Trials@uspto.gov
`571-272-7822
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` Paper 9
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` Entered: September 4, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`SNAP INC.,
`Petitioner,
`v.
`BLACKBERRY LIMITED,
`Patent Owner.
`
`____________
`
`Case IPR2019-00714
`Patent 8,825,084 B2
`____________
`
`
`
`Before MICHAEL R. ZECHER, MIRIAM L. QUINN, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
` Paper 9
`
`
`
`
` Entered: September 4, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`SNAP INC.,
`Petitioner,
`v.
`BLACKBERRY LIMITED,
`Patent Owner.
`
`____________
`
`Case IPR2019-00714
`Patent 8,825,084 B2
`____________
`
`
`
`Before MICHAEL R. ZECHER, MIRIAM L. QUINN, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`QUINN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`IPR2019-00714
`Patent 8,825,084 B2
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`
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`INTRODUCTION
`I.
`Snap Inc. (“Petitioner”) filed a Petition requesting inter partes review
`of claims 1, 2, 5, 6, 9, 10, 12, 13, and 15 of U.S. Patent No. 8,825,084 B2
`(Ex. 1001, “the ’084 patent”). Paper 1 (“Pet.”). Blackberry Limited
`(“Patent Owner”), filed a Preliminary Response. Paper 8 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 314. Upon considering the
`record developed thus far, for reasons discussed below, we grant the petition
`and institute inter partes review as requested.
`
`A. Related Matters
`The parties indicate that the ’084 patent was asserted in BlackBerry
`Limited v. Snap Inc., No. 2:18-cv-02693 (C.D. Cal.). Pet. 1; Paper 5, 2.
`Petitioner filed a concurrent inter partes review proceeding, Case
`IPR2019-00715, involving U.S. Patent No. 8,326,327 B2, which is related to
`the ’084 patent. Id.
`
`B. The ’084 Patent
`The ’084 patent relates to a system and method for determining an
`action spot based on the location of a mobile device. Ex. 1001, 1:14–17.
`The ’084 patent discloses that, in order to find events currently occurring
`proximate to a mobile device’s present location, a user must manually search
`external sources, such as electronic events calendars, internet sites, and
`internet calendars of businesses or event holders. Id. at 3:11–16. The user
`must then compare the location of the event to the user’s current location.
`Id. at 3:16–19.
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`The ’084 patent discloses a system for determining an action spot, i.e.,
`“a location or an event where at least one activity is occurring relative to the
`current location of another mobile device,” by identifying a location where
`the other mobile device has engaged in documenting action. Id. at 3:3–5,
`3:28–42. The action spot is located within a predetermined distance from
`the location of the user’s mobile device. Id. at 3:28–42. The predetermined
`distance can be any set distance from the current location of the user’s
`mobile device. Id. at 8:32–37. The predetermined distance may be set by a
`user, mobile device, software, server, or network provider. Id. at 8:37–44.
`Figure 3, reproduced below, illustrates a screenshot of an interactive
`map, which includes display screen 102, graphic user interface 206, current
`location 302, action spots 304, 306, and graphical representations 308 of
`location landmarks. Id. at 5:56–6:31.
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`FIG. 3 is an illustrative implementation of a graphical user interface
`displaying action spots within a predetermined distance from a current
`location of a mobile device. Ex. 1001, 1:53–55.
`
`Action spots 304, 306 can have different sizes to indicate the activity
`level associated with each action spot, wherein a larger size represents more
`activity. Id. at 6:32–34. Activities may include documenting actions, such
`as messaging, photographing or video recording. Id. at 2:63–67. Activity
`level may also be indicated by color, graphical-item-sizing, activity icon
`scheme, or various combinations thereof. Id. at 10:26–39.
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`Figure 10, reproduced below, illustrates a block diagram for
`implementing a method of retrieving document actions and transmitting data
`to the mobile device. Id. at 7:5–8.
