Patent No. 10,621,228
`IPR2022-00222
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` Declaration of Eugene Lhymn
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAMSUNG ELECTRONICS CO., LTD.
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`Petitioner
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`v.
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`MEMORYWEB, LLC
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`Patent Owner
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`Patent No. 10,621,228
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`Inter Partes Review No. IPR2022-00222
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`DECLARATION OF EUGENE LHYMN
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`MemoryWeb Ex. 2111
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`IPR2022-00222
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` Declaration of Eugene Lhymn
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAMSUNG ELECTRONICS CO., LTD.
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`Petitioner
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`v.
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`MEMORYWEB, LLC
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`Patent Owner
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`Patent No. 10,621,228
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`Inter Partes Review No. IPR2022-00222
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`DECLARATION OF EUGENE LHYMN
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` Declaration of Eugene Lhymn
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`Patent No. 10,621,228
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`I, Eugene Lhymn, declare as follows:
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`1.
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`I make this declaration based upon my own personal knowledge and, if
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`called upon to testify, would testify competently to the matters stated herein.
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`2.
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`I have been retained on behalf of MemoryWeb, LLC, (“MemoryWeb”
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`or “Patent Owner”) as an independent expert consultant to provide this declaration
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`concerning whether certain references could have been found by an ordinarily
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`skilled searcher’s diligent search in connection with U.S. Patent No. 10,621,228
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`(“the ‘228 patent”).
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`3.
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`I am being compensated at my standard hourly rate of $600 per hour
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`for the time I spend on this matter. My compensation is not based on the content of
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`my opinions or the resolution of this matter, and I have no other interest in this
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`proceeding.
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`4.
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`In this declaration, I offer opinions concerning whether U.S. Patent
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`Publication No. 2010/0058212 (“Belitz”), which I understand was relied on by
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`Petitioner Samsung Electronics Co, Ltd. (“Samsung”), could have been found by a
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`skilled searcher’s diligent search on September 3, 2021 or at any time during the 3
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`months preceding that date. The substance and bases of my opinions appear below.
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`1
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`I.
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`BACKGROUND AND QUALIFICATIONS
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` Declaration of Eugene Lhymn
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`5.
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`In formulating my opinions, I have relied on my knowledge, training,
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`and experience, which I will summarize below. A copy of my curriculum vitae (CV)
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`is appended to this declaration.
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`6.
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`I am the CEO and Founder of Sherman Patent Search Group (“SPSG”),
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`patent search firm based in Pasadena, California. SPSG is a patent search firm that
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`has technical experience that spans across all technology areas. Currently, I
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`supervise four SPSG employees who run patent research projects.
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`7.
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`I am also currently CEO and Founder of Visualize (VIP), a computer
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`vision A.I. patent search startup headquartered in Pasadena, CA. VIP developed an
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`A.I. image similarity SaaS platform that automates design patent searches.
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`Currently, I supervise five VIP employees who manage our R&D, tech stack, and
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`sales.
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`8.
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`I received a Bachelor’s Degree in Mechanical Engineering from Penn
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`State University in 2004.
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`9.
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`Between 2000 and 2004 is worked an engineer at Bayer Corporation,
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`Applied Research Lab (PSU) and Air Products and Chemicals.
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`10. Between 2004 and 2005, I was employed as a patent examiner in Art
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`Unit 3727 at the United States Patent and Trademark Office. During my time as an
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`examiner, I searched for prior art and issued office actions.
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`11. Between 2005 and 2012, I was employed as a senior patent analyst at
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`Cardinal Intellectual Property Inc. My job responsibilities included performing
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`patent searches, including prior art searches.
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`12.
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`I have extensive experience performing patent searches. Throughout
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`my career, I have personally performed approximately 3,000 searches. I have
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`managed or supervised approximately 7,000 additional patent searches. I have
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`personally performed more than 500 patent searches in the software field. The prior
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`art searches include invalidity, clearance, and patentability searches.
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`13. Based on my education and experience, I am qualified to render
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`opinions on prior art invalidity searches and prior art in the software field, including
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`the prior art at issue here.
