Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 1 of 24 PageID #: 6388
`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 1 of 24 PagelD #: 6388
`
`EXHIBIT 2
`EXHIBIT 2
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`

`

`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 2 of 24 PageID #: 6389
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`DECLARATION OF MICHAEL C. BROGIOLI, PH.D.
`REGARDING CLAIM CONSTRUCTION
`
`
`
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`vs.
`
`SAMSUNG ELECTRONICS CO, LTD. & SAMSUNG ELECTRONICS
`AMERICA, INC.
`
`
`
`Case No. 2:22-cv-00263-JRG-RSP
`
`
`June 16, 2023
`
`i
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`

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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 3 of 24 PageID #: 6390
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`
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`TABLE OF CONTENTS
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`Page
`
`I.
`II.
`III.
`IV.
`V.
`
`VI.
`
`INTRODUCTION ........................................................................................................... 1
`EDUCATIONAL AND PROFESSIONAL BACKGROUND.......................................... 2
`LEGAL STANDARDS ................................................................................................... 5
`LEVEL OF ORDINARY SKILL IN THE ART .............................................................. 9
`OVERVIEW OF THE PATENTS-IN-SUIT .................................................................. 10
`A.
`’970 Patent......................................................................................................... 10
`B.
`’838 Patent......................................................................................................... 10
`C.
`’829 Patent......................................................................................................... 11
`D.
`’123 Patent......................................................................................................... 11
`CONSTRUCTIONS FOR CERTAIN DISPUTED CLAIM TERMS ............................. 11
`A.
`“status data” ....................................................................................................... 11
`B.
`“means for presenting a recipient symbol on the geographical map
`corresponding to a correct geographical location of the recipient
`PDA/cell phone” ................................................................................................ 14
`“means for obtaining location and status data associated with the
`recipient PDA/cell phone” ................................................................................. 16
`means for displaying a geographical map with georeferenced
`entities on the display of the sender PDA/cell phone” ........................................ 17
`VII. CONCLUSION ............................................................................................................. 20
`
`C.
`
`D.
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`i
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 4 of 24 PageID #: 6391
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`
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`APPENDIX LIST
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`Appendix Description
`A
`List of Materials Considered
`B
`CV of Michael C. Brogioli, Ph.D.
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`ii
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 5 of 24 PageID #: 6392
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`I.
`
`INTRODUCTION
`
`
`
`1.
`
`My name is Michael C. Brogioli, Ph.D. I have been retained on behalf of the
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`Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”) to provide my opinions as to
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`the proper meaning of certain terms of U.S. Patent Nos. 8,213,970 (the “’970 Patent”); 9,467,838
`
`(the “’838 Patent”); 9,749,829 (the “’829 Patent”) and 9,820,123 (the “’123 Patent) (collectively,
`
`the “Patents-in-Suit”). I have endeavored to conduct my analysis and present various opinions
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`from the point of view of a person having ordinary skill in the art of the Patents-in-Suit at the time
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`of invention.
`
`2.
`
`In reaching my opinions and conclusions, I have relied upon my education,
`
`experience and training, my review of the patents, the respective patent prosecution history, and
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`other relevant materials. A list of materials I have reviewed and relied upon is provided at the end
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`of this report as Appendix A.
`
`3.
`
`I am being compensated for my work in this litigation matter at my current standard
`
`rate of compensation. I am also being reimbursed for any expenses I incur on this matter. My
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`compensation does not depend upon the outcome of this litigation, the opinions I express, or my
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`testimony.
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`4.
`
` I understand that discovery in this case is ongoing. I reserve my right to supplement
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`this report if further information becomes available or if I am asked to consider additional
`
`information, such as new constructions proposed by the parties. Furthermore, I reserve my right to
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`consider and comment on any additional expert statements and testimony of Defendants’ experts
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`in this matter. I also may rely on demonstrative exhibits at hearings to explain my testimony and
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`opinions.
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`1
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`

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`
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`II.
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`EDUCATIONAL AND PROFESSIONAL BACKGROUND
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`5.
`
`My current curriculum vitae, provided in Appendix B, contains more information
`
`on my background and experience, as well as the cases in which I have served as an expert witness .
`
`6.
