STEVEN J. RIZZI (pro hac vice)
`srizzi@kslaw.com
`RAMY HANNA (pro hac vice)
`rhanna@kslaw.com
`KING & SPALDING LLP
`1185 Avenue of the Americas, 35th Floor
`New York, NY 10036
`Telephone: (212) 556-2100
`Facsimile: (212) 556-2222
`
`RYAN A. SCHMID (pro hac vice forthcoming)
`rschmid@kslaw.com
`KING & SPALDING LLP
`1700 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`Telephone: (202) 737-0500
`Facsimile: (202) 626-3737
`
`RAMON A. MIYAR (CA SBN 284990)
`rmiyar@kslaw.com
`KING & SPALDING LLP
`50 California Street, Suite 3300
`San Francisco, CA 94111
`Telephone: (415) 318-1200
`Facsimile: (415) 318-1300
`
`Attorneys for Plaintiff
`EXPRESS MOBILE, INC.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`EXPRESS MOBILE, INC.
`
`Civil Action No. 3:20-cv-08492-RS
`
`Plaintiff,
`
`v.
`
`PLAINTIFF EXPRESS MOBILE, INC.’S
`DISCLOSURE OF ASSERTED CLAIMS
`AND INFRINGEMENT CONTENTIONS
`
`SAP SE, SAP AMERICA, INC., and
`SAP LABS, LLC
`
`Defendants.
`
`Judge: Hon. Richard Seeborg
`
`Action Filed: December 2, 2020
`
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
`Case No.: 3:20-cv-08492-RS
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`SAP Exhibit 1022
`SAP v. Express Mobile, Inc.
`IPR2021-01146
`Page 00001
`
`

`

`
`
`Plaintiff Express Mobile, Inc. (“Plaintiff” or “Express Mobile”) serves its Disclosure of
`Asserted Claims and Infringement Contentions on Defendants SAP SE, SAP America, Inc., and
`SAP Labs, LLC (collectively “Defendants”) regarding U.S. Patent No. 6,546,397 (the “’397
`Patent”), U.S. Patent No. 7,594,168 (the “’168 Patent”), U.S. Patent No. 9,928,044 (the “’044
`Patent”), U.S. Patent No. 9,471,287 (the “’287 Patent”) and U.S. Patent No. 9,063,755 (the “’755
`Patent”) (collectively, the “patents-in-suit”).
`Express Mobile has served Defendants with discovery requests, including, inter alia,
`requests for technical documents related to the accused products. While Defendants have served
`responses to Express Mobile’s discovery requests, to date, Defendants have not produced any
`documents. See Email from L. Shapiro to R. Schmid (dated March 11, 2021). Defendants’
`failure to produce technical documents related to the accused products has prejudiced Express
`Mobile’s ability to make this disclosure, as documents relevant to infringement are not publicly
`available and uniquely in the possession, custody, and/or control of Defendants. Thus, Express
`Mobile makes this disclosure without the benefit of relevant documents that have yet to be
`produced by Defendants and instead is being required to make this disclosure relying on only the
`materials that are available publicly on the World Wide Web. In addition, claim construction has
`not taken place. As a result, Express Mobile reserves the right to seek leave from the Court to
`amend its contentions pursuant to Patent L.R. 3-6 after claim construction has taken place and/or
`discovery has progressed.
`I.
`3-1 Disclosure of Asserted Claims and Infringement Contentions
`
`Each claim of each patent in suit that is allegedly infringed by each
`opposing party, including for each claim the applicable statutory
`subsections of 35 U.S.C. § 271 asserted.
`SAP infringes at least claims 1 of the ’397 patent. For each asserted claim, at least 35
`U.S.C. §§ 271(a), (b), (c), and (f) are applicable.
`SAP infringes at least claims 1, 4, and 6 of the ’168 patent. For each asserted claim, at
`least 35 U.S.C. §§ 271(a), (b), (c), and (f) are applicable.
`
`A.
`
`1
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
`Case No.: 3:20-cv-08492-RS
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`IPR2021-01146 Page 00002
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`
`
`B.
`
`SAP infringes at least claims 1, 3, 5-7, 11-13, 15, 17, 19-21, and 24-27 of the ’044 patent.
`For each asserted claim, at least 35 U.S.C. §§ 271(a), (b), (c), and (f) are applicable.
`SAP infringes at least claims 1, 3, 5-7, 11-13, 15, 17, 19-21, and 24-27 of the ’287 patent.
`For each asserted claim, at least 35 U.S.C. §§ 271(a), (b), (c), and (f) are applicable.
`SAP infringes at least claims 1, 3, 5-7, 11, 12, 14, 16-18, 21, and 22 of the ’755 patent.
`For each asserted claim, at least 35 U.S.C. §§ 271(a), (b), (c), and (f) are applicable.
`
`
`Separately for each asserted claim, each accused apparatus, product,
`device, process, method, act, or other instrumentality (“Accused
`Instrumentality”) of each opposing party of which the party is aware.
`This identification shall be as specific as possible. Each product,
`device, and apparatus shall be identified by name or model number, if
`known. Each method or process shall be identified by name, if known,
`or by any product, device, or apparatus which, when used, allegedly
`results in the practice of the claimed method or process.
`Discovery has just begun and claim construction has yet to occur. Express Mobile
`reserves the right to amend the following list of accused products as discovery progresses.
`SAP’s Fiori User Experience (UX) platform (“Fiori”) is an SAP user interface/experience
`product with related software and servers that is used to access various SAP enterprise software
`products, such as S/4HANA, C/4HANA, SAP Ariba, and SAP Concur. Express Mobile
`contends that SAP’s Fiori infringes the ’397 and ’168 patents, for example, by affording users
`access to browser-based website authoring tools to create and customize websites such as the
`Fiori “launchpad” and to edit user-selected settings. Express Mobile further contends that SAP’s
`Fiori infringes the ’397 and ’168 patents by hosting databases for storing information used to
`generate such websites. Additionally, Express Mobile contends that SAP’s Fiori infringes the
`’755, ’287 and ’044 patents, for example, by affording users access to a system for generating
`code to provide content on a display of a device.
`SAP’s Marketing Cloud platform (“Marketing Cloud”) provides a customer relationship
`management (CRM) platform for assembling websites for business customers and/or users.
`Express Mobile contends that SAP’s Marketing Cloud infringes the ’397 and ’168 patents, for
`example, by affording users access to browser-based website authoring tools to create and
`
`2
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
`Case No.: 3:20-cv-08492-RS
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`IPR2021-01146 Page 00003
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`