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`II. LEGAL STANDARDS
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`14.
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`I understand that a petitioner, or the real party in interest or privy of the
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`petitioner, in an inter partes review that results in a final written decision is estopped
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`from requesting or maintaining a proceeding before the Office grounds that the
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`petitioner raised or reasonably could have raised during the inter partes review in
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`accordance with 35 U.S.C. § 315(e)(1):
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`The petitioner in an inter partes review of a claim in a patent under this
`chapter that results in a final written decision under section 318(a), or
`the real party in interest or privy of the petitioner, may not request or
`maintain a proceeding before the Office with respect to that claim on
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`any ground that the petitioner raised or reasonably could have raised
`during that inter partes review.
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`15.
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`I further understand that a petitioner reasonably could have raised a
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`ground and/or reference during an inter partes review when any ground and/or
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`reference is known to the petitioner or when an ordinarily skilled searcher
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`conducting a reasonably diligent search would have been expected to discover the
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`ground and/or reference.
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`16.
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`I further understand that one way of showing an ordinarily skilled
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`searcher’s reasonably diligent search is to identify the relevant search string and
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`search source that could identify the allegedly unavailable prior art and explain why
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`such a criterion would be part of a skilled searcher’s diligent search.
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`III. OPINIONS
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`18.
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`I understand that Unified Patents, LLC (“Unified”) filed a petition for
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`inter partes review challenging claims 1-7 of the ‘228 patent on September 3, 2021.
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`I understand that Unified asserted four unpatentability grounds based on the
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`following references:
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` U.S. Patent Application Publication No. 2011/0122153 (“Okamura”)
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` U.S. Patent No. 6,714,215 (“Flora”)
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` U.S. Patent Application Publication No. 2011/0163971 (“Wagner”)
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` U.S. Patent Application Publication No. 2010/0172551 (“Gilley”)
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`19.
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`I understand that in this proceeding, Samsung has challenged claims 1-
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`19 of the ‘228 patent based on Okamura and U.S. Patent Publication No.
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`2010/0058212 (“Belitz”).
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`20. As discussed more fully below, it is my opinion that Belitz would have
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`been found by a searcher of ordinary skill through reasonable diligence in the
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`relevant timeframe.
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`21. As more fully explained below, Belitz was present in search results
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`generated by very straightforward search strings employing keywords directly
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`extracted from the claims and abstract of the ‘228 patent and CPC classification
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`codes of the ‘228 patent (i.e., G06F 16/51).
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`A. The ‘228 Patent
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`22. The ‘228 patent is entitled “Method and Apparatus for Managing
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`Digital Files” and was issued on April 14, 2020.
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`23. The ‘228 patent issued from U.S. Patent Application No. 16/578,238,
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`filed on September 20, 2019. The ‘228 patent is a continuation of U.S. Patent
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`Application No. 16/536,300 filed on August 8, 2019, which is a continuation of U.S.
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`Patent Application No. 15/375,927, filed on December 12, 2016, now U.S. Patent
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`No. 10,423,658, which a continuation of U.S. Patent Application No. 14/193,426,
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`filed on February 28, 2014, now U.S. Patent No. 9,552,376, which is a continuation-
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`in-part of U.S. Patent Application No. 13/157,214, filed on June 9, 2011, now U.S.
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`Patent No. 9,098,531.
