IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`CASE NO. 2:18-cv-02693
`GW(KSx)
`
`DECLARATION OF PATRICK
`MCDANIEL, PH.D.
`REGARDING CLAIM
`CONSTRUCTION
`
`)))))))))))))
`
`BLACKBERRY LIMITED, a
`Canadian corporation,
`
`Plaintiff,
`
`v.
`
`SNAP INC., a Delaware corporation,
`
`Defendant.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`SNAP INC. v. BLACKBERRY LIMITED
`IPR2019-00715
`
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0001
`
`

`

`I.
`
`I, Patrick McDaniel, Ph.D., declare as follows:
`Introduction
`1.
`My name is Patrick McDaniel, Ph.D.
`2.
`I have been retained by counsel for Plaintiff BlackBerry Limited
`(“BlackBerry”) as an expert in this litigation to provide opinions concerning certain
`claim terms in U.S. Patent No. 8,326,327 (’327 Patent) and U.S. Patent No.
`8,825,084 (’084 Patent) (together, the “Action Spots Patents”).
`3.
`I am being compensated at my standard billing rate of $600 per hour
`for time spent on this matter.
`4.
`My compensation is in no way dependent on the outcome of this
`investigation.
`II.
`Background And Qualifications
`5.
`My qualifications for forming the opinions in this report are
`summarized here. I earned a Ph.D. in Computer Science and Engineering from
`University of Michigan, Ann Arbor in 2001. I earned a Bachelor of Science degree
`in Computer Science from Ohio University in 1989 and a Master of Science degree,
`also in Computer Science, from Ball State University in 1991.
`6.
`Since 2017, I have been the William L. Weiss Professor of Information
`and Communications Technology in the School of Electrical Engineering and
`Computer Science at the Pennsylvania State University in University Park,
`Pennsylvania. I am also the director of the Institute for Network and Security
`Research, director of the National Science Foundation Funded Center for
`Trustworthy Machine Learning, and founder and co-director of the Systems and
`Internet Infrastructure Security Laboratory, a research laboratory focused on the
`study of security in diverse network and computer environments. My research
`efforts primarily involve computer systems, mobile device systems and security,
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-1-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0002
`
`

`

`network, management, and authentication, systems security, and technical public
`policy.
`Before my current position, I was an Assistant Professor (2004-2007),
`7.
`Associate Professor (2007-2011), Full Professor (2011-2015), and Distinguished
`Professor of Computer Science and Engineering at the Pennsylvania State
`University. Since 2004, I have taught several courses in the field of computer
`systems, systems programming, networks, and network and computer security at
`both the undergraduate and graduate level. I created and continue to maintain
`several of these courses for Penn State.
`8.
`From 2003-2009, I was also an Adjunct Professor at the Stern School
`of Business at New York University in New York, NY. At the Stern School of
`Business, I taught courses in computer and network security and online privacy.
`9.
`I am a Fellow of the Association for Computing Machinery (the leading
`professional association for computer science) for “contributions to computer and
`mobile systems security” and the Institute for Electrical and Electronics Engineering
`(the leading professional association for computer engineering) for “contributions to
`the security of mobile communications”.
`10.
`I was the Program Manager (PM) and lead scientist for the Cyber
`Security Collaborative Research Alliance (CRA) from 2012 to 2018. The CRA is
`led by Penn State University and includes faculty and researchers from the Army
`Research Laboratory, Carnegie Mellon University, Indiana University, the
`University of California-Davis, and the University of California-Riverside. This
`national scale initiative is a research project aimed at developing a new science of
`cyber-security for military networks, computers, and installations.
`11.
`I have served as an advisor to several Ph.D. and master’s degree
`candidates, several of whom have gone on to become professors at various
`institutions such as North Carolina State University, the University of Oregon, and
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-2-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0003
`
`

