Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 1 of 30 PageID #:
`17770
`
`Exhibit 2
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 1 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 2 of 30 PageID #:
`
`17771
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`
`
`
`
`Defendant.
`
`
`
`Case No. 22-cv-04826-BLF
`
`ORDER GRANTING IN PART AND
`DENYING IN PART DEFENDANTS’
`MOTION FOR SUMMARY
`JUDGMENT
`
`[Re: ECF No. 434]
`
`Plaintiff AGIS Software Development LLC (“AGIS”) brought the instant patent
`
`infringement action against Defendants Google LLC (“Google”) and Waze Mobile Ltd. (“Waze”).
`
`At issue are four patents: U.S. Patent No. 9,445,251 (the “’251 Patent”), U.S. Patent No.
`
`9,467,838 (the “’838 Patent”), U.S. Patent No. 9,749,829 (the “’829 Patent”), and U.S. Patent No.
`
`9,820,123 (the “’123 Patent”) (collectively the “Asserted Patents.”) AGIS accuses two Google
`
`applications, Find My Device (“FMD”) and Google Maps Mobile (“GMM”), of infringing the
`
`Asserted Patents. AGIS further accuses two Waze applications, Waze App and Waze Carpool, of
`
`infringing the ’829 Patent and the ’123 Patent.
`
`Before the Court is Defendants’ Motion for Summary Judgment. The motion covers four
`
`matters. First, Defendants seek summary judgment that FMD and GMM do not infringe the
`
`Asserted Patents. ECF No. 434 (“Mot.”) at 2. Second, Defendants seeks summary judgment that
`
`Waze App and Waze Carpool do not infringe the ’829 Patent and the ’123 Patent. Id. Third,
`
`Defendants seek summary judgment that the Asserted Patents are invalid. Id. Finally, Defendants
`
`seek summary judgment that any infringement by Waze was not willful. Id. After careful
`
`consideration, Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED
`
`IN PART.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 2 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 3 of 30 PageID #:
`
`17772
`
`
`
`I. BACKGROUND
`
`A. Procedural Background
`
`The instant action is a consolidation of two cases brought by AGIS against Google and
`
`Waze. ECF No. 1 (“Google Compl.”); AGIS Software Development LLC v. Waze Mobile Limited,
`
`5:22-cv-04827-BLF, ECF No. 1 (“Waze Compl.”). AGIS, the owner of the Asserted Patents,
`
`alleges that two Google products, FMD and GMM, infringe the four Asserted Patents. Google
`
`Compl. ¶¶ 45-53. AGIS further alleges that two Waze products, Waze App and Waze Carpool,
`
`infringe the ’829 Patent and the ’123 Patent. Waze Compl. ¶¶ 14-35. Both actions were originally
`
`filed in the Eastern District of Texas and subsequently transferred to the Northern District of
`
`California and consolidated. ECF Nos. 393, 421.
`
`B. Accused Technology
`
`1. Find My Device (FMD)
`
`Find My Device is a smartphone application that allows a user to locate linked devices.
`
`ECF No. 435-7 (“Wolfe Rebuttal”) ¶¶ 74-75. The application displays a map on the device screen
`
`and, above the map, symbols corresponding to the linked devices. When the user selects a symbol
`
`corresponding to a linked device, a green symbol appears on the map showing the location of the
`
`selected device, and FMD presents a menu of options below the map that allows the user to
`
`interact with the selected device. Id. ¶ 599. If the user selects the green symbol positioned on the
`
`map, the device displays the linked device’s remaining battery capacity and wireless signal
`
`strength. ECF No. 435-14 at AGIS-GOOGLE00001445.
`
`2. Google Maps Mobile (GMM)
`
`Google Maps Mobile is a smartphone application that provides mapping and navigation.