`
`I am currently an Adjunct Professor of Electrical and Computer engineering at Rice
`
`University in Houston, Texas, and Managing Director of Polymathic Consulting in Austin, Texas.
`
`I received my Bachelor of Electrical Engineering from Rensselaer Polytechnic Institute in 1999,
`
`my Master of Science in Electrical and Computer Engineering from Rice University in 2003, and
`
`my Doctorate of Electrical and Computer Engineering from Rice University in 2007.
`
`7.
`
`While at Rice University, I developed various computer architecture designs and
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`software systems for embedded and high-performance computing. For example, from 1999 to
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`2003, I worked in the area of low-power computing, specifically focusing on dynamic power
`
`management and performance of configurable memory systems, including large scale software
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`modeling and simulation. From 2002 to 2004, I developed Spinach, a computer architecture design
`
`and modeling toolset, which models system components in software that are common to all
`
`programmable computing environments,
`
`including memory systems, microprocessors,
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`interconnects, etc. From 2004 to 2009, I developed Spinach DSP-FPGA, a modular and
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`composable software simulator design infrastructure for programmable and reconfigurable
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`embedded SOC architectures specifically targeting mobile, low-power, and embedded and
`
`portable computing devices. From 2005 to 2009, I developed and published a retargetable software
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`compilation infrastructure and hardware design exploration toolkit. Many of these tools have been
`
`used at United States universities in the area of electrical and computer engineering research.
`
`8.
`
`In the late 1990s, I was a software developer at Vicarious Visions in New York,
`
`developing third-party titles for Nintendo’s handheld consoles, in addition to related software
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 7 of 24 PageID #: 6394
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`
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`design tools. During my career, I have served as Chief Technology Officer, Advisory Board, and
`
`Board of Directors member, often in co-founding roles.
`
`9.
`
`From June 2006 to August 2007, I worked as the Technical Co- Founder of Method
`
`Seven in Boston, MA, working with high-performance software systems architecture. I am
`
`currently a co-founder, co- inventor, and Chief Technology Officer of Network Native, an Internet
`
`of Things software technology company as well as others that are detailed in my CV (Appendix
`
`B).
`
`10.
`
`I have held the position of Adjunct Professor at Rice University since 2009 and the
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`position of Managing Director at Polymathic Consulting since 2011. At Rice University, I instruct
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`graduate-level curriculum in the areas of computer hardware and software systems. I also advise
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`on university research and various design initiatives. At Polymathic Consulting, I work with a
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`range of technologists from early-stage start-ups to Fortune 500 companies on similar
`
`technologies. I am also a guest lecturer at The University of Texas Austin, in the School of
`
`Engineering on matters related to engineering and technology leadership, fundraising and financial
`
`matters. I am currently on the advisory board of numerous technology companies, as well as a
`
`co-founder of two early stage technology companies in the area of software and solutions for
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`Internet of Things technology in addition to Agriculture Technology levering distributed,
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`heterogeneous hardware and software systems. I have held the role of mentor, advisor, and speaker
`
`at numerous technology incubators and accelerators in the United States over the past 10+ years.
`
`11.
`
`From 2008 to 2009, I was Senior Engineer working in high- performance compiler
`
`designs and next-generation microprocessors and architectures at Freescale Semiconductor in
`
`Austin, TX. From November 2009 to October 2011, I was Chief Architect, Senior Member
`
`Technical Staff, at Freescale Semiconductor in Austin, TX (formerly Motorola), responsible for
`
`3
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`
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`management of technology, engineering roadmaps, design lead on software infrastructure, and
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`next-generation microprocessor architectures for embedded, mobile and wireless computing.
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`During my tenure at Freescale Semiconductor, I was in charge of system developer tools for
`
`software developers. These included tools used for the programming of processors, simulation
`
`and design of processors, and related technologies.
`
`12.
`
`I have previously worked for Texas Instruments’ Advanced Architecture and Chip
`
`Technology division in Houston, Texas, in the areas of high-performance mobile and embedded
`
`systems design at the hardware and systems software level, specifically around heterogeneous
`
`computing, and interconnect technologies used in digital networking systems and network
`
`connectivity. I also have worked at Intel Corporation’s Microprocessor Research Labs in the areas
`
`of computer architecture and software compilation technologies.
