s Motion For Summary
`
`Judgment Of Invalidity Under Section 101 Of U.S. Patent Nos. 8,825,084 And
`
`8,326,327 (“Summary Judgment Order”) (Ex. 1012). I have reviewed the sections
`
`of the Summary Judgment Order that relate to the ’084 patent. I understand that the
`
`Board in this proceeding only needs to construe claims necessary to resolve the
`
`underlying controversy.
`
`“action spot”
`A.
`13. This term appears in all challenged claims. In forming my opinions
`
`set forth in my February 22, 2019 declaration, I did not provide a formal
`
`construction for this term because I did not believe its construction was necessary
`
`to resolve the underlying controversy in this proceeding.
`
`14.
`
`I understand that in the related district court proceeding involving the
`
`’084 patent, as part of the Markman proceedings requiring the parties to narrow the
`
`
`
`
`
`6
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`
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`Snap Inc. Ex. 1011 Page 0009
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`number of terms presented to the district court for construction, the parties agreed
`
`to constructions for a number of terms, including “action spot.” The agreed to
`
`construction for “action spot” was a “location or event where at least one activity is
`
`occurring relative to the current location of another mobile device.” (Ex. 2002, pg.
`
`9). I understand that Patent Owner seeks to apply this construction in this
`
`proceeding.
`
`15.
`
`I agree with the Board’s determination in its Institution Decision that
`
`there is no need to expressly construe the term “action spot” in this proceeding.
`
`(Paper 9 at 12). I am of the opinion that construction of this term is not necessary
`
`to resolve the underlying controversy in this proceeding. I believe the references
`
`utilized in the Petition teach or suggest action spots as locations or events where
`
`activity “is occurring.” Thus, even if the term “action spot” was limited in the
`
`manner proposed by Patent Owner, this would not affect my opinions regarding
`
`invalidity of the challenged claims.
`
`16. However, to the extent the Board decides to explicitly construe this
`
`term, I do not agree with Patent Owner that the claimed “action spot” is limited to
`
`a location or event where activity “is occurring” relative to the current location of
`
`another mobile device. Rather, I agree with the Board’s Institution Decision’s
`
`
`
`
`
`7
`
`
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`Snap Inc. Ex. 1011 Page 0010
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`determination that the claimed “action spot” refers to a location or event in which
`
`the activity “is occurring” or “has occurred.” (Paper 9 at 12-14).
`
`17.
`
`I agree with the Board that this interpretation is consistent with the
`
`specification and the claims of the ’084 patent. (Id.). As noted by the Board,
`
`claims 1 and 2 recite that the claimed “determin[ed]” action spot “correspond to a
`
`location where at least one other mobile device has engaged in a documenting
`
`action is [sic] within a predetermined period of time,” and the ’084 specification
`
`states that this period of time can be any period of time: “[t]he period of time can
`
`be within the last hour, the last twelve hours, the last twenty-four hours, the last
`
`thirty minutes, or any other time period that is measured from the time the mobile
`
`device 100 arrived at the current location 302.” (Id. (citing Ex. 1001, 8:44-48)). In
`
`line with the Board’s understanding, the District Court’s summary judgment order
`
`stated the “plain meaning” of the claimed “predetermined period of time”
`
`“supports that it could cover durations of time of undefined length.” Ex. 1012, 40.
`
`I understand that Patent Owner’s expert, Dr. Patrick McDaniel, did not consider
`
`the District Court’s summary judgment order in preparing his opinions or in
`
`interpreting the claims. (Ex. 1013, 13:22-16:2, 145:8-146:21).
`
`18. Further, I believe Patent Owner’s arguments to the contrary are
`
`inconsistent with the plain language of the specification and claims of the ’084
`
`
`
`
`
`8
`
`
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`Snap Inc. Ex. 1011 Page 0011
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`patent. Patent Owner challenges the Institution Decision’s reliance on the above
`
`specification and claim language because “that text is merely referring to a
`
`parameter for the input data that is used by the system for purpose of achieving the
`
`output—outputting a determination of whether an action spot is present.” (Paper
`
`13 at 18). Patent Owner claims that action spots “can rely on input data related to
`
`documenting action that ‘has occurred’ recently on other mobile devices at that
`
`location, but the claimed determination of an ‘action spot’ is an output which is not
`
`the same as its input data.” (Id.). Patent Owner’s attempt to distinguish between
`
`“recent” documenting activity input data and the output of currently occurring
`
`action spots finds no support in the specification or claims. Patent Owner cites two
`
`passages in the ’084 patent in support of its argument that input data is used to
`
`achieve the output of a determined action spot. (Paper 13 at 18 (citing Ex. 1001,
`
`7:5-8, 8:11-17)). Yet, neither of these sections describe the ’084 patent system
`
`processing input data to first determine whether or not this “recent” input data
`
`indicates an event which is currently occurring, and then second, based on this
`
`first determination, outputting or declining to output an action spot. Patent Owner
`
`then compares Figure 3 (depicting no action spot at the museum) to Figure 4
`
`(depicting an action spot at the museum). (Paper 13 at 19-20). Citing to no
`
`support from the ’084 patent itself, Patent Owner claims that Figure 3 depicts no
`
`
`
`
`
`9
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`
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`Snap Inc. Ex. 1011 Page 0012
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`action spot at the museum “regardless of whether the system might have
`
`historically detected posts from other mobile devices at the museum gallery on
`
`previous days or weeks.” (Id. at 19). Neither the ’084 specification nor its claims
`
`support this conclusion. Rather, the ’084 patent is silent as to why Figure 3’s
`
`museum does not depict an action spot.
