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`EXHIBIT 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`SMART MOBILE TECHNOLOGIES LLC,
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`Plaintiff,
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`v.
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`APPLE INC.
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`Defendant.
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`SMART MOBILE TECHNOLOGIES LLC,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendants.
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`Case No. 6:21-cv-00603-ADA
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`Case No. 6:21-cv-00701-ADA
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`DECLARATION OF HARRY BIMS IN SUPPORT OF
`DEFENDANTS’ OPENING CLAIM CONSTRUCTION BRIEFS
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`I declare under penalty of perjury that the following is true and correct.
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`Executed at ______________________ on June ____, 2022
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` Harry Bims, Ph.D.
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`Menlo Park, CA
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`years of industry experience in computer network design, including the design of hardware and
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`software for computer communications in a wireless context. During this period, I have designed
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`and implemented various products that involve technologies related to the subject matter of the
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`Asserted Patent.
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`7.
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`I received a B.S. in Computer and Systems Engineering from Rensselaer
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`Polytechnic Institute in 1985. In 1988, I received a M.S. in Electrical Engineering from Stanford
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`University. In 1993, I received a Ph.D. in Electrical Engineering, also from Stanford University.
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`As a graduate student at Stanford University, I studied the principles of digital communications
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`theory, including data modulation and demodulation, error checking and correction algorithms,
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`and the architecture and design of semiconductor circuits used for digital communications. My
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`Ph.D. thesis at Stanford addressed the application of trellis coding and precoding to a digital
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`modulation system, and was titled “Trellis Coding for Multi-Level, Partial Response Continuous
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`Phase Modulation with Precoding.”
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`8.
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`After receiving my Ph.D. in 1993, I worked for Glenayre Technologies - Wireless
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`Access Group, where I focused on hardware and software architecture and design, including
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`inventing, designing, and building a patented computer system for real-time testing of two-way
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`pagers and co-developing a wireless application protocol that included a CRC error checking
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`algorithm. From 1999 to 2001, I was responsible for the software architecture for core SGSN and
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`GGSN products for the GPRS market. I also held management responsibility for the Firmware,
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`Hardware, Performance, and Systems Engineering Groups. In 2001, I developed a business plan
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`for building network infrastructure for 802.11 enterprise networks, and then later that year founded
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`AirFlow Networks, Inc. where I invented and received over eleven patents on its core technology,
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`which was based on the 802.11 wireless local area network specification.
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`9.
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`I am currently the President of Protocomm Systems, LLC and Bims Laboratories,
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`LLC, both of which I founded. As the President of Bims Laboratories, Inc., I perform technical
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`research in wireless technology standards, such as LTE, 5G, IEEE 802.11 (“Wi-Fi”), Bluetooth,
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`and other network communication protocols.
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`10.
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`I am also named as an inventor on twenty-three telecommunications-related United
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`States patents:
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`• U.S. Pat. No. 6,259,911, entitled “Network Operations Center Hardware and Software
`Design”;
`• U.S. Pat. No. 6,557,134, entitled “ARQ Method for Wireless Communication”;
`• U.S. Pat. No. 6,760,318, entitled “Receiver Diversity in a Communication System”;
`• U.S. Pat. No. 6,788,658, entitled “Wireless Communication System Architecture Having
`Split MAC Layer”;
`• U.S. Pat. No. 6,862,448, entitled “Token-Based Receiver Diversity”;
`• U.S. Pat. No. 6,965,769, entitled “Testing Center”;
`• U.S. Pat. No. 7,149,196, entitled “Location Tracking in a Wireless Communication
`System Using Power Levels of Packets Received by Repeaters”;
`• U.S. Pat. No. 7,236,470, entitled “Tracking Multiple Interface Connections by Mobile
`Stations”;
`• U.S. Pat. No. 7,515,557, entitled “Reconfiguration of a Communication System”;
`• U.S. Pat. No. 7,668,542, entitled “Token-Based Receiver Diversity”;
`• U.S. Pat. No. 7,672,274, entitled “Mobility Support Via Routing”;
`• U.S. Pat. No. 7,689,210, entitled Plug-in-Playable Wireless Communication System”;
`• U.S. Pat. No. 7,876,704, entitled “Tunneling Protocols for Wireless Communications”;
`• U.S. Pat. No. 7,957,741, entitled “Token-Based Receiver Diversity”;
`• U.S. Pat. No. 8,027,637, entitled “Single Frequency Wireless Communication System”;
`• U.S. Pat. No. 8,064,380, entitled “Reconfiguration of a Communication System”;
`• U.S. Pat. No. 8,144,640, entitled “Location Tracking in a Wireless Communication
`System Using Power Levels of Packets Received by Repeaters”;
`• U.S. Pat. No. 8,189,538, entitled “Reconfiguration of a Communication System”;
`• U.S. Pat. No. 8,468,426, entitled “Multimedia-Aware Quality-of-Service and Error
`Correction Provisioning”;
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`• U.S. Pat. No. 8,935,580, entitled “Multimedia-Aware Quality-of-Service and Error
`Correction Provisioning”;
`• U.S. Pat. No. 8,995,996, entitled “Methods and Apparatus for Performance Optimization
`of Heterogenous Wireless System Communities”;
`• U.S. Pat. No. 9,978,037, entitled “Personal Inventory and Product Support System”; and
`• U.S. Pat. No. 10,332,121, entitled “Light-Based Data Entry for Personal Inventory and
`Product Support System”.
