Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 1 of 105 PageID #: 7625
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI
`DEVICE (DONGGUAN) CO., LTD.,
`HTC CORPORATION,
`LG ELECTRONICS INC.,
`APPLE INC.,
`ZTE CORPORATION, ZTE (USA), INC.,
`AND ZTE (TX), INC.,
`
`Defendants.
`
`Civil Action No. 2:17-CV-513-JRG
`(Lead Case)
`
`Member Cases:
`Civil Action No. 2:17-CV-514-JRG
`Civil Action No. 2:17-CV-515-JRG
`Civil Action No. 2:17-CV-516-JRG
`Civil Action No. 2:17-CV-517-JRG
`
`JURY TRIAL DEMANDED
`
`DECLARATION OF CHRIS G. BARTONE, PH.D., P.E. IN SUPPORT OF
`DEFENDANTS HUAWEI DEVICE USA INC., HUAWEI DEVICE CO., LTD. AND
`HUAWEI DEVICE (DONGGUAN) CO., LTD., HTC CORPORATION, LG
`ELECTRONICS INC., APPLE INC., ZTE (USA), INC., AND ZTE (TX), INC.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`1
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 2 of 105 PageID #: 7626
`
`C.
`
`TABLE OF CONTENTS
`INTRODUCTION .................................................................................................................. 1
`I.
`II. QUALIFICATIONS ............................................................................................................... 2
`III.
`PERSON OF ORDINARY SKILL IN THE ART .............................................................. 4
`IV.
`SCOPE OF OPINION AND LEGAL STANDARDS ........................................................ 5
`A. Means-Plus-Function Claim Terms .................................................................................... 8
`V. OVERVIEW OF THE PATENTS-IN-SUIT .......................................................................... 9
`A.
`’970 PATENT ..................................................................................................................... 9
`B. THE AD HOC NETWORK PATENTS ........................................................................... 12
`VI.
`OPINIONS REGARDING THE CONSTRUCTION OF CLAIM TERMS .................... 14
`A.
`’970 PATENT ................................................................................................................... 14
`“means for attaching a forced message alert software packet to a voice or text message
`1.
`creating a forced message alert that is transmitted by said sender PDA/cell phone to the
`recipient PDA/cell phone, said forced message alert software packet containing a list of
`possible required responses” (claim 1) ................................................................................. 15
`2.
`[means for. . .] requiring the forced message alert software on said recipient PDA/cell
`phone to transmit an automatic acknowledgment to the sender PDA/cell phone as soon as
`said forced message alert is received by the recipient PDA/cell phone (claim 1) ................ 20
`3. means for requiring a required manual response from the response list by the recipient
`in order to clear recipient's response list from recipient's cell phone display (claim 1) ....... 25
`4. means for periodically resending said forced message alert to said recipient PDA/cell
`phones that have not automatically acknowledged the forced message alert (claim 1) ....... 29
`B. THE “DEVICE” CLAIMS ............................................................................................... 31
`1.
`The claims do not recite structure ................................................................................. 31
`2.
`The specification does not disclose an algorithm corresponding to each claimed
`function ................................................................................................................................. 34
`’838 PATENT ................................................................................................................... 61
`1. Group ............................................................................................................................ 61
`’251 PATENT ................................................................................................................... 62
`1. Receiving from a Second Device .................................................................................. 62
`’055 PATENT ................................................................................................................... 62
`SMS Messages .............................................................................................................. 62
`
`D.
`
`E.
`
`1.