`
`
`
`Figure 10 is a block diagram representing the interaction between a
`plurality of resources, a mobile device, and a processor configured to
`determine action spots relative to the location of the mobile device.
`Ex. 1001, 2:11–14.
`
`The block diagram includes processor 110, which can retrieve data
`from an external server 1110. Id. at 7:5–34. Server 1110 monitors
`documenting actions of other mobile devices 1120 on the same
`communications network as mobile device 100. Id. Server 1110 can
`monitor location and level of documenting actions, and then transmit action
`spot locations based on the documenting actions to mobile device 100. Id.
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`Figure 7, reproduced below, illustrates a graphical item identifying a
`
`direction in which to travel in order to arrive at the action spot. Id. at
`12:11–14.
`
`
`FIG. 7 is an illustrative implementation of a graphical user interface of
`a mobile device having a compass showing at least the distance and
`direction to an action spot proximate to the mobile device. Ex. 1001, 2:1–4.
`
`In Figure 7, graphical user interface 700 includes compass 702 which is
`pointed in the direction of the nearest action spot proximate to mobile device
`100. Id. at 12:11–23.
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`C. Illustrative Claims
`Of the challenged claims, claims 1 and 9 are independent. Each of
`challenged claims 2, 5, 6, 10, 12, 13, and 15 depends directly or indirectly
`from claims 1 or 9.
`Claims 1 and 9 are illustrative:
`1. A server configured to:
`receive data indicative of a current location of a first mobile
`device;
`determine at least one action spot within a predetermined
`distance from the current location of the first mobile device, the
`at least one action spot corresponding to a location where at least
`one second mobile device has engaged in at least one
`documenting action, the documenting action including at least
`one of capturing images, capturing videos and transmitting
`messages;
`transmit the at least one action spot to the first mobile device;
`and
`transmit to the first mobile device, an indication of an activity
`level at the at least one action spot,
`wherein the activity level is based upon at least one of a number
`of images captured, a number of videos captured, and a number
`of messages transmitted.
`9. A non-transitory computer program product comprising a
`computer useable medium having computer readable program
`code embodied therein providing action spots on a first mobile
`device, the computer program product comprising computer
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`readable program code configured to cause the first mobile
`device to:
`determine, via a processor, a current location of the first mobile
`device;
`determine at least one action spot within a predetermined
`distance from the current location of the first mobile device, the
`at least one action spot corresponding to a location where at least
`one second mobile device has engaged in at least one
`documenting action, the documenting action including at least
`one of capturing images, capturing videos and transmitting
`messages; and
`display a graphical item on a display of the first mobile device,
`said 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, and display a level of activity associated
`with the at least one action spot, the level of activity based upon
`at least one of a number of images captured, a number of videos
`captured, and a number of messages transmitted.
`Ex. 1001, 19:30–46; 20:11–36.
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`D. Asserted Prior Art and Grounds of Unpatentability
`This proceeding relies on the following prior art references:
`
`a) Winkler: U.S. Patent No. 8,750,906 B2, issued June 10, 2014, filed
`as Exhibit 1004;
`
`b) Altman: U.S. Patent Publication No. 2007/0281716 A1, published
`Dec. 6, 2007, filed as Exhibit 1006;
`
`c) Lemmela: U.S. Patent Publication No. 2008/0250337 A1,
`published Oct. 9, 2008, filed as Exhibit 1005; and
`
`d) Crowley: U.S. Patent No. 7,593,740 B2, issued Sept. 22, 2009,
`filed as Exhibit 1008.
`
`Petitioner asserts the following grounds of unpatentability (Pet. 2–3):
`
`Challenged
`Claims
`1, 2, 5, 6, 9, 10, 12,
`13, and 15
`
`Basis
`
`References
`
`§ 103(a)
`
`Winkler and Altman
`
`1, 2, 5, and 6
`
`§ 103(a)
`
`Lemmela and Crowley
`
`9, 10, 12, 13, and
`15
`
`§ 103(a)
`
`Lemmela, Crowley, and Winkler
`
`Petitioner also relies on a Declaration of Dr. Samrat Bhattacharjee,
`filed as Exhibit 1002 (“Bhattacharjee Declaration”).
