Case 2:21-cv-00072-JRG-RSP Document 145-11 Filed 09/07/21 Page 1 of 21 PageID #:
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`Case 2:21-cv-00072-JRG-RSP Document 145-11 Filed 09/07/21 Page 2 of 21 PageID #:
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`DECLARATION OF JOSEPH C. MCALEXANDER III
`REGARDING CLAIM CONSTRUCTION
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`AGIS SOFTWARE DEVELOPMENT LLC
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`vs.
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`T-MOBILE USA, INC. AND T-MOBILE US, INC.
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`
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`Case No. 2:21-cv-00072-JRG-RSP (LEAD CASE)
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`August 17, 2021
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`Case 2:21-cv-00072-JRG-RSP Document 145-11 Filed 09/07/21 Page 3 of 21 PageID #:
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`TABLE OF CONTENTS
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`QUALIFICATIONS AND BACKGROUND INFORMATION
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`UNDERSTANDING OF THE APPLICABLE LAW
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` MATERIALS CONSIDERED
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`LEVEL OF ORDINARY SKILL IN THE ART
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`CLAIM CONSTRUCTION
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`“free and operator selected text messages” – ʼ728 Patent
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`“similarly equipped cellular phone” / “similarly equipped PDA cellular
`phone” / “similarly equipped PDA/cell phone” / “each PDA/cell phone
`within a predetermined communication network is similarly equipped” -
`ʼ728, ʼ724, and ʼ970 Patents
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`“accessing an application program in each cell phone for generating one
`or more symbols representative of one or more participating users, each
`of whom have a similarly equipped cellular phone” - ʼ724 Patent
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`“database” and “said database including the generation of one or more
`symbols associated with a particular participating user” - ʼ728 Patent
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`“using the IP address previously” - ʼ724 Patent
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`“device” - ʼ838, ʼ251, and ʼ829 Patents
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`Means-Plus-Function Terms of the ’970 Patent
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`CONCLUSION
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`1
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`4
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`8
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`9
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`9
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`9
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`11
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`13
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`14
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`16
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`17
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`17
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`18
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`QUALIFICATIONS AND BACKGROUND INFORMATION
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`1.
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`My name is Joseph C. McAlexander III. I am over eighteen years of age and I would
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`be competent to testify as to the matters set forth herein if I am called upon to do so.
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`2.
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`I have been retained by Fabricant LLP, counsel for the Plaintiff AGIS Software
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`Development LLC (hereinafter referred to as “AGIS”), in connection with this action to consider
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`how one of ordinary skill in the art to which the Asserted Patents in this action are directed would
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`have understood (at the time of the invention) the claim terms set forth in this Declaration. I may
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`also be asked to rebut the proposed constructions and/or indefiniteness of the Asserted Patents that
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`Defendants T-Mobile USA, Inc., T-Mobile US, Inc., Uber Technologies, Inc. d/b/a Uber, Lyft,
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`Inc., and WhatsApp LLC (collectively, “Defendants”) have proposed in its claim construction
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`disclosures.
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`3.
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`This Declaration contains my opinions with respect to the subject matter of this
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`proceeding and with the understandings as set forth herein. I specifically reserve the right to
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`formulate and offer additional or supplemental opinions based on any additional information,
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`discovery, or evidence that may be provided or derived, future court rulings, or agreements
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`between the parties, to the extent permitted by the Court.
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`4.
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`It is my understanding that AGIS is currently asserting the following claims against
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`Defendants (collectively, the “Asserted Claims”):
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`Claim Nos.
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`9, 10, 12-16
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`3, 4, 8-13, 16, 18-20, 26, 31, 35, 37, 38, 44,
`46-48, 50-53
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`1-35
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` 7
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`Defendant
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`T-Mobile USA, Inc.
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`T-Mobile US, Inc.
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`U.S. Patent No.
`7,630,724
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`7,031,728
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`9,408,055
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`9,445,251
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`Claim Nos.