`
`1
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 3 of 105 PageID #: 7627
`
`I, Chris G. Bartone, declare as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained by Defendants Apple Inc. (“Apple”); HTC Corporation
`
`(“HTC”); Huawei Device USA Inc., Huawei Device Co., Ltd., Huawei Device (Dongguan) Co.,
`
`Ltd. (collectively “Huawei”), LG Electronics Inc. (“LGEKR”), and ZTE (USA), Inc. and ZTE
`
`(TX), Inc. (collectively, “ZTE”) (Apple, HTC, Huawei, , LG and ZTE are collectively referred to
`
`herein as “Defendants”) as an independent expert consultant in the above-captioned case
`
`regarding U.S. Patent Nos. 8,213,970 (the “’970 patent”), 9,408,055 (the “’055 patent”),
`
`9,445,251 (the “’251 patent”), and 9,467,838 (the “’838 patent”), and 9,749,829 (the “’829
`
`patent”) (collectively, “Patents-In-Suit”) based on my experience, knowledge, and education
`
`related to those patents.1 For each Defendant, I understand that Plaintiff AGIS Software
`
`Development LLC (“AGIS”) has asserted the following claims:
`
`Defendant
`
`Huawei
`
`LG
`
`HTC
`
`ZTE
`
`Asserted Patent
`
`Currently Asserted Claims
`
`’970 patent
`
`’838 patent
`
`1, 3-9
`
`1, 5, 7, 10, 11, 12, 14, 15, 18, 19, 20, 22, 25,
`
`27, 34, 38, 40, 44, 47. 54
`
`’251 patent
`
`1, 2, 4, 5, 6, 8, 10, 12, 15, 18, 19, 21, 22, 23,
`
`24, 27, 29, 31, 32, 35
`
`’055 patent
`
`1, 2, 5, 7, 17, 22, 24, 27, 28, 30, 32, 34, 36, 37,
`
`40, 42, 43, 45, 49, 54
`
`1 I have been informed that AGIS has only asserted the ’829 patent against Apple. Accordingly,
`unless otherwise stated, any opinions on the construction of claim terms in the ’829 patent, and
`any subsequent opinions rendered with respect to those terms, are proffered on only Apple’s
`behalf.
`
`1
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 4 of 105 PageID #: 7628
`
`Apple
`
`’970 patent
`
`’838 patent
`
`1, 3-9
`
`5, 10, 11, 14, 15, 18, 19, 20, 38, 40, 48, 54, 57,
`
`68, 72, 74, 84
`
`’251 patent
`
`2, 4, 5, 6, 8, 10, 12, 15, 18, 21, 22, 23, 27, 29,
`
`31, 32, 35
`
`’055 patent
`
`5, 7, 17, 22, 24, 25, 27, 30, 32, 34, 36, 37, 42,
`
`43, 54
`
`’829 patent
`
`2, 8, 10, 13, 14, 18, 25, 30, 32, 34, 39, 42, 50,
`
`59, 61, 63, 68
`
`I have been asked to provide my conclusions regarding the construction of certain terms recited
`
`in the asserted claims.
`
`2.
`
`I am being compensated at my hourly rate of $790 for the time I spend on this
`
`matter. No part of my compensation is dependent on the outcome of this proceeding or
`
`otherwise has any influence on my opinions in this proceeding. I have no other interest in this
`
`proceeding.
`
`II.
`
`QUALIFICATIONS
`
`3.
`
`I earned a Bachelor of Science degree in Electrical Engineering from The
`
`Pennsylvania State University in 1983 with concentration in communications and antennas. In
`
`addition, I earned a Master’s of Science degree in Electrical Engineering from the Naval
`
`Postgraduate School in 1987, with a specialization in Communications Engineering. I earned a
`
`Ph.D. in Electrical Engineering from Ohio University in 1998, with an emphasis in
`
`electromagnetics, antennas, and electronic navigation systems.
`
`2
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 5 of 105 PageID #: 7629
`
`4.
`
`From 1983 to 1998, prior to my full-time position at Ohio University, I worked as
`
`an electronics engineer at the Naval Air Warfare Center in Patuxent River, Maryland. In 1998,
`
`after being awarded a Ph.D. in Electrical Engineering, I joined the faculty of Ohio University as
`
`a Visiting Assistant Professor. I was promoted to Assistant Professor in 1990, to Associate
`
`Professor in 2004, and became a full processor there in 2009.
`
`5.
`
`My teaching at Ohio University has covered undergraduate and graduate level
`
`courses in electrical engineering. At the graduate level, I teach courses in the area of
`
`communications systems, satellite navigation systems, radar systems, and microwave and
`
`antenna theory. In addition to my teachings, I have led and performed various research efforts
`
`involving communications systems and mobile navigation technologies. I also have graduate
`
`level teaching experience with the Florida Institute of Technology in the areas of
`
`communications.
