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`EXHIBIT C
`EXHIBIT C
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASENO: 14-80651-CV-MIDDLEBROOKS
`
`ADVANCED GROUND INFORMATION
`SYSTEMS, INC.,
`
`Plaintiff,
`
`V.
`
`LIFE360, INC.,
`
`Defendant.
`
`/
`
`MARKMAN ORDER
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`On November4, 2014, the Court held a claim construction hearing. Based on the Parties’
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`submissions and arguments at the hearing, the Court issues the following claim construction
`
`order.
`
`I.
`
`BACKGROUND.
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`On May16, 2014, Plaintiff Advanced Ground Information Systems, Inc. (‘AGIS”) filed a
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`complaint, alleging patent
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`infringement by Defendant Life360,
`
`Inc.
`
`(“Life360”).
`
`(DE 1).
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`Life360 has developed a smartphone software application, that AGIS alleges infringes the
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`following four patents: U.S. Patent No. 7,031,728 (the “‘728 Patent”); U.S. Patent No. 7,672,681
`
`(the “‘681 Patent”); U.S. Patent No. 7,764,954 (the “954 Patent”); and U.S. Patent No.
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`8,126,441 (the “*441 patent”) (collectively, “natents-in-suit”).' While the specifications vary
`
`from another,
`
`the patents-in-suit
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`relate to a method and apparatus
`
`for establishing a
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`communication network for participants having mobile devices. The ‘728 patent wasfiled first,
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`' The named inventorof the patents-in-suit, Malcolm K. Beyer,Jr. (“Applicant”), is the founder
`and CEO of AGIS.
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`

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`while the ‘681 patent, the ‘954 patent, and the ‘441 patent were filed as continuations-in-part of
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`the ‘728 patent. AGIS alleges that Life360 infringes claims 3, 7 and 10 of the ‘728 patent,
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`claims 1, 5, and 9 of the ‘681 Patent, claims 1 and 2 of the ‘954 Patent, and claims 1-8 of the
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`“441 Patent.
`
`A. The ‘728 Patent.
`
`The ‘728 Patent describes a mobile device with a display screen. See, e.g., ‘728 Patent,
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`1:6-15, 11:10-42. The screen depicts the location and status of other participants in the
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`communication network on a map.
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`/d. at 11:10-42. Symbols are generated on each of the
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`participants’ cellular phones representing the latitude and longitude of other participants.
`
`Jd. at
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`3:46-48. A participant in the communication network may initiate a telephonecall, send a text
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`message, or exchange data or pictures with other participants on the network by touching a
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`symbolrepresentative of the other participant on the screen.
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`/d. at 11:10-42.
`
`B. The ‘681 Patent.
`
`The ‘681 Patent claimspriority from the ‘728 Patent as a continuation-in-part, and claims
`
`a system and method for creating and modifying the items displayed on the touch screen displays
`
`of the participants’ mobile devices. See, e.g., ‘681 Patent, 9:60-11:56. Specifically, the focus of
`
`the ‘681 Patent is to enable “a designated administrator using a personal computer (PC) or other
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`input device” to “reprogram all user and network participants’ cell phone devices to change,
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`modify or create new virtual soft switch names and symbols for a different operating
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`environment.” Jd. at 1:64-2:14.
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`C. The ‘954 Patent.
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`The ‘954 Patent expands uponthe teachings of the ‘728 Patent and describes systemsthat
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`allow users “to set up either a public peer to peer communications network where all can access
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`