`
`19. Patent Owner’s expert, Dr. Patrick McDaniel, attempts to import
`
`limitations into the claims. During his deposition, Dr. McDaniel expressed an
`
`opinion that “the determination of whether something is occurring” is tied to the
`
`“predetermined duration of time” (Ex. 1013, 59:8-61:13), and an activity “is
`
`occurring” only if it occurs within the “predetermined duration of time” (see id.,
`
`104:16-105:1, 124:8-17, 103:3-8, 105:19-106:2, 87:9-15, 102:10-18, 59:8-61:13,
`
`144:18-145:3). Claim 1 of the ’084 patent—unlike claim 1 of U.S. Patent No.
`
`8,326,327—does not recite the “determin[ing]” of “action spots” corresponds to
`
`mobile device activity within a predetermined period of time. Dr. McDaniel
`
`expressed an opinion that the predetermined duration or period of time limitation is
`
`“in the definition of at least one action spot, or determining at least one action
`
`spot,” even if it is not recited by the claim 1 of the ’084 patent. See id. at 59:8-
`
`61:2.
`
`
`
`
`
`10
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`Snap Inc. Ex. 1011 Page 0013
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`20. Patent Owner appears to conflate an “action spot” in the abstract,
`
`which may reflect a location where activity “is occurring,” with the claimed
`
`“determin[ing] at least one action spot,” which the claims make clear must include
`
`a determination of past activity. Consistent with the claims, the specification also
`
`describes the determining of action spots as reflecting mobile device activity that
`
`has occurred in the past. (Ex. 1001, 3:39-42, 4:4-11, 4:27-32, 6:41-45, 6:60-65,
`
`11:54-12:2, 12:27-34, 12:43-48, 14:13-25).
`
`B.
`
`“determine at least one action spot within a predetermined
`distance from the current location of first mobile device”
`21. This term appears in all challenged claims. In forming my opinions
`
`set forth in my February 22, 2019 declaration, I interpreted this term to mean
`
`“determine each action spot within a specific distance from the current location of
`
`the first mobile device, the specific distance being set prior to the determining
`
`step.” (Ex. 1002, ¶¶ 33-37).
`
`22.
`
`I understand that, in its Institution Decision, the Board wrote “we are
`
`not persuaded by Petitioner’s argument that [the claims] require a ‘specified
`
`distance.’” (Paper 9 at 14). I understand that, in its Institution Decision, the Board
`
`stated that no other aspects of this terms “need to be construed for purposes of this
`
`Decision.” (Id. at 15). I understand that, in its Response, Patent Owner expressed
`
`its agreement with the Institution Decision’s assessment and submitted “this
`
`
`
`
`
`11
`
`
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`Snap Inc. Ex. 1011 Page 0014
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`limitation should be construed according to its plain and ordinary meaning under
`
`the Phillips standard, and no formal construction is necessary.” (Paper 13 at 21).
`
`23. Construing this limitation under the Phillips standard does not affect
`
`my conclusions set forth in my February 22, 2019 declaration. Patent Owner
`
`describes Petitioner’s proposed construction as narrowing this claim limitation.
`
`(See Paper 13 at 21-22). Thus, the prior art’s disclosures of the narrower limitation
`
`proposed in my February 22, 2019 declaration necessarily discloses any broader
`
`interpretation under the Phillips standard, too. The Petition itself contemplated this
`
`dynamic and specifically stated that Patent Owner “may advance different and
`
`broader constructions for [this term] . . . Under a broader construction, the Board
`
`should still institute trial based on the following grounds, as the grounds
`
`demonstrate the challenged claims are unpatentable under Petitioner’s construction
`
`and any broader construction.” (Paper 1 at 16). I also explained my understanding
`
`of this dynamic during my November 18, 2019 deposition:
`
`
`
`
`
`12
`
`
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`Snap Inc. Ex. 1011 Page 0015
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`
`
`
`
`
`(Ex. 2004, 40:1-13)
`
`(Id., 41:17-22).