`
`Wolfe Rebuttal ¶ 80. GMM also allows a user to share his location with another user, which is the
`
`feature accused by AGIS. There are two ways a user can share location: (1) selecting another
`
`user’s Google Account ID on the application, or (2) sending a URL link via a messaging
`
`application. Id. ¶¶ 88-92. Importantly, the location share is one-way: if Person A is sharing his
`
`location with Person B, the receiving device (Person B) does not automatically share his location
`
`back to the sender (Person A). Id. ¶ 89. Instead, if the recipient wants to share his device’s
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 3 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 4 of 30 PageID #:
`
`17773
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`location with the sender, the recipient must initiate and create a separate location-share. Id. Once
`
`a user shares his location, the recipient can see a symbol showing the location of the sharing user
`
`on a map on his device. Id. ¶¶ 604-606. The user can select that symbol on the map, then choose
`
`from a menu of four options: “Refresh,” “Add to Home screen,” “Hide [user] from map,” or
`
`“Block.” Id.
`
`3. Waze App
`
`Waze App is a navigation software application. Id. ¶¶ 111-112. Aside from its primary
`
`navigation features, Waze App has other features relevant to Defendants’ Motion. Like GMM, a
`
`Waze App user can share his location with another user by sending a URL link in a text message,
`
`email, or other messaging application. Id. ¶¶ 118-120, 122-125. After a sender chooses a
`
`messaging application to share his device’s location, a URL link is sent to the recipient. Like the
`
`accused functionality in GMM, individualized location sharing through Waze App is one-way. Id.
`
`¶ 127. But Waze App also allows for other forms of location sharing. For example, when opening
`
`the app, users “are able to see other device’s locations” in the area. ECF 451-11 (“McAlexander
`
`Report Att. A”) at A-a31.
`
`4. Waze Carpool
`
`Waze Carpool is a now discontinued software application that matched a driver with one or
`
`more riders (i.e., passengers). Wolfe Rebuttal ¶ 135. To set up a carpool, drivers used Waze App,
`
`while riders used a separate Waze Carpool application. Id. ¶ 137. For safety reasons, only the
`
`driver in Waze Carpool was able to see the pick-up and drop-off locations of the riders. ECF No.
`
`435-18. The riders had no visibility into the locations of other riders in a carpool. Id.; Wolfe
`
`Rebuttal ¶ 738. Beginning as early as November 28, 2020, Waze carpools were limited to two
`
`people (a rider and a driver) in response to the COVID-19 pandemic. ECF No. 435-18; Wolfe
`
`Rebuttal ¶¶ 740-741. Waze discontinued Waze Carpool on October 31, 2022. ECF No. 435-17;
`
`Wolfe Rebuttal ¶ 134.
`
`C. Asserted Patents
`
`The Asserted Patents share the same title, “Method to provide ad hoc and password
`
`protected digital and voice networks,” inventors, Malcolm K. Beyer Jr. and Christopher R. Rice,
`
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 4 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 5 of 30 PageID #:
`
`17774
`
`
`
`figures, and specification. See, e.g., ’829 Patent. The Asserted Patents “relate to the use of
`
`interactive mapping on a device to share locations with the members of a group.” Opp. at 6;
`
`McAlexander Report ¶ 88. The target audience of the Asserted Patents is “police, fire fighters,
`
`military, [and] first responders” who need to coordinate with other organizations while responding
`
`to emergency situations. ’829 Patent at Abstract. According to the Abstract, the Asserted Patents
`
`“include[] the ability for individuals to set up an ad hoc digital and voice network easily and
`
`rapidly to allow users to coordinate their activities” without “the need for pre-entry of data” and
`
`without “identifying others by name, phone numbers or email.” Id. After joining a group,
`
`participants can share and view each other’s locations on a map interface on their device screens
`
`and send data such as a text message or photograph to other participants by “touching his or her
`
`symbol” on the map. Id. at 6:14-58, 11:19-23.
`
`1. Preferred Embodiment
`
`The patents describe a preferred embodiment of the invention that comprises software on a
`
`GPS and touch screen-enabled cell phone. Id. at 5:7-12. The software displays a map on the
`
`device with locations like “restaurants, hotels, fire departments, police stations, and military
`
`barracks” that “appear as symbols on the map.” Id. at 8:48-54. Users can place phone calls to
`
`these facilities “by touching a specific facility location
`
`on the map display . . . then touching the cellular phone
`
`call switch.” Id. at 7:32-51.
