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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`Case No. 14-CV-80651-MIDDLEBROOKS
`
`
`
`ADVANCED GROUND INFORMATION )
`SYSTEMS, INC., )
` )
`Plaintiff, )
` )
` -v- )
` )
`LIFE360, INC., )
` )
`Defendant. ) West Palm Beach, Florida
` ) November 4, 2014
`____________________________) 1:28 a.m.
`
`
`TRANSCRIPT OF MARKMAN HEARING
`
`BEFORE THE HONORABLE DONALD M. MIDDLEBROOKS
`
`U.S. DISTRICT JUDGE
`
`Appearances:
`
`
`For the Plaintiff: KENYON & KENYON, LLP
`BY: GEORGE BADENOCH, ESQ.
`BY: TOM MAKIN, ESQ.
`BY: VINCENT RUBINO, ESQ.
` -and-
`LOTT & FISCHER
`BY: URY FISCHER, ESQ.
`
`
`For the Defendant: SHUTTS & BOWEN, LLP
`BY: ERIC CHRISTU, ESQ.
`BY: DANIEL BARSKY, ESQ.
` -and-
`WEBB ZIESENHEIM LOGSDON ORKIN &
`HANSON
`
`BY: KENT BALDAUF, ESQ.
`
`Karl Shires, RPR, FCRR
`Official Court Reporter
`701 Clematis Street, Suite 258
`West Palm Beach, Florida 33401
`
`Reporter:
`(561) 514-3728
`
`STENOGRAPHICALLY RECORDED COMPUTER-AIDED TRANSCRIPT
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`I N D E X
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`WITNESS PAGE
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`BENJAMIN GOLDBERG, PLAINTIFF'S WITNESS, SWORN
` ..............
`DIRECT EXAMINATION BY MR. MAKIN ............................
`
` ..
`BENJAMIN GOLDBERG, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
`DIRECT EXAMINATION BY MR. MAKIN ...........................
`CROSS-EXAMINATION BY MR. BALDAUF ..........................
`REDIRECT EXAMINATION BY MR. MAKIN .........................
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`(Call to Order of the Court.)
`
`THE COURT: Good afternoon. Please be seated.
`
`This is a hearing in the case of Advanced Ground
`
`Information Systems, Inc. versus Life360, Inc. The Case Number
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`is 14-80651.
`
`Could we start with appearances, please.
`
`MR. FISCHER: Your Honor, Ury Fischer, Lott and
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`Fischer, on behalf of AGIS. And with me are local counsel. I
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`will allow them to introduce themselves.
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`MR. BAGDENOCH: Your Honor, George Badenoch from
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`Kenyon & Kenyon also for plaintiff AGIS. With me is my partner
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`Tom Makin and associate Vince Rubino.
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`THE COURT: Good afternoon.
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`MR. CHRISTU: Good afternoon, Your Honor. Eric
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`Christu and Daniel Barsky with Shutts & Bowen for the defendant
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`Life360. I will let Mr. Baldauff and Mr. Clark, co-counsel,
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`introduce themselves.
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`MR. BALDAUF: Good afternoon, Your Honor. Kent
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`Baldauf, Junior, from the Webb Law Firm in Pittsburgh. With me
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`is Brian Clark from my office as well.
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`THE COURT: Good afternoon.
`
`Okay. This is a Markman hearing on claim
`
`construction. What do you plan to do today?
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`MR. BAGDENOCH: Your Honor, the parties did discuss
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`how to proceed, and I think we're agreed on the basic
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`procedure. We're planning to start with a tutorial. And for
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`that purpose my partner Tom Makin is going to present some
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`testimony from our expert witness Professor Ben Goldberg who is
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`here with us. Then at the end of that the other side will
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`present a tutorial, ask any questions they want of Professor
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`Goldberg, and then we would start the Markman.
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`And we've split that up. I'm planning to do some
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`of -- we tried to group the terms in a logical way for the
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`Court. I'm planning to do some of the terms. Basically
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`there's several groups of terms where we -- the basic
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`difference is we think we should have a simple definition. We
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`think they're adding too much stuff in the way of negative
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`limitations and so on.