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`or a private peer to peer communications network ... .”
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`‘728 Patent at 1:52-57.
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`In one
`
`embodiment,
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`the ‘954 Patent claims a method wherein a participant’s mobile device may
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`communicate with a computer server
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`from which the participants may download map
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`information to their mobile devices. See id. at 7:25-64, 10:32-44.
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`In another embodiment, the
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`‘954 Patent discloses a method wherein soft switches are depicted on the touch screen display of
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`the mobile device, but also may be hiddenin orderto increase the available display area for other
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`purposes.
`
`/d. at 10:56-11:16.
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`D. The ‘441 Patent.
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`The ‘441 Patent further adds to the ideas of the ‘728 Patent. In one embodiment, the ‘441
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`Patent claims a “polling” method in whicha first participant sends a polling message to a second
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`participant which causes the second participant’s information, such as their location, to be
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`reported to the other participants in the network. See, e.g., ‘441 Patent, 8:29-63.
`
`In another
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`embodiment, the ‘441 Patent claims a method for creating a communication network wherein the
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`participants share a commoninterest such as, for example, friendship. Jd. at 9:19-58.
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`II.
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`LEGAL STANDARD.
`
`A. Claim Construction.
`
`Claim construction is a question of law to be determined by the Court. Markmanv.
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`Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996).
`
`Claim construction analysis begins by looking to the wordsof the claims. Teleflex, Inc. v. Ficosa
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`N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002). The words of the claims are “generally
`
`given their ordinary and customary meaning,” which is “the meaning that the term would have to
`
`a person ofordinary skill in the art in question at the time of the invention,i.e., as of the effective
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`filing date of the patent application.” Phillips vy. AWH Corp., 415 F.3d 1303, 1312-1313 (Fed.
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`

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`Cir. 2005). The ordinary and customary meaning of a claim term may be determinedsolely by
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`viewing the term within the context of the claim’s overall language. See Phillips, 415 F.3d at
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`1314 (“[T]he use of a term within the claim provides a firm basis for construing the term.”).
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`Moreover,
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`the use of the term in other claims may provide guidance regarding its proper
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`construction. See id.
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`(“Other claimsof the patent in question, both asserted and unasserted, can
`
`also be valuable sources of enlightenment as to the meaning of a claim term.”). Claims should
`
`be construed “without reference to the accused device.” SRI Int’l v. Matsushita Elec. Corp. of
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`Am., 775 F.2d 1107, 1118 (Fed. Cir. 1985) (emphasis omitted). Once the proper meaning of a
`
`term used in a claim has been determined, the term must have the same meaningforall claimsin
`
`which it appears. See Phillips, 415 F.3d at 1314 (citations omitted).
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`A claim should also be construed in a manner that
`
`is consistent with the patent’s
`
`specification. See Markman, 52 F.3d at 979 (“Claims must be read in view ofthe specification,
`
`of which they are a part.”). Typically, the specification is the best guide for construing the
`
`claims. See Phillips, 415 F.3d at 1315. Precedent forbids, however, a construction of claim
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`terms that
`
`imposes limitations not found in the claims or supported by an unambiguous
`
`restriction in the specification or prosecution history. Laitram Corp. v. NEC Corp., 163 F.3d
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`1342, 1347 (Fed. Cir. 1998).
`
`Anothertool to supply proper context for claim construction is the prosecution record and
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`any statements made bythe patentee to the United States Patent and Trademark Office (“PTO”)
`
`regarding the scope of the invention. See Markman, 52 F.3d at 980. A patent’s “prosecution
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`history .
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`.
`
`. consists of the complete record of the proceedings before the PTO and includes the
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`prior art cited during the examination of the patent.” Phillips, 415 F.3d at 1317 (citation
`
`omitted). However,
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`the Federal Circuit has warned that “because the prosecution history
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`represents an ongoing negotiation between the PTO and the applicant, rather than the final
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`productofthat negotiation,it often lacks the clarity of the specification and thusis less useful for
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`claim construction purposes.” Jd.
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`“Nonetheless, the prosecution history can often inform the
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`meaning of the claim language by demonstrating how the inventor understood the invention and
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`whetherthe inventor limited the invention in the course of prosecution, making the claim scope
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`narrower than it would otherwise be.”
`
`Jd. However,
`
`in order to conclude that a patentee
`
`narrowedhis claim, the disclaimer must have been with “reasonable clarity and deliberateness.”
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`Superguide Corp. v. Directv Enters.,
`
`Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (quotations
`
`omitted),
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`District courts may also consider extrinsic evidence, such as dictionaries or technical
`
`treatises, to help understand the underlying technology and the manner in which oneskilled in
`
`the art might use claim terms. See Phillips, 415 F.3d at 1318. Similarly, expert testimony may
`
`aid a court in understanding the underlying technology and determining the particular meaning
`
`of a term in the pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s
`
`definition is entirely unhelpful to a court.
`
`Jd. Ultimately, however, extrinsic evidenceis “less
`
`significant than the intrinsic record in determining the legally operative meaning of claim
`
`language,” and a court should discount any extrinsic evidence “that is clearly at odds with the
`
`claim construction mandated by the claims themselves,
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`the written description, and the
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`prosecution history,
`
`in other words, with the written record of the patent.” Jd at 1317-18
`
`(quotations omitted).
`
`B. Means-Plus-Function Claims.
`
`a.
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`Invocation of 35 U.S.C. § 112(6).
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`

