Case 6:20-cv-00272-ADA Document 106-3 Filed 12/13/23 Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Case No. 6:20-cv-00272-ADA
`
`DECLARATION OF
`DANIJELA CABRIC, PH.D.
`
`VOIP-PAL.COM, INC.,
`Plaintiff,
`
` v.
`AMAZON.COM, INC.;
`AMAZON.COM SERVICES LLC; and
`AMAZON WEB SERVICES, INC.
`
` Defendants.
`
`I, Dr. Danijela Cabric, declare as follows:
`
`I.
`
`INTRODUCTION
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`1.
`
`I have personal knowledge of the facts contained in this declaration and, if
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`called as a witness, I could and would competently testify to those facts. I have been retained
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`by Voip-PAL.Com Inc. (“Voip-PAL”) as an expert in the fields of computer science, computer
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`communications, and related technologies. I am being compensated at my normal consulting
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`rate. My compensation does not depend on and in no way affects the substance of my
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`statements in this Declaration.
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`II. QUALIFICATIONS
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`2.
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`My technical qualifications are as follows. I hold a Ph.D. in Electrical
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`Engineering in 2007 from the University of California, Berkley in Berkeley, CA, for research
`
`on the topic of “Cognitive Radios: System Design Perspective,” under the supervision of Dr.
`
`Robert W. Brodersen. Previous to that, I received a M.S. in Electrical Engineering in 2001
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`from the University of California, Los Angeles (“UCLA”), based on a thesis entitled,
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`“Characterization of a Fast Frequency-Hopped FSK Testbed through Simulations and Field
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`Trials.”
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`3.
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`I am a Full Professor of Electrical Engineering at University of California, Los
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`Angeles. I have been a full, tenured professor in the Department of Electrical Engineering at
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`UCLA since 2018. My research interests include digital communications and wireless system
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`design. I am aware of the knowledge that a person of ordinary skill in the art would have had
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`at the time the invention was made.
`
`4.
`
`I have taught undergraduate and graduate courses at UCLA and at UC Berkeley.
`
`For example, I have taught the following undergraduate courses at UCLA: Signals and System,
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`Digital Signal Processing, Logic Design for Digital Systems, Circuit Analysis I, Digital
`
`Electronic Circuits. I have also taught graduate courses at UCLA including Estimation and
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`Detection, Digital Communications, Wireless Communication System Design, Modeling and
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`Implementation. Further, I developed a new graduate-level course titled: Special Topics in
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`Circuits and Embedded Systems: Wireless Communications System Design. At UC Berkeley,
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`I taught the undergraduate course Probability and Random Processes and was a graduate-level
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`course consultant for the course VLSI Signal Processing.
`
`5.
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`I am a Fellow of the Institute of Electrical and Electronics Engineers (IEEE) and
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`have also been recognized by the IEEE as a ComSoc Distinguished Lecturer from 2018-2020.
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`In 2020, I received the Best paper Award at the 4th ACM Workshop on Millimeter-Wave
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`Networks and Sensing Systems, and the year before, in 2019, I received the Best paper Award
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`at the IEEE International Conference on Communications, Networking, and Computing. I am
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`the author or co-author of five books or chapters, 70 journal publications, eight magazine
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`articles, 126 conference papers, 17 invited papers, 1 patent and 2 patent applications. I have
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`also been invited to speak at about 62 talks, panels, keynotes, or tutorials. I am the author or
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`co-author of over 250 technical publications in the areas of communications, communications
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`signal processing, networking, embedded systems and integrated circuits.
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`6.
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`I have also been hired by several technology companies as a consultant,
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`including Amazon, Inc., Perceptronics Solutions, LocatorX, Intellectual Ventures, and
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`Specom, Inc. I have also served on the Board of Advisors for MaxLinear, Inc.
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`7.
`
`I have provided a copy of my curriculum vitae as an attachment to this
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`declaration as Exhibit A. My Curriculum Vitae provides a more detailed description of my
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`qualifications, experience, publications, awards and patents, as well as a list of cases in which I
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`have testified at trial, hearing, or by deposition within the last four years.
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`III.TASK
`
`8.
`
`I have been asked to provide testimony regarding the understanding of a person
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`of ordinary skill in the art (“POSITA”) at the time of invention regarding the technology
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`disclosed and claimed in VoIP-Pal’s patents in general, and the 10,218,606 patent (“the ’606
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`Patent”) in particular. Among other things, I have provided comments distinguishing between
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`Claim 1 of the ’606 patent and Claim 1 of U.S. Patent No. 9,826,002 B2 (“the ’002 Patent”); I
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`have distinguished also between Claim 1 of the ’606 Patent and the conventional practices of
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`historical switchboard operators; and I have explained how a POSITA would know how to
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`perform the invention.