`
`The preferred embodiment also discusses
`
`forming and joining groups. For example, firefighters
`
`could form an emergency group with the name “Katrina
`
`Fire” to coordinate their locations and activities in
`
`response to a fire. Id. at 12:15-41. To join the group,
`
`the user “enters the ad hoc event network name” and a
`
`password. Id. at 10:46-60. Within a group, “each of the
`
`cell phone participants reports its identity, location and
`
`status to the other participants' devices.” Id. at 9:14-26.
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 5 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 6 of 30 PageID #:
`
`17775
`
`
`
`Once a user joins a group, he can view other users’ locations, which are shown as symbols on the
`
`device map. Id. at 6:59-7:8. One can “initiate a telephone call to the cellular phone user
`
`(communication net participant) represented by symbol (triangle) 30 at a specific latitude and
`
`longitude display on chart 16 b, the operator touches the triangle 30 symbol with the stylus 14 . . .
`
`then touch[ing] a ‘call’ software switch.” Id. at 7:9-31.
`
`2. Asserted Claims
`
`The claims asserted by AGIS are summarized in the table, below.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`Independent Claims from Which
`Patent Asserted Claims (independent
`Asserted Dependent Claims Depend
`claims emphasized)
`Asserted Google Claims (asserted against FMD and GMM)
`24, 29, 35
`24
`1, 5, 10, 19, 27, 38, 40
`1
`8, 20, 27, 34, 41, 60
`1, 34, 35
`16, 17, 22, 37, 41
`1, 14, 36
`Asserted Waze Claims (asserted against Waze App and Waze Carpool)
`1, 4, 16, 20, 24, 27, 32, 34, 38, 41, 45, 50,
`1, 34, 35
`60, 67
`1, 7, 10, 12, 15, 16, 17, 18, 34, 36, 37, 41,
`46, 48
`
`’251
`’838
`’829
`’123
`
`’829
`
`’123
`
`
`
`1, 14, 23, 36
`
`The independent claims corresponding to the claims asserted by AGIS (“Asserted Claims”)
`
`share certain limitations relevant to Defendants’ motion. Each claim begins with the simple
`
`limitation of participants joining groups. For example, the ’251 Patent describes a system
`
`comprising “a first device . . . receiving a message from a second device, wherein the message
`
`relates to joining a group.” ’251 Patent at 18:62-63. The Court previously construed the term
`
`“group” to mean “more than two participants associated together.” ECF No. 147 (“Claim
`
`Construction Order”) at 11 (emphasis added). The Court did not construe the term “participant.”
`
`The Asserted Claims also explain how a “first device” joins a group. For all but two of the
`
`Asserted Claims, a “second device” sends a message to the “first device” to invite the first device
`
`to join the group. ’251 Patent at 17:60-63 (Claim 24) (“a first device . . . receiving a message
`
`from a second device, wherein the message relates to joining a group;”); ’829 Patent at 14:61
`
`(Claim 1) (a server “forwarding, to a first device, a request to join a group, wherein the request is
`
`received from a second device and the group includes the second device”); ’829 Patent at 17:34
`
`5
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 6 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 7 of 30 PageID #:
`
`17776
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`(Claim 34) (same); ’123 Patent at 14:60-63 (Claim 1) (“a first device: receiving a message sent by
`
`a second device, wherein the message relates to joining a group”); ’123 Patent at 14:46-47 (Claim
`
`14) (same); ’123 Patent at 18:30-31 (Claim 23) (same); ’123 Patent at 20:17-18 (Claim 36)
`
`(same). Two of the independent claims describe different processes for how the first device joins
`
`the group. ’838 Patent at 14:54-57 (Claim 1) (“a first device[] joining a communication network
`
`corresponding to a group, wherein joining the communication network comprises transmitting a
`
`message including an identifier corresponding to the group;”); ’829 Patent at 35:17-18 (Claim 35)
`
`(A “second device[] receiv[es], from a first device . . . a request to join a group.” and “send[s] . . .
`
`[to the server] acceptance of the request”; the server can then “join the first device to the group
`
`based on the acceptance of the request.”).