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`11.
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`In addition, I am a Technical Expert and former Vice-Chair and Secretary of the
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`Institute of Electrical and Electronics Engineers (hereinafter “IEEE”) 802.16 Working Group,
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`which develops standards for long range, metropolitan-area wireless networks that incorporate
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`many wireless protocol functions, procedures, and messages, such as random access procedures,
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`adaptive modulation and coding, and base station handover procedures.
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`B.
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`12.
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`Compensation
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`I am being compensated for my time at my usual consulting rate of $700 per hour,
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`plus actual expenses. No part of my compensation depends on the outcome of this case or on the
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`opinions that I render.
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`C. Materials Considered
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`13.
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`In preparing this declaration, I have relied upon my education, knowledge, and
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`experience. I reviewed, among other things, the following materials:
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`• Any materials cited herein;
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`• The asserted patents and their file histories;
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`• Smart Mobile’s infringement contentions
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`II.
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`UNDERSTANDING OF THE LAW
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`A.
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`14.
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`Standard for Determining Person Having Ordinary Skill in the Art
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`I understand that patents are to be interpreted from the person having ordinary skill
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`in the art at the time of the invention (“POSITA”).
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`15.
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`I have been informed that a POSITA is a hypothetical person who has full
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`knowledge of all the pertinent prior art, and that courts may consider the following factors in
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`determining the level of skill in the art: (1) type of problems encountered in the art; (2) prior art
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`solutions to those problems; (3) rapidity with which innovations are made; (4) sophistication of
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`the technology; (5) educational level of active workers in the field.
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`B.
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`16.
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`Indefiniteness
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`I have been advised by counsel that the “definiteness requirement” of the patent
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`laws of the United States requires that patent claims particularly point out and distinctly claim the
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`subject matter which an inventor regards as the invention.
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`17.
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`Counsel has advised me that whether any claim terms or phrases are indefinite,
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`should be determined from the perspective of a POSITA.
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`18.
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`Counsel has also advised me that a patent is valid and its claims definite if they,
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`when read in light of the specification and the prosecution history, inform, with reasonable
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`certainty, a POSITA about the scope of the invention.
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`19.
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`Counsel has also advised me that a patent is invalid for indefiniteness if its claims,
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`read in light of the patent’s specification and prosecution history, fail to inform, with reasonable
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`certainty, those skilled in the art about the scope of the invention.
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`III. LEVEL OF ORDINARY SKILL IN THE ART
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`20.
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`I understand that defendants contend that a person of ordinary skill (“POSITA”) in
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`the field of the ’501 family patents would have had a bachelor’s degree in electrical engineering,
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`or equivalent training, and approximately two years of experience working in the field of
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`networking and wireless devices. Lack of work experience can be remedied by additional
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`education, and vice versa.
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`34.
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`The terms “dynamic” or “dynamically” are sometimes used in the field of the
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`Asserted Patents, but not with a usage that would make sense in the context of the claim language
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`at issue. For example, devices on Layer 3 computer networks are commonly assigned unique
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`numerical addresses called IP addresses. Depending on the configuration of the network, a device
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`could be assigned a “static” IP address that is fixed and does not change. Or, the device could
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`receive a “dynamic” IP address that is not fixed but can generally change each time the device
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`connects to the network. In this sense, “dynamic” means that the IP address is not fixed but is
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`subject to change.