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`II. DISCUSSION
`A. Claim Construction
`In an inter partes review for a petition filed on or after November 13,
`2018, a claim “shall be construed using the same claim construction standard
`that would be used to construe the claim in a civil action under 35 U.S.C.
`282(b).” 37 C.F.R. § 42.100(b) (2018); see Changes to the Claim
`Construction Standard for Interpreting Claims in Trial Proceedings Before
`the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
`(amending 37 C.F.R. § 42.100(b) effective November 13, 2018). In
`applying this claim construction standard, we are guided by the principle
`that the words of a claim “are generally given their ordinary and customary
`meaning,” as understood by a person of ordinary skill in the art in question
`at the time of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312–
`13 (Fed. Cir. 2005) (en banc) (citation omitted). “In determining the
`meaning of the disputed claim limitation, we look principally to the intrinsic
`evidence of record, examining the claim language itself, the written
`description, and the prosecution history, if in evidence.” DePuy Spine, Inc.
`v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006)
`(citing Phillips, 415 F.3d at 1312–17). There is a “heavy presumption,”
`however, that a claim term carries its ordinary and customary meaning. CCS
`Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)
`(citation omitted).
`Petitioner proposes construction of the phrase “determine at least one
`action spot within a predetermined distance from the current location of the
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`first mobile device.” Pet. 14. Specifically, Petitioner proposes the phrase be
`interpreted as meaning “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.” Id. Petitioner argues that
`“the specification does not explain how a system would treat action spots
`within the ‘predetermined distance from the mobile device’ differently so
`that some action spots within that distance would be ‘determined’ and others
`would not.” Id. at 15. Therefore, Petitioner argues “[w]ithout interpreting
`this limitation as applying to each action spot, the ’084 patent thus fails to
`inform a [person of ordinary skill in the art] with reasonable certainty about
`the claim’s scope.” Id.
`Patent Owner submits that all terms should be interpreted consistent
`with the constructions adopted in the district court’s claim construction
`ruling. Prelim. Resp. 14; Ex. 2002, 9. First, Patent Owner argues that
`“action spot” should be interpreted according to the express definition in the
`Specification: “a location or an event where at least one activity is occurring
`relative to the current location of another mobile device.” Id. (citing
`Ex. 1001, 3:3–5). Second, Patent Owner argues that the phrase “determine
`at least one action spot within a predetermined distance from the current
`location of the first mobile device” should be interpreted according to its
`plain meaning and ordinary meaning, which comports with the district
`court’s construction of this phrase. Id. at 15; Ex. 2002, 38. The district
`court found that “the plain language of the claim requires that the
`predetermined distance be set before the at least one action spot is
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`determined” and that no construction was necessary for the term
`“predetermined distance.” Ex. 2002, 38.
`
`1. “action spot”
`At this juncture, we do not see the need to expressly construe the term
`“action spot,” except to resolve a dispute raised by Patent Owner’s
`arguments. Relying on the alleged lexicography of the term “action spot,”
`Patent Owner focuses on the words “is occurring” to argue that “historical
`activity occurring days or weeks ago is unlike the claimed solution.” Prelim.
`Resp. 28 (citing Ex. 2001 ¶ 53). Although the Specification seems to define
`“action spot” to encompass a temporal requirement rooted in the present
`tense (“is occurring”), it also offers embodiments that are not limited to the
`presently occurring activity. Ex. 1001, 3:3−5, 8:44−48. For example, when
`discussing how an action spot is determined relative to the location of a
`mobile device, the Specification sates that “[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. at 8:44−48.