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`It is axiomatic that patent claims must“particularly point[ ] out and distinctly claim[ ] the
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`subject matter which the applicant regardsas his invention.” Function Media, L.L.C v. Google,
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`Inc., 708 F.3d 1310, 1317 (Fed. Cir. 2013) (citing 35 U.S.C. § 112(2) (2006)).? However,
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`pursuant to 35 U.S.C. § 112, paragraph 6, a claim element can be expressed as a means for
`
`performing a specified function without reciting the structure or material
`
`that performs the
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`claimed function. 35 U.S.C. § 112(6). “The price that must be paid for use of that convenience
`
`is limitation of the claim to the means specified in the written description and equivalents
`
`thereof.” O.I. Corp. v. Tekmar Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997).
`
`If the specification is
`
`not clear as to the structure that the patentee intends to correspond to the claimed function, then
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`the patentee “has not paid that price but
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`is rather attempting to claim in functional
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`terms
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`unboundedby anyreferenceto structure in the specification,” which is “impermissible under the
`
`statute.” Medical Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1212 (Fed.
`
`Cir, 2003).
`
`Whether an element of a claim is in means-plus-function form is a claim construction
`
`question. See Inventio AG v. Thyssenkrupp Elevator Am. Corp., 649 F.3d 1350, 1356 (Fed. Cir.
`
`2011). Use of the term “means” creates a presumption that the element is to be construed in
`
`accordance with § 112(6). See Betcon, Dickinson & Co. v. Healthcare Grp., 616 F.3d 1249,
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`1262 (Fed. Cir. 2010) (citations omitted). This presumption may be rebutted, however, when the
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`claim elementrecites sufficiently definite structure or material to perform the claimed function.’
`
`* Because the patents-in-suit were issued prior to the enactment of the Leahy-Smith America
`Invents Act (“AIA”), Pub.L. No. 112-29, 125 Stat. 284 (2011), the citations to § 112 in this
`opinionrefer to the statute as it existed prior to the AIA.
`3 To determine whether a claim term that lacks the word “means”is subject to § 112the court
`must consider the words of the claims themselves,
`the written description,
`the prosecution
`history, and any relevant intrinsic evidence. See Jnventio AG, 649 F.3d at 1356.
`
`6
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`