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` I have identified unconventional technical advantages and
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`improvements which arise from the claims of the ’606 Patent.
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`9.
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`This declaration is not the first time I have provided testimony for VoIP-Pal. I
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`provided an expert report in USPTO ex parte Re-examination Control. No. 90/019,124 in
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`regarding U.S. Patent No. 10,218,606. While I am not a lawyer, in making the statements
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`contained in this declaration, I have relied on my education in Electrical Engineering, my
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`professional experience, the ’606 patent and its history. In forming my opinions for this
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`Declaration, I have adopted the perspective of a POSITA as of the priority date of these
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`patents, which I am defining as follows: a POSITA would be someone with an undergraduate
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`degree in either Computer Science, Computer Engineering, Electrical Engineering, or a related
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`discipline, and would likely have about 2 years of experience in system-level development, but
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`a greater degree of professional experience could serve to replace some formal education and a
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`higher degree of education could replace some professional experience. Based on my
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`education and experience, I believe I would qualify as at least a skilled person in the field of
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`the invention (“POSITA”) both now and as of the patent’s priority date.
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`IV.DISCUSSION OF VOIP-PAL PATENTS
`
`A.
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`10.
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`Claim 1 of the ’606 Patent is distinct from Claim 1 of the ’002 Patent.
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`I have been asked to compare Claim 1 of the ’606 Patent and Claim 1 of the
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`’002 Patent and indicate whether a POSITA would perceive that they are directed to the same
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`concept. In my opinion, while both claims are the field of communications and share some
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`similarities, they are not directed to the same concept. Also, I was asked to answer the
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`question of whether Claim 1 of the ’606 Patent is directed to the idea of routing a call based on
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`participant characteristics (specifically, identity). In my opinion, it is factually inaccurate and
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`inconsistent with the specification and claims to characterize Claim 1 as being directed to
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`routing a call based on participant characteristics (specifically, identity). Third, I was asked to
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`explain whether any technical advantages arise from the distinct concept contained in Claim 1.
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`I will begin my analysis by focusing on differences between Claim 1 of each of the ’606 and
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`’002 Patents.
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`11.
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`To begin with, Claim 1 of the ’606 Patent is focused on the association of each
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`system user or subscriber (“participant”) with a specific element of a communication system’s
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`infrastructure. The preamble states, the “first and second participant devices being associated
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`with first and second network elements of the communication system, respectively.” This is
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`important because, later in the claim, the routing decision is undertaken based on whether the
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`first and second participant devices are associated with the “same” network element or not.
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`For example, the claim recites, “processing the new second participant identifier, using the at
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`least one processor, to determine whether the second network element is the same as the first
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`network element.” Nothing in claim 1 of the ’002 Patent corresponds to this step, which
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`instead recites “classifying the communication, based on the new second participant identifier,
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`as a system communication or an external network communication.” It is a misinterpretation
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`of the claims and misunderstanding of the patent specification to equate these two steps. In
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`particular, it is an error to equate the step of “when the second network element is determined
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`not to be the same as the first network element…” (in the ’606 Patent) with the step of “when
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`the communication is classified as an external network communication…” (in the ’002 Patent).
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`The step of “when the second network element is determined not to be the same as the first
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`network element…” (in the ’606 Patent) does not require classifying a communication as an
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`“external network communication”. Quite to the contrary, Claim 1 of the ’606 Patent, if
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`properly understood, assumes that when specific scenarios are tested for in the claim
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`language—whether the network elements are the “same” or are “not the same”—this relates to
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`communications within the system itself; it does not relate to a decision to route the
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`communication outside of the system to an external network (or external communication
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`system) through a gateway. An external network, such as is recited in Claim 1 would be
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`outside of the system network in Claim 1.
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`12.
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`A POSITA would interpret Claim 1 in part based on other claims and in light of
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`the specification as a whole. For example, a POSITA would read Claim 1 in view of
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`dependent Claim 14, which indicates that the action of producing a routing message identifying
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`a gateway to an external communication system is mutually exclusive with the two scenarios
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`described in Claim 1 of the ‘’606 Patent, as described above (i.e., whether the network element
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`is the “same” or not). Claim 14 expressly recites: “receiving a third participant identifier
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`associated with a third participant device, wherein the third participant device is not
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`associated with either the first network element or the second network element; and
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`producing a routing message identifying a gateway to an external communication system that
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`is not controlled by the system operator, using the at least one processor, to cause a further
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`communication to be established to the third participant device” [emphasis added]. Clearly,
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`the scenario in which the network elements are found “not to be the same” does not correspond
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`to an “external network communication.” To assert otherwise, is to misinterpret the claim. A
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`POSITA’s claim construction of Claim 1 would be informed, in part, by Claim 14, which
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`indicates that a communication through a “gateway” to an “external” system occurs when there
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`is no association of the callee with either the first or second “network elements”. Thus, Claim
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`1 of the ’606 Patent is directed to a completely different decision and action than Claim 1 of
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`the ’002 Patent.