`
`6.
`
`Over the decades I have worked a wide variety of communications, navigation,
`
`and surveillance (CNS) systems with the Navy, at Ohio University, and on a consultant basis
`
`with GNSS Solutions® Ltd. While working as an electronics engineer for the Navy, I worked
`
`with various RF CNS systems and data link protocols (e.g., Link 11, 4A, 16, chainsaw, etc.) and
`
`RF architectures for DOD CNS and communications electronic warfare systems. At Ohio
`
`University, I have worked with various CNS system RF architectures, messaging, and data link
`
`formats. This has included may satellite data line formats (e.g., GPS-IS-200, RTCA DO-229E,
`
`etc.) and data link formats (e.g., RTCA , RTCM SC-104, A real-time bi-directional DPGS data
`
`link over Internet Protocol, WiFi, Bluetooth, Network Transport of RTCM via Internet Protocol
`
`(NTRIPS), Automatic Dependence Surveillance-Broadcast (ADS-B), All-purpose structured
`
`EUROCONTROL surveillance information exchange (ASTERIX), etc.). As president of GNSS
`
`3
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 6 of 105 PageID #: 7630
`
`Solutions® Ltd I have provided technical expert supported to various private, and public entities
`
`in wireless communications and location based positioning and services.
`
`7.
`
`Based on my experience and education, I believe that I am qualified to opine as to
`
`knowledge and level of skill of one of ordinary skill in the art at the time of the alleged invention
`
`of the Patents-In-Suit, which I describe in further detail below, and what such as person would
`
`have understood at that time, and the state of the art during that time.
`
`8.
`
`My curriculum vitae, which includes a more detailed summary of my background,
`
`experience, and publications, is attached as Appendix A.
`
`III.
`
`PERSON OF ORDINARY SKILL IN THE ART
`
`9.
`
`Based on my knowledge and experience, I understand what a person of ordinary
`
`skill in the art would have known at the time of the alleged invention. My opinions herein are,
`
`where appropriate, based on my understanding as to one of ordinary skill in the art at that time.
`
`10.
`
`I have reviewed the person of ordinary skill in the art (POSITA) put forward by
`
`Dr. Carbonell where he states “the technology described in the Asserted Patents draw on a
`
`combination of skills from the computer science and engineering arts. Further, a person of
`
`ordinary skill in the art (“POSITA”) would have a bachelor’s degree in computer science or
`
`computer engineering with one to two years of experience in the field of computer programming
`
`with a focus on building systems such as for GPS-based localization and network transmission.
`
`Extensive experience and technical training may substitute for educational requirements, while
`
`advanced education might substitute for experience.” In general, I agree with Dr. Carbonell that
`
`the POSITA would draw on a combination of skills in computer science and engineering arts,
`
`but, based on the materials and information I have reviewed, and on my extensive experience in
`
`the technical areas relevant to the Patents-In-Suit in the 2004 time frame, a person of ordinary
`
`skill in the art would also include bachelor degrees in the electrical engineering, as well as other
`
`4
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 7 of 105 PageID #: 7631
`
`scientific degrees such as physics. I also agree with Dr. Carbonell that one to two years of
`
`experience is appropriate, but I feel experience in wireless and wired communications systems,
`
`including GPS-based localization in mobile communications systems, and designing and
`
`implementing software applications for such systems, would be appropriate. I also agree with
`
`Dr. Carbonell that “Extensive experience and technical training may substitute for educational
`
`requirements, while advanced education might substitute for experience.” Thus, I believe a more
`
`appropriate classification of a POSITA would be one that had a bachelor’s degree in EE, CpE,
`
`CS, or other scientific field (e.g. physics), with one or two years of experience in the field of
`
`communication systems, including GPS-based localization. Extensive experience and technical
`
`training may substitute for educational requirements, while advanced education might substitute
`
`for experience. My conclusions are the same under either side’s proposed level of ordinary skill
`
`in the art2.
`
`IV.
`
`SCOPE OF OPINION AND LEGAL STANDARDS
`
`11.