`
`13.
`
`I am recognized as an expert in the field of computer architecture, computer
`
`hardware and computer software systems as they relate to the subject matter at hand. I am a
`
`member of the Institute of Electrical and Electronics Engineers (IEEE) and the Association for
`
`Computing Machinery (ACM), and have been a Program Committee member for the IEEE and
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`ACM Design Automation Conference from 2011 to the present, and at various times have held the
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`role of Program Chair of Design Automation Conference in the area of Embedded Computing and
`
`software systems.
`
`14.
`
` Over the past 15+ years, I have authored numerous peer-reviewed publications, as
`
`well as engineering books in the area of computer software design and systems. Many of these
`
`incorporate technologies specific to the subject matter at hand, internet technology and
`
`client/server architectures, heterogeneous and distributed computing. These publications are
`
`disclosed in my curriculum vitae, attached as Appendix A. I have previously served as an
`
`4
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 9 of 24 PageID #: 6396
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`
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`engineering consultant and testifying witness on matters related to, and including, computer
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`software, computer networking, client / server systems and enterprise software. My curriculum
`
`vitae contains more information on my background and experience, as well as the cases in which
`
`I have served as an expert witness over at least the past four years.
`
`15.
`
`I am also a named inventor on a number of United States Patents and pending Patent
`
`Applications, including “Systems and methods for obtaining location data,” filed December 2022.
`
`III. LEGAL STANDARDS
`
`16.
`
`I understand that the determination of infringement or non-infringement is a two-
`
`step process. I understand that the first step in determining infringement is to properly construe
`
`the claims to determine claim scope and meaning.
`
`17.
`
`I understand that claim terms should be given their ordinary and customary
`
`meaning within the context of the patent in which the terms are used, i.e., the meaning that the
`
`term would have to a person of ordinary skill in the art in question at the time of the invention in
`
`light of what the patent teaches, unless it appears that the inventors were using them to mean
`
`something else. Additionally, the specification and prosecution history must be consulted to
`
`confirm whether the patentee has acted as their own lexicographer (i.e., provided special meaning
`
`to any disputed terms), or intentionally disclaimed, disavowed, or surrendered any claim scope.
`
`18.
`
`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 also in the
`
`context of the entire patent, including the specification and prosecution history. The prosecution
`
`history provides evidence of how both the Patent Office and the inventors understood the terms of
`
`the patent, particularly in light of how both the Patent Office and the inventors understood the
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`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
`5
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`6397
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`may require a more narrow interpretation. For these reasons, the words of the claim must be
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`interpreted in view of, and be consistent with, the entire specification. The specification is the
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`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.
`
`19.
`
`I understand that, to determine how a person of ordinary skill would understand a
`
`claim term, one should look to those sources available that show what a person of skill in the art
`
`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
`
`(all considered “intrinsic” evidence), and “extrinsic” evidence concerning relevant scientific
`
`principles, the meaning of technical terms, and the state of the art. I understand that one looks
`
`primarily to the intrinsic patent evidence, but extrinsic evidence may also be useful in interpreting
`
`patent claims when the intrinsic evidence itself is sufficient.
`
`20.
`
`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 not asserted,
`
`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.
`
`21.
`
`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,
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`6
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`6398
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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
`
`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
`
`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.
`
`22.
`
` I understand that the Supreme Court of the United States has instructed that, in
`
`order for a claim to be definite, “a patent’s claims, viewed in light of the specification and
`
`prosecution history, [must] inform those skilled in the art about the scope of the invention with
`
`reasonable certainty.” The Supreme Court also warned that “the definiteness requirement must
`
`take into account the inherent limitations of language . . . . Some modicum of uncertainty . . . is
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`the price of ensuring the appropriate incentives for innovations.” Nautilus, Inc. v. Biosig
`
`Instruments, Inc., 572 U.S. 898, 909 (2014). The Supreme Court also stated that “a patent must
`
`be precise enough to afford clear notice of what is claimed, thereby apprising the public of what
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`is still open to them.” Id.
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`23.