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`1-84
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`1-68
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`2, 10-13
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`9, 12-16
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`7
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`1-31
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`1-26
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`2, 10-13
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`9, 12-16
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`7
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`1-31
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`1-26
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`9, 10, 12, 13, 15
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` 7
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`3, 4, 8-13, 16, 18-20, 26, 31, 35, 38, 39, 44,
`46-48, 50-53
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`1-35
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`1-43, 45, 46, 49-84
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`1-7, 9, 11-26, 28-41, 43, 45-61, 63-68
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`Defendant
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`U.S. Patent No.
`9,467,838
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`9,749,829
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`Uber Technologies, Inc.
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`d/b/a Uber
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`Lyft, Inc.
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`WhatsApp LLC
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`8,213,970
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`7,630,724
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`7,031,728
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`10,299,100
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`10,341,838
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`8,213,970
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`7,630,724
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`7,031,728
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`10,299,100
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`10,341,838
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`7,630,724
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`7,031,728
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`9,408,055
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`9,445,251
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`9,467,838
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`9,749,829
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`5.
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`I anticipate being called to provide expert testimony before the U.S. District Court
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`for the Eastern District of Texas regarding my opinions formed, resulting from my review of the
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`Asserted Patents, the relevant file histories, and other invalidity arguments or contentions raised
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`by Defendants. If called, I will so testify.
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`6.
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`I am a Registered Professional Engineer (#79454) and the President of
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`McAlexander Sound, Inc. I hold a Bachelor of Science degree in Electrical Engineering from
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`North Carolina State University. I have been associated with the integrated circuit and electronics
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`industry as a designer and consultant for the past 49 years and am a named inventor on 31 U.S.
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`patents and a number of foreign patents.
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`7.
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`My skills and experience are in areas of circuit design and analysis, device
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`fabrication and assembly, testing, marketing, control system design and analysis, manufacturing
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`operations, and respective areas of quality, reliability, and defect/failure analysis. Specifically, I
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`have:
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`• designed memories, including Dynamic Random Access Memories (DRAMs),
`Static Random Access Memories (SRAMs), Charge Coupled Devices (CCDs),
`Shift Registers (SRs), and functional circuits including I/O buffers for address
`and data, decoders, clocks, sense amplifiers, fault tolerant (incorporating both
`nonvolatile EPROM and random access memory components), parallel-to-
`serial data paths for video applications, level shifters, converters, pumps, and
`logic, as well as wireless communication systems and MEMs;
`• managed operations including engineering, training, and quality assurance for
`device fabrication, assembly, test, analysis, and reliability assessment, as well
`as manufacturing control, each of which involved both volatile and non-volatile
`memory; testing, analysis, and control involved use of mechanical calibration
`and measuring equipment, including optical, scanning e-beam, IR, capacitive,
`and laser using phase contrast and FFT for HARI applications;
`taught courses in solid-state device physics, integrated circuit design, integrated
`circuit fabrication, and statistical control;
`• provided expert services, investigating both process and design technologies of
`various devices (microprocessor and controller, volatile and non-volatile
`memory, programmable logic, card, tag, module, mixed signal, custom, and
`other), systems (PC and peripheral, computer, control, laser measurement,
`switch, architecture, software, and other), consumer products (medical, TV,
`telephone, VCR, facsimile, copier, lighting, game, and other), and products
`related to wireless tracking and geofencing; and
`• designed and managed development, testing, and evaluation of memory devices
`and systems incorporating such devices, including simulation of operation. I
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`•
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`have also had experience in programming, erasing, and wearout of electrically
`programmable and erasable non-volatile memories.
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`I am qualified to reach the opinions and conclusions stated in this Declaration.
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`In forming my opinions, I rely on my knowledge and experience in the fields
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`8.
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`9.
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`relevant to this Declaration. I further rely on documents and information referenced in this
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`Declaration.
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`10.