`
`The Asserted Claims all include location sharing with either a server or other devices in the
`
`group. Specifically, the Asserted Claim of the ’251 Patent requires the first device to send its
`
`“location information to a server” and then receive location information from a server
`
`corresponding to “a respective plurality of second devices.” ’251 Patent at 17:66-18:5 (Claim 24).
`
`Similarly, the Asserted Claims of the ’838 Patent and ’123 Patent require the first device to send
`
`its “location information to a first server” and then receive location information from a server
`
`corresponding to “one or more respective second devices.” ’838 Patent at 14:59-65 (Claim 1);
`
`’123 Patent at 14:64-15:2 (Claim 1); id. at 14:49-54 (Claim 14); id. at 18:33-38 (Claim 23); id. at
`
`20:20-25 (Claim 36). The ’829 Patent has a notably different location sharing requirement and an
`
`additional “remote control” requirement. Specifically, the Asserted Claims of the ’829 Patent
`
`require the “first device to repeatedly share device location information and repeatedly engage in
`
`remote control operations with each device included in the group.” ’829 Patent at 14:65-15:2
`
`(Claim 1); id. at 17:39-42 (Claim 34); id. at 18:23-27 (Claim 35).
`
`The Asserted Claims also include an interactive georeferenced map. Specifically, the
`
`Asserted Claims of the ’251 Patent, ’838 Patent, and ’123 Patent require a georeferenced map to
`
`be displayed on a first device. ’251 Patent at 18:6-14 (Claim 24); ’838 Patent at 14:66-15:8
`
`(Claim 1); ’123 Patent at 15:8-16 (Claim 1); id. at 16:59-67 (Claim 14); id. at 18:43-51 (Claim
`
`23); id. at 20:30-38 (Claim 36). The Asserted Claims of the ’251 Patent, ’838 Patent, and ’123
`
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 7 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 8 of 30 PageID #:
`
`17777
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Patent further require the first device to display user-selectable symbols “positioned on” the
`
`georeferenced map on the first device. Ibid. The claims require that “selecting” one of the user-
`
`selectable symbols corresponding to a second device followed by “user interaction with the
`
`display” causes the first device to send data to that second device. ’251 Patent at 18:31-38 (Claim
`
`24) (“selecting . . . user-selectable symbols corresponding to one or more of the second devices
`
`and positioned on the second georeferenced map and user interaction with the display specifying
`
`an action and, based thereon, [sending] data to the one or more second devices via the Server,”);
`
`’838 Patent at 15:24-31 (Claim 1) (“selecting . . . user-selectable symbols corresponding to one or
`
`more of the second devices and positioned on the second georeferenced map and user interaction
`
`with the display specifying an action and, based thereon, sending third data to the selected one or
`
`more second devices via the first server.”); ’123 Patent at 15:17-22 (Claim 1) (“selecting a
`
`particular user-selectable symbol corresponding to a particular second device and user interaction
`
`with the display specifying an action and, based thereon, [sending] data to the particular second
`
`device.”); id. at 17:1-6 (Claim 14) (same); id. at 18:52-57 (Claim 23) (same); id. at 20:39-44
`
`(Claim 36) (same).
`
`3. Prosecution History
`
`The ’838 Patent was filed in 2014 and is the parent of the other three Asserted Patents.
`
`’838 Patent at Cover; ’251 Patent at 1:1-25; ’829 Patent at 1:1-28; ’123 Patent at 1:1-29. The
`
`priority chain consists of several earlier applications, including U.S. Patent No. 7,031,728 (“’728
`
`Patent”) filed in 2004, U.S. Patent No. 7,630,724 (“’724 Patent”) filed in 2006, and U.S.
`
`Application No. 14/027,410 (“’410 Application”) filed in 2013. The ’410 Application contains
`
`the following incorporation statement: “The method and operation of communication devices used
`
`herein are described in U.S. Pat. No. 7,031,728 which is hereby incorporated by reference and
`
`U.S. Pat. No. 7,630,724.” ’410 Application ¶ 5.