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`35.
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`However, that is not the sense in which the claims at issue use the term. As noted
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`above, the claims already require some sort of change – whether it is conversion of the wireless
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`device or switching from one network to another. The claims describe these changes themselves
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`as being “dynamic.” Unlike the IP address example, the patents are not using “dynamic” to
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`distinguish something static from something that changes, but to describe a particular type of
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`change – that is, “dynamic” conversion or “dynamic” switching. However, it is unclear in the
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`context of the patents what “dynamic” change means compared to change that is not “dynamic.”
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`In my opinion, the specification does not provide guidance that would make a POSITA reasonably
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`certain of what “dynamic” means in the context of the claims that recite that term.
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`36.
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`I have also reviewed dictionary definitions from the general timeframe of the
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`Asserted Patents. Ex. 27 (NEWTON’S TELECOM DICT., 11th Ed. 207 (“Events are constantly
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`changing.”)); Ex. 28 (THE CONCISE OXFORD DICT. OF CURRENT ENGLISH 424 (“energetic; active;
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`potent.”)); Ex. 29 (THE AM. HERITAGE DICT. OF THE ENGLISH LANGUAGE 574 (“Marked by
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`intensity and vigor; forceful.”)). However, those definitions do not fit with how “dynamic” is used
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`in the context of the patents and claims.
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`42.
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`I am not a legal expert on whether the claims of a preamble should be construed as
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`limiting for a particular claim. However, I understand the parties dispute this for claim 20 of the
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`’119 patent, and I have been asked to provide certain technical opinions related to this issue. For
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`example, I have been asked for my opinion on whether the preamble’s requirement of “a mobile
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`device communication system” recites essential structure, is essential to understanding limitations
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`in the body of the claim, or recites additional structure that the specification describes as important.
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`43.
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`As part of my analysis, I am informed that SMT is asserting that claim 20 covers a
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`mobile device alone, and not the combined system of a mobile device and a server. To the extent
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`the body of the claim is interpreted in that way (that is, not to require a server), in my opinion the
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`preamble’s requirement of “a mobile device communication system” (that is, the combined system
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`of a mobile device and server) recites essential structure, is essential to understanding limitations
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`in the body of the claim, and recites additional structure that the specification describes as
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`important.
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`44.
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`Claim 20 of the ’119 patent recites a number of limitations related to the server:
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`20. A mobile device communication system, comprising:
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`a mobile device which supports voice and data communications,
`wherein the mobile device is configured for voice calls using a first
`wireless network; and
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`at least one memory, wherein a processor is communicatively
`coupled with the at least one memory,
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`wherein the at least one memory stores functional instructions
`including instructions for use in providing a plurality of functions to
`the mobile device, wherein the mobile device is configured for
`switching between one or more networks including at least the first
`wireless network, the first wireless network operating using a FCC
`approved public or carrier frequency, and wherein the mobile device
`is configured to transmit and receive voice on the first wireless
`network, wherein the first wireless network is an Internet Protocol
`(IP) data network, and
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`wherein the at least one memory further stores a plurality of
`communication protocols, that facilitate communication between a
`server and the mobile device, wherein the server is configured to
`connect to an Internet network or a carrier network, and wherein the
`server enables conversion of the mobile device from a first function
`to a second function by providing a plurality of functions to the
`mobile device and wherein the mobile device is configured to
`communicate using Internet protocol.
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`
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`45.
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`Among other things, claim 20 requires that the server “enables conversion of the
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`mobile device from a first function to a second function by providing a plurality of functions to
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`the mobile device.” The specification describes this as an important aspect of the invention,
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`because by providing functions to the mobile device upon request, the server allows the mobile
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`device to convert from one function to another. In that respect, the system recited in claim 20
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`would not work without the server enabling this conversion.
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`46.
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`For example, Figure 2A of the ’119 patent, is reproduced below. This figure depicts
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`the server as Server C.