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`See Inventio AG, 649 F.3d at 1356. Simply put, use of the word “means” creates a rebuttable
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`presumption that the drafter intended to invoke § 112(6), while failure to use the words “means”
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`creates a rebuttable presumption that the drafter did not intend the claims to be governed by §
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`112(6). See Personalized Media Communications v. Int'l Trade Comm'n, 161 F.3d 696, 704
`
`(Fed. Cir. 1998).
`
`In determining whether these presumptions have been rebutted, the challenger
`
`must establish by a preponderance ofthe evidencethat the claimsare to be governed by §112(6).
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`ApexInc. v. Raritan Computer, Inc., 325 F.3d 1364, 1371 (Fed. Cir. 2003).
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`Once the Court determines § 112(6) applies, construction of a means-plus-function
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`limitation involves two steps. First, the court mustidentify the claimed function. See Telemac
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`Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1324 (Fed. Cir. 2001). After identifying
`
`the claimed function, the court must then determine what structure, if any, disclosed in the
`
`specification correspondsto the claimed function. See id.
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`In order to qualify as corresponding,
`
`the structure must not only perform the claimed function, but the specification must clearly
`
`associate the structure with performance ofthe function. See Cardiac Pacemakers, Inc. v. St.
`
`Jude Medical, Inc., 296 F.3d 1106, 1113 (Fed. Cir. 2002)(citations omitted). If the specification
`
`does not disclose sufficient structure to perform a claimed function, the claim term may be
`
`indefinite. See id. at 1113-19.
`
`b.
`
`Indefiniteness of Means-Plus-Function Claims.
`
`For computer-implemented systems and methods invoking 35 U.S.C. § 112(6),
`
`the
`
`corresponding structure(s) or act(s) in the specification must amount to “more than simply a
`
`general purpose computer or microprocessor” to satisfy the definiteness requirement of 35
`U.S.C. § 112(2). Aristocrat Techs. Australia v. Intern. Game Tech., 521 F.3d 1328, 1333 (Fed.
`
`Cir. 2008). The mere disclosure of a general purpose computer or microprocessor that performs
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`

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`a recited function is insufficient to avoid the prohibition on “pure functional claiming.”
`
`Id.
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`Rather, in instances where functions are to be performed by conventional computer hardware and
`
`data processing equipment, it is a software process being executed by the hardware that performs
`the function.
`Jd. A means-plus-function limitation corresponding to the mere disclosure of
`
`software implemented on a computer is invalid as indefinite without the disclosure of some
`
`corresponding algorithm that is executed by that computer. See Function Media, 708 F.3d at
`
`1318. The specification must include such an algorithm, expressed “in any understandable terms
`
`including as a mathematical formula,
`
`in prose, or a flow chart, or in any other mannerthat
`
`provides sufficient structure.” Noah Sys., Inc. v. Intuit, Inc., 675 F.3d 1302, 1312 (Fed. Cir.
`
`2012).
`
`The requirement for a specific algorithm is imposed on computer-implemented patent
`
`claims invoking § 112(6) “[b]ecause general purpose computers can be programmed to perform
`
`very different tasks in very different ways,” and “simply disclosing a computeras the structure”
`
`is insufficient. Aristocrat, 521 F.3d at 1333. Without disclosing any corresponding structure,
`
`“one of skill simply cannot perceive the bounds of the invention.” Finisar Corp. v. DirecTV
`
`Grp., Inc., 523 F.3d 1323, 1341 (Fed. Cir. 2008). As a result, the Federal Circuit has typically
`
`analyzed means-plus-function claim limitations corresponding to software, or hardware having
`
`software, as indefinite for a lack of corresponding structure.
`
`See, e.g., Blackboard v.
`
`Desire2Learn, 574 F.3d 1371, 1382-87 (Fed. Cir. 2009).
`
`III.
`
`DISCUSSION.
`
`A. Means-Plus-Function Claims.
`
`i.
`
`“symbol generator”
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`