`Claim 2 also further refines the timing by reciting that the “at least one
`action spot corresponds to a location where at least one other mobile device
`has engaged in a documenting action is [sic] within a predetermined period
`of time.” Id. at 19:47−50; see also id. at 20:37–14 (claim 10, which depends
`from claim 9). If we were to adopt the alleged lexicography definition as
`argued by Patent Owner, we would be excluding an embodiment that allows
`historical activity to influence the determination of an action spot. The
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`Specification contemplates a period of time in the past, i.e., last twelve or
`twenty four hours, for determining an action spot. Thus, we do not agree
`with Patent Owner, that an action spot is temporally limited to a location or
`an event where an activity “is occurring” relative to the location of the
`mobile device. The Specification’s attempt to define “action spot” does not
`seem sufficiently clear because the Specification provides inconsistent use of
`the term, and such inconsistency fails to give notice to a person of ordinary
`skill in the art of the clear meaning of the term. See In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994) (inventor may define specific terms used to
`describe invention, but must do so “with reasonable clarity, deliberateness,
`and precision” and, if done, must “‘set out his uncommon definition in some
`manner within the patent disclosure’ so as to give one of ordinary skill in the
`art notice of the change” in meaning) (quoting Intellicall, Inc. v.
`Phonometrics, Inc., 952 F.2d 1384, 1387–88 (Fed. Cir. 1992)).
`Furthermore, the plain language of the claims describes an “action
`spot” as corresponding to “a location where at least one second mobile
`device has engaged in at least one documenting action.” Ex. 1001,
`19:35−37, 20:37–14. This claim language, therefore, clarifies that the action
`spot would encompass activity that has occurred in the past because the verb
`“has engaged” denotes the present perfect verb tense, which refers to an
`action that either occurred at an indefinite time in the past or began in the
`past and continued to the present time. Thus, if the action spot corresponds
`to a location at which an action occurred at an indefinite time in the past,
`then the action spot may not be limited to actions that are “presently
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`occurring.” Therefore, according to the full context of the Specification and
`the plain meaning of the claim language, we clarify that an “action spot”
`refers to a location or event where an activity “is occurring” or “has
`occurred.”
`
`2. “predetermined distance”
`Claims 1 and 9 recite the phrase “determine at least one action spot
`within a predetermined distance from the current location of the first mobile
`device.” Ex. 1001, 19:33−35, 20:20–22. Claim 5 depends from claim 1 and
`recites “determining of the at least one action spot is based upon a defined
`distance from the mobile device.” Id. at 19:58−60. We are not persuaded by
`Petitioner’s argument that claims 1 and 9 require a “specified distance.” Pet.
`14. Claims 1 and 9 describe in plain words, and without qualification, that
`the action spot must be within a predetermined “distance” from the current
`location of the first mobile device. There is no restriction as to how that
`distance is prescribed. The Specification plainly states that the
`“predetermined distance can be within five blocks, ten blocks, ten yards, one
`hundred yard[s], one hundred feet, thirty feet, ten meters, fifteen meters, five
`miles, ten miles, twelve miles, twenty miles, or any other distance from the
`current location 302 of the mobile device 100.” Ex. 1001, 8:32−37
`(emphases added). The language here is non-restrictive, e.g., “can be,” and
`the listing of distances is circumscribed only to the extent that “any other
`distance” may be used. There is no specific distance requirement anywhere
`in the Specification. And finally, claim 5 confirms that a “defined distance”
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`will be further used for the determining step—leading us to conclude that the
`independent claim should not be limited to a “specific distance.”
`Consequently, we decline to adopt Petitioner’s proposed construction
`of the “predetermined distance” to include a “specified distance”
`requirement.
`
`3. Conclusion
`Although Petitioner argues other claim construction aspects
`concerning the “action spot” phrases, we determine that no further terms
`need to be construed for purposes of this Decision. See Pet. 15 (arguing that
`“at least one action spot” should be interpreted as “each action spot” for the
`claims to be definite). See, e.g., Nidec Motor Corp. v. Zhongshan Broad
`Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017); Vivid Techs., Inc.
`v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those
`terms need be construed that are in controversy, and only to the extent
`necessary to resolve the controversy.”).