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`A more detailed account of my work experience and other qualifications is listed in
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`my Curriculum Vitae attached to this Declaration.
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`
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`UNDERSTANDING OF THE APPLICABLE LAW
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`11.
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`I understand that claim terms should be given their ordinary and customary
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`meaning within the context of the patent in which the terms are used, i.e., the meaning that the
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`term would have to a person of ordinary skill in the art in question at the time of the invention in
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`light of what the patent teaches, unless it appears that the inventors were using them to mean
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`something else. Additionally, the specification and prosecution history must be consulted to
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`confirm whether the patentee has acted as his/her own lexicographer (i.e., provided special
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`meaning to any disputed terms), or intentionally disclaimed, disavowed, or surrendered any claim
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`scope).
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`12.
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`I understand that a person of ordinary skill in the art is deemed to read a claim term
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`not only in the context of the particular claim in which the disputed term appears, but also in the
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`context of the entire patent, including the specification and the prosecution history. The
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`prosecution file history provides evidence of how both the Patent Office and the inventors
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`understood the terms of the patent, particularly in light of what was known in the prior art. Further,
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`where the specification describes a claim term broadly, arguments and amendments made during
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`prosecution may require a more narrow interpretation. For these reasons, the words of the claim
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`must be interpreted in view of, and be consistent with, the entire specification. The specification
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`is the primary basis for construing the claims and provides a safeguard such that correct
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`constructions closely align with the specification. Ultimately, the interpretation to be given a term
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`can only be determined and confirmed with a full understanding of what the inventors actually
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`invented and intended to envelop with the claim as set forth in the patent itself.
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`13.
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`I understand that, to determine how a person of ordinary skill would understand a
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`claim term, one should look to those sources available that show what a person of skill in the art
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`would have understood disputed claim language to mean. Such sources include the words of the
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`claims themselves, the remainder of the patent’s specification, the prosecution history of the patent
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`(all considered “intrinsic” evidence), and “extrinsic” evidence concerning relevant scientific
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`principles, the meaning of technical terms, and the state of the art. I understand that one looks
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`primarily to the intrinsic patent evidence, but extrinsic evidence may also be useful in interpreting
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`patent claims when the intrinsic evidence itself is insufficient.
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`14.
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`Additionally, the context in which a term is used in the Asserted Claim can be
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`highly instructive. Likewise, other claims of the patent in question, both asserted and not asserted,
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`can inform the meaning of a claim term. For example, because claim terms are normally used
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`consistently throughout the patent, the usage of a term in one claim can often illuminate the
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`meaning of the same term in other claims. Differences among claims can also be a useful guide
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`in understanding the meaning of particular claim terms.
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`15.
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`I understand that, while intrinsic evidence is of primary importance, extrinsic
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`evidence, e.g., all evidence external to the patent and prosecution history, including expert and
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`inventor testimony, dictionaries, and learned treatises, can also be considered. For example,
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`technical dictionaries may help one better understand the underlying technology and the way in
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`which one of skill in the art might use the claim terms. Extrinsic evidence should not be
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`considered, however, divorced from the context of the intrinsic evidence. Evidence beyond the
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`patent specification, prosecution history, and other claims in the patent should not be relied upon
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`unless the claim language is ambiguous in light of these intrinsic sources. Furthermore, while
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`extrinsic evidence can shed useful light on the relevant art, it is less significant than the intrinsic
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`record in determining the legally operative meaning of claim language.
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`16.
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`I understand that the Supreme Court of the United States has instructed that, in
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`order for a claim to be definite, “a patent’s claims, viewed in light of the specification and
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`prosecution history, [must] inform those skilled in the art about the scope of the invention with
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`reasonable certainty.” The Supreme Court also warned that “the definiteness requirement must
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`take into account the inherent limitations of language . . . Some modicum of uncertainty . . . is the
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`price of ensuring the appropriate incentives for innovation.” The Court also stated that “a patent
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`must be precise enough to afford clear notice of what is claimed, thereby apprising the public of
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`what is still open to them.”