`

`the Georgia Institute of Technology. I am currently an advisor to two Ph.D.
`candidates and a number of master’s students.
`12. Before joining Pennsylvania State University as a professor, I was a
`software developer and project manager for companies in the networking industry
`including Applied Innovation, Inc. and Primary Access Corporation. I was also a
`senior researcher at AT&T Research-Labs. As part of my duties in these industrial
`positions, I designed and implemented online services and features such as those at
`issue in this case.
`13.
`I have published extensively in the field of network and security
`management, mobile networking and device operating systems, computer systems.
`authentication, systems security, applied cryptography and network security. In
`addition to writing several articles for industry journals and conferences, I have
`authored portions of numerous books related to computer systems, applied
`cryptography and network security. I have served on the editorial boards of several
`peer-reviewed journals including ACM Transactions on Internet Technology, for
`which I was the Editor-in-Chief. I was also an Associate Editor for ACM
`Transactions on Information and System Security and IEEE Transactions of
`Software Engineering, two highly-regarded journals in the field. A complete list of
`my publications in the last 10 years, as well as a list of editorial positions can be
`found in curriculum vitae, as attached as Exhibit A.
`14.
`In view of the foregoing, I am qualified to testify as one skilled in the
`art with respect to the technology at issue in this matter.
`III. Applicable Legal Standards
`15.
`I understand that claim construction is an issue of law for the Court to
`decide.
`I further understand that claim terms should be given their ordinary and
`16.
`customary meaning within the context of the patent in which the terms are used, i.e.,
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-3-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0004
`
`

`

`the meaning that the term would have to a person of ordinary skill in the art in
`question at the time of the invention in light of what the patent teaches.
`17.
`I understand that to determine how a person of ordinary skill would
`understand a claim term, one should look to those sources available that demonstrate
`what a person of skill in the art would have understood disputed claim language to
`mean. Such sources include the words of the claims themselves, the remainder of
`the patent’s specification, the prosecution history of the patent (all considered
`“intrinsic” evidence), and “extrinsic” evidence concerning relevant scientific
`principles, the meaning of technical terms, and the state of the art.
`18.
`I understand that words or terms should be given their ordinary and
`accepted meaning unless it appears that the inventors were using them to mean
`something else. In making this determination, of paramount importance are the
`claims, the patent specification, and the prosecution history. Additionally, the
`specification and prosecution history must be consulted to confirm whether the
`patentee has acted as its own lexicographer (i.e., provided its own special meaning
`to any disputed terms), or intentionally disclaimed, disavowed, or surrendered any
`claim scope. I understand that the specification can effectively act as a dictionary
`when it expressly defines terms used in the claims or when it defines terms by
`implication.
`19. A claim construction analysis must begin and remain centered on the
`claim language itself. Additionally, the context in which a term is used in the
`asserted claim can be highly instructive. Likewise, other claims of the patent in
`question, both asserted and unasserted, can inform the meaning of a claim term. For
`example, because claim terms are normally used consistently throughout the patent,
`the usage of a term in one claim can often illuminate the meaning of the same term
`in other claims. Differences among claims can also be a useful guide in
`understanding the meaning of particular claim terms.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-4-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0005
`
`

`

`I understand that a person of ordinary skill in the art is deemed to read a
`20.
`claim term not only in the context of the particular claim in which the disputed term
`appears, but in the context of the entire patent, including the specification. For this
`reason, the words of the claim must be interpreted in view of the entire specification.
`21.
`I understand that claim terms must be construed in a manner consistent
`with the context of the intrinsic record. In addition to consulting the specification,
`one should also consider the patent’s prosecution history. The prosecution file
`history provides evidence of how both the Patent Office and the inventor(s)
`understood the terms of the patent, particularly in light of what was known in the
`prior art. Further, where the specification describes a claim term broadly, arguments
`and amendments made during prosecution may require a more narrow
`interpretation.
`22.
`I understand that a patent’s specification and prosecution history form
`part of the intrinsic record for that patent as well as its related patents. This doctrine
`is particularly applicable if the same claim term is present in multiple related
`patents. I understand that a court presumes, unless otherwise compelled, that the
`same claim term in the same patent or related patents carries the same construed
`meaning.
`I understand that while intrinsic evidence is of primary importance,
`23.
`extrinsic evidence, i.e., evidence external to the patent and prosecution history,
`including expert opinions, dictionaries, and learned treatises, can also be considered.
`For example, technical dictionaries may help one better understand the underlying
`technology and the way in which one of skill in the art might use the claim terms.
`Extrinsic evidence should not be considered, however, divorced from the context of
`the intrinsic evidence.
`24.
`I understand that patents are subject to a definiteness requirement,
`which means they must conclude with one or more claims particularly pointing out
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-5-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0006
`
`