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`it means for “the wireless device transmitter and receiver” to be independently tunable. There are
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`a number of possible interpretations, such as (1) the transmitter’s tuning could be “independent”
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`from the receiver’s tuning, (2) the transmitter or the receiver could be “independent” from some
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`outside influence, and (3) the transmitter and the receiver (somehow together) could be
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`“independent” from some outside influence. The specification sheds no light on which, if any, of
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`these interpretations apply. Moreover, what it means to be “independent” is still unclear in each
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`of these contexts. Generally speaking, the tuning still must depend on something, and the patent
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`provides no guidance what that tuning must be independent of.
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`50.
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`I do not see anywhere where the specification provides guidance for what
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`“independently tunable” in this context might be, particularly since the one place that the ’168
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`patent mentions “independently tunable”, which is column 6, lines 42-45, does no more than repeat
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`the claim language: “The Transmitter and Receiver are independently tunable to one or more
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`frequencies . . . .” Likewise, the instances in the patent that discuss tuning does not shed light on
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`what it means to be “independently tunable.” Column 2, lines 36-38 state that it is desirable for a
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`mobile device to be “dynamically tuned for transmit and receive functions suitable for each
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`environment.” Setting aside the ambiguity of what it means to “tune for transmit and receive
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`functions,” this passage does not say anything about whether transmitters and receivers are tuned
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`to different frequencies, whether they are both tuned to the same frequency, or whether they are
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`“independent” of each other or of something else. Column 6, lines 12-14 state that “Transmit and
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`Receive frequencies may be tuned to one or more primary values and one or more subsidiary
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`values.” Again, this passage says nothing about what it means for a transmitter and/or receiver to
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`be independently tuned. Nor does it say that the transmitter and the receiver are tuned to different
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`frequencies. Thus, to the extent SMT argues that the phrase means the device must have the ability
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`55.
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`In my opinion, a POSITA would not be reasonably certain of the scope of claims
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`containing the identified limitation.
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`56.
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` Claim 4 of the ’168 patent recites “wherein the software is associated with a user
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`and the device stored in a profile.” It is unclear what this language means in the context of the
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`claim.
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`57.
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`A first problem with this claim language is that it recites “the software” when claim
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`4 has not previously recited in any antecedent basis software in the claim. Thus, based on the
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`structure of the claim, it is unclear what “the software” is intended to reference.
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`58.
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`A second problem is that it is unclear what must be stored in a profile. Clearly, a
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`physical user and physical device cannot be stored in a profile. Another possible interpretation of
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`the claim is that the “software” is what has to be stored in a profile, but the sentence structure of
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`the claim as written does not suggest that. Otherwise, the claim would have been written to say
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`that the software is associated with a user and the device “and is” stored in profile. In addition,
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`the specification never states that software is stored in a profile.
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`59.
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`The specification discloses very little about what a “profile” is in the context of the
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`invention or what it is intended to store. All the specification at column 3, lines 57-58 and at
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`column 7, lines 33-34 discloses about a profile is that: “A CT/MD 202 can store profiles and other
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`user specific information on the Server C 214”. By referring to profiles and “other user specific
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`information” in this sentence, the specification suggests that a “profile” is a type of user specific
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`information, but the specification never states what the “profile” stores.
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`60.
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`Based on my review of this claim language in the context of the specification, my
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`opinion is that a POSITA would not be reasonably certain of what it means or what must be stored
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`in a profile.
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`the two separate usages of “wireless device” in claim 2—bold is used to show the first usage
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`(referring to the “plurality of wireless devices”) and underlining is used to show the second usage
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`(referring to a particular wireless device).
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`2. A system comprising:
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`a remote server configured to store wireless device software for a
`plurality of different functions or applications for use by a plurality
`of wireless devices,
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`wherein the remote server stores in memory software for a wireless
`device, wherein the remote server sends to the wireless device
`software, wherein the remote server stores profiles of user specific
`information,
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`wherein the wireless device is enabled for voice and data
`communication,
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`wherein the wireless device includes one or more functions of a
`cellular telephone, PDA, handheld computer, or multifunction
`communication device, or combinations thereof, wherein the
`wireless device is configured to use Internet protocol;
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`wherein the software controls a plurality of the hardware
`components on the wireless device;
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`wherein the wireless device is configured to transmit and receive at
`a plurality of frequencies: wherein the wireless device is enabled to
`be tuned to transmit and/or receive frequencies including one or
`more primary values and subsidiary values;
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`receiver are
`transmitter and
`the wireless device
`wherein
`independently tunable to one or more frequencies for operation in
`different environments based on the instructions of internal
`controller electronics and/or that of the server wherein the wireless
`device dynamically changes its frequency for communication;
`wherein the wireless device uses a power level for an operating
`environment; and wherein both power output and channel
`bandwidth as are dynamically changed in real time.