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`
`
`Does not implicate 35
`U.S.C. § 112(6)
`
`
`AGIS’s Proposed
`Construction
`
`Ordinary meaning, no
`
`construction necessary
`
`
`
`Life360’s Proposed Construction
`
`
`
`‘728
`Invokes 35 U.S.C. § 112(6) andis indefinite.
`
`Patent,
`
`
`
`Structure: An undisclosed algorithm or software
`claims3,
`
`function.
`10
`
`
`
`
`
`Function: generate symbols that represent each of the
`‘681
`
`
`
`
`participants’ cell phones in the communication network
`Patent,
`
`claims 5,
`on the display screen (‘728 Patent, claim 3; ‘681 Patent,
`
`
`
`claim 5); generates symbols on said touch display
`9
`
`
`
`screen (‘728 Patent, claim 10; ‘681 Patent, claim 9).
`
`
`The term “symbol generator” appears in claims 3 and 10 of the ‘728 Patent, and claims 5
`
`and 9 of the ‘681 Patent. Life360 argues the terms “symbol generator .
`
`.
`
`. that can generate
`
`symbols” and “symbol generator .
`
`.
`
`. for generating symbols” are generic placeholders for the
`
`claimed functions and should be interpreted under 35 U.S.C. § 112(6).
`
`(DE 47 at 14). Life360
`
`asserts claims 3 and 10 of the ‘728 Patent, and claims 5 and 9 of the ‘681 Patent, are indefinite
`
`under 35 U.S.C. § 112(2)* because the specification fails to disclose an algorithm for generating
`
`symbols.
`
`(/d.). AGIS refutes this argument, and asserts that the term “symbol generator” itself
`
`connotes a definite structure to those skilled in the art and, therefore, there is no basis for the
`
`application of § 112(6). (DE 48at 7).
`
`Here, the specification fails to mention or describe the definition of “symbol generator.”
`
`See Grobler v. Apple Inc., 12-cv-01534, 2014 WL 1867043, at *8 (N.D. Cal. May 6, 2014)
`
`(finding a lack of description in the specification of a particular term to be relevant in finding a
`
`software “verification mechanism” invokes § 112(6)). A plain reading of the term in context of
`
`* The second paragraph of 35 U.S.C. § 112 reads:
`
`The specification shall conclude with one or more claimsparticularly pointing out
`and distinctly claiming the subject matter which the applicant regardsashis
`invention.
`
`

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`the relevant claim language suggests the term “symbol generator” is analogous to a “means for
`
`generating symbols” because the term is simply a description of the function performed. See
`
`Blackboard, 574 F.3d at 1383.
`
`Importantly, the term is not “used in common parlance or by
`
`persons of skill
`
`in the pertinent art
`
`to designate structure.”
`
`See Lighting World,
`
`Inc. v.
`
`Birchwood Lighting, Inc., 383 F.3d 1354, 1359 (Fed. Cir. 2004). AGIS’s own expert, Dr.
`
`Benjamin Goldberg (“Dr. Goldberg”), is “not aware” whether the term “symbolgenerator” has a
`
`meaning in computerscience. See Goldberg Depo.at 22:7-12.
`
`In fact, at the Markmanhearing,
`
`Dr. Goldberg testified he was aware of the terms “symbol” and “generator” separately, but was
`
`unaware ofuse the specific term “symbol generator” within the field of computer science.
`
`(DE
`
`71 at 50). Accordingly, despite lacking the word “means,” the Court finds the term “symbol
`
`generator”is a “coined term lacking clear meaning”that falls within the scope of § 112(6). See
`
`Personalized Media, 161 F.3d at 704.
`
`1.
`
`Indefiniteness.
`
`Concluding that the claim term “symbol generator” invokes § 112(6), the Court must
`
`attempt to construe the terms by identifying the “corresponding structure .
`
`.
`
`. described in the
`
`specification” to which the claim term will be limited. Welker Bearing Co. v. PHD, Inc., 550
`
`F.3d 1090, 1097 (Fed. Cir. 2008). “If there is no structure in the specification corresponding to
`
`the means-plus-function limitation in the claims, the claim will be found invalid as indefinite.”
`
`Biomedino, LLC y. Waters Techs. Corp., 490 F.3d 946, 950 (Fed. Cir. 2007). Life360 argues
`
`that the specifications of the ‘728 Patent and ‘681 Patent do not disclose any corresponding
`
`structure for the “symbol generator” recited by the claims. AGIS refutes this argument, stating
`
`“the structure of a symbol generator is standard software code modulethat is well known in the
`
`art for simply creating symbols to be placed on a display screen.” (DE 48 at 8) (citing Goldberg
`
`10
`
`