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`And then there's some terms where the main issue is
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`whether it should or should not be construed as a
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`means-plus-function type element, and my partner Tom Makin is
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`going to handle those. And because they involve the question
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`of whether a person skilled in the art would understand that a
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`term connotes something structural, he's also planning to have
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`testimony from our expert, Professor Goldberg, on that. And
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`then the other side would then present their tutorial. And so
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`that's the way we basically lined it up.
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`I should mention one other thing. If the Court has
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`time at the end of this, we do have still some problems with
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`discovery. The parties do keep talking, but we're still at a
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`
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`point where we don't think we have enough. We think we have
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`to -- we filed a joint report, as you recall, I think the Court
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`asked us to file last time if we couldn't work everything out.
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`And really the problem is simply time. We're not going to
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`finish in time, and to really protect our rights we have to
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`bring the issue to the Court at this time. So if the Court
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`either has time to hear something on that or schedule something
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`or schedule with the magistrate, whatever the preference is.
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`So briefly just to introduce, we're talking about
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`technology here which is basically systems and methods with
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`smart phones, phones that can communicate with each other, and
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`also have maps that you follow what people are doing. The
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`interesting thing, of course, is that this technology goes back
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`to 2004 before there really were smart phones. That's one of
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`the things that's key about the inventions.
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`There's four patents in the case. They are from one
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`family. The '728 is the first one. It talks about the basic
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`system for -- method and system of setting up these networks.
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`The '681 talks briefly about modifying some of the
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`soft switches and symbols and things indicating soft switches
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`on the screen with software.
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`The '954 talks about continuing to download maps as
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`you walk around.
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`And the '441, the last one, talks about how you set up
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`one of these networks from an individual phone by polling and
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`
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`
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`Direct - Goldberg
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` 6
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`so on.
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`So with that overview I'm going to now turn it over to
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`my partner Tom Makin who will then present a tutorial to the
`
`Court.
`
`THE COURT: All right. Thank you.
`
`MR. MAKIN: Good afternoon, Your Honor.
`
`THE COURT: I should have asked, how long do you
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`anticipate all of that is going to take?
`
`MR. MAKIN: I guess if I had to estimate -- I don't
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`want to speak for the other side -- I was thinking the tutorial
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`would be in the neighborhood of 15 minutes, and then our
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`substantive case, mostly legal argument, would be possibly
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`another hour and 15. So an hour and a half for our
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`presentation.
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`MR. BALDAUF: And, Your Honor, I don't expect we'll be
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`that long at all. We're going to try not to regurgitate
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`everything that's in the briefs.
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`THE COURT: Are you going to call a witness?
`
`MR. BALDAUF: We are not, Your Honor.
`
`THE COURT: Okay. Go ahead.
`
`MR. MAKIN: Thank you, Your Honor. And I would like
`
`to call our first witness Dr. Benjamin Goldberg.
`BENJAMIN GOLDBERG, PLAINTIFF'S WITNESS, SWORN
`
`DIRECT EXAMINATION
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`Direct - Goldberg
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`BY MR. MAKIN:
`
`Q.
`
`Good afternoon, Dr. Goldberg.
`
`A.
`
`Good afternoon, Mr. Makin.
`
`Q.
`
`Could you state your name and address for the record?
`
`A.
`
`Sure. Benjamin Frederick Goldberg. 200 Mercer Street,
`
`Apartment 2F, New York, New York, 10012.
`
`Q.
`
`And Dr. Goldberg, have you reviewed the four patents at
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`issue?
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`A.
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`Yes, I have.
`
`Q.
`
`And what is your area of expertise as it relates to the
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`technology of those patents?
`
`A.
`
`Well, I'm a professor of computer science at New York
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`University. I designed and taught the embedded systems course
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`which is the course about putting computers inside of devices
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`like handheld PDAs, smart phones, toaster ovens.
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`I've had a great deal of experience reviewing source
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`code and technology related to smart phones. I've been engaged
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`in a number -- as an expert in a number of cases involving
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`smart phones, such as this one, and I teach about software
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`development for all kinds of devices, including smart phones.
`
`Q.
`
`And about how much experience, how long in this field?
`
`A.
`
`I've been working in this field for over 30 years.
`
`Q.
`
`Do you have a copy of the exhibit book in front of you,
`
`Dr. Goldberg?
`
`A.