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`
`
`customize websites such as the Fiori “launchpad” and to edit user-selected settings. Express
`Mobile further contends that SAP’s Marketing Cloud infringes the ’397 and ’168 patents by
`hosting databases for storing information used to generate such websites. Additionally, Express
`Mobile contends that SAP’s Marketing Cloud infringes the ’755, ’287 and ’044 patents, for
`example, by affording users access to a system for generating code to provide content on a
`display of a device.
`
`C.
`
`A chart identifying specifically where and how each limitation of each
`asserted claim is found within each Accused Instrumentality,
`including for each limitation that such party contends is governed by
`35 U.S.C. § 112(6), the identity of the structure(s), act(s), or
`material(s) in the Accused Instrumentality that performs the claimed
`function.
`Attached as Exhibits 1-10 are representative claim charts identifying where each element
`of each asserted claim of the patents-in-suit is found within the accused products. To the extent
`that Express Mobile contends that certain claim elements are governed by 35 U.S.C. § 112(6),
`Express Mobile has identified the relevant function and corresponding structure of the Accused
`Instrumentalities that perform the claimed function.
`The claim charts appended hereto as Exhibits 1-10 are exemplary, not limiting, and
`address the asserted claims without the benefit of full discovery. Any citations included in the
`claim charts are exemplary only and should not be construed as limiting.
`In the claim charts appended hereto as Exhibits 1-10, Express Mobile has subdivided
`certain asserted claims to better explain where each claim element may be found within the
`Accused Instrumentalities. The subdivisions in the appended claim charts should not be taken as
`an indication of the boundaries of claim elements with respect to the doctrine of equivalents or
`any other issue. Additionally, the Accused Instrumentalities may infringe the asserted claims in
`multiple ways. Express Mobile reserves the right to provide an alternative claim mapping or
`infringement contention.
`
`3
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
`Case No.: 3:20-cv-08492-RS
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`IPR2021-01146 Page 00004
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`