`

`and distinctly claiming the subject matter that the applicant regards as the invention.
`I understand a patent satisfies the definiteness requirement if its claims, read in light
`of the specification delineating the patent and the prosecution history, inform, with
`reasonable certainty, those skilled in the art about the scope of the invention.
`IV. The Action Spots Patents
`A.
`Level of Ordinary Skill in the Art
`25.
`I understand that claim interpretation is from the perspective of a
`person of ordinary skill in the art at the time of the invention.
`26.
`The ’327 Patent was filed on August 27, 2010, as application number
`12/870,676. The ’084 Patent was filed on October 9, 2012, as a continuation of
`application number 12/870,676. The patents share a specification. Accordingly, I
`consider the time of the invention to be August 2010.
`27.
`In my opinion, a person of ordinary skill in the art relevant to the
`Action Spots Patents at the time of the invention would have had a bachelor of
`science degree in Computer Engineering/Computer Science or similar subject
`matter, or at least approximately two years of work or research experience in the
`fields of computer software, networking, and/or user experience design, or an
`equivalent subject matter. My opinion of a person of ordinary skill in the art
`remains the same regardless of whether the time of the invention is found to be
`August 2010, or some later time up until and including the October 9, 2012 filing
`date of the ’084 Patent.
`28.
`I am and was at the time of the invention a person of ordinary skill in
`the art.
`Patent Background
`B.
`29. Both Action Spots Patents are entitled “System and Method For
`Determining Action Spot Locations Relative To The Location Of A Mobile
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-6-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0007
`
`

`

`Device.” As the shared title indicates, both patents relate to determining action spot
`locations relative to the location of a mobile device.
`30.
`The Action Spots Patents share identical specifications (save for an
`explanation at column 1, lines 8-10 of the ’084 Patent explaining that the
`’084 Patent is a continuation of the application that became the ’327 Patent). The
`terms used in the claims of both Action Spots Patents are both used consistently
`throughout. (Compare, e.g., ’327 Patent claim 1 with ’084 Patent claim 1). The
`specifications of both Action Spots Patents also provide identical definitions to
`several claim terms. (Compare, e.g., ’327 Patent at 2:25-65 [defining multiple
`terms] with ’084 Patent at 2:32 to 3:5 [defining same terms in the same way].)
`Thus, there is no reason, much less a compelling reason, to interpret any claim term
`differently in the ’327 Patent versus the ’084 Patent. In my opinion, a person of
`ordinary skill in the art would apply the same meaning to shared terms in both
`patents.
`Prior to the Action Spots Patents, users could use an electronic device,
`31.
`such as a mobile phone, to locate nearby events and happenings. The patentee
`recognized this process as tedious and inefficient. Users searching for events were
`forced to consult multiple sources and/or applications. Users would then cross-
`reference the locations of those events with a map, such as a map application on a
`smart phone, but the mapping applications contained limited functionality:
`Typically, the maps and directions are limited in information. For
`example, maps are limited to displaying the streets within a city. In
`order to find information relating to events and happenings currently
`occurring proximate to the mobile device’s present location, the user of
`the mobile device will have to search an external resource, such as an
`electronic events calendar, internet sites, internet calendars of
`individual business or event holders (stores, restaurants, concert
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-7-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0008
`
`

`

`venues, bars, etc.), and compare the locations of the found events and
`happenings to the mobile device's current location. Such a process of
`manually researching events and happenings, determining the location
`of the events and happenings, and comparing the location of the events
`and happenings to the users current location is tedious and results in
`user frustration. Moreover, the results of the user’s research of current
`events and happenings can be incomplete and inaccurate, and the user
`can miss certain happenings that are close in proximity to the current
`location of the user's mobile device. (’327 Patent at 3:2-20; ’084 Patent
`at 3:9-27.)
`32.
`The Action Spots Patents presented a new solution. Namely, the
`Action Spots Patents determine locations at which one or more mobile devices are
`engaged in certain activity, such as taking pictures or videos, posting pictures or
`videos to social networking sites, or sending or posting messages. (See, e.g., ’327
`Patent at 3:6 to 4:23; ’084 Patent at 4:4-32.) The Action Spots Patents then present
`a visual indication of these locations, known as “action spots,” and may visually
`depict the amount of activity occurring at the action spot(s). (See, e.g., ’327 Patent
`at 4:24-44; ’084 Patent at 4:32-53.) Thus, “a user can review information related to
`current happenings within the vicinity of the user’s mobile device” by drawing upon
`locations at which mobile devices are performing activities such as documenting
`actions. (Id.)
`33.
`Figure 3, depicted below, is an illustrative implementation of “a
`graphical user interface displaying an action spot within a predetermined distance
`from a current location of a mobile device.” (’327 Patent at 1:46-49; ’084 Patent at
`1:53-55.) In the figure, the current location of the mobile device is depicted by item
`302, and “the processor 110 identifies two action spots with[in] a predetermined
`distance from the current location 302 of the mobile device 100. The action
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-8-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0009
`
`