`
`D. Present Motion
`
`Defendants’ Motion for Summary Judgment raises four questions (Mot. at 2):
`
`1. Whether Google does not infringe any Asserted Patent because FMD and GMM do not
`
`satisfy the “group” limitations and other limitations required by the Asserted Claims.
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 8 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 9 of 30 PageID #:
`
`17778
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`2. Whether Waze does not infringe the ’829 Patent or the ’123 Patent because Waze App and
`
`Waze Carpool do not satisfy the “group” limitations required by all claims asserted against
`
`Waze.
`
`3. Whether the Asserted Claims are anticipated by the ’724 Patent because the Asserted
`
`Patents’ priority claim to the ’724 Patent is broken by intervening applications that fail to
`
`provide written description support for the claims.
`
`4. Whether Waze cannot be found to have willfully infringed the ’829 Patent or the ’123
`
`Patent because Waze had no pre-suit knowledge of either patent.
`
`II. LEGAL STANDARD
`
`Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
`
`judgment is appropriate if the evidence and all reasonable inferences in the light most favorable to
`
`the nonmoving party “show that there is no genuine issue as to any material fact and that the
`
`moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
`
`322 (1986). The current version of Rule 56 authorizes a court to grant “partial summary
`
`judgment” to dispose of less than the entire case and even just portions of a claim or defense. See
`
`Fed. R. Civ. P. advisory committee’s note, 2010 amendments; Ochoa v. McDonald’s Corp., 133
`
`F.Supp.3d 1228, 1232 (N.D. Cal. 2015).
`
`The moving party “bears the burden of showing there is no material factual dispute,” Hill
`
`v. R+L Carriers, Inc., 690 F.Supp.2d 1001, 1004 (N.D. Cal. 2010), by “identifying for the court
`
`the portions of the materials on file that it believes demonstrate the absence of any genuine issue
`
`of material fact.” T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th
`
`Cir. 1987). In judging evidence at the summary judgment stage, the Court “does not assess
`
`credibility or weigh the evidence, but simply determines whether there is a genuine factual issue
`
`for trial.” House v. Bell, 547 U.S. 518, 559–60 (2006). A fact is “material” if it “might affect the
`
`outcome of the suit under the governing law,” and a dispute as to a material fact is “genuine” if
`
`there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party.
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
`
`Where the moving party will have the burden of proof on an issue at trial, it must
`
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 9 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 10 of 30 PageID #:
`
`17779
`
`
`
`affirmatively demonstrate that no reasonable trier of fact could find other than for the moving
`
`party. Celotex, 477 U.S. at 325; Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
`
`2007). By contrast, where the moving party does not have the burden of proof on an issue at trial,
`
`it “must either produce evidence negating an essential element of the nonmoving party’s claim or
`
`defense or show that the nonmoving party does not have enough evidence of an essential element
`
`to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz
`
`Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).
`
`Once the moving party meets its initial burden, the nonmoving party must set forth, by
`
`affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue
`
`for trial.” Liberty Lobby, 477 U.S. at 250 (internal quotation marks omitted). In determining
`
`whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be
`
`believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citation omitted).
`
`If the nonmoving party’s “evidence is merely colorable, or is not significantly probative, summary
`
`judgment may be granted.” Id. at 249–50 (internal citations omitted). Mere conclusory,
`
`speculative testimony in affidavits and moving papers is also insufficient to raise genuine issues of
`
`fact and defeat summary judgment. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738
`
`(9th Cir. 1979). For a court to find that a genuine dispute of material fact exists, “there must be
`
`enough doubt for a reasonable trier of fact to find for the [non-moving party].” Corales v. Bennett,
`
`567 F.3d 554, 562 (9th Cir. 2009).
`
`III. DISCUSSION
`
`A.
`
`Infringement
`
`Defendants’ non-infringement arguments can be categorized into three groups. First,
`
`Defendants argue that all four technologies – FMD, GMM, Waze App, and Waze Carpool – do
`
`not meet claim limitations pertaining to groups and participants. Mot. at 12-15, 16-22. Second,
`
`Defendants argue that FMD and GMM do not meet claim limitations pertaining to “sending data.”