`

`D.
`
`For each claim which is alleged to have been indirectly infringed, an
`identification of any direct infringement and a description of the acts
`of the alleged indirect infringer that contribute to or are inducing that
`direct infringement. Insofar as alleged direct infringement is based on
`joint acts of multiple parties, the role of each such party in the direct
`infringement must be described.
`Defendants have induced, and are continuing to actively and knowingly induce, with
`specific intent, direct infringement of the patents-in-suit under 35 U.S.C. § 271(b) by making,
`using, offering for sale, selling, and/or importing the Accused Instrumentalities.
`Express Mobile has directly communicated to Defendants that the Accused
`Instrumentalities infringe the patents-in-suit. SAP had actual knowledge of the ’397, ’168, ’044,
`’287, and ’755 patents as early as July 28, 2019 and no later than November 30, 2020 when
`Express Mobile provided notice of SAP’s infringement of the ’397, ’168, ’044, ’287, and ’755
`patents to Mary Beth Hanss, Senior Vice President and General Counsel of SAP America, Inc.
`As a result, Defendants knew or should have known that their actions would result in
`infringement of the patents-in-suit. Defendants encourage and facilitate infringing sales and uses
`of the Accused Instrumentalities and promotional and marketing materials, instructional
`materials, product manuals, and or technical materials they provide to their customers and/or
`distributors.
`Defendants have also contributed to and continue to contribute to direct infringement of
`the patents-in-suit with knowledge of the patents-in-suit and its claims and that its actions would
`result in infringement by manufacturers, distributors, resellers, and end users. Defendants
`provided and continue to provide the Accused Instrumentalities knowing that such products
`infringe the patents-in-suit, knowing that those instrumentalities are especially made or adapted
`to infringe the patents-in-suit, and knowing that the Accused Instrumentalities are not staple
`articles or commodities of commerce suitable for substantial non-infringing use.
`
`4
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
`Case No.: 3:20-cv-08492-RS
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`IPR2021-01146 Page 00005
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`

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`
`
`F.
`
`
`E. Whether each limitation of each asserted claim is alleged to be
`literally present or present under the doctrine of equivalents in the
`Accused Instrumentality.
`Express Mobile contends that each asserted claim is literally infringed by Defendants’
`Accused Instrumentalities, as indicated by the infringement claim charts attached hereto as
`Exhibits 1-10. In the alternative, Express Mobile contends that any asserted claim not found to
`be literally infringed is infringed under the doctrine of equivalents.
`
`
`For any patent that claims priority to an earlier application, the
`priority date to which each asserted claim allegedly is entitled.
`Based on currently available information, Express Mobile identifies that the inventions of
`the ’397 and ’168 Patents were conceived by Steve Rempell at least as early as April 1999.
`Express Mobile further identifies that the inventions of the ’397 and ’168 Patents were reduced
`to practice by Steve Rempell at least as early as June 1999. Steve Rempell diligently worked to
`reduce the inventions of the ’397 and ’168 Patents to practice, including through source code
`development. Thus, each of the asserted claims of the ’397 and ’168 Patents are entitled to a
`priority date of at least as early as April 1999.
`Based on currently available information, Express Mobile identifies that the inventions of
`the ’755, ’287, and ’044 Patents were conceived by inventors Steve Rempell, David Chrobak,
`and Ken Brown at least as early as January 12, 2008. Express Mobile further identifies that the
`inventions of the ’755, ’287, and ’044 Patents were reduced to practice thereafter by at least as
`early as November 11, 2008. For example, Express Mobile identifies provisional patent
`application No. 61/113,471, filed on November 11, 2008, as relevant to and supportive of the
`work related to the identified reduction to practice at least as early as November 11, 2008.
`Express Mobile further identifies that Steve Rempell, Ken Brown, and Dave Chrobak diligently
`worked to reduce the inventions of the ’755, ’287, and ’044 Patents to practice, including
`through source code and other technical development. Express Mobile identifies that each of the
`asserted claims of the ’755, ’287, and ’044 Patents are entitled to a priority date of at least as
`early as November 11, 2008, which is the filing date of provisional patent application No.
`
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`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
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`IPR2021-01146 Page 00006
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`