`
`B. Level of Ordinary Skill in the Art
`In determining the level of ordinary skill in the art, various factors
`may be considered, including the “type of problems encountered in the art;
`prior art solutions to those problems; rapidity with which innovations are
`made; sophistication of the technology; and educational level of active
`workers in the field.” In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`(internal quotation and citation omitted). In that regard, Petitioner proffers
`that a person having ordinary skill in the art would have least a Bachelor of
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`Science degree in computer science, electrical engineering, or an equivalent,
`and at least two years of experience in the relevant field, e.g., computer
`networking. Pet. 3–4 (citing Ex. 1003 ¶¶ 20–22). Patent Owner, through the
`testimony of Patrick McDaniel Ph.D., proffers a similar level of education
`and experience, except for adding that the two years of experience may
`involve either work or research experience in the fields of “computer
`software, network, and/or user experience design, or an equivalent subject
`matter.” Ex. 2001 ¶ 17.
`We note that Petitioner’s assessment appears consistent with the level
`of ordinary skill in the art at the time of the invention as reflected in the ’084
`patent and the prior art asserted in the instant proceeding. For example,
`Lemmela (Ex. 1005) describes a system that presents, on a mobile device
`display, locations of interest and information about those locations on a map
`using location-based postings in a geographic area, so that the user is able to
`view and filter the automatically generated information. Ex. 1005 ¶¶ 7−9,
`Fig. 7A. For purposes of this Decision, we adopt Petitioner’s assessment.
`
`C. Obviousness over Lemmela and Crowley
`Because we are persuaded that Petitioner has met the “reasonable
`likelihood” threshold burden for institution concerning the Lemmela-based
`grounds, we address those grounds first.
`
`1. Overview of Lemmela (1005)
`Lemmela is directed to finding interesting locations utilizing location
`based postings. Ex. 1005 ¶ 7. The method includes creating a group of
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`postings for a geographic area and creating display information for the
`group, including location information. Id. ¶ 11. The method may be
`implemented on a server that accesses location postings and provides
`information to a user on a mobile device. Id. ¶¶ 38, 43. The mobile device
`may include a Global Positioning System (“GPS”) receiver to determine
`current location information for the mobile device. Id. ¶ 42.
`Figure 1, reproduced below shows example display 20, with a map of
`an area of interest that may be based on a user’s present location. Id. ¶ 26.
`
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`Figure 1 shows a display of a map of an area of interest. Ex. 1005 ¶ 26.
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`Location map 22 in Figure 1 may show information and postings
`about places and activities proximate to the user. Id. ¶ 26. Figure 1
`indicates areas of interest in the form of clouds 24, 26. Id. ¶ 27. The areas
`of interest may be colored based on information, such as, by density of
`location postings. Id. ¶ 28. “Similarly, the shape or shading of clouds may
`be altered to convey different information.” Id. For example, the “shaped
`boundary may be displayed in a color indicating further information about
`the group, for example indicating a quantitative measure of the postings in
`the group.” Id. ¶ 12. The map may also include a timeline, wherein “the
`user can freely select the starting and ending times defining the interesting
`time period.” Id. ¶ 39, see also Fig. 5 (illustrating a display of a device with
`location based postings). The display of postings may be continuously
`updated taking into account posting sent during the selected time period. Id.
`
`Figure 4, reproduced below, shows steps of implementing the method,
`including accessing a collection of location postings in step 100 and
`determining the proximity of postings in step 104 by taking into account
`both the similarity between the postings and the geographic distance. Id.
`¶¶ 33–35.
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`Figure 4 is a flowchart of steps for creating information for a map
`overlay. Ex. 1005 ¶ 36.