`
`This Declaration (“Decl.”) does not set forth all my conclusions regarding the
`
`Patents-In-Suit or the claim terms found therein. However, my analysis is of the issues that
`
`appear most relevant based on the claim constructions proposed by the parties. I reserve the
`
`right to amend, clarify, or expand upon the analysis and conclusions contained in this
`
`Declaration, and to respond to and rebut issues raised by the Defendant in the course of claim
`
`construction briefing and during this litigation.
`
`12.
`
`I understand that the claims of a patent are to be interpreted according to their
`
`plain and ordinary meaning according to a person of ordinary skill in the art at the timeframe of
`
`2 I have reviewed the level of ordinary skill in the art proposed in related Inter Partes Review
`petitions by Apple Inc. and Google LLC. My conclusions set forth herein are the same under the
`level of ordinary skill in the art proposed in those petitions. See, e.g., Google LLC v. AGIS
`Software Development, LLC, Case No. IPR2018-01079, Paper 2 at 9-10; Apple Inc. v. AGIS
`Software Development, LLC, Case No. IPR2018-00817, Paper 1 at 11.
`
`5
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 8 of 105 PageID #: 7632
`
`the claimed invention. I understand that claims should be construed based on intrinsic evidence
`
`such as the claim language, the patent’s specification, and the patent’s prosecution file history. I
`
`understand I am also free to look at extrinsic evidence to help interpret the meaning and
`
`construction of the claims, including but not limited to sources such as appropriate dictionaries,
`
`the general knowledge of one skilled in the art, treatises, white papers, relevant journals, etc., as
`
`long as that extrinsic evidence does not contradict the evidence intrinsic to the patent.
`
`13.
`
`I understand that the claims of a patent define the scope of the rights conferred by
`
`the patent. The claims particularly point out and distinctly claim the subject matter that the
`
`patentee regards as his invention. Because the patentee is required to define precisely what he
`
`claims his invention to be, it is improper to construe claims in a manner different from the plain
`
`import of the terms used consistent with the specification. Accordingly, a claim construction
`
`analysis must begin and remain centered on the claim language itself. Additionally, the context
`
`in which a term is used in the asserted claim can be highly instructive. Likewise, other claims of
`
`the patent in question, both asserted and unasserted, can inform the meaning of a claim term. For
`
`example, because claim terms are normally used consistently throughout the patent, the usage of
`
`a term in one claim can often illuminate the meaning of the same term in other claims.
`
`Differences among claims can also be a useful guide in understanding the meaning of particular
`
`claim terms.
`
`14.
`
`I understand that the claims of a patent define the purported invention. I
`
`understand that the purpose of claim construction is to understand how one skilled in the art
`
`would have understood the claim terms at the time of the purported invention.
`
`15.
`
`I understand that a person of ordinary skill in the art is deemed to read a claim
`
`term not only in the context of the particular claim in which the disputed term appears, but in the
`
`6
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 9 of 105 PageID #: 7633
`
`context of the entire patent, including the specification. For this reason, the words of the claim
`
`must be interpreted in view of the entire specification. The specification is the primary basis for
`
`construing the claims and provides a safeguard such that correct constructions closely align with
`
`the specification. Ultimately, the interpretation to be given a term can only be determined and
`
`confirmed with a full understanding of what the inventors actually invented and intended to
`
`envelop with the claim as set forth in the patent itself.
`
`16.
`
`I understand that it is improper to place too much emphasis on the ordinary
`
`meaning of the claim term without adequate grounding of that term within the context of the
`
`specification of the asserted patent. Hence, claim terms should not be broadly construed to
`
`encompass subject matter that is not supported when the claims are read in light of the invention
`
`described in the specification. Art incorporated by reference or otherwise cited during the
`
`prosecution history is also highly relevant in ascertaining the breadth of claim terms.
`
`17.
`
`I understand that claim terms must also be construed in a manner consistent with
`
`the context of the entire intrinsic record. To that end, in addition to consulting the patent’s
`
`specification, one should also consider the patent’s prosecution history, if available. The
`
`prosecution file history provides evidence of how both the Patent Office and the inventors
`
`understood the terms of the patent, particularly in light of what was known in the prior art.
`
`Further, where the specification describes a claim term broadly, arguments and amendments
`
`made during prosecution may require a more narrow interpretation.