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`
`
`G.
`
`61/113,471. Thus, each of the asserted claims of the ’755, ’287, and ’044 Patents are entitled to
`a priority date of at least as early as January 12, 2008. Alternatively, Express Mobile identifies
`that each of the asserted claims of the ’755, ’287, and ’044 Patents are entitled to a priority date
`of at least as early as November 11, 2008, which is the filing date of provisional patent
`application No. 61/113,471.
`Express Mobile’s investigation relating to the conception and reduction to practice of the
`patented inventions is ongoing and it therefore reserves the right to supplement and/or modify
`this date as discovery in this case continues.
`
`If a party claiming patent infringement wishes to preserve the right to
`rely, for any purpose, on the assertion that its own or its licensee’s
`apparatus, product, device, process, method, act, or other
`instrumentality practices the claimed invention, the party shall
`identify, separately for each asserted claim, each such apparatus,
`product, device, process, method, act, or other instrumentality that
`incorporates or reflects that particular claim.
`Express Mobile does not presently intend to rely on an assertion that its own or its
`licensee’s apparatus, product, device, process, method, act, or other instrumentality practices the
`claims of the patents-in-suit. However, as described in response to Patent L.R. 3-2(f) below,
`Express Mobile has licensed the patents-in-suit and will produce such licenses, subject to its
`confidentiality obligations to third parties. See response to Patent L.R. 3-2(f) below. Further,
`Express Mobile may enter into additional licenses concerning the patents-in-suit. Thus, in
`addition to specifically reserving its right to rely on its licenses to demonstrate the practice of the
`patents-in-suit, Express Mobile also reserves its right to rely on such licenses for other purposes,
`such as in connection with damages theories.
`
`
`Identify the timing of the point of first infringement, the start of
`claimed damages, and the end of claimed damages.
`On information and belief, SAP’s infringement by way of the Accused Instrumentalities
`has been ongoing since at least December 2, 2014, which is six years prior to Express Mobile’s
`filing of its complaint in this action. Accordingly, Express Mobile contends that the start of
`claimed damages against SAP begins on December 2, 2014 for the ’397 and ’168 patents, the
`
`H.
`
`6
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
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`IPR2021-01146 Page 00007
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`

`

`
`
`I.
`
`issue date of March 27, 2018 for the ’044 patent, the issue date of October 18, 2016 for the ’287
`patent and the issue date of June 23, 2015 for the ’755 patent. Express Mobile contends that
`damages continue, with respect to each patent-in-suit, through the expiration of patent or the
`entry of the final judgment in this action, whichever is sooner.
`
`
`If a party claiming patent infringement alleges willful infringement,
`the basis for such allegation.
`Express Mobile has directly communicated to Defendants that the Accused
`Instrumentalities infringe the patents-in-suit. SAP has had actual knowledge of the ’397, ’168,
`’044, ’287, and ’755 patents as early as July 28, 2019 and no later than November 30, 2020 when
`Express Mobile provided notice of SAP’s infringement of the ’397, ’168, ’044, ’287, and ’755
`patents to Mary Beth Hanss, Senior Vice President and General Counsel of SAP America, Inc.
`On information and belief, evidence of Defendants’ willful infringement may be found in
`Defendants’ development, use, and sales of its Accused Instrumentalities. Specifically,
`Defendants designed, developed, used, sold, and/or offered for sale their Accused
`Instrumentalities with full knowledge and awareness and/or should have known of Express
`Mobile’s patents as set forth above and without a good faith or reasonable basis for doing so.
`Defendants did not exercise due care to determine or avoid infringement. Defendants continue
`to knowingly or with willful blindness use, sell and/or offer for sale infringing Accused
`Instrumentalities. Defendants acted, and continue to act, intentionally, knowingly, with willful
`blindness, and/or egregiously, and their actions constituted, and continue to constitute,
`misconduct beyond typical infringement.
`Express Mobile reserves its right to amend its allegations regarding willful infringement
`following an opportunity for further fact and expert discovery and in particular after Defendants
`have produced documents and party depositions have taken place. Express Mobile further
`reserves its right to amend these allegations in response to positions taken by Defendants and/or
`their expert witness(es) in the above captioned litigation, including for example, anticipated
`document production from Defendants and depositions of Defendants witnesses.
`
`7
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
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`IPR2021-01146 Page 00008
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`