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`2. Overview of Crowley (1008)
`Crowley discloses a system establishing connections between users of
`mobile devices by identifying the locations of related users and sending a
`message between related users based on proximity. Ex. 1008, 2:31–38. The
`system may include location engine 102 for identifying the distance between
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`respective users to identify which users are proximate to each other. Id. at
`12:54–65. Users within a predetermined distance receive messages about
`each other, wherein the predetermined distance may be a set amount, e.g.,
`ten blocks, or may vary based on location. Id. A server may test for all
`active acquaintances of a user, retrieve their location coordinates, “check the
`first member’s location against those other locations,” and send a message to
`each relevant member of the group, including the user. Id. at 11:3–16.
`The system may note locations at which the user has recently checked
`in, commented on, or written reviews about. Id. at 15:60–64. Location
`databases 110 may correlate information about venues, such as venue
`names, with geographic coordinates for each location. Id. at 14:42–44. The
`system may identify nearby venues associated with reviews of other
`members. See id. at 14:54–64.
`
`3. Reasonable Likelihood Determination
`After considering Petitioner’s contentions and Patent Owner’s
`arguments in opposition, we are persuaded that Petitioner has demonstrated
`a reasonable likelihood of prevailing on its contention that independent
`claim 1 would have been obvious over Lemmela and Crowley, and that
`claim 9 would have been obvious over Lemmela, Crowley, and Winkler.
`
`Independent Claims 1 and 9
`i.
`Petitioner’s analysis, supported by the Bhattacharjee Declaration,
`demonstrates that Lemmela teaches that a server groups together virtual
`location-based posts, as the recited “action spots,” using common
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`characteristics of the posts, such as salient words. Pet. 47−48 (citing
`Ex. 1005 ¶¶ 11, 33−35, 38, 42, 58, Fig. 4). These posts correspond to the
`location of the recited “documenting action” that includes “transmitting
`messages” because the posts are transmitted by mobile devices while at the
`location about which the posts refer. Id. at 48 (citing Ex. 1005 ¶ 33).
`Furthermore, Petitioner points out Lemmela’s disclosure of the map display
`where the grouping of posts are presented within the user’s present location.
`Id. at 49 (citing Ex. 1005 ¶ 26). Thus, according to Petitioner, Lemmela
`discloses displaying the grouping of posts as “action spots” that are within a
`predetermined distance from the current location as they are shown to the
`user in the map displayed based on the current user’s location. Id. at
`48−50.1 And, according to Petitioner, the displayed posts groupings or
`“action spots” correspond to the locations where users have engaged in
`transmitting messages. Id.
`Furthermore, Petitioner argues that Lemmela transmits the grouping
`of posts to the mobile device so they can be displayed, thereby teaching
`“transmitting the at least one action spot to the first mobile device.” Id. at 54
`(citing Ex. 1005 ¶ 38). Lemmela also transmits “an indication of an activity
`level at the at least one action spot,” according to Petitioner, because
`
`
`1 We have not relied on Petitioner’s contentions that assert Crowley as
`disclosing a “specified distance” because we find that, at this juncture,
`Petitioner has shown sufficiently that Lemmela teaches the “action spot” per
`our claim construction analysis in Section II.A.2 above, which does not
`require a “specified distance.”
`
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`Lemmela displays a “heat map” in which certain areas are colored based on
`the information being presented with different colors used to reflect density
`of location postings and various colored boundaries may reflect a
`“quantitative measure of the postings in the group.” Id. at 55 (citing
`Ex. 1005 ¶¶ 12, 28). Because Lemmela’s color changes and the display
`changes based on density of postings (or as a quantitative measure of
`postings in the grouping), Lemmela teaches that the “activity level is based
`upon at least one of . . . a number of messages transmitted.” Id. at 55−56.
`As for claim 9, Petitioner further relies on the disclosures of Winkler
`displaying a direction of travel to a map element as teaching the recited
`“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.”
`Pet. 62 (referring back to pages 38−41 where Petitioner lays arguments that
`Winkler discloses the limitation recited in claim 9 and citing Exhibit 1004,
`column 13, lines 21−31). Petitioner further explains that Winkler teaches an
`embodiment in which a user attempts to walk toward a store, and the system
`changes a map element’s color to indicate that the user is heading in the
`right direction. Id. As for the other limitations of claim 9, Petitioner relies
`on substantially the same arguments and evidence presented for claim 1. Id.