`
`18.
`
`I understand that while intrinsic evidence is of primary importance, extrinsic
`
`evidence, e.g., all evidence external to the patent and prosecution history, including expert and
`
`inventor testimony, dictionaries, and learned treatises, can also be considered. For example,
`
`technical dictionaries may help one better understand the underlying technology and the way in
`
`7
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 10 of 105 PageID #: 7634
`
`which one of skill in the art might use the claim terms. Extrinsic evidence should not be
`
`considered, however, divorced from the context of the intrinsic evidence. Evidence beyond the
`
`patent specification, prosecution history, and other claims in the patent should not be relied upon
`
`unless the claim language is ambiguous in light of these intrinsic sources. Furthermore, while
`
`extrinsic evidence can shed useful light on the relevant art, it is less significant than the intrinsic
`
`record in determining the legally operative meaning of claim language.
`
`19.
`
`I understand that in general, a term or phrase found in the introductory words of
`
`the claim, the preamble of the claim, should be construed as a limitation if it recites essential
`
`structure or steps, or is necessary to give life, meaning, and vitality to the claim. Conversely, a
`
`preamble term or phrase is not limiting where a patentee defines a structurally complete
`
`invention in the claim body and uses the preamble only to state a purpose or intended use for the
`
`invention. In making this distinction, one should review the entire patent to gain an
`
`understanding of what the inventors claim they actually invented and intended to encompass by
`
`the claims.
`
`A.
`
`20.
`
`Means-Plus-Function Claim Terms
`
`Certain claim terms at issue in this case recite “means for” performing a particular
`
`function. Additionally, certain claim terms at issue in this case claim a “device” that is
`
`programmed to perform particular functions. As explained in more detail below, the claim term
`
`“device” in such a context may amount to a mere verbal construct that is the equivalent to the use
`
`of the “means” language in a claim. Stated differently, the use of the term “device” is effectively
`
`a placeholder for any structure that is capable of performing the recited functions. I understand
`
`that for such claim terms, they should be construed under pre-AIA 35 U.S.C. § 112, ¶ 6, or,
`
`depending on the filing date of the patent, AIA 35 U.S.C. § 112(f), which recites the same
`
`language as pre-AIA 35 U.S.C. § 112, ¶ 6. Both versions state the same thing:
`
`8
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 11 of 105 PageID #: 7635
`
`An element in a claim for a combination may be expressed as a means or step for
`performing a specified function without the recital of structure, material, or acts in
`support thereof, and such claim shall be construed to cover the corresponding
`structure, material, or acts described in the specification and equivalents thereof
`
`21.
`
`To construe such claims, the claimed function must be first identified, and then a
`
`corresponding structure clearly linked to the performance of that function must be found in the
`
`specification. I understand that terms written in this format cover that corresponding structure
`
`described in the specification in addition to any equivalent structure.
`
`22.
`
`For computer-implemented means-plus-function claim terms, I am aware that a
`
`distinction is made as to whether the claimed function is of a fundamental nature such that it can
`
`be performed by a general-purpose computer without the need for special programming, or if a
`
`specially programmed computer is necessary to implement the claimed function. I understand
`
`that with the former, i.e., where the claimed function can be performed by any general-purpose
`
`computer without any special programming, disclosure of any general-purpose processor to
`
`perform the function is sufficient. On the other hand, for functions requiring specially-
`
`programmed computers, I have been informed that an algorithm to perform or implement the
`
`claimed function on a computer must be disclosed in the specification.
`
`23.
`
`I am aware that algorithmic disclosures may be in any form sufficient to inform
`
`one of ordinary skill in the art, including source code, a mathematical formula, prose, a diagram
`
`or flow chart, and/or any other manner that provides sufficient structure to those of skill in the
`
`art.
`
`V.
`
`OVERVIEW OF THE PATENTS-IN-SUIT
`
`A.
`
`24.