`

`spots 304, 306 are signified on the map 206 by graphical items that are clouds.”
`(’327 Patent at 6:9-16; ’084 Patent at 6:18-25.) In this example, items are sized to
`indicate the level of activity associated with the action spot, with 304 being larger
`than 306 to indicate more activity, such as more postings to social media sites being
`made by mobile devices at that location. (’327 Patent at 6:23-50; ’084 Patent at
`6:32-59.) Activity levels may also be depicted by varying colors, such as by using
`yellow to indicate moderate action and green to indicate large action. (Id.)
`
`V.
`
`Constructions For Proposed Claim Terms
`34.
`I understand that BlackBerry has proposed the following terms for
`construction:
`(cid:120)
`
`action spot” (’327 Patent claims 1, 2, 3, 8, 10, 11, 13, 14, 15, and
`20; ’084 Patent claims 1, 2, 5, 6, 9, 10, 11, 12, 13, and 14)
`“activity level” (’327 Patent claims 1, 2, 13, and 15; ’084 Patent
`claim 1)
`
`(cid:120)
`
`-9-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0010
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`I understand that Snap has proposed the following terms for
`35.
`construction:
`(cid:120)
`
`(cid:120)
`
`“determine/determining at least one action spot within a
`predetermined distance from the current location of the mobile
`device” (’327 Patent claims 1, 10, and 13; ’084 Patent claims 1
`and 9)
`“display the image with the at least one action spot” (’327 Patent
`claims 9 and 20)
`“image” (’327 Patent claims 9 and 20)
`(cid:120)
`Claim Terms Proposed By BlackBerry
`1.
`“Action Spot” (’327 Patent claims 1, 2, 3, 8, 10, 11, 13, 14, 15,
`and 20; ’084 Patent claims 1, 2, 5, 6, 9, 10, 11, 12, 13, and 14)
`
`A.
`
`BlackBerry Proposed Construction: “location or event where at least one
`activity is occurring relative to the current location of another mobile device”
`
`36.
`
`Illustrative claim 1 of the ’327 Patent reads:
`
`1. A mobile device comprising:
`a display; and
`a processor module communicatively coupled to the display and
`configured to receive executable instructions to:
`display a graphical user interface on the display;
`receive data indicative of a current location of the mobile device;
`determine at least one action spot within a predetermined
`distance from the current location of the mobile device, the at
`least one action spot corresponding to a location where at least
`one other mobile device has engaged in documenting action
`within a predetermined period of time;
`
`-10-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0011
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`signify the at least one action spot on the graphical user
`interface; and
`provide an indication of activity level at the at least one action
`spot.
`
`In my opinion, the patentee has explicitly defined the term “action
`37.
`spot” identically in each of the ’327 and ’084 Patents: “The term ‘action spot’
`refers to a location or an event where at least one activity is occurring relative to the
`current location of another mobile device.” (’327 Patent at 2:63-65; ’084 Patent at
`3:3-6.) Accordingly, BlackBerry proposes that the Court construe the term “action
`spot” as a “location or event where at least one activity is occurring relative to the
`current location of another mobile device.”
`38.
`I have reviewed the claims in the context of the specification, the file
`history, and the knowledge of a person of skill in the art at the time of the invention,
`and conclude that BlackBerry’s proposed construction is correct.
`39. As noted, BlackBerry’s proposed construction mirrors the definition
`explicitly defined by the patent. Further, the two-word term “action spot” is not in
`common usage, but appears to be a coined term. I am not aware of a similar usage
`of “action spot” in this context before its use in the Action Spot Patents. This
`provides an additional reason that I agree with the definition provided by the
`patentee.
`The claim language itself supports BlackBerry’s proposed construction.
`40.
`For example, in claim 1 of the ’327 Patent, the “action spot” is at a location “within
`a predetermined distance from the current location of the mobile device …
`corresponding to a location where at least one other mobile device has engaged in
`documenting action within a predetermined period of time,” and also has an
`associated “activity level.” This claim maps onto BlackBerry’s proposed
`construction of “action spot,” namely a “location or event where at least one activity
`is occurring relative to the current location of another mobile device.” Claim 1
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-11-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0012
`
`