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`13.
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`Other dependent claims in the ’606 Patent are consistent with the above-
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`mentioned interpretation. Claim 15 depends from dependent Claim 14 and from independent
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`Claim 1, and recites that the “external communication system” includes a public switched
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`telephone network (PSTN) communication system. Claim 45 is a dependent claim that is
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`similar to Claim 14, discussed above, and indicates that routing to an external communication
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`system is something that is distinct from routing via the first or second network element,
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`except that the claim is directed to an apparatus.
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`14.
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`Furthermore, the specification provides illustrative examples of preferred
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`embodiments which are consistent with the above interpretation. The specification describes
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`examples of calls between subscribers that are associated with the same node or with a
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`different node.
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`Id., e.g., 25:61-28:44 (how to route calls between subscribers that are
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`associated with the same node); and 21:10-23:49 (how to route calls between subscribers that
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`are associated with respective different nodes). These two scenarios are clearly distinguished
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`in the specification from a third scenario, namely, that the callee is a non-subscriber, is not
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`associated with any node in the system, and thus calls must be made through a “gateway” to
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`the subscriber, for example, to a PSTN.
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`Id. at 23:50-25:60. This mode of communication is
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`distinct from the above-mentioned two scenarios and is described separately.
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`15.
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`In view of the foregoing, a POSITA would infer that Claim 1 of the ’606 Patent
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`and Claim 1 of the ’002 Patent are directed to distinct types of routing, where the former,
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`unlike the latter, selectively and transparently allows subscribers to communicate with each
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`other within a communication system, without leaving through a gateway to an external
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`communication system, regardless of which network element within the system a subscriber
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`uses for communication services.
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`16.
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`Furthermore, the routing in Claim 1 of the ’606 Patent is not based merely on
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`participant characteristics (specifically, identity). Instead, Claim 1 indicates that the second
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`participant (callee identifier, whether taken by itself, or together with the first participant
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`(caller) identifier, is insufficient to route a communication. Claim 1 recites that the system
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`stores configuration information that is specific to the first participant is used (“first participant
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`profile”) and that this user-specific system configuration is used to process the second
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`participant (callee) identifier. See id., Claim 1 (e.g., “produce a new second participant
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`identifier based on at least one match between the second participant identifier and the at least
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`one first participant attribute”). Thus, different first participants with differently configured
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`settings in their profile (different “first participant attributes”) can have a different outcome for
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`this step. The use of user-specific configuration information allows user-specific handling of
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`callee identifiers in the specification; for example, a caller can define a manner of dialing
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`phone numbers that the caller prefers by setting attributes in the profile appropriately.
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`Id.
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`Compare Figs. 11 and 12: the Calgary subscriber can dial international phone numbers using
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`an IDD prefix of “011” whereas the London subscriber will instead use an IDD prefix of “00”.
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`These settings are entirely configurable and allow the system to be flexible enough to handle
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`the diverse needs of subscribers over large geographical areas or even on different continents.
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`17.
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`Claim 1 of the ’606 Patent (as also illustrated in the specification by example)
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`indicates that there are other system configuration settings that affect the routing decision,
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`namely, configuration information that associated subscribers with particular “network
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`elements” (or nodes). The claim evaluates the new second participant identifier as part of
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`identifying which “network element” the called party is associated with. By way of example,
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`in the specification, the aforesaid profiles of the Calgary and London subscribers illustrate that
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`the former subscriber’s profile is associated with a different “domain” (identifies a different
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`“network element”) than the latter’s. Id., Fig. 11 (“Domain” is “sp.yvr.digifonica.com”); Fig.
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`12 (“Domain” is “sp.lhr.digifonica.com”). Moreover the specification provides disclosure of
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`including a node identifier into a username associated with each subscriber and using a
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`database to determine which usernames (or a portion of the username, such as a prefix) are
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`mapped to which IP address or fully qualified domain name of a node. Id., Figs. 17 and 18.
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`These system databases thus contain configuration information about how subscribers are
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`distributed over geographically distributed nodes, each serving a respective set of subscribers.