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`24. Claim 1 of the ‘228 patent is reproduced below:
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`1. A method comprising:
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`responsive to a first input, causing a map view to be displayed on an
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`interface, the map view including:
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`(i) an interactive map;
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`(ii) a first location selectable thumbnail image at a first location on the
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`interactive map; and
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`(iii) a second location selectable thumbnail image at a second location
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`on the interactive map;
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`responsive to an input that is indicative of a selection of the first location
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`selectable thumbnail image, causing a first location view to be
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`displayed on the interface, the first location view including (i) a first
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`location name associated with the first location and (ii) a
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`representation of at least a portion of one digital file in a first set of
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`digital files, each of the digital files in the first set of digital files being
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`produced from outputs of one or more digital imaging devices, the
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`first set of digital files including digital files associated with the first
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`location;
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`responsive to an input that is indicative of a selection of the second location
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`selectable thumbnail image, causing a second location view to be
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`displayed on the interface, the second location view including (i) a
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`second location name associated with the second location and (ii) a
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`representation of at least a portion of one digital file in a second set of
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`digital files, each of the digital files in the second set of digital files
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`being produced from outputs of the one or more digital imaging
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`devices, the second set of digital files including digital files associated
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`with the second location; and
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`responsive to a second input that is subsequent to the first input, causing a
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`people view to be displayed on the interface, the people view
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`including:
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`(i) a first person selectable thumbnail image including a representation
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`of a face of a first person, the first person being associated with
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`a third set of digital files including digital photographs and
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`videos;
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`(ii) a first name associated with the first person, the first name being
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`displayed adjacent to the first person selectable thumbnail
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`image;
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`(iii) a second person selectable thumbnail image including a
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`representation of a face of a second person, the second person
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`being associated with a fourth set of digital files including
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`digital photographs and videos; and
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`(iv) a second name associated with the second person, the second
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`name being displayed adjacent to the second person selectable
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`thumbnail image.
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`B.
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`Search Process
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`25.
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`I have been asked by counsel for MemoryWeb whether a certain
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`reference would have been found by an ordinarily skilled searcher’s reasonably
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`diligent search.
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`26. Specifically, I have been asked to provide an opinion as to whether the
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`Belitz reference would have been located by an ordinarily skilled searcher’s
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`reasonably diligent search on or before September 3, 2021 (the “Timeframe” or
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`relevant timeframe) by someone searching for prior art in the technical field of the
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`’228 patent.
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`27.
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`In particular, I focused on the subject matter of claims 1-19 of the ‘228
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`patent. To the extent an asserted claim is a dependent claim, I also focused on the
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`subject matter of the claims on which they depend.
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`28. An ordinarily skilled searcher conducting a reasonably diligent search
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`with regard to claims 1-19 of the ‘228 patent in the Timeframe would have
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`conducted a search for prior art references to the ‘228 patent in a variety of ways.
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`This includes using search terms, patent classification codes, citations, cross-
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`citations among prior art references, assignee-based searching, inventor-based
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`searching, jurisdiction-based searching, looking at the art cited during prosecution,
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`physical product searching, and/or combinations thereof.
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`29. A skilled searcher has many other options available to find prior art.
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`This includes speaking with the client to identify what prior art or prior art devices
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`they are aware of to generate potential leads, or, if they are not aware of any such
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`art, researching websites and scientific literature for information regarding prior art
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`devices. I also understand that parties in a litigation can contact a manufacturer of a
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`prior art device either informally or through discovery and request documents
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`regarding prior art devices. A skilled searcher could also take the client’s feedback
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`into account to expand and/or revise its search strategies. For instance, a skilled
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`searcher could learn of potentially relevant prior art that is in an unrelated field from
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`the client and revise the search strategy accordingly. A skilled searcher could also
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`speak with the client to identify known prior art based on its prosecution of its own
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`patents. A skilled searcher could further search for prior art from a defendant that is
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`accused of infringing the patent.
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`30.
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`If using patent classification codes, an ordinarily skilled searcher during
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`the Timeframe could determine the classifications of the ‘228 patent by checking
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`www.uspto.gov or http://www.espacenet.com to identify current CPC or IPC
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`classifications, since classification schedules are commonly subject to revision. A
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`skilled searcher would be aware that the ‘228 patent is classified in specific CPC or
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`IPC classifications, including specific parent classifications and specific child
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`subclass classifications, such as: CPC classifications G06F16/51, G06F16/58,
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`G06F16/901, G06F16/907, G06F3/0481, G06F16/5866; and IPC classifications
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`G06F16/51, G06F16/5866, G06F16/901, G06F16/907, and G06F3/0481.