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`17.
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`I understand that a patent claim may be expressed using functional language. § 112,
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`¶ 6 provides that a structure may be claimed as a “means . . . for performing a specified function”
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`and that an act may be claimed as a “step for performing a specified function.” There is a rebuttable
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`presumption that § 112, ¶ 6 applies when the claim language includes “means” or “step for” terms,
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`and that it does not apply in the absence of those terms. The presumption stands or falls according
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`to whether one of ordinary skill in the art would understand the claim with the functional language,
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`in the context of the entire specification, to denote sufficiently definite structure or acts for
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`performing the function.
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`18. When it applies, § 112, ¶ 6 limits the scope of the functional term to only the
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`structure, materials, or acts described in the specification as corresponding to the claimed function
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`and equivalents thereof. Construing a means-plus-function limitation involves multiple steps. The
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`first step is a determination of the function of the means-plus function limitation. The next step is
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`to determine the corresponding structure disclosed in the specification and equivalents thereof. A
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`structure disclosed in the specification is “corresponding” structure only if the specification or
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`prosecution history clearly links or associates that structure to the function recited in the claim.
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`The focus of the “corresponding structure” inquiry is not merely whether a structure is capable of
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`performing the recited function, but rather whether the corresponding structure is clearly linked or
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`associated with the recited function. The corresponding structure must include all structure that
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`actually performs the recited function. However, § 112, ¶ 6 does not permit incorporation of
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`structure from the written description beyond that necessary to perform the claimed function.
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`19.
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`For § 112, ¶ 6 limitations implemented by a programmed general purpose computer
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`or microprocessor, the corresponding structure described in the patent specification must include
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`an algorithm for performing the function. The corresponding structure is not a general purpose
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`computer but rather the special purpose computer programmed to perform the disclosed algorithm.
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`20.
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`I understand that, in general, a term or phrase found in the introductory words of
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`the claim, the preamble of the claim, should be construed as a limitation if it recites essential
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`structure or steps, or is necessary to give life, meaning, and vitality to the claim. Conversely, a
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`preamble term or phrase is not limiting where a patentee defines a structurally-complete invention
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`in the claim body and uses the preamble only to state a purpose or intended use for the invention.
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`In making this distinction, one should review the entire patent to gain an understanding of what
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`the inventors claimed they actually invented and intended to encompass by the claims.
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`21.
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`I understand that language in the preamble limits claim scope (i) if dependence on
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`a preamble phrase for antecedent basis indicates a reliance on both the preamble and claim body
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`to define the claimed invention; (ii) if reference to the preamble is necessary to understand
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`limitations or terms in the claim body; or (iii) if the preamble recites additional structure or steps
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`that the specification identifies as important. Otherwise, the preamble is not limiting.
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`22.
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`It is also my understanding that method claims do not generally require the cited
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`steps to take place in any particular order.
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`23.
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`Other considerations I made, detailed below, help one to achieve a proper
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`interpretation of the claims.
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` MATERIALS CONSIDERED
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`24.
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`In forming my opinions, in addition to my knowledge and experience, I have
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`considered the materials cited in this Declaration and the following documents which either I have
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`obtained or have been provided to me: the Asserted Patents and their file histories; and the prior
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`art documents referenced in Defendants’ Invalidity Contentions.
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`25.
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`In addition to the materials provided to me, I have also relied on my own education,
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`training, experience, and knowledge in the field of microphone array and sound systems.
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`26.
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`I may rely on any of these materials, experiences, and knowledge, in addition to the
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`evidence specifically cited as supportive examples in particular sections of this declaration, as
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`additional support for my opinions.
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`27.
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`I reserve the right to supplement or amend this declaration if additional facts and
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`information that affect my opinions become available.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`28.
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`It is my understanding that I must address the issues set forth in this Declaration
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`from the viewpoint of a person of ordinary skill in the art at the time of the invention to which the
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`Asserted Patents pertain.