`
`’970 PATENT
`
`The ’970 patent is directed to a “specialized software application on a personal
`
`computer or a PDA/cell phone that [] enables a participant to force an automatic
`
`9
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 12 of 105 PageID #: 7636
`
`acknowledgement and a manual response to a text or voice message from other participants
`
`within the same network.” (See, e.g., ’970 patent, Abs.) This specialized software application
`
`is referred to as “the forced message alert software application program” and provides the
`
`following functionality: (1) allow an operator to create and transmit a forced message alert from
`
`a sender PDA/cell phone to one or more recipient devices within a communication network; (2)
`
`automatically transmit an acknowledgement of receipt to the sender PDA/cell phone upon receipt
`
`of the forced message alert; (3) periodically resend the message to the recipient devices that have
`
`not sent an acknowledgement; (4) provide an indication of which recipient devices have
`
`acknowledged the forced message alert; (5) provide a manual response list on the display of the
`
`recipient device’s display that can only be cleared by manually transmitting a selected response;
`
`and (6) provide an indication on the sender device of the status and content of the selected
`
`manual responses. (See, e.g., id.; see also id., 2:3-34.)
`
`25.
`
`The forced message alert software application allows a participant to send a text
`
`or voice message to a group of people and force an automatic acknowledgement of receipt as
`
`well as a selection of a manual response. (See, e.g., ’970 patent, 3:22-28.) The manual response
`
`is a required response from which a recipient must select in order to clear the text message from
`
`the display or stop the repeated playback of the voice message. (See, e.g., id., 7:17-31, 8:9-51.)
`
`26.
`
`The Asserted Claims of the ’970 patent are directed to this concept and recite, as
`
`exemplified in independent claim 1, the following limitations3:
`
`1. A communication system for transmitting, receiving, confirming receipt, and
`
`responding to an electronic message, comprising:
`
`3 I understand that the other asserted independent claim in the ’970 patent, i.e., claim 6, is a
`method claim that recites many of the same functional limitations.
`
`10
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 13 of 105 PageID #: 7637
`
`a predetermined network of participants, wherein each participant has a similarly
`
`equipped PDA/cell phone that includes a CPU and a touch screen display a CPU
`
`and memory;
`
`a data transmission means that facilitates the transmission of electronic files
`
`between said PDA/cell phones in different locations;
`
`a sender PDA/cell phone and at least one recipient PDA/cell phone for each
`
`electronic message;
`
`a forced message alert software application program including a list of required
`
`possible responses to be selected by a participant recipient of a forced message
`
`response loaded on each participating PDA/cell phone;
`
`means for attaching a forced message alert software packet to a voice or text
`
`message creating a forced message alert that is transmitted by said sender
`
`PDA/cell phone to the recipient PDA/cell phone, said forced message alert
`
`software packet containing a list of possible required responses and requiring the
`
`forced message alert software on said recipient PDA/cell phone to transmit an
`
`automatic acknowledgment to the sender PDA/cell phone as soon as said forced
`
`message alert is received by the recipient PDA/cell phone;
`
`means for requiring a required manual response from the response list by the
`
`recipient in order to clear recipient's response list from recipient's cell phone
`
`display;
`
`means for receiving and displaying a listing of which recipient PDA/cell phones
`
`have automatically acknowledged the forced message alert and which recipient
`
`PDA/cell phones have not automatically acknowledged the forced message alert;
`
`11
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 14 of 105 PageID #: 7638
`
`means for periodically resending said forced message alert to said recipient
`
`PDA/cell phones that have not automatically acknowledged the forced message
`
`alert; and
`
`means for receiving and displaying a listing of which recipient PDA/cell phones
`
`have transmitted a manual response to said forced message alert and details the
`
`response from each recipient PDA/cell phone that responded.
`
`THE AD HOC NETWORK PATENTS
`
`The ’838, ’251, ’055, and ’829 patents (the “Ad Hoc Network Patents”)4 are each
`
`B.
`
`27.