`
`I don't.
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`
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`
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`Direct - Goldberg
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`MR. MAKIN: If I may, Your Honor?
`
`THE WITNESS: Thank you.
`
`BY MR. MAKIN:
`
`Q.
`
`And Dr. Goldberg, if you can turn to Exhibit 5 in the
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`exhibit book.
`
`Could you identify that item for me?
`
`A.
`
`Yes, this is the declaration that I submitted concerning
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`the claim construction in this case.
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`Q.
`
`And if you can turn to the next exhibit at Tab 6, please.
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`And could you identify that for me?
`
`A.
`
`This is my CV showing my educational and professional
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`background as well as cases that I've consulted on in the last
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`four or five years.
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`MR. MAKIN: So, Your Honor, I would like to proffer at
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`this time Dr. Goldberg as an expert in the field of computer
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`science.
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`MR. BALDAUF: No objection, Your Honor.
`
`BY MR. MAKIN:
`
`Q.
`
`Dr. Goldberg, have you prepared anything to assist the
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`Court today?
`
`A.
`
`Yes. I prepared a set of slides that I can use as part of
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`a tutorial to introduce the Court to the technology.
`
`Q.
`
`And how would you like to begin that tutorial?
`
`A.
`
`Well, I've organized it by patent going from the oldest
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`patent to the newest, and I am happy to just go through the
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`
`
`
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`Direct - Goldberg
`
` 9
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`slides if that's what you would like.
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`Q.
`
`If you can start with the '728 patent, Dr. Goldberg.
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`A.
`
`Yes. So I refer the Court to the screen. Here we see the
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`cover page for the '728 patent which is the earliest patent.
`
`Moving to the next slide. What the technology of the
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`'728 patent is is the ability to have a handheld device, like a
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`smart phone, in which the user can see a map of the
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`neighborhood that he is walking around in. And on that map are
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`symbols representing other people with similar smart phones who
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`are also in that same neighborhood. And these other people are
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`typically people within the same work unit; maybe a fire
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`brigade or military unit or people within the same company or a
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`group of friends that have all decided to use this system to
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`keep track of each other. And the user can see the location of
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`each of those people on the map. And so you see, I've have
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`some red arrows that point to two different circles. One has a
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`square and one has a triangle just indicating two different
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`people that are on the map.
`
`Now, moving to the next slide. Part of the technology
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`described in this patent is the ability for the user to enter
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`other things on the map that he wants to keep track of. And so
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`if I see that there's a car accident somewhere, I can enter it
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`on my map and other people could see it. Restaurants, fire
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`stations also appear on the map. So there are a number of
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`other items in addition to the participants in the system that
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`Direct - Goldberg
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` 10
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`I can see on the phone.
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`Now, in this illustration, which is part of the '728
`
`patent, I believe it's Figure 1, we see that at the bottom of
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`the screen of the device we see a single row of buttons. It
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`looks like zoom in, zoom out, and other buttons that can be
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`clicked on.
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`Now, moving to the next slide. There's a description
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`that I don't expect you to read, but what this section
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`describes, if we can go to the next slide, if I actually want
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`to call one of my buddies that is appearing on this map, all I
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`need to do is tap on the symbol representing that button
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`wherever he is, and then what will happen is a matrix or a
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`bunch of buttons will show up at the bottom of the screen. And
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`you see one of the buttons is called "call."
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`So after pressing the symbol for the person I want to
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`reach, all I need to do is tap on the "call" button and the
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`phone will automatically call him. So I don't need to actually
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`know his phone number. I don't need to look it up or memorize
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`it. The system has a database inside of the phone that keeps
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`track of all of the participants' phone numbers. So all I need
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`to do is tap on the person that I want to call and then tap on
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`the "call" button and the phone automatically makes the call
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`without me having to enter the phone number.
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`Q.
`
`Could you explain, Dr. Goldberg, just a little more about
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`how the technology allows tapping on the phone to cause a call?
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`Direct - Goldberg
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` 11
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`A.
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`Yes. The smart phone has a touch screen which we're all
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`familiar now, but what happens is when you touch a particular
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`area of the screen, the hardware automatically invokes some
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`software and indicates to the software the x and y coordinates
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`of where I touched. And so the software is told by the
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`hardware where the user touched, and then the software can
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`perform the appropriate action. In this case, depending on the
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`symbol I touch, looking up the phone number and then, depending
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`on the operation, such as a call, actually initiating the phone
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`call.