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`31. An ordinarily skilled searcher conducting a reasonably diligent search
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`would iteratively search through individual classification codes, combined with
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`keyword search strings of a subject patent to incrementally and reasonably increase
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`the scope of the prior art search. According to the above public patent office indexes,
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`the relevant classifications of claims 1-19 of the ‘228 patent, include at least the
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`below:
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` CPC class G06F (Electrical Digital Data Processing), subclass 3/0481
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`(based on specific properties of the displayed interaction object or a
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`metaphor-based environment, e.g., interaction with desktop elements like
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`windows or icons, or assisted by a cursor’s changing behaviour or
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`appearance) (relevant to the ‘228 patent)
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`32.
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`If using search terms, an ordinarily skilled searcher could have
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`conducted a prior art search for the ‘228 patent using a variety of prior art search
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`databases, including both patent and non-patent literature databases. An ordinarily
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`skilled searcher could also have conducted a prior art search for the ‘228 patent using
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`prior art search databases indexing English language references as well as foreign
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`language references. During the Timeframe, there were several prior art search tools
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`available, including Patworld. Patworld is a prior art search tool that provides prior
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`art searching functionality across patent prior art databases in both English and
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`foreign languages. Patworld includes (and did include during the Timeframe) search
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`features to search across all patent fields, including titles, abstracts, claims, detailed
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`description, classification codes, citations, and full text. Patworld also includes
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`English titles and abstracts of foreign language references. An ordinarily skilled
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`searcher during the Timeframe would have understood this and, using Patworld as
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`one of their search tools, would have used English keywords to search for prior art
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`references.
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`33. An ordinarily skilled searcher could have used multiple different
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`techniques for identifying prior art references, including generating search strings
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`using terms from the claims and specification of the ‘228 patent. An ordinarily
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`skilled searcher during the Timeframe would have generated and used multiple
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`different search strings, and variations thereof, to identify relevant references, and
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`would have run each of these search strings in prior art searching tools, such as
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`Patworld. These search strings would have been generated in a variety of ways,
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`including using terms from the ‘228 patent claims or abstract, and synonyms of those
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`terms, different logical search operators (e.g., AND, OR), and proximity operators
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`to require combinations of terms together.
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`34. Based on my experience and review of claims 1-19 of the ‘228 patent,
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`it is my opinion that an ordinarily skilled searcher during the Timeframe would have
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`generated at least the following search string (or very similar search strings) and
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`used this search string to locate prior art references related to the subject matter of
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`claims 1-19 or the ‘228 patent:
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` CTA1:(map* and thumbnail* and imag*): This string incorporates
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`terms that appear in the claims of the ‘228 patent.
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`In addition to running the search string identified above, an ordinarily
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`35.
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`skilled searcher would have additionally combined these search strings with one or
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`more classification codes in order to further narrow the field of search to relevant
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`prior art references that satisfy the search string and that are labelled with the
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`searched classification code. An example classification code that is relevant to the
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`1 CTA is a search command for searching in title, abstract, and claims.
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`’228 patent is identified above. Based on my experience and review of the ‘228
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`patent (including claims 1-19 of the ‘228 patent), it is my opinion that an ordinarily
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`skilled searcher in the Timeframe would have performed some combined prior art
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`searching by combining the classification code identified above with the search
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`strings identified above.
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`36. An ordinarily skilled searcher conducting a reasonably diligent search
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`during the Timeframe would review references cited on the face of patents reviewed
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`during the search. Patent references cited on the face of reviewed patents can be
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`obtained via Patworld, and non-patent literature references cited on the face of
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`reviewed patents can be obtained via the USPTO PAIR system, or Google, amongst
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`other non-patent literature sources. This citation approach is effective in developing
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`a “trail” of prior art for review by an ordinarily skilled searcher.
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`37.
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`In addition, an ordinarily skilled searcher conducting a reasonably
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`diligent search during the Timeframe would review all references cited on the face
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`of ‘228 patent. Patent references cited on the face of ‘228 can be obtained via
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`Patworld, and non-patent literature references cited on the face of ‘228 can be
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`obtained via the USPTO PAIR system, or Google, amongst other non-patent
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`literature sources. Moreover, an ordinarily skilled searcher would review those
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`references cited on the face of ‘228 patent for further citations or disclosure of
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`additional prior art. This citation approach is effective in developing a “trail” of
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`prior art for review by an ordinarily skilled searcher.