`
`
`
`
`
`13
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`Snap Inc. Ex. 1011 Page 0016
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`V. ANALYSIS OF GROUNDS 2 AND 3: OBVIOUSNESS IN VIEW OF
`LEMMELA AND CROWLEY (GROUND 2) / IN VIEW OF LEMMELA,
`CROWLEY, AND WINKLER (GROUND 3)
`A. The Lemmela-Crowley combination discloses the “determine at
`least one action spot” recited in claims 1 and 9
`24. As discussed in section IV.A, I agree with the Board’s analysis in its
`
`Institution Decision that the claimed “action spot” refers to a location where
`
`activity “is occurring” or “has occurred.” (Paper 9 at 12-14). I also agree with the
`
`Board’s preliminary determination that “Lemmela teaches that a server groups
`
`together virtual location-based posts, as the recited ‘action spots[.]’” (Paper 9 at
`
`20).
`
`25. However, even if the Board ultimately decides that the term “action
`
`spot” should be construed as limited to a location where activity is presently
`
`occurring, as proposed by Patent Owner, the Lemmela-Crowley combination
`
`teaches the “determine at least one action spot” recited in claims 1 and 9.
`
`26. As I explained in my February 22, 2019 declaration, Lemmela teaches
`
`limiting its system’s processing only to postings within a certain time range. (Ex.
`
`1002, ¶ 59 (citing Ex. 1005, FIG. 5, ¶¶ 8, 39).1 Lemmela expressly states users
`
`
`1 Patent Owner argues that the Petition did not cite to Lemmela’s Figure 5 or
`
`paragraphs 37 and 39 in its analysis of the “determine at least one action spot”
`
`
`
`
`
`
`
`14
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`Snap Inc. Ex. 1011 Page 0017
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`

`

`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
`may “filter postings based on criteria such as time” and “freely select the starting
`
`and ending times defining the interesting time period.” (Id.) Lemmela teaches that
`
`postings older than a certain date may be excluded from any processing:
`
`“At any stage of processing, the system may sort or filter the
`collection of location postings. For example, postings older than a
`certain date may be excluded from any processing. Alternatively, the
`user may be provided with options for selecting or adjusting a time
`range for postings. The user can freely select a starting and ending
`time defining a time period. The display may be dynamically changed
`and updated as the user changes parameters.” (Ex. 1005, ¶ 37).
`
`27. Patent Owner argues these teachings “do not show [how] Lemmela’s
`
`system actually outputs a determination of at least one ‘action spot’ where activity
`
`is occurring relative to a current location of a mobile device” because “Lemmela
`
`never contemplates a threshold posting age that would define a meaningful cutoff
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`from which the system could reasonably output a determination that activity is
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`limitations in claims 1[c] and 9[c], and that this silence is “fatal.” (Paper 13 at 26).
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`I did not cite to these Lemmela passages in my February 22, 2019 declaration’s
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`analysis of limitations 1[c] and 9[c], specifically, because I did not (and still do
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`not) interpret those limitations as requiring action spots to be locations of presently
`
`occurring activity.
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
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`occurring relative to the mobile device[.]” (Paper 13 at 26-27). Patent Owner’s
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`expert Dr. McDaniel further adds: “A system that was configured to determine
`
`whether activity was presently occurring at a particular location based on recent
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`posting information would presumably define a threshold posting age that
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`reasonably differentiated postings that relate to historical activity that is no longer
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`occurring from postings that relate to present/ongoing activity that is occurring.”
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`(Ex. 2003, ¶ 54). Here, Patent Owner and its expert imply that a system configured
`
`to determine whether activity “is occurring” must define a threshold posting age to
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`differentiate historical versus present activity. Notably, the ’084 patent defines no
`
`such threshold posting age, nor does Patent Owner suggest that it does. Rather, the
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`’084 patent references different “predetermined periods of time” (which may
`
`include any time period) during which device activity corresponding to an action
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`spot may occur. (Ex. 1001, 8:44-48). And, according to Patent Owner itself, these
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`time periods apparently relate to “input” activity, as opposed to relating to the
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`“output” determination of a location where activity “is occurring.” (Paper 13 at
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`17-18; Ex. 2003, ¶ 40).
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`28. Next, Patent Owner suggests “less than a day old” as this threshold
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`“timeframe that would be meaningful to discerning the presence of ongoing
`
`activity for typical events that are short-lived.” (Paper 13 at 28). Again, the ’084
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
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`patent does not contemplate this or any other timeframe being used to discern the
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`presence of ongoing events. The ’084 patent does not even distinguish between
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`events that “are occurring” versus events that “have occurred.” Thus, adding such
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`a timeframe requires importing a new limitation into the ’084 claims. Further,
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`Patent Owner’s proposed set timeframe would not even discern the presence of
`
`ongoing events, as it ignores events that occur over a day or more—including
`
`holidays, music festivals (musical events are explicitly described as events that are
`
`“occurring” in the ’084 patent, Ex. 1001, 9:31-37), and many sports tournaments.