`
`Id. at 15-16. Third, Defendants argue that GMM does not meet the “remote control” limitations of
`
`the ’829 Patent. Id. at 16.
`
`\\
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 10 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 11 of 30 PageID #:
`
`17780
`
`
`
`1. Group Limitations
`
`Each of the Asserted Claims contains a claim limitation requiring users to participate in a
`
`group. ’251 Patent at 17:62-63 (Claim 24) (“receiving a message from a second device, wherein
`
`the message relates to joining a group;”); ’838 Patent at 14:58-59 (Claim 1) (“participating in the
`
`group”); ’829 Patent at 14:61 (Claim 1) (“a request to join a group”); ’829 Patent at 17:34 (Claim
`
`34) (same); ’829 Patent at 35:17-18 (Claim 35) (same); ’123 Patent at 14:61-62 (Claim 1) (“the
`
`message relates to joining a group”); ’123 Patent at 14:46-47 (Claim 14) (same); ’123 Patent at
`
`18:30-31 (Claim 23) (same); ’123 Patent at 20:17-18 (Claim 36) (same) (emphases added). At
`
`Claim Construction the Court defined group as “more than two participants associated together.”
`
`Claim Construction Order at 11. The Court was not asked to and did not construe the term
`
`“participant.”
`
`Defendants claim that each participant must be a unique person. Namely, Defendants
`
`argue that “[m]ore than two devices of the same single user cannot constitute the recited ‘group.’”
`
`Mot. at 13. Defendants also state that AGIS’s expert, Mr. McAlexander, conceded that within the
`
`construction, a “participant” is a “user” of a mobile device. Id. at 13; ECF No. 435-6
`
`(McAlexander Dep.) at 88:25-89:4 (“Q What understanding of the term ‘participants’ did you
`
`apply in your analysis in this case? . . . [Plaintiff’s expert]: I used the word ‘user.’”).
`
`AGIS counters Mr. McAlexander’s deposition testimony about participants with an excerpt
`
`from his report. Opp. at 3; McAlexander Report at ¶ 154 (“Thus, while in some instances I have
`
`provided screenshots showing two participants, it should be understood that the invitation and
`
`sharing mechanisms apply to scenarios where there are more than two devices in a group.”).
`
`AGIS further responds that in the context of the Asserted Claims, a device is a “participant.” Opp.
`
`at 2; see, e.g., ’838 Patent at 14:53-55 (Claim 1) (“performing, by a first device: joining a
`
`communication network corresponding to a group”); ’829 Patent at 17:34-38 (Claim 34)
`
`(“forwarding, to a first device, a request to join a group” and “based on acceptance of the request
`
`by the first device, joining the first device to the group”); ’251 Patent at 18:4-5 (Claim 24) (“a
`
`respective plurality of second devices included in the group”; ’123 Patent at 15:1-2 (Claim 1)
`
`(“one or more locations of one or more respective second devices included in the group”). AGIS
`
`10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 11 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 12 of 30 PageID #:
`
`17781
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`provides additional evidence from Mr. McAlexander’s expert report and deposition testimony that
`
`support his understanding that the participants in a group are devices. ECF No. 451-5
`
`(“McAlexander Report Att. D”) at D-a9-D-a10 (“The group comprises the multiple devices linked
`
`to the identifier. Regarding Find My Device, I note that the participants are, e.g., the devices
`
`connected. This claim is met when there are more than two devices associated together in the
`
`group.”); id. (“The group comprises the multiple identifiers, individuals, profiles, and/or devices
`
`associated with the group.”); ECF No. 451-6 (McAlexander Dep.) 99:8-101:11; ECF No. 451-7
`
`(“McAlexander Report Att. C”) at C-a11-C-a12, C-a67-C-a68; McAlexander Report Att. D at D-
`
`a42-D-a48, D-a222; ECF No. 451-8 (“McAlexander Report Att. E”) at A-45-A-50, A-103-A-104;
`
`ECF No. 451-9 (“McAlexander Report Att. F”) at F-a54-F-a59, F-a84.