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`Q.
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`Dr. Goldberg, can you relate your testimony so far to an
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`exemplary claim in the patent?
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`A.
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`Yes. So a claim that incorporates these elements I just
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`discussed would be claim 3 of the '728. And I've highlighted
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`just the parts that sort of summarize the technology of the
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`claim.
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`So first we see that it's an apparatus claim, claim
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`communication system. And that apparatus has as a CPU memory.
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`It has the touch screen display. It has a symbol generator
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`which is the software that displays the symbols on the screen
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`in the appropriate place. It has the database that stores the
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`telephone numbers for the participants in this network. You
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`have the software for initiating the cell phone call such that
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`that software is automatically invoked when the user selects
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`the participant to call on the call button. And then finally
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`Direct - Goldberg
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` 12
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`there's the display that shows the map and the locations of
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`each of the participants as symbols on that screen. So this
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`claim incorporates what I've been talking about.
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`Q.
`
`Should we move onto the next patent?
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`A.
`
`Yes.
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`So the next one is a continuation in part and it
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`actually adds some new technology to what we saw in the '728.
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`This is the '681 patent.
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`Can we go to the next slide? And what this adds is
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`the ability for some administrator to actually create new
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`symbols and new software that can tailor the look and feel of
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`the system to a particular group of users. So if it's a fire
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`department that wants to keep track of their firemen or
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`military unit to keep track of their soldiers or a company
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`keeping track of its employees, the administrator is able to
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`give a different look and feel by having different looking
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`symbols and different behavior of the buttons or the switches.
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`Q.
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`Can you relate this administrator feature to an exemplary
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`claim in the patent?
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`A.
`
`Yes. So if you look at claim 1 of the '681 patent, this is
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`a method claim but -- and it has essentially the elements I
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`just discussed, but it adds a new limitation which is
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`limitation (e) which is the ability to use the software to
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`create or modify the symbols and the software behavior it
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`switches and then to have those new software and new symbols
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`Direct - Goldberg
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` 13
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`downloaded to the device, to the phone, so to customize the
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`look and feel for that phone.
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`Q.
`
`Should we move to the next patent?
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`A.
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`Yes. So the next patent is the '954 patent. It is also a
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`continuation in part. All these patents are within the same
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`family. And this does -- it has some more technology. So go
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`to the next slide.
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`The first thing it adds is a description of how a
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`server can be used, and it's called -- as you can see, this is
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`Figure 3 -- the smart peer-to-peer server, how it can be used
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`to generate the groups of people that would want to see each
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`other.
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`So in this illustration you see at the bottom left
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`there's an open golf network. So this could be a network or a
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`group of participants that are interested in golf. Also, you
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`see the middle one says John Doe's family. So this can be a
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`group of people who consist of the family of this person John
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`Doe. And they can all see each other. And then, of course,
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`the employees of a fire department can keep track where the
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`firemen are. So there's a group of firemen that could all see
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`each other. So that's one of the new technologies. Go to the
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`next slide.
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`Another technology introduced in the '954 patent is
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`the ability to download the map of where you are as you need
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`it, and this is instead of having to store all of the maps for
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`Direct - Goldberg
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`anywhere you could possibly go on the phone, you actually can
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`download the map as you need it. And so what the system does
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`is if the user is getting close to the edge of the current map,
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`it could automatically download the new map for the area that
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`the user is entering in order to save memory of having to store
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`all of the maps.
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`Q.
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`Is there any other new technology claimed in the '954
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`patent, Dr. Goldberg?
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`A.
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`Yes. In the '954 patent -- well, actually going back. If
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`we can go to Slide 7. Remember I talked about how if you look
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`at the screen of this device, there's just a single row of
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`buttons at the bottom. When the user clicks on one of the
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`symbols in order to do something for that participant, in Slide
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`9 we saw that there's a generation of several rows of buttons
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`that the user can click on at the bottom there. And so what is
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`done is we now have a bunch of buttons that have expanded to
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`fill part of the screen. Well, what the '954 patent added was
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`the ability to shrink that, those buttons back down to a single
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`row when the user wasn't, in fact, or was no longer calling
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`anybody. So shrinking that matrix down to a single row.