`
`I understand that a patent claim may be expressed using functional language. 35
`
`U.S.C. § 112, ¶ 6 provides that a structure may be claimed as a “means . . . for performing a
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`specified function” and that an act may be claimed as a “step for performing a specified function.”
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`There is a rebuttal presumption that § 112, ¶ 6 applies when the claim language includes “means”
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`or “step for” terms, and that it does not apply in the absence of those terms. The presumption
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`stands or falls according to whether one of ordinary skill in the art would understand the claim
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`7
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`with the functional language, in the context of the entire specification, to denote sufficiently
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`definite structure or acts for performing the function.
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`24. 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
`
`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
`
`prosecution history clearly links or associates that structure to the function recited in the claim.
`
`The focus of the “corresponding structure” inquiry is not merely whether a structure is capable of
`
`performing the recited function, but rather whether the corresponding structure is clearly linked or
`
`associated with the recited function. The corresponding structure must include all structures 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.
`
`25.
`
`For § 112, ¶ 6 limitations implemented by a programmed general purpose computer
`
`or microprocessor, the corresponding structure described in the patent specification must include
`
`an algorithm for performing the function. The corresponding structure is not a general purpose
`
`computer but rather the special purpose computer programmed to perform the disclosed algorithm.
`
`26.
`
`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
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`claim body and uses the preamble only to state a purpose or intended use for the invention. In
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`8
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`6400
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`making this distinction, one should review the entire patent to gain an understanding of what the
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`inventors claimed they actually invented and intended to encompass by the claims.
`
`27.
`
`I understand that the language in the preamble limits scope (i) if dependence on a
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`preamble phrase for antecedent basis indicates a reliance on both the preamble and claim body to
`
`define the claimed invention; (ii) if reference to the preamble is necessary to understand limitations
`
`or terms in the claim body; or (iii) if the preamble recites additional structure or steps than the
`
`specification identifies as important. Otherwise, the preamble is not limiting.
`
`28.
`
`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.
`
`29.
`
`Other considerations I made, detailed below, help one to achieve a proper
`
`interpretation of the claims.
`
`IV.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`30.
`
`It is my understanding that I must address the issues set forth in this Expert Report
`
`from the viewpoint of a person of ordinary skill in the art at the time of the invention to which the
`
`Asserted Patents pertain.
`
`31.
`
`It is my opinion that the person of ordinary skill in the art (“POSITA”) would have
`
`at least a bachelor’s degree in computer science or computer engineering with one to two years of
`
`experience in the field of computer programming for communications systems, or the equivalent
`
`education and work experience. Extensive experience and technical training might substitute for
`
`educational requirements, while advanced degrees might substitute for experience.
`
`32.
`
`Based upon my education and experience as set forth above, I consider myself to
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`be a person having at least ordinary skill in the art.
`
`9
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`6401
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`V.
`
`OVERVIEW OF THE PATENTS-IN-SUIT
`A.
`
`’970 Patent
`
`33.
`
`United States Patent No. 8,213,970 (the “’970 Patent”) is entitled “METHOD OF
`
`UTILIZING FORCED ALERTS FOR INTERACTIVE REMOTE COMMUNICATIONS” and
`
`issued on July 3, 2012. The ’970 Patent, filed on November 26, 2008, was assigned Application
`
`No. 12/324,122 and includes one independent apparatus claim, four dependent apparatus claims,
`
`two independent method claims, and six dependent method claims. The ’970 Patent is a
`
`continuation-in-part of U.S. Pat. No. 7,852,273, which is a continuation-in-part of U.S. Pat. No.
`
`7,620,724, which is a continuation-in-part of U.S. Pat. No. 7,031,728.
`
`34.
`
`On May 15, 2021, Google LLC filed a request for ex parte reexamination of
`
`the ’970 Patent. In Control No. 90/014,507 regarding the ’970 Patent, the United States Patent
`
`and Trademark Office (“USPTO”) reexamined the patentability of amended claims 2 and 10-13
`
`of the ’970 Patent. On December 9, 2021, the USPTO issued a reexamination certificate for
`
`the ’970 Patent, confirming the validity of amended claims 2 and 10-13 of the ’970 Patent.
`
`B.
`
`35.