`
`29. Moreover, Patent Owner fails to show that Lemmela’s system “would
`
`not permit the user to filter postings that were less than a day old.” (Paper 13 at
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`28). In support of this assertion, Patent Owner relies solely on Lemmela’s
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`reference to excluding posts older than “a certain date.” (Id. (citing Ex. 1005, ¶
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`37)). Patent Owner ignores the very next sentence of Lemmela, which describes
`
`users “selecting or adjusting a time range for postings” and “select[ing] a starting
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`and ending time defining a time period.” (Ex. 1005, ¶ 37). A person of ordinary
`
`skill would have read Lemmela and understood that it discloses both date and time
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`filtering.
`
`30. Patent Owner next points to Lemmela’s Figure 5, which presents a
`
`“timeline 46 to allow users to adjust the time window” where the “user has
`
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
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`selected a time window from late February to late March.” (Paper 13 at 27 (citing
`
`Ex. 1005, FIG. 5, ¶ 39). Yet, despite the fact that the particular device in Figure 5
`
`displays posts from a period of a month, it also depicts the timeline broken up into
`
`at least daily increments:
`
`
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`Thus, Lemmela clearly discloses determining and displaying locations where
`
`devices posted since the last calendar day. (See also Ex. 1005, ¶ 37 (indicating that
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`old posts may be filtered out from all processing)). Posts since the last calendar
`
`date may correspond to posts within a period of significantly “less than 24 hours,”
`
`which Patent Owner itself admits would be a timeframe indicative of the presence
`
`of events currently occurring. (Paper 13 at 28). For example, a system that
`
`attributes posts to a certain calendar day would have had to choose a cut off time to
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`separate calendar days. Posts associated with the current calendar day therefore
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
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`
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`comprise posts made since this cut off, which may be significantly less than 24
`
`hours. Thus, under Patent Owner’s own interpretation of posts that indicate
`
`presently occurring events, Lemmela’s system can present posts related only to
`
`presently occurring events.
`
`31. Finally, Patent Owner argues that Lemmela’s system is incapable of
`
`determining a location or an event where activity is occurring because Lemmela’s’
`
`“mobile device 50 does not actively query the server for up-to-date information in
`
`response to the user selecting a time range[.]” (Paper 13 at 28). To support this
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`argument, Patent Owner relies on its expert’s unsupported opinion that Lemmela’s
`
`device “pre-downloads posting information 68 from the server and only later
`
`processes this locally stored information[.]” (Ex. 2003, ¶ 55). As a preliminary
`
`matter, this statement is inaccurate because, as Patent Owner itself recognizes,
`
`Lemmela describes that its system can provide mobile devices with either raw data
`
`or pre-processed data. (Paper 13 at 24-25 (citing Ex. 1005, ¶¶ 43-44)). Further,
`
`whether or not data from the server is “pre-downloaded” and/or arrives raw or
`
`“pre-processed” is not indicative of whether Lemmela’s mobile device actively
`
`queries the server for new data, as these choices do not indicate how often the
`
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
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`mobile device queries the server for data.2 What is indicative is Lemmela’s
`
`teachings regarding its use of a server that continuously provides updated data to a
`
`mobile phone:
`
`“Memory 56 may include map information 66, which may be
`downloaded from a network as needed . . . The memory 56 may also
`include posting information 68, which may include raw location
`posting information received from a network, or any type of
`processed information. For example, as previously discussed a server
`on a network may pre-process the location posting information and
`then provide that to the mobile device.”
`(Ex. 1005, ¶ 43)
`
`“The display of postings may be continuously updated based on
`selected time period[.]”
`(Ex. 1005, ¶ 39)
`
`“This embodiment may include receiving a request for further
`information regarding the group, for example a request to view at
`
`2 As I explained in my November 18, 2019 deposition, “pre-processing” data may
`
`comprise a number of different operations, and generally refers merely to getting
`
`data ready to be processed more efficiently. To the extent Patent Owner ascribes
`
`“pre-processing” to mean “pre-downloading,” this is contrary to the normal
`
`meaning of the term “pre-processing” and is not supported by Lemmela.
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`Declaration of Dr. Samrat Bhattacharjee
`U.S. Patent No. 8,825,084
`
`
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`least one of the plurality of postings, or a request for a search for the
`common words. Such search may be performed by receiving a search
`expression and indicating matches to common words in the postings
`based on the search expression.”
`(Ex. 1005, ¶ 14)
`
`A person of ordinary skill would have read these passages as teaching that
`
`Lemmela’s device could actively query and rece