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`Depo. § 21). Additionally, AGIS points to the following description of the “symbol generator”
`
`as defining its “structure”:
`
`The communication device is also given a database that includes a geographical
`display on the LCD display and software that coordinates the x and y coordinates
`on the LCD display touch screen with the geographical display. There is also
`software that places the symbols on the geographical display that represent other
`cellular phoneusers that are part of the communicationsnet.
`
`‘728 Patent, 10:44-46.°
`
`While the specification does describe, in general terms, that symbols are generated based
`
`on the latitude and longitude of the participants, it fails to contain an “algorithm”or description
`
`as to how those symbolsare actually “generated.” See Aristocrat, 521 F.3d at 1333 (finding that,
`
`even though the specification and claims clearly restricted a “game control means” to
`
`“algorithms” that producedaspecific result, the lack of an explicit algorithm rendered the claims
`
`indefinite). The mere disclosure of a general purpose computing device in the ‘728 Patent is not
`
`structurally sufficient because such devices “can be programmed to perform very different tasks
`
`in very different ways,” and “simply disclosing a computeras the structure”is insufficient. Id. at
`
`1333; accord Blackboard, 574 F.3d at 1386.
`
`Additionally,
`
`the Court
`
`is unpersuaded by Dr. Goldberg’s testimony. Dr. Goldberg
`
`contendsthat one skilled in the art “would have known howto utilize commongraphics libraries
`
`along with corresponding application programming interfaces (‘APIs’) to generate images on a
`
`display.” (DE 48-5 at 6). However, this analysis seems to go to the issue of enablement, not
`
`indefiniteness, by focusing on whatoneskilled in the art could devise based on the specification.
`
`See Function Media, 708 F.3d at 1319 (noting that “it is well established that proving that a
`
`> The Court notes that as a continuation-in-part, the ‘728 Patent, the ‘681 Patent incorporates the
`references in the ‘728 Patent. Thus, if the ‘728 Patent denotes sufficient structure, then the claim
`term, as it appears in the ‘681 Patent, likewise has sufficient structure to one skilled in theart.
`
`11
`
`

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`person of ordinary skill could devise some method to perform the function is not the proper
`
`inquiry as to definiteness — that inquiry goes to enablement’) (citing Blackboard, 574 F.3d at
`
`1385). As the Federal Circuit has noted:
`
`A patentee cannot avoid providing specificity as to structure simply because
`someoneof ordinary skill in the art would be able to devise a means to perform
`the claimed function.
`To allow that form of claiming under section 112,
`paragraph 6, would allow the patentee to claim all possible means of achieving a
`function.
`
`Id. The graphics libraries and APIs that supposedly perform this function are not mentioned by
`
`the patents, much less disclosed. Thus, the disclosure of “software that coordinates the x and y
`
`coordinates on the LCD display touch screen” seems to describe a function, not structure.
`
`Accordingly, the Court finds the term “symbol generator”is indefinite.°
`
`ii,
`
`“CPU softwarefor selectively polling other participants”
`
`agreed-to construction]
`
`9
`
`Aci s Proposed
`onstruction
`Ordinary meaning, no
`construction necessary
`
`Doesnot implicate 35
`U.S.C. § 112(6)
`
`Life360’s Proposed Construction
`Invokes 35 U.S.C. § 112(6) andis indefinite.
`
`Structure: An undisclosed algorithm or software
`function residing in the CPU ofthe cellular phone.
`
`Function: selectively polls other participants [see
`
`‘728
`Patent,
`claim 10
`
`The term “CPUsoftware for selectively polling other participants” appears in claim 10 of
`
`the ‘728 Patent. The Parties have agreed to a construction of “selectively polling other
`
`participants” as “selectively sending a commandto the cellular phones of otherparticipants to
`
`the court will
`® Often, when a court finds a means-plus-function claim term is indefinite,
`invalidate the claim in which the term appears. See, e.g., Net MoneylIn, Inc. v. VeriSign, Inc., 545
`F.3d 1359, 1367 (Fed. Cir. 2008)
`(upholding district court’s finding of invalidity after
`determining a means-plus-function claim term wasindefinite). Here, Life360 has not asked for a
`finding of invalidity, nor have the parties briefed the issue. The Court, therefore, refrains from
`addressing the issue of invalidity in this order.
`
`12
`
`