`

`
`
`A.
`
`II. 3-2. Document Production Accompanying Disclosure
`While a protective order has not been entered in this case, Express Mobile is producing
`certain documents responsive to this category pursuant to Patent L.R. 2-2 and the interim
`protective order with the designation of “Highly Confidential – Attorneys’ Eyes Only.”
`Pursuant to Patent L.R. 3-2(k), Express Mobile identifies documents responsive to Patent
`L.R. 3-2(a-j) as set forth below.
`
`Documents (e.g., contracts, purchase orders, invoices, advertisements,
`marketing materials, offer letters, beta site testing agreements, and
`third party or joint development agreements) sufficient to evidence
`each discussion with, disclosure to, or other manner of providing to a
`third party, or sale of or offer to sell, or any public use of, the claimed
`invention prior to the date of application for the patent in suit. A
`party’s production of a document as required herein shall not
`constitute an admission that such document evidences or is prior art
`under 35 U.S.C. § 102.
`Express Mobile’s investigation has begun and is ongoing. Express Mobile will produce
`non-privileged documents in its possession, custody, and control pertaining to disclosure of the
`claimed invention to a third party prior to the application of the patents-in-suit that exist, are
`nonprivileged, and are located after a reasonable search. To date, Express Mobile has not yet
`identified any such documents.
`
`All documents evidencing the conception, reduction to practice,
`design, and development of each claimed invention, which were
`created on or before the date of application for the patent in suit or
`the priority date identified pursuant to Patent L.R. 3-1(f), whichever
`is earlier.
`As to the ’397 and ’168 patents, Express Mobile identifies XMO_00003614 –
`XMO_00006203.
`As to the ’755, ’287, and ’044 patents, Express Mobile identifies XMO_00006204 –
`XMO_00006543, XMO_00006544 – XMO_00006848, BROWN0000320 – BROWN0000401,
`BROWN0000587 – BROWN0001219, BROWN0005492 – BROWN0005524,
`BROWN0006788 – BROWN0006813, BROWN0007406 – BROWN0007416,
`BROWN0007419 – BROWN0007420, BROWN0007613 – BROWN0007637,
`
`B.
`
`8
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
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`
`
`BROWN0008370 – BROWN0008591, BROWN0010534 –BROWN0010567, BROWN0010597
`– BROWN0014509.
`Express Mobile’s investigation is ongoing. Express Mobile reserves its rights to amend
`and/or supplement its production and its identification as to this section as its investigation
`continues.
`
`
`C.
`A copy of the file history for each patent in suit.
`Express Mobile identifies XMO_00000344 – XMO_00003581.
`
`
`All documents evidencing ownership of the patent rights by the party
`asserting patent infringement.
`Express Mobile identifies XMO_00003582 – XMO_00003613.
`
`
`If a party identifies instrumentalities pursuant to Patent L.R. 3-1(g),
`documents sufficient to show the operation of any aspects or elements
`of such instrumentalities the patent claimant relies upon as
`embodying any asserted claims.
`See response to Patent L.R. 3-1(g) above.
`
`
`All agreements, including licenses, transferring an interest in any
`patent-in-suit.
`Express Mobile states such agreements exist and that it is under obligations of
`confidentiality to third parties. Express Mobile further states that it will provide Defendants with
`a draft stipulated order compelling the production of such agreements in an effort to provide such
`agreements to Defendants as soon as practical.
`
`All agreements that the party asserting infringement contends are
`comparable to a license that would result from a hypothetical
`reasonable royalty negotiation.
`See response to Patent L.R. 3-2(f) above.
`
`
`All agreements that otherwise may be used to support the party
`asserting infringement’s damages case.
`See response to Patent L.R. 3-2(f) above.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
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`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
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`

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`
`
`I.
`
`
`If a party identifies instrumentalities pursuant to Patent L.R. 3-1(g),
`documents sufficient to show marking of such embodying accused
`instrumentalities and if it wants to preserve the right to recover lost
`profits based on such products, sales, revenues, costs and profits of
`such embodying accused instrumentalities.
`See response to Patent L.R. 3-1(g) above.
`
`
`All documents comprising or reflecting a F/RAND commitment or
`agreement with respect to the asserted patent(s).
`Not applicable.
`
`J.
`
`
`Dated: March 18, 2021
`
`
`
`
`
`
`KING & SPALDING LLP
`
`
`
`/s/ Steven J. Rizzi
`Steven J. Rizzi (pro hac vice)
`Ramy Hanna (pro hac vice)
`Ryan A. Schmid (pro hac vice forthcoming)
`Ramon A. Miyar
`Attorneys for Plaintiff Express Mobile, Inc.
`
`
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`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
`
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`

`

`CERTIFICATE OF SERVICE
`I hereby certify that on March 18, 2021, I caused a copy of the above document to be
`served by transmitting it via email to counsel of record in the above-captioned litigation.
`
`/s/ Ryan A. Schmid
`Ryan A. Schmid
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`11
`PLAINTIFF EXPRESS MOBILE, INC.’S DISCLOSURE OF
`ASSERTED CLAIMS AND INFRINGEMENT CONTENTIONS
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`Case No.: 3:20-cv-08492-RS
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`IPR2021-01146 Page 00012
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