`
`’838 Patent
`
`U.S. Patent No. 9,467,838 (the “’838 Patent”) is entitled “METHOD TO PROVIDE
`
`AD HOC AND PASSWORD PROTECTED DIGITAL AND VOICE NETWORKS” and issued
`
`on October 11, 2016. The ’838 Patent, filed on October 31, 2014, was assigned Application No.
`
`14/529,978, which is a continuation of U.S. Patent Application No. 14/027,410, filed on September
`
`16, 2013, now U.S. Patent No. 8,880,042, issued November 4, 2014, which is a continuation of
`
`U.S. Patent Application No. 13/751,453, filed January 28, 2013, now U.S. Patent No. 8,538,393
`
`issued September 17, 2013, which is a continuation-in-part of U.S. Patent Application No.
`
`12/761,533 filed on April 16, 2010, now U.S. Patent No. 8,364,129 issued January 29, 2013, which
`
`is a continuation-in-part of U.S. Patent Application No. 11/615,472 filed on December 22, 2006,
`
`10
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`

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`6402
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`now U.S. Patent No. 8,126,441 issued on February 28, 2012, which is a continuation-in-part of
`
`U.S. Patent Application No. 11/308,648 filed April 17, 2006, now U.S. Patent No. 7,630,724
`
`issued on December 8, 2009, which is a continuation-in-part of U.S. Patent Application No.
`
`10/711,490, filed on September 21, 2004, now U.S. Patent No. 7,031,728, issued on April 18,
`
`2006.
`
`C.
`
`36.
`
`’829 Patent
`
`U.S. Patent No. 9,749,829 (the “’829 Patent”) is entitled “METHOD TO PROVIDE
`
`AD HOC AND PASSWORD PROTECTED DIGITAL AND VOICE NETWORKS” and issued
`
`on August 29, 2017. The ’829 Patent, filed on February 27, 2015, was assigned Application No.
`
`14/633,764 and has the same prior history as that of the ’251 Patent detailed above, both of which
`
`are continuations of the ’838 Patent.
`
`D.
`
`37.
`
`’123 Patent
`
`U.S. Patent No. 9,820,123 (the “’123 Patent”) is entitled “METHOD TO PROVIDE
`
`AD HOC AND PASSWORD PROTECTED DIGITAL AND VOICE NETWORKS” and issued
`
`on November 14, 2017. The ’123 Patent, filed on September 1, 2016, was assigned Application
`
`No. 15/255,046 and has the same prior history as that of the ’251 Patent detailed above, both of
`
`which are continuations of the ’838 Patent. Thus, the ’123 Patent shares in common the same
`
`specification as that of the ’838 Patent.
`
`VI. CONSTRUCTIONS FOR CERTAIN DISPUTED CLAIM TERMS
`A.
`
`“status data”
`
`38.
`
`The term “status data” appears within the limitation “status data associated with the
`
`recipient PDA/cell phone” in claim 10 of the ’970 Patent. The term “status data” also appears
`
`within the limitation “means for obtaining location and status data associated with the recipient
`
`PDA/cell phone” recited in claim 2 of the ’970 Patent.
`
`11
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 16 of 24 PageID #:
`6403
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`39.
`
`In my opinion, a POSITA would understand this term to have its plain and
`
`ordinary meaning and no further construction is necessary to understand the meaning of this
`
`term. I understand that Defendants proposed this term for construction, and it was Defendants
`
`choice to isolate “status data” from the surrounding claim language. To the extent any review is
`
`necessary, this term should be reviewed with the surrounding context of the claim limitation
`
`“status data associated with the recipient PDA/cell phone.” The surrounding claim language is
`
`important to understanding the scope and breadth of this term. The claim does not recite any
`
`status data because the claim itself provides sufficient clarifying language to limit the boundaries
`
`to “status data associated with the recipient PDA/cell phone.” With this surrounding claim
`
`language, a person of ordinary skill in the art would be able to ascertain the meaning of the term
`
`with reasonable certainty. The specification dictates that devices send location, identity, and
`
`status messages to the server. ’970 Patent at 3:52-56. Fig. 1a depicts examples of status data:
`
`12
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`Case 2:22-cv-00263-JRG-RSP Document 90-3 Filed 07/25/23 Page 18 of 24 PageID #:
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`40.