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`38. An ordinarily skilled searcher would also obtain physical prior art (e.g.,
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`manuals, textbooks, physical products) as part of a reasonably diligent search. In
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`many cases, physical prior art is readily available, and may contain more detailed or
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`comprehensive disclosure than what is available digitally. This is especially true
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`with older prior art, and for certain types of physical prior art, such as manuals. As
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`discussed above, well-known physical prior art sources include eBay, among others.
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`39. An ordinarily skilled searcher could also have limited the search results
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`to the earliest priority date of the ‘228 patent, namely before June 9, 2011.
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`40.
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`I conducted an investigation in September 2023 to determine whether
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`Belitz would have been identified by an ordinarily skilled searcher through
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`reasonable diligence in the Timeframe using available prior art searching resources.
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`As part of this investigation, I ran search strings that a skilled searcher would have
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`generated to identify relevant prior art references for claims 1-19 of the ‘228 patent
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`through prior art searching tools available and widely used by prior art searchers in
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`the Timeframe (e.g., Patworld). Based on my experience, all of the search tools
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`used, including Patworld, work in materially the same way as they did during the
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`Timeframe.
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`41. With the above background in mind, it is my opinion that an ordinarily
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`skilled searcher conducting a reasonably diligent search in the Timeframe would
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`have found and readily identified Belitz. An ordinarily skilled searcher would
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`typically expect to review a thousand or more references generated by reasonable
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`search strings in an effort to find the most relevant prior art references. As explained
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`further below, the references of interest were contained in multiple different searches
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`generating even smaller (more focused) numbers of “hits”, indicating they would
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`and should have been found a skilled searcher conducting a prior art search in the
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`Timeframe. Details of my search are provided below.
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`C. U.S. Patent Application 2010/0058212 (Belitz)
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`42. Belitz is a U.S. patent application that published on March 4, 2010. U.S.
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`patent application publications are easily accessible and are publicly available
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`through a variety of public and subscription search tools, such as Patworld.
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`43. Belitz shares a common subject matter classification with the ‘228
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`patent–namely CPC class G06F (Electrical Digital Data Processing), subclass
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`3/0481 (based on specific properties of the displayed interaction object or a
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`metaphor-based environment, e.g., interaction with desktop elements like windows
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`or icons, or assisted by a cursor’s changing behaviour or appearance).
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`44. Running the search string (map* and thumbnail* and imag*), identified
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`above, through the Patworld prior art search tool for global patents within
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`classification CPC G06F 3/0481, also identified above, and limited to references
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` Declaration of Eugene Lhymn
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`
`
`with a priority date before June 9, 2011, returned a list of 76 search results. The
`
`search string returned patents that includes variations of “map” and “thumbnail” and
`
`“image” in the title, abstract, and claims of the references. This search, which is
`
`effectively the same search tool and the same prior art databases during the
`
`Timeframe, returned Belitz as among the 76 search results. In particular, Belitz was
`
`the 37th result out of 76. EX2110 is a true and correct copy of these search results.
`
`45. Based on my investigation, it is my opinion that an ordinarily skilled
`
`searcher exercising reasonable diligence during the Timeframe would and should
`
`have readily identified Belitz in a prior art search related to claims 1-19 of the ‘228
`
`patent using, at least, the search strings and prior art searching resources available
`
`during the Timeframe.
`
`46. After using any of the above search methods, a skilled searcher could
`
`then have found and retrieved this reference, using for example Patworld, by
`
`searching for the publication number of Belitz.
`
`IV. CONCLUSION
`
`47. My opinions are based on information currently available to me. I
`
`reserve the right to modify or supplement my opinions, if necessary, based on further
`
`review and analysis of the evidence in this case, including review and analysis of
`
`information that may be provided to me subsequent to the date of this Declaration.