`

`places the action spot at a location relative to (“within a predetermined distance
`from”) the current location of a mobile device, and requires that “documenting
`action” have taken place at that location. “Documenting action” is a form of the
`“activity” required by BlackBerry’s proposed construction. (See ’327 Patent at
`2:55-56 [“an activity can include but is not limited to a documenting action”]; ’084
`Patent at 2:62-63 [same].)
`41.
`Similarly, claim 1 of the ’084 patent requires that the “action spot” be
`located “within a predetermined distance from the current location of the first
`mobile device” and “correspond[] to a location where at least one second mobile
`device has engaged in at least one documenting action.” Claim 1 of the ’084 Patent
`also requires the action spot to have an associated “activity level.”
`42.
`The construction is also in accord with the intrinsic evidence in other
`ways. The specification and figures consistently show that an “action spot” is a
`location or an event where at least one “activity” is occurring relative to the current
`location of another mobile device, with “activity” also defined by the patent as “an
`action taken by a mobile device”:
`
`The term “activity” refers to an action taken by a mobile device. For
`example, an activity can include but is not limited to a documenting
`action (such as a text messaging, emailing, blogging, posting a message
`on a social networking internet site, or any other documenting actions),
`a recording action (such as video recording, audio recording, or
`photographing taken by a mobile device) or any other action where the
`mobile device is being used to observe and make note of a location or
`an event currently occurring at the location of the mobile device. The
`term “action spot” refers to a location or an event where at least
`one activity is occurring relative to the current location of another
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-12-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0013
`
`

`

`mobile device. (’327 Patent at 2:54-65; ’084 Patent at 2:61 to 3:5
`(emphasis added).)
`43.
`The specification consistently confirms that an “action spot” refers to a
`location or an event where at least one activity (meaning an action taken by a mobile
`device, such as a documenting action) is actively occurring relative to the current
`location of another mobile device. Below, I supply a few examples:
`a. ’327 Patent Abstract; ’084 Patent Abstract (“The action spot can be a
`location where at least one other mobile device has engaged in
`documenting action within a predetermined period of time from when
`the mobile device arrived at the current location.”)
`b. ’327 Patent at 4:4-23; ’084 Patent at 4:12-31 (“For example, the
`processor can determine the at least one action spot as the location
`where at least one other mobile device is composing an email,
`composing a text message, messaging on an instant messenger
`application, posting messages, pictures, or videos on a social
`networking site, posting on a virtual posting mechanism, or any other
`similar documenting action. Alternatively, the at least one action spot
`can be determined based on at least one other mobile device performing
`a recording action, such as video recording, audio recording, or photo
`graphing, within a predetermined distance from the current
`location of the mobile device. In another implementation, the at least
`one action spot can be determined by monitoring the number of data
`packet transmissions occurring within a particular geographical
`area or the number of data packets being transmitted from at least one
`other mobile device. In yet other implementations, the at least action
`spot can be the location where at least one other mobile device has
`documented, recorded, accounted, chronicled, or otherwise has
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-13-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0014
`
`