`
`Because the Court has not been asked to construe the Parties’ stipulated construction of
`
`“group,” the Court will apply AGIS’s construction for summary judgment only. The Parties’
`
`arguments do not conclusively settle the definition of the term “participant,” but AGIS has
`
`provided evidence from both the claim language and Mr. McAlexander’s report that the term
`
`“participant” can also refer to a device. When the Court draws all justifiable inferences in AGIS’s
`
`favor, Mr. McAlexander’s construction that a device is a participant is not unreasonable.
`
`a. Find My Device
`
`Defendants contend that FMD does not meet the “group” claim limitations because its
`
`general use case involves only one user with several devices. This argument hinges on the idea
`
`that “[m]ore than two devices of the same single user cannot constitute the recited ‘group.’” Mot.
`
`at 13. But as discussed supra, the Court applies AGIS’s construction of the term “group” for
`
`summary judgment. And AGIS presents evidence of FMD being used with multiple devices.
`
`Opp. at 8 (citing McAlexander Report Att. D at D-a9-D-a10). This evidence, applied to AGIS’s
`
`construction of “group,” creates a genuine issue of material fact as to whether FMD meets the
`
`group size limitation.
`
`Defendants make a second argument in their reply brief that “AGIS also fails to show any
`
`messages used to join any alleged ‘group.’” Reply at 4. Defendants made a similar “mechanism
`
`to join” argument in its opening brief, but only for GMM (not FMD, Waze App, or Waze
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 12 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 13 of 30 PageID #:
`
`17782
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Carpool). Mot. at 13. Since Defendants did not raise the “mechanism to join” argument in their
`
`opening brief, the Court concludes that Defendants have waived that argument as to FMD for the
`
`purposes of summary judgment.
`
`b. Google Maps Mobile
`
`Defendants make three arguments that GMM’s accused location-sharing functionality does
`
`not meet the “group” limitations: (1) there is no “group” of “more than two participants”; (2) there
`
`is no mechanism to join any purported “group”; and (3) there is no bidirectional location sharing
`
`among users. Mot. at 13. The Court addresses each in turn.
`
`i.
`
`“Group” of “More Than Two Participants”
`
`First, Defendants contend that GMM does not meet the “group” claim limitations because
`
`“there is no ‘group’ of ‘more than two participants’”. Defendants illustrate their point with the
`
`following scenario: “A sender (Person A) can share its location to a recipient (Person B)” and
`
`“Person A could also share its location with another recipient (Person C).” Mot. at 13 (citing
`
`Wolfe Rebuttal ¶¶ 89, 90). Defendants then argue that this is not a true group because “Person C
`
`can see only Person A’s location, not Person B’s location; and Person B similarly sees only Person
`
`A’s location, not Person C’s.” Id. at 13-14 (citing Wolfe Rebuttal ¶¶ 503, 522).
`
`
`
`AGIS responds that “Defendants improperly reach beyond the claim language to require
`
`that each user exchange location with each other user.” Opp. at 15. Specifically, AGIS argues,
`
`“the claim requires only that the first device send its location to a server and receive from the
`
`server the locations of one or more of the other devices in the group.” Id. As an example, AGIS
`
`cites the ’123 patent, which states, “a first device: . . . sending first location information to a first
`
`server and receiving second location information from the first server.” Id. at 14 (quoting ’123
`
`Patent, 14:60-15:2). AGIS argues that Defendants’ construction of the group with Persons A, B,
`
`and C satisfies the claim language. Id. at 15. AGIS then cites evidence that GMM allows a single
`
`person to share his location with multiple other devices such that multiple receiving devices (first
`
`devices), receive the location of a second device and share their location with a server. Id. at 7
`
`(citing Mason Dep. 109:17-23, 111:22-112:13, Secor Dep. 122:9-24, 128:2-129:23); id. at 15
`
`(citing Mason Dep. 101:5-19, 102:7-19. 103:12-16, 105:2-11). AGIS adds that these sharing
`
`12
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:22-cv-04826-BLF Document 470 Filed 10/10/23 Page 13 of 29Case 2:22-cv-00263-JRG-RSP Document 173-3 Filed 01/09/24 Page 14 of 30 PageID #:
`
`17783
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25