`

`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 14 of 37 PageID #: 493
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`
`which those cellular phones respond.” (DE 45 at 2). Accordingly, the Parties’ dispute focuses
`
`on the phrase “CPU software for.”
`
`AGIS argues the words “CPU software for” describes a structure that selectively polls
`
`other participants.
`
`(DE 48 at 8). AGIS contends “this is easily understood from the ordinary
`
`English meaning of the claim language, and this term does not require construction.”
`
`(/d.)
`
`(citing Goldberg Decl., §§ 23-25). Additionally, AGIS asserts Dr. Goldberg’s testimony
`
`establishes that “CPU software for selectively polling other participants” connotes sufficient
`
`structure to one ofordinary skill in the art. Dr. Goldberg opinesthat“one ofordinary skill in the
`
`art would have understood ‘CPU software for’ to be a standard module of software code that was
`
`well known in the art.” (Goldberg Decl., 4 24). Dr. Goldberg further explains that:
`
`One ofordinaryskill in the art would have understood that there existed classes of
`software subroutines that programmers would have used to selectively send a
`command to the cellular phones of other participants whose cellular phones
`respond. For example, one ofordinary skill in the art would have known howto
`utilize common networking and user interface libraries along with corresponding
`APIs to select a user via a user interface, such as a touch screen, and then to send
`that user’s cellphone polling message via a known networkinginterface.
`
`(Id.). Dr. Goldberg then concludesthat “it is my opinion that the term ‘CPU Software’ would
`
`have been sufficient to identify these modules of program code to one of ordinary skill in the
`
`art.” (Id. at § 25). Accordingly, AGIS argues that “CPU software”is not a “nonce” word or a
`
`“coined”term lacking a clear meaning and shouldnot be construed under §112(6).
`
`(DE 58 at 6)
`
`(citing Goldberg Decl., J 23-25).
`
`Life360 disagrees, and argues the term “CPU software for” is a generic placeholder term,
`
`analogous to “module for,” “machine for” or “device for,” lending itself to interpretation as a
`means-plus-function limitation.
`(DE 47 at 18). Life360 contends that the word “for”indicates
`
`the Applicant’s decision to phrase the claims purely in terms of function, rather than structure.
`
`13
`
`