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`In reviewing Fig. 1a, a person of ordinary skill in the art would recognize the
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`examples of status data associated with a recipient PDA/cell phone can include the following fields
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`depicted in Fig. 1a: “R” (e.g., receiving status such as whether the device is in a state of receiving
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`data), “T” (e.g., tracking status such as whether the device has entered any tracks into the system),
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`“GPS” (e.g., GPS status such as whether GPS is in an enabled state or turned on or off), “M” (e.g.,
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`message status such as whether the device has received messages). Each of these fields correspond
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`to status data about the recipient PDA/cell phone. A person of ordinary skill in the art would
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`understand that status data of mobile devices would also include battery status or other types of
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`connectivity status such as WiFi or network connectivity status. All of these examples fall within
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`the scope of the disclosure set forth in the ’970 Patent, for example, Fig. 1a and the accompanying
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`description for the display area 16 of Fig. 1a. A person of ordinary skill in the art would recognize
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`that the specification describes status data comprising telephone status, GPS status, and other
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`statuses depicted within the display area 16 of Fig. 1a, as well as what a person of ordinary skill in
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`the art would understand to be examples of status data of the recipient device, such as battery status
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`and network connectivity status. Finally, a person of ordinary skill in the art would not understand
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`“status data associated with a recipient PDA/cell phone” to be a term of degree or an open-ended
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`numerical range or a subjective term. Thus, in my opinion, a person of ordinary skill in the art
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`would have been able to ascertain the meaning of “status data” with reasonable certainty and that
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`the term is not indefinite.
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`B.
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`“means for presenting a recipient symbol on the geographical map
`corresponding to a correct geographical location of the recipient PDA/cell
`phone”
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`41.
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`The limitation “means for presenting a recipient symbol on the geographical map
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`corresponding to a correct geographical location of the recipient PDA/cell phone” appears in claim
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`2 of the ’970 Patent. I understand that there is no dispute that this limitation invokes § 112, ¶ 6
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`because the limitation explicitly recites the term “means” and comprises functional language.
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`42.
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`In my opinion, this § 112, ¶ 6 limitation should be construed to comprise the
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`function “presenting a recipient symbol on the geographical map corresponding to a correct
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`geographical location of the recipient PDA/cell phone” and the corresponding structure “PDA/cell
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`phone hardware including display 16 and a wireless receiver and/or transceiver,” and equivalents
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`thereof. It is clear from the claim language that this limitation sets forth the function “presenting
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`a recipient symbol on the geographical map corresponding to a correct geographical location of
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`the recipient PDA/cell phone.” In the context of the field of the invention, a person of ordinary
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`skill in the art would recognize that the term “presenting” indicates a step equivalent or
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`substantially similar to “showing” on a display. Additionally, a person of ordinary skill in the art
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`would have recognized that the patentee’s use of “presenting” indicates a step associated with
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`showing on the display a symbol that already exists at the specific point in time of the step of
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`“presenting.” In the context of computer programming, the step of “presenting” cannot be
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`interpreted to include or otherwise subsume any prior or unclaimed steps for making the symbol
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`or determining a correct location for the phone represented by the symbol. I reviewed the
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`specification for structure that would have been clearly linked to the function of presenting. In my
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`opinion, when reading the specification of the ’970 Patent, a person of ordinary skill in the art
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`would have understood that the specification dictates that the relevant device for performing the
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`function of presenting is the PDA/cell phone and the relevant components for performing the
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`function of presenting are the PDA/cell phone’s hardware including the display 16 and in some
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`instances PDA/cell phone’s hardware including the display 16 and the wireless receiver and/or
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`transceiver. See, e.g., ’970 Patent at Fig. 1a. 4:12-16, 5:28-31.
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`43.
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`In the alternative, to the extent the Court determines that this limitation is a
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`computer-implemented function and that the function of presenting is not limited only to showing,
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`I submit that the corresponding structure is a “PC or PDA/cell phone configured to implement the
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`algorithm disclosed in the ’970 Patent at 6:25-27 and 6:33-37, and any equivalents thereof. The
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`algorithm recited in the ’970 Patent at 6:25-27 and 6:33-37 describes the steps of placing the
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`symbol on the map and relating the x-y display coordinates with the l