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`29.
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`It is my opinion that the person of ordinary skill in the art (“POSITA”) would have
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`a at least a bachelor’s degree in computer science or computer engineering with one to two years
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`of experience in the field of computer programming for communications systems, or the equivalent
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`education and work experience. Extensive experience and technical training might substitute for
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`educational requirements, while advanced degrees might substitute for experience.
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`CLAIM CONSTRUCTION
`A.
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`“free and operator selected text messages” – ʼ728 Patent
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`30.
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`The phrase “free and operator selected text messages” appears in Claim 7 of the
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`ʼ728 Patent. This phrase is not indefinite because a POSITA would understand the phrase with
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`reasonable certainty.
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`31.
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`In my opinion, a POSITA would have understand that the ’728 Patent describes the
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`prior art at the time of the invention which would have required users of maps to undergo
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`cumbersome processes to place a call. For example, the ’728 patent states as follows:
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`Another drawback of the use of the current combined cellular phone
`PDA technology is that when using the PDA to display a map (that
`also may depict georeferenced businesses, homes and other
`facilities' locations and phone numbers), and the operator wants to
`place a call, the cellular phone/PDA operator is required to obtain
`the phone number by touching the display screen at the correct
`location of that entity on the map to obtain the phone number, then
`the operator has to memorize the phone number, then go to a
`different display to enter the phone number, to make the call and
`then, if desired, go back to the map display. Needless to say, this is
`a cumbersome process. Sending a text message to a location,
`business, home or facility that appears on a PDA map display to
`another cellular phone can also be a cumbersome process as the
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`PDA operator has to find the phone number on the map display,
`memorize the phone number, then go to a different display to enter
`a text message, enter the text message, send the text message and
`then shift back to the map display program. Furthermore, for a
`phone to send data concerning a new entity of interest (car, person,
`tank, accident, or other entity) the operator must type in the
`information and the latitude and longitude of the entity.
`’728 Patent at 1:46-2:4. Additionally, the ’728 patent provides that, in the prior art,
`
`and
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`[t]here is no provision for sending text messages, photographs or
`videos by touching the net participant(s)' symbol(s) on the display
`screen to automatically send text messages, photographs or videos
`to that participant or participants
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`[t] here is no description or disclosure of a procedure to cause digital
`messages to be sent to a remote cellular phone that would cause the
`cellular phone to make verbal announcements, increase sound
`intensity, vibrate or to call back or to call another phone number.”
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`‘’728 Patent at 3:9-17. Here, a POSITA would understand that the user (or operator) would
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`encounter limitations on the display interface that would make it difficult to compose and send a
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`text message. A POSITA would also understand that the scope of the claimed invention
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`encompasses sending messages in one form for receipt in another form.
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`32.
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`A POSITA would understand that the ’728 Patent describes sending different types
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`of messages including text messages. ’728 Patent at 4:25-43, 5:21-54, 6:20-28, 6:56-60, 11:38-
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`42, Fig. 3, claims 1, 3, 7, 10, 12. A POSITA would have understood that there are different types
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`of data or text and methods for inputting text messages. For example, a POSITA would have
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`understood that text can be one of various types of characters for text messages, e.g., alphabetical,
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`numeric, or alphanumeric characters. In another example, a POSITA would have understood that
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`text can be free text (also known as free-form text) as opposed to structured text. The term free
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`text is commonly referred to simply as “text” and refers to the unstructured nature of text used in
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`free form for words and sentences. A POSITA would understand that free text can be either
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`human-generated or machine-generated. In the context of the ’728 patent, the disclosure provides
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`support for both free text messages and pre-stored messages. ’728 Patent at 4:25-43, 5:21-54,
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`6:20-28, 6:56-60, 11:38-42, Fig. 3, claims 1, 3, 7, 10, 12. Claim 7 requires that the phone be
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`configured to send messages comprising free text, not just pre-stored messages. Further, in claim
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`7, the “operator selected” portion of the phrase “free and operator selected text messages” means
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`that the free text is of the kind input by an operator, i.e., via user input.