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`So we go back to that slide where we were. So this is
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`the section of the '954 patent describing the collapsing of
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`that matrix of buttons down to a single row.
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`Q.
`
`Thank you.
`
`Could you relate these new features to any of the
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`Direct - Goldberg
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`exemplary claims in the '954 patent?
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`A.
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`Yes. So claim 1 in the '954 patent, in addition to various
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`elements that I've left out just to be able to fit it onto a
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`single slide, includes communicating additional maps from a
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`remote network server, that is again as-needed database maps --
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`sorry, maps get loaded from a server down to the device. And
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`then claim 2 has the element corresponding to the collapsing of
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`that matrix of buttons or switches down to a single row.
`
`Q.
`
`May we move to the last patent?
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`A.
`
`Yes. So that last one is the '441 patent. It also is a
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`continuation part within the same family. Next slide, please.
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`And this is technology of how a participant can create
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`a network or a group of just the people that he wants to see
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`and communicate with. And particularly this is done in the
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`form of a polling process where polling is the process of the
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`user's phone sending out requests to the other phones saying,
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`hey, I want to keep track of where you are, I want you to
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`periodically send me your location information so that I'm able
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`to keep track of you. And so the smart phone sends out a
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`polling message to various other smart phones and then they
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`continuously update their location so that the user can see
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`where they are.
`
`Q.
`
`Could you relate this polling feature to one of the claims
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`in the '441 patent?
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`A.
`
`Yes. The '441 patent claim 1 claims this way of creating a
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`Case 9:14-cv-80651-DMM Document 71 Entered on FLSD Docket 11/08/2014 Page 16 of 107Case 2:22-cv-00443-JRG Document 42-7 Filed 01/16/24 Page 17 of 108 PageID #: 617
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`Direct - Goldberg
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`network, so-called polling network of just the people that
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`you're interested in. And so it talks about establishing a
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`communications network, which could include lots and lots of
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`phones, and then establishing a polling network, which is just
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`a network or group of the people that you're interested in.
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`That's element (c).
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`And then the way it does it is through step (d),
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`sending an SMS polling message to the participants that you
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`want to actually keep track of. And then in element (e) in
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`response they would continuously and automatically transmit
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`their position. And they would send it to a server. And then
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`in element (f) the server would then transmit each
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`participant's location to the other members of that group, and
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`the position of each member of the group would be displayed on
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`the smart phone of the other members of the group.
`
`Q.
`
`Thank you, Dr. Goldberg.
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`If Your Honor has any questions for the witness.
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`THE COURT: Not at this point.
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`MR. MAKIN: Otherwise I think you plan to do a
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`tutorial at this time.
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`MR. BALDAUF: I don't want to be terribly redundant.
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`Just a few brief points I would like to make.
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`THE COURT: All right.
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`MR. BALDAUF: The witness may be excused.
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`(Witness was excused.)
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`MR. BALDAUF: Your Honor, our tutorial was remarkably
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`similar to that one so I don't want to bore you with looking at
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`most of the same slides.
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`What I would like to stress, though, is I don't want
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`to leave the Court with the impression that the inventions that
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`are covered by these patent are somehow groundbreaking,
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`sweeping, new. Like virtually every other patent that's issued
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`in the United States, what these patents represent are
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`incremental improvements or changes to existing technology.
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`And I would invite the Court to look at the background
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`of the invention of the '728 patent. Very specifically, the
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`applicant admits that the use of GPS mapping in cellular
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`technology cellular phones, this technology existed, it was in
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`use.
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`And what we're looking at in these four patents are
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`very specific implementations; whether it's how you create the
`
`network, the interplay of these symbols and switches, and so
`
`forth. And you'll notice that the claims are very, very long.
`
`And that's because this is a mature technology even despite the
`
`dates the stuff existed. And we're looking at very small
`
`incremental changes in improvements.
`
`Thank you.
`
`THE COURT: All right. Thank you.
`
`MR. BAGDENOCH: The most important prop, Your Honor.