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`71.
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`Thus, the term “system on a chip” and its well-known abbreviation, “SOC” have a
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`specific meaning in the industry. In fact, both are routinely and interchangeably used to identify a
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`specific component in electronic devices.
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`72.
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`Smart Mobile’s proposed construction (“an integrated circuit that integrates
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`multiple components, including a central processing unit, on a single chip”) would result in
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`confusion. Smart Mobile’s construction is “An integrated circuit that integrates multiple
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`components, including a central processing unit, on a single chip.” The first part of the
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`construction requires that the “integrated circuit” itself “integrates multiple components,” but does
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`not state which type of “components” are intended to be among the “multiple components.” This
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`language is confusing because an integrated circuit is, by definition, a collection of electrical
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`components (such as transistors and resistors):
`
`What are integrated circuits?
`An integrated circuit (IC), sometimes called a chip, microchip or microelectronic circuit, is a
`semiconductor wafer on which thousands or millions of tiny resistors, capacitors, diodes and
`transistors are fabricated. An IC can function as an amplifier, oscillator, timer, counter, logic
`gate, computer memory, microcontroller or microprocessor.
`An IC is the fundamental building block of all modern electronic devices. As the name suggests,
`it's an integrated system of multiple miniaturized and interconnected components embedded into
`a thin substrate of semiconductor material (usually silicon crystal).
`https://www.techtarget.com/whatis/definition/integrated-circuit-IC. See also
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`https://www.britannica.com/technology/integrated-circuit (“integrated circuit (IC), also called
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`microelectronic circuit, microchip, or chip, an assembly of electronic components, fabricated as a
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`single unit, in which miniaturized active devices (e.g., transistors and diodes) and passive
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`devices (e.g., capacitors and resistors) and their interconnections are built up on a thin substrate
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`of semiconductor material (typically silicon).”)
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`73.
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`Thus, every integrated circuit “integrates multiple components” and it is not clear
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`what Smart Mobile’s proposed construction adds with that language.
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`81.
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`There are two terms that I refer to as the “. . . transmission interface is created . . .”
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`terms:
`
`• “wherein a transmission interface is created and wherein said transmission interface uses
`a plurality of IP enabled interfaces on the mobile device which utilize the plurality of
`wireless transmit and receive components on the mobile device to enable a single
`interface comprised of multiplexed signals from the plurality of wireless transmit and
`receive components” (’653 Patent, Claim 1)
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`• “wherein a first interface for transmission is created and wherein said first interface for
`transmission uses a plurality of interfaces for Internet Protocol communication on the
`mobile device which utilize the plurality of wireless transmit and receive units on the
`mobile device to enable a single interface comprised of multiplexed signals from the
`plurality of wireless transmit and receive units” (’946 Patent, Claim 1)
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`82.
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`These two terms are very similar. Claim 1 of the ’946 patent uses slightly different
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`language to refer to the interfaces. But for the analysis I provide in this report, my opinions do not
`
`change based on the slight differences in the claims.
`
`83.
`
`It is my opinion that these terms are indefinite because the scope of the claim terms
`
`is not reasonably certain. I come to this conclusion because there are multiple phrases in the terms
`
`that are unclear, and there are multiple relationships between subparts of the terms that are also
`
`unclear.
`
`84.
`
`First, the terms include different “interfaces,” but it is unclear what the structural
`
`differences are between these interfaces, and one of the interfaces (“single interface comprised of
`
`multiplexed signals”) is not common to the understanding of a POSITA. The ’653 patent includes
`
`1) a transmission interface; 2) an IP enabled interface; and 3) a single interface comprised of
`
`multiplexed signals. The ’946 patent includes 1) an interface for transmission; 2) interfaces for
`
`Internet Protocol communication; and 3) single interface comprised of multiplexed signals.
`
`85.