`at 60−62.
`
`Current Location of a First Mobile Device”
`Claim 1 recites that a server is configured to “receive data indicative
`of a current location of a first mobile device. Ex. 1001, 19:30−32. Claim 9
`in contrast recites program code configured to cause the first mobile device
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`to “determine, via a processor, a current location of the first mobile device.”
`Id. at 20:15−19. Thus, Patent Owner argues that claim 1, in contrast with
`claim 9, requires that the server perform the recited function of receiving the
`current location of the mobile device. Prelim. Resp. 50. Patent Owner
`argues that the Petition only points out that the mobile device has a GPS
`receiver. Id. at 51. Patent Owner argues that Lemmela never teaches
`“explicitly” that the server receives the current location, but only that it
`accesses and processes the “historical postings from other user in order to
`create information that can then be output to such mobile devices.” Id. at 52.
`Patent Owner reasons, with support from its declarant Dr. McDaniel, that the
`server would have no need for the mobile device’s current location because
`the server is only concerned with providing the “super-set” of information
`that results on the clouds on the map. Id. at 52−53 (citing Ex. 2001 ¶ 86).
`We are not persuaded by Patent Owner arguments at this juncture.
`Petitioner points out in connection with one of the “action spot” limitations
`(element 1[c] in the Petition) that Lemmela illustrates a map of an area of
`interest which is based on a user’s present location. Pet. 49 (citing Ex. 1005
`¶ 26). This teaching reasonably shows that Lemmela’s “super-set” of
`information that is presented via clouds on the map is based on the current
`location of the mobile device. Indeed, Figure 1 shows the various clouds on
`the map of a particular city that is displayed because the user is “visiting this
`particular city.” Ex. 1005 ¶ 26. This description teaches or suggests, that a
`server, which Petitioner has pointed out as implementing the system
`disclosed in Lemmela, has received the current location of the mobile device
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`(such as the city or part of the city the user is visiting) in order to provide the
`“super-set” of information to the mobile device about the area of interest in
`the city or part of the city where the mobile device is located.
`We note Dr. McDaniel’s opinion that Lemmela’s mobile device
`determines its own location, and then accesses the pre-processed information
`that it “previously received from the server to determine which clouds to
`present.” Ex. 2001 ¶ 86. Thus, we understand Dr. McDaniel to state that
`Lemmela’s server sends “a complete set” of the pre-processed information
`to the mobile device, without knowing the mobile device location. Id. But
`this testimony is unsupported by Lemmela, which does not teach that a
`“complete set” is transmitted to the mobile device without regard for the
`mobile device’s whereabouts. Rather, Lemmela teaches or suggests that less
`than a “complete set,” such as a “collection” of postings corresponding to
`the user’s location in the city is processed and transmitted to the mobile. See
`Ex. 1005 ¶¶ 33−34 (describing the server’s access to a “collection of
`postings” and scanning the “collection of postings (or a subset thereof)”);
`¶ 35 (describing the use of clustering algorithms to calculate the density of
`messages containing a searched word “around the city,” which harkens back
`to the user visiting that particular city in paragraph 26). Although Lemmela
`discloses that the information may be “pre-processed” by the server (id.
`¶ 43), Lemmela does not state that the transmission of the “pre-processed”
`information to the mobile device occurs without regard for the mobile
`device’s location, when it seems clear that if the mobile device downloads
`the maps as needed, Lemmela suggests that the mobile device would also
`
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`download the map overlay information that the server has pre-processed
`based on the requested map. Id.
`In any event, the testimony by Dr. McDaniel at best seems to raise a
`genuine issue of material fact regarding whether Lemmela teaches or
`suggests the server configured to “receive data indicative of a current
`location of a first mobile device.” As a result, we view the issue most
`favorable to the Petitioner solely for purposes of deciding whether to
`institute inter p
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