`

`taken note of a location or a current happening occurring at the
`location.”)
`c. ’327 Patent at 6:51-56; ’084 Patent at 6:60-65 (“The implementation of
`the present technology illustrated in FIG. 3 illustrates the results of the
`processor’s 110 determination of action spots 304, 306, where the
`action spots 304, 306 based on locations where at least one other
`mobile device has engaged in documenting action within a specific
`period of time.”)
`d. ’327 Patent at 7:1-16; ’084 Patent at 7:10-25 (“The external server
`1110 can monitor the documenting actions of other mobile devices
`1120 on the same communications network provider as the mobile
`device 100 and transmit data to the mobile device 100 indicative of
`action spots located within a predetermined distance from the current
`location 302 of the mobile device 100. For example, the server 1110
`can monitor and log where other mobile devices 1120 are capturing
`images, capturing videos, or transmitting messages, such as text
`messages, instant messages, virtual posts, or any combination thereof,
`and identify the locations as action spots. The server 1110 can also
`monitor the number of images, videos, messages, and posts being
`captured or transmitted at various locations to determine the level of
`documenting activity occurring at the various actions spots based on at
`least one of the aforementioned monitored activities.”)
`e. ’327 Patent at 7:26-30; ’084 Patent at 7:35-39 (“In at least another
`implementation, the external server 1110 can monitor the transmission
`of data packets by other mobile devices 1120 within a predetermined
`distance from the mobile device 100. The locations of where the data
`packet transmissions originate can indicate an action spot.”)
`
`-14-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0015
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`f.
`
`’327 Patent at 8:2-8; ’084 Patent at 8:11-17 (“For example, the third-
`party server 1140 can determine that a location within a predetermined
`distance from the current location 302 of the mobile device 100 is an
`action spot based on the number of message board posting and
`video postings occurring at the location within a predetermined
`distance from the current location 302 of the mobile device 100.”)
`Extrinsic evidence further confirms this construction of action spot.
`44.
`For instance, dictionaries define the term “action” to refer to a location of “hot”
`social activity: one dictionary uses the definition “exciting things that are
`happening,” as in “New York’s where the action is.”1 This definition is consistent
`with the term as used in the patent: the invention is directed to providing with users
`with “action spots,” i.e., spots where the action is, with action being inferred from
`the measure of mobile devices engaged in activity at that spot.
`45.
`In sum, the term “action spot” should be construed as explicitly defined
`by the patentee: as a “location or event where at least one activity is occurring
`relative to the current location of another mobile device.”
`2.
`“Activity Level” (’327 Patent claims 1, 2, 13, and 15;
`’084 Patent claim 1)
`
`BlackBerry Proposed Construction: “measure of the actions taken by one or
`more mobile devices”
`
`46.
`
`Illustrative claim 1 of the ’327 Patent reads:
`
`1. A mobile device comprising:
`
`
`1 Longman Dictionary of American English, Fourth Edition (2007); see also
`Collins Dictionary, Tenth Edition (2009) (“the main activity, esp social activity”);
`Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2005) (“the most
`vigorous, productive, or exciting activity in a particular field, area, or group”).
`-15-
`Case No. 2:18-cv-02693 GW(KSx)
`MCDANIEL DECLARATION ON CLAIM CONSTRUCTION (’327 AND ’084 PATENTS)
`
`Snap Inc. Ex. 1023 Page 0016
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`a display; and
`a processor module communicatively coupled to the display and
`configured to receive executable instructions to:
`display a graphical user interface on the display;
`receive data indicative of a current location of the mobile device;
`determine at least one action spot within a predetermined
`distance from the current location of the mobile device, the at
`least one action spot corresponding to a location where at least
`one other mobile device has engaged in documenting action
`within a predetermined period of time;
`signify the at least one action spot on the graphical user
`interface; and
`provide an indication of activity level at the at least one action
`spot.
`
`The term “activity level” should be construed to incorporate the
`47.
`patentee’s explicit definition of the term “activity,” which is “an action taken by a
`mobile device.” (’327 Patent at 2:54-55; ’084 Patent at 3:61-62.) These actions
`take on a variety of forms based on the functionality of the mobile device, including:
`“a documenting action (such as a text messaging, emailing, blogging, posting a
`message on a social networking internet site, or any other documenting actions), a
`recording action (such as video recording, audio recording, or photographing taken
`by a mobile device) or any other action where the mobile device is being used to
`observe and make note of a location or an event currently occurring at the location
`of the mobile device.” (’327 Patent at 2:55-63; ’084 Patent at 2:63 to 3:3.) I note
`that each asserted claim requires that the “action spot” correspond to a location at
`which “documenting action” is occurring.
`48.
`I have reviewed the claims in the context of the specification, the file
`history, and the knowledge of a person of skill in the art at the time of the invention,
`and conclude that BlackBerry’s propose