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`33.
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`Thus, as recited in claim 7 of the ’728 patent, the phrase “free and operator selected
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`text messages” would have been understood by a POSITA with reasonable certainty and would
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`not be indefinite. Based on the POSITA’s understanding, the phrase “free and operator selected
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`text messages” should be construed to mean “messages comprising free text.” To the extent the
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`Court deems necessary, the phrase “free and operator selected text messages” may be construed to
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`mean “messages comprising free text via user input.”
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`34.
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`Because a POSITA would have understood these terms in the phrase, the meaning
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`of the phrase is ascertainable with reasonable certainty. Accordingly, in my opinion, a POSITA
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`would find that these terms are not indefinite. In my opinion, the terms should be given their plain
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`and ordinary meaning.
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`B.
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`“similarly equipped cellular phone” / “similarly equipped PDA
`cellular phone” / “similarly equipped PDA/cell phone” / “each
`PDA/cell phone within a predetermined communication network is
`similarly equipped” - ʼ728, ʼ724, and ʼ970 Patents
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`35.
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`The phrase “similarly equipped cellular phone” appears in Claim 7 of the ʼ728
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`Patent and Claim 9 of the ’724 Patent. The phrase “similarly equipped PDA cellular phone”
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`appears in Claim 16 of the ’724 Patent. The phrase “similarly equipped PDA/cell phone” appears
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`in claim 1 of the ’970 Patent. The phrase “each PDA/cell phone within a predetermined
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`communication network is similarly equipped” appears in claim 11 of the ’970 Patent. These
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`Case 2:21-cv-00072-JRG-RSP Document 145-11 Filed 09/07/21 Page 15 of 21 PageID #:
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`phrases are not indefinite because a POSITA would understand the phrase with reasonable
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`certainty.
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`36.
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`In my opinion, a POSITA would have understand that the ’728 Patent describes
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`permitting users of cellular phones to communicate and share information with other users having
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`similarly equipped cellular phones. In the context of the ’728 Patent, “similarly equipped” pertains
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`to common hardware and software features. For example, the ’728 Patent describes an exemplary
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`prior art “implementation permits the cellular phone users to also view the location of other GPS
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`equipped units.” A POSITA would understand that location is communicated or shared among
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`similarly equipped cellular phones to the extent those phones have the disclosed GPS feature. The
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`’728 Patent describes the “present software invention…provid[es] a cellular phone/PDA/GPS
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`user: a) the ability to selectively poll each of the other PDA/GPS phones to start reporting their
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`positions and status information directly to all or selected users equipped with cellular phone/PDA
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`communications/GPS system in the communications net…” ’728 Patent at 2:18-27. In another
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`example, the disclosure describes obtaining location for “all the software equipped cellular
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`phone/PDA/GPS systems that are part of the communications net.” ’728 Patent at 3:40-43. In
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`another example, the ’728 Patent discloses “similarly equipped cellular phone that includes a CPU,
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`GPS navigational system and a touch screen display. ’728 Patent at 12:5-10.
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`37.
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`The ’724 Patent contains similar disclosures for both similarly equipped cellular
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`phones and PDA cellular phones. ’724 Patent at 1:46-48, 2:21-25, 2:48-57, 5:54-58, 8:18-21,
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`9:31-41, 16:60-65, 17:45-51, Figs. 3-4, Claims 1, 3, 6, 9 and 16. The ’970 Patent contains similar
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`disclosures for both phrases “similarly equipped PDA/cell phone” and “each PDA/cell phone
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`within a predetermined communication network is similarly equipped.” ’970 Patent at 2:7-34,
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`4:12-59, 5:26-35, 6:13-31, Figs. 1a-1b, Claims 1, 7 and 11. Thus, a POSITA would understand
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`that the above phrases pertain to the disclosed devices having common hardware and/or software
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`features.