`
`
`
`16
`
`MemoryWeb Ex. 2111
`Samsung v. MemoryWeb - IPR 2022-00222
`
`
`
`Patent No. 10,621,228
`IPR2022-00222
`
`Declaration of Eugene Lhymn
`
`I declare that all statements made herein of my own knowledge are true and
`
`all statements made on information and believe are believed to be true, and further
`
`that these statements were made with the knowledgethat willful false statements and
`
`the like so madeare punishableby fine or imprisonment, or both, under Section 1001
`
`of Title 18 of the United States Code.
`
`Dated:
`
`September28, 2023
`
`; es7
`
`Eugene Lhymn
`
`17
`
`MemoryWebEx. 2111
`Samsung v. MemoryWeb - IPR 2022-00222
`
`MemoryWeb Ex. 2111
`Samsung v. MemoryWeb - IPR 2022-00222
`
`
`
`
`
`EUGENE LHYMN
`
`225 South Lake Ave, Suite 300, Pasadena, CA 91101 · 626-432-7292
`Eugene.lhymn@shermanpatentsearch.com · https://www.linkedin.com/in/eugenelhymn/
`
`EDUCATION
`B.S. MECHANICAL ENGINEERING, PENN STATE UNIVERSITY
`
`EXPERIENCE
`
`2012 – PRESENT
`CEO, FOUNDER, SHERMAN PATENT SEARCH GROUP, LLC
`• 100% U.S.-BASED PATENT SEARCH FIRM, PROVIDING A FULL RANGE OF
`PATENT SEARCH SERVICES
`
`2019 – PRESENT
`CEO, FOUNDER, VISUALIZE IP, LLC
`• COMPUTER VISION PATENT SEARCH SAAS STARTUP
`
`
`2005 – 2012
`SENIOR ANALYST, CARDINAL IP
`• PERFORM PATENT SEARCHES
`• REVIEW PATENT SEARCHES FROM TEAM
`• TRAIN SEARCH ANALYSTS IN BEST PRACTICES
`
`
`2004 – 2005
`PATENT EXAMINER, USPTO
`• MECHANICAL ENGINEERING PATENT EXAMINER, TC 3727
`• PRIOR ART SEARCH
`• DRAFT OFFICE ACTIONS TO COUNSEL
`
`
`2002 – 2003
`FEA ENGINEER CO-OP, BAYER CORP
`• FINITE ELEMENT ANALYSIS ON NISSAN ALTIMA
`
`
`2001 – 2002
`PRODUCT ENGINEER CO-OP, APCI
`• GENERAL PROJECT MANAGEMENT OF CRYOGENIC GAS SYSTEMS
`
`MemoryWeb Ex. 2111
`Apple v. MemoryWeb - IPR 2022-00031
`
`MemoryWeb Ex. 2111
`Samsung v. MemoryWeb - IPR 2022-00222
`
`
`
`
`JAN 2000 – DEC 2000
`FEA INTERN, ARL
`• FINITE ELEMENT ANALYSIS ON NAVY SHIP WEIGHT REDUCTION
`
`
`
`
`
`
`PREVIOUS EXPERT WITNESS CASES
`
`
`WASICA V SCHRADER, 2019
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`MICROSPHERIX V MERCK, 2020
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`ARENDI V APPLE, 2021
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`BOSTON SCIENTIFIC V COOK GROUP, 2022
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`LISK V POWER PACKER NORTH AMERICA, 2022
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`MICROSPHERIX V MERCK, 2023
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`CAMERON INT’L V NITRO FLUIDS, 2023
`• PROVIDED OPINION AS TO WHETHER PRIOR ART REFERENCES WOULD HAVE
`BEEN LOCATED BY A SKILLED SEARCHER’S DILIGENT SEARCH
`
`
`
`
`
`
`
`
`
`
`2
`
`MemoryWeb Ex. 2111
`Apple v. MemoryWeb - IPR 2022-00031
`
`MemoryWeb Ex. 2111
`Samsung v. MemoryWeb - IPR 2022-00222
`
`
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