`
`I do not know of any common understanding of what specific hardware or structure
`
`constitutes a “transmission interface” or an “IP enabled interface.” The phrase “single interface
`
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`comprised of multiplexed signals” is the most ambiguous. The claims refer to the “single
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`interface” based on a signal format—i.e., a “multiplexed” signal. But a POSITA would not
`
`understand a multiplexed format to have any known relationship to an “interface.” The claim
`
`language recites that the interface is “comprised of” these multiplexed signals, but that is not a
`
`known concept. In fact, a POSITA would not use that type of language, and it is unclear what it
`
`means for the “single interface” to be comprised of signals.
`
`86.
`
`The ’653 patent and the ’946 patent do not provide any helpful context. Outside of
`
`the claims, neither of them refers to a “transmission interface,” “IP enabled interface,” “interface
`
`for transmission,” “interfaces for Internet Protocol communication” or “interface comprised of
`
`multiplexed signals.” While “transmission interface” and “IP enabled interface” describe
`
`functional capabilities of the interfaces, neither clarify the scope of the structure.
`
`87.
`
`Second, the relationship between the transmission interface and the IP interfaces is
`
`unclear. Claim 1 of the ’653 patent requires that the “transmission interface uses a plurality of IP
`
`enabled interfaces on the mobile device”:
`
`wherein a transmission interface is created and wherein said
`transmission interface uses a plurality of IP enabled interfaces on
`the mobile device which utilize the plurality of wireless transmit and
`receive components on the mobile device to enable a single interface
`comprised of multiplexed signals from the plurality of wireless
`transmit and receive components
`
`88.
`
`Claim 1 of the ’946 patent similarly requires that the interface for transmission
`
`“uses” interfaces for Internet Protocol communication. It is unclear what it means by the
`
`transmission interface “uses” a plurality of IP enabled interfaces. That terminology is ambiguous,
`
`and would not assist a POSITA in determining the scope of the phrase. The claim does not even
`
`specify how the transmission interface uses the plurality of IP enabled interfaces.
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`89.
`
`As with the prior point, the ’653 patent and the ’946 patent do not provide any
`
`helpful context. Neither patent describes an interface “using” another interface.
`
`90.
`
`Third, the relationship between the interfaces and the wireless transmit and receive
`
`components is unclear. Claim 1 of the ’653 patent includes the phrase “which utilize the plurality
`
`of wireless transmit and receive components.” This phrase is intended to modify some preceding
`
`subpart of the term, but it is unclear which specific subpart that is. However this terminology is
`
`ambiguous and would not assist a POSITA in determining the scope of the claim.
`
`91.
`
`Based on the structure of the term, the clause “which utilize . . .” could modify (1)
`
`the “mobile device”; (2) the “plurality of IP enabled interfaces”; or (3) the “transmission interface.”
`
`The most grammatically correct reading of this term is that the “which utilize . . .” clause modifies
`
`the “plurality of IP enabled interfaces” because “utilize” is a plural verb and “a plurality of IP
`
`enabled interfaces” is the only plural noun in the phrase. That interpretation cannot be correct,
`
`however, because under that interpretation, the term requires that the IP enabled interfaces use
`
`multiple transmit and receive components together to enable a single interface. This interpretation
`
`conflicts with the remainder of the term, which indicates that the “single interface” receives signals
`
`from the “transmit and receive components” (and thus, is separate). Claim 1 of the ’946 patent has
`
`a similar issue.
`
`92.
`
`As with the prior point, the ’653 patent and the ’946 patent do not provide any
`
`helpful context. Neither patent describes this limitation.
`
`93.
`
`Fourth, the requirement for a “single interface” is unclear. There are at least two
`
`possible interpretations of that language in these terms. One potential interpretation is that the
`
`mobile device has a “single” interface that is comprised of multiplexed signals. Another potential
`
`interpretation is that all of the wireless transmit and receive units on the mobile device enable a
`
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`receiving data at the same time, so it cannot be the case that the claims are referring to sending
`
`data and receiving simultaneously: This claim requires “simultaneous communication paths”
`
`between a server and a device.
`
`99.
`
`The intrinsic record does not clarify the meaning of the limitation “using one []
`
`antenna simultaneously.” The patents do not describe a scenario where one antenna is used for
`
`some sort of “simultaneous” comm