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`38.
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`Thus, as recited in claims 7 of the ’728 patent, Claims 9 and 16 of the ’724 Patent,
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`and Claims 1 and 11 of the ’970 Patent, the phrases “similarly equipped cellular phones,”
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`“similarly equipped PDA cellular phones,” “similarly equipped PDA/cell phone,” and “each
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`PDA/cell phone within a predetermined communication network is similarly equipped” would
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`have been understood by a POSITA with reasonable certainty and would not be indefinite. In my
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`opinion, the phrases should be given their plain and ordinary meaning.
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`C.
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`“accessing an application program in each cell phone for generating
`one or more symbols representative of one or more participating
`users, each of whom have a similarly equipped cellular phone” - ʼ724
`Patent
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`39.
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`The phrase “accessing an application program in each cell phone for generating one
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`or more symbols representative of one or more participating users, each of whom have a similarly
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`equipped cellular phone” appears in Claim 9 of the ’724 Patent. This phrase does not invoke 35
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`U.S.C. § 112 ¶ 6 and is not indefinite.
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`40.
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`This term appears as part of a method claim. There is no presumption that this term
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`invokes 35 U.S.C. § 112 ¶ 6 because the term does not recite “step for.” Defendants identify the
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`purported function as “generating one or more symbols representative of one or more participating
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`users, each of whom have a similarly equipped cellular phone.” This purported function contains
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`sufficient acts or structural limitations for performing the purported function. Accordingly, this
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`phrase should be given its plain and ordinary meaning. In the alternative, the acts for performing
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`the function “generating one or more symbols representative of one or more participating users,
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`each of whom have a similarly equipped cellular phone” would be the acts described at ’724 Patent,
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`Fig. 3, 6:44-49, 55-59. A person of ordinary skill in the art would have understood that a
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`mathematical correlation algorithm is a type of algorithm for relating the correspondence between
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`data, which in this particular application is the correspondence between correct location or
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`coordinates to a correct position on a map display. ’724 Patent at 15:43-49, 18:20-31.
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`Nevertheless, in my opinion, this phrase should be given its plain and ordinary meaning.
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`D.
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`“database” and “said database including the generation of one or
`more symbols associated with a particular participating user” - ʼ728
`Patent
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`41.
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`The term “database” and the phrase “said database including the generation of one
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`or more symbols associated with a particular participating user” appear in Claim 9 of the ʼ728
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`Patent. The phrase “database” should be construed to mean “collection of data that is stored and
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`accessible.” The term “said database including the generation of one or more symbols associated
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`with a particular participating user” is not indefinite because a POSITA would understand the
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`phrase with reasonable certainty.
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`42.
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`The term “database” should be given its plain and ordinary meaning. I disagree
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`with Defendants’ proposed construction for this term as provided in their P.R. 4-2 disclosures.
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`Defendants’ proposed construction for this single-word term is too narrow and overreaching
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`because it includes additional limitations that exceed the scope of the claimed invention. For
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`example, Defendants’ proposed construction “a persistent collection of data arranged for search
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`and retrieval” improperly inserts the requirements that the collection must be “persistent” and that
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`the collection must be “arranged for search and retrieval.” Neither the ’724 Patent or the claimed
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`invention limit the type of database to a specific type of collection that is “persistent” or that the
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`collection itself must be arranged in some particular way, e.g., for search and retrieval. Rather,
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`Defendants’ construction takes characteristics from specific types of databases (e.g., relational
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`databases) and from software applications (e.g., database management systems) and improperly
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`imparts those characteristics onto the database. Adding the limitation of persistence introduces
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`2:21-cv-00072-JRG-RSP, Declaration of Joseph C. McAlexander III
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`ambiguity as to the length and time of the storage, existence, or continuity and would be
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`inconsistent with the claimed d