`

`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 15 of 37 PageID #: 494
`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 15 of 37 PagelD #: 494
`
`(/d.). Additionally, Life360 notes that Dr. Goldberg testified during deposition that
`
`the
`
`specifications did not describe “any specific subroutines or software libraries .
`
`.
`
`. used to
`
`selectively poll.” (DE 57 at 5) (citing Goldberg Depo.at 28:25-29:8).
`
`Here, the claim language doesnot recite the term “means,” and the presumption that the
`
`limitation does not invoke §112(6) applies. See Personalized Media Comms., 161 F.3d at 702.
`
`The claim term in dispute requires “CPU software for selectively sending a commandto the
`
`cellular phonesofother participants to which thosecellular phones respond.” (DE 45 at 2). The
`
`natural reading ofthis claim term suggests some type of “CPU software” serves the function of
`
`selectively polling other participants in the network. The central issue is, therefore, whether the
`
`term “CPU Software”providessufficient structure to avoid the application of § 112(6).
`
`The claimed structure for achieving the “polling” function is “CPU Software.” The
`
`Patent claims and specification do not define “CPU,” “software,” or “CPU Software.” Without
`
`guidance from the intrinsic record, the Court turns to extrinsic evidence. Here, Dr. Goldberg
`
`opines that the term “CPU software” denotes sufficient structure for one of ordinary skill in the
`
`art. However, Dr. Goldberg’s testimony only seems to discuss how the claim language is
`
`sufficient
`
`to enable one skilled in the art to create software for “selectively polling other
`
`participants.” See Function Media, 708 F.3d at 1319. “[A]ttempting to fill in the gaps of the
`
`specification by importing off the shelf software or asserting that individuals of ordinary skill in
`
`the art would understand how to accomplish the function described with the assistance of such
`
`off the shelf software does not solve the inadequacy of the disclosure.” See Manual of Patent
`
`Examining Procedure (MPEP), Ninth Ed. (March 2014), § 2181(2)(B).
`
`With little guidance from the intrinsic and extrinsic record, it appears the term “CPU
`
`software for” is used to refer to a generic software function or algorithm. The term “software”
`
`14
`
`

`

`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 16 of 37 PageID #: 495
`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 16 of 37 PagelD #: 495
`
`standing alone connotes no more structure than the term “means.” See MPEP, § 2181(1)(A)
`
`(noting the following terms as examples of non-structural generic placeholders that may invoke §
`29
`66
`39
`6¢
`99
`66
`
`112(6): “mechanism for,” “module for,” “device for,”
`
`“unit for,”
`
`“component for,”
`
`“element
`
`for,” “memberfor,” “apparatus for,” “machine for,” or “system for.”). The Court, therefore,
`
`finds that Life360 has overcome the presumption against applying § 112(6) because “the claim
`
`term fails to recite sufficiently definite structure or else recites function without reciting
`
`sufficient structure for performing that function.” CCS Fitness v. Brunswick Corp., 288 F.3d
`
`1359, 1369 (Fed. Cir. 2002) (internal citations omitted). Accordingly, the term “CPU software
`
`for” is subject to interpretation as a means-plus-function claim.
`
`1.
`
`Indefiniteness.
`
`Life360 argues that
`
`the specification of the ‘728 Patent does not disclose any
`
`corresponding structure for the “CPU software” recited by the claims.
`
`(DE 47 at 20). With
`
`regard to claim 10 of the ‘728 Patent, Life360 asserts the specification only generally describes
`
`the function of “selectively polling participants” but contains no algorithm for how this is
`
`actually carried out.
`
`(/d.). Additionally, Life360 argues the disclosure of a CPU in the *728
`
`Patent “is not structurally sufficient
`
`to avoid indefiniteness because such devices “can be
`
`programmed to perform very different tasks in very different ways’ and ‘simply disclosing a
`
`computerasthe structure’ is insufficient.’” (/d.) (citing Aristocrat, 521 F.3d at 1333).
`
`AGIS disagrees, and argues that
`
`the claim term is “not
`
`indefinite because the
`
`specification of the ‘728 patent adequately discloses an algorithm sufficient to describe the
`
`structure.” (DE 58 at 7) (citing Goldberg Decl., J 26-27). The algorithm readsas follows:
`
`Toinitialize the communicationsnet, the cellular phone one operator selects, from
`a list, the other users (or all of the), that the operators desires to be part of the
`communications net. The system then polls the selected phones to activate and
`
`15
`
`

`

`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 17 of 37 PageID #: 496
`Case 2:22-cv-00443-JRG Document 42-3 Filed 01/16/24 Page 17 of 37 PagelD #: 496
`
`become part of the communications net. The selected phones then transmit their
`positionsto all the other phonesin the established net.
`
`‘728 Patent,