`
`Your Honor, to begin our Markman presentation, as I
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`indicated before, our plan is to group some of these terms in a
`
`way that we think would be logical for the Court. I'm going to
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`deal with some groups where the basic issue is whether or not
`
`the claims should have a plain meaning or a simple definition
`
`or whether you ought to incorporate a long, extra restrictive
`
`or negative sentence that basically seeks to carve something
`
`out. Our feeling here is that we have correctly defined these
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`terms where they need any clarification at all, and what the
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`other side has done is to add a long sentence or some other
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`restrictive language that basically sets up, you know, one of
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`their noninfringement arguments, and we think that's not
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`proper.
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`I think the law is clear that the only time you add a
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`negative or extra restrictive limitation like that in a claim
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`construction is when the applicant has made an absolutely clear
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`and unequivocal disavowal of that scope somewhere in the
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`history or in the patent, and we think that that is definitely
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`not the case in what they're trying to add here. I think the
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`parties are basically agreed on this legal principle.
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`Like many Markman hearings, we sort of cite the same
`
`cases. I think on this one that you don't add a negative or a
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`restrictive limitation unless there's a clear disavowal. The
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`case that we both cite, the Omega Engineering case, I think is
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`one of the best discussions of this point. It's 334 F.3d 1314.
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`And that whole case, it's a Federal Circuit case, is about when
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`Case 9:14-cv-80651-DMM Document 71 Entered on FLSD Docket 11/08/2014 Page 19 of 107Case 2:22-cv-00443-JRG Document 42-7 Filed 01/16/24 Page 20 of 108 PageID #: 620
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`you add a limitation and when there's a clear disavowal.
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`And basically the invention in that case was an
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`infrared thermometer that you point at something you're trying
`
`to tell the temperature of that's very hot but you need to
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`point it only at the object you're measuring the temperature
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`of. And it's invisible so that's hard. So they had a laser to
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`kind of go around and indicate where this thing was aiming so
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`that you didn't get false readings on the temperature from
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`surrounding areas or other objects.
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`And during the history they distinguished an invention
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`in which there was a similar infrared thermometer and there was
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`a laser and it was split into different parts, and one of the
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`parts went to the center of the object and actually added some
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`energy and risked raising the temperature. So they basically
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`said in the file history, look, we're not like that. You can't
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`have the thing go at the center and raise the temperature. You
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`know, we don't do that.
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`And so along comes the accused product. It has a
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`laser beam which in part goes to the center. And the
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`defendants try to say, look, you disclaimed anything where the
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`laser beam or any part of it goes to the center. And the
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`Federal Circuit said, no, they didn't disclaim that. What they
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`disclaimed is if you have a part that goes to the center and it
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`also, you know, affects the temperature, raises the
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`temperature, that's the only thing being disclaimed. So that's
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`how careful the Courts are when they look at these disclaimers.
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`And we would submit, Your Honor, that the claim terms
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`here, what the defendants have done, that's not the case.
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`I would like to take the first example. We have
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`several of these that are -- where we would submit, Your Honor,
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`that they have not really given any justification for the
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`negative limitation.
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`The first one is "entered items of interest." We have
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`basically a very simple definition. We say it's plain and
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`ordinary meaning. They have something that I think it's
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`perhaps more complex than necessary so far as it goes in the
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`first sentence, "items that have been added by, and are of
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`interest to, one or more of the network participants." I think
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`that's more complicated than you need, but at least that's not
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`wrong.
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`But then in the bold section you see there they've
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`added this. "An entered item of interest is not a fixed
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`location such as a business, house, hospital, or street
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`location." That should not be added. There isn't any clear
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`disavowal of entering a fixed location. In fact, quite the
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`contrary. Not only is it something that legally you shouldn't
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`do, but in this case that's inconsistent with what the
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`specification says.
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`If we go to the next slide, the specification
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`specifically says that the operator can select and enter one or
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`more other fixed entities (building, facilities, restaurant,
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`police station, and the like) and geo-referenced events such as
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`fires, accidents, or other events.
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`So they make an issue of, look, terms that are
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`different need -- are presumptively different when you look at
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`the claim, and that's true. But of course the big fallacy,
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`that doesn't mean they're mutually exclusive. You can enter
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`either a fixed location or a temporary one, a car accident or
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`something, and the patent says that.
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`So for them to try to add this new sen
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