`
`directed to a specialized software application for establishing an ad hoc network between
`
`members of a group that are not pre-known to one another. (See e.g., ’838 patent, 6:6-7 (“The
`
`heart of the invention lies in the applicant’s ACS [Advanced Communication Software]
`
`application programs provided in the device.”), 1:44-48 (“The invention includes a method and
`
`communication system to quickly set up and provide ad hoc, password protected, digital and
`
`voice networks to allow a group of people to be able to set up a network easily and rapidly,
`
`especially in an emergency situation.”), 2:34-41 (“The method an system in accordance with the
`
`present invention described herein discloses how digital communications along with Personal
`
`Computer (PC) and PDA devices can be used to quickly establish user specific password
`
`protected private ad hoc voice and data networks to enable both data and voice communications
`
`up and down their chain of command and simultaneously with different not pre-known,
`
`organizations responding to a disaster.”).)
`
`28.
`
`At a high level, the specialized software provides the following functionality: (1)
`
`forming an ad hoc network of devices; (2) exchanging location and status information between
`
`the devices; (3) displaying the location and status information on the devices on an interactive
`
`4 The Ad Hoc Network Patents share a common specification.
`
`12
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 15 of 105 PageID #: 7639
`
`map; and (4) facilitating communications between the devices through user interaction with the
`
`interactive map. (See e.g., id., 2:54-3:10, Fig 1)
`
`29.
`
`Although generally directed to the same functions, the claims of the Ad Hoc
`
`Network Patents differ mainly in how the ad hoc groups are formed:
`
`a. The ’838 patent requires a first device to send a group identifier to a server (e.g.,
`
`claim 1, 54);
`
`b. The ’251 patent requires a first device to receive a group-joining request from a
`
`second device, without the use of a server (e.g., claim 1, 24);
`
`c. The ’055 patent requires a first device to send a SMS message to a second device and
`
`the second device to provide an IP-based response to the first device (e.g., claim 1,
`
`28, 54); and
`
`13
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 16 of 105 PageID #: 7640
`
`d. The ’829 patent requires a first device to accept a group-joining request sent from a
`
`second device, via a server. Further, all claims of the ’829 patent involve remote
`
`controlling of one of the devices. (e.g., claims 2, 34, 68.)
`
`VI.
`
`OPINIONS REGARDING THE CONSTRUCTION OF CLAIM TERMS
`
`A.
`
`30.
`
`’970 PATENT
`
`Claim 1 of the ’970 patent recites a number of terms that are written in means-
`
`plus-function form and, with the exception of one term,5 I have been informed that both parties
`
`agree that each of those terms should be construed as such under 35 U.S.C. § 112, ¶ 6. Based on
`
`my analysis and as explained below, claims 1 and 3-5 are indefinite because the specification
`
`lacks a corresponding structure and algorithm sufficient for a person of ordinary skill in the art to
`
`perform several of the claimed functions recited in claim 1.
`
`31.
`
`For example, claim 1 of the ’970 patent recites the following means-plus-function
`
`limitations: (i) a data transmission means that facilitates the transmission of electronic files
`
`between said PDA/cell phones in different locations; (ii) means for attaching a forced message
`
`alert software packet to a voice or text message creating a forced message alert that is transmitted
`
`by said sender PDA/cell phone to the recipient PDA/cell phone, said forced message alert
`
`software packet containing a list of possible required responses; (iii) [means for. . .] requiring the
`
`forced message alert software on said recipient PDA/cell phone to transmit an automatic
`
`acknowledgment to the sender PDA/cell phone as soon as said forced message alert is received
`
`by the recipient PDA/cell phone6; (iv) means for requiring a required manual response from the
`
`5 i.e., “[means for. . .] requiring the forced message alert software on said recipient PDA/cell
`phone to transmit an automatic acknowledgment to the sender PDA/cell phone as soon as said
`forced message alert is received by the recipient PDA/cell phone,” discussed below.
`6 The parties dispute whether “[means for. . .] requiring the forced message alert software on said
`recipient PDA/cell phone to transmit an automatic acknowledgment to the sender PDA/cell
`phone as soon as said forced message alert is received by the recipient PDA/cell phone” should
`
`14
`
`

`

`Case 2:17-cv-00513-JRG Document 175-23 Filed 08/14/18 Page 17 of 105 PageID #: 7641
`
`response list by the recipient in order to clear recipient's response list from recipient's cell phone
`
`display; (v) means for receiving and displaying a listing of which recipient PDA/cell phones
`
`have automatically acknowledged the forced message alert and which recipient PDA/cell phon