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`Id. at 13:20-67. Thus, knowing participants’ characteristics (their identity, e.g., phone number)
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`is not enough to route a call. What is needed is system configuration information, both about
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`user-specific attributes that affect how each caller’s calls are handled, but also system
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`configuration information about which callers are “associated with” which network elements or
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`nodes. The patent discloses setting up such configuration information when registering a
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`subscriber. Id. at 15:48-67.
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`18.
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`A POSITA would see these differences with respect to Claim 1 of the ’002
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`Patent also reflected in other claims of the ’606 Patent. Claim 23 indicates that which address
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`(i.e., “first IP network address” or “second IP network address”) is used for establishing the
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`communication depends on which network element a subscriber device is associated with.
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`Claim 24 recites, in part, “wherein the first and second communication nodes are operably
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`configured to provide communications services to communication devices associated with first
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`and second geographical areas, respectively”. This reflects the concept that nodes are
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`responsible for providing services associated with geographical areas and that subscriber
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`devices are associated with respect geographical areas, which is a system configuration setting.
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`Id. at 13:20-40. As Claim 24 further recites, this can be combined with allocating a node for
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`“load sharing” for at least some geographical areas and the associated subscriber devices.
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`Notably, Claim 27 recites, “determine a network element with which the second participant
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`device is associated based on a geographical area associated with the second participant
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`identifier and to identify the network element with which the second participant device is
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`associated in the routing message” [emphasis added]. Again, this concept is clearly absent
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`from Claim 1 of the ’002 Patent, which does not recite the concept of assigning different
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`subscribers to different nodes or network elements within the system for communication
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`services. Furthermore, the stored system configuration information that enables determination
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`of which device is associated with which network element makes improvements possible over
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`the prior art by providing flexibility to assign subscribers to nodes (or “network elements”) in a
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`way that will preserve the availability and resilience of the system over a wide geographic area.
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`Id. at 1:53-59.
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`19.
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`Claim 1 and other claims of the ’606 Patent thus include a system architecture
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`which is suitable for solving the problems of serving a large number of geographically
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`dispersed subscribers. As described in the specification, a node may provide services to most
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`of a continent or part of a continent, to provide communication services for subscribers in a
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`particular wide geographical area.
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`Id. at 13:20-40. And yet, routing does not depend on the
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`characteristics of the caller or callee (e.g., the callee phone number). Indeed, as described
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`herein, the phone number (or other identifier) can be decoupled form the area in which the
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`subscriber lives. It can also be decoupled from elements of the infrastructure such that new
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`nodes and network elements can be added, and system configuration settings, to scalably
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`handle providing services to any number of subscribers seamlessly and transparently. An
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`improvement of prior art methods is that subscribers can place calls without being concerned
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`about any changes in the underlying infrastructure. The ability to also allocate load sharing
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`duties to some nodes routing to destinations further enables the scalability and availability of
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`services.
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`20.
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`Unlike Claim 1 of the ’002 Patent, which does not recite a method of associated
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`different subscribers with different nodes or network elements and then determining how to
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`route to them, the claimed method describe a specific method and system designed to use
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`system configuration information to transparently route communications between a plurality of
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`geographically dispersed subscribers that rely for services on respective network elements of
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`this distributed communication system.
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`From my experience, I am unaware of any
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`conventional communication system that provided these features in the manner recited in the
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`claims, therefore in my view, the specific invention in Claim 1 of the ’606 Patent is not
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`conventional, routine or well-understood. It is also unconventional relative to how historical
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`switchboard operators performed their duties, as I will further describe below.
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`B.
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`21.
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`A skilled person would understand how to perform the claimed invention.
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`I have been asked to consider whether a POSITA would have understood how
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`to perform the invention recited in Claim 1 of the ’606 patent.
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`22.
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`A POSITA’s understanding would be based on their general knowledge in light
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`of the intrinsic evidence, which includes the patent specification, claims, and file history. I
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`understand that while such intrinsic evidence is preferred, a POSITA could also rely on
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`extrinsic evidence such as technical documentation known in the field of the invention to
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`understand the patent and interpret its claims. In my view, the functions described by Claim 1
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`of the ’606 Patent would have been readily understood by a POSITA at the time of invention.
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`While the claims contain some broad language, they exclude communication systems which do
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`not contain the recited combination of elements. The claims do not, to my knowledge,
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`describe any conventional, well-known or well-understood technologies or processes, whether
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`implemented by an apparatus, system, or technological method, nor do they describe any well-
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`known human-implemented processes such as historical switchboard operators, who did not
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`follow anything like the method recited in the claims, as I will further explain below. Claim 1
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`is reproduced at 37:30-38:3 of U.S. Patent No. 10,218,606 (“the ’606 Patent”).
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`23.
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`For example, the illustrative embodiments in the ‘606 Patent’s specification
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`would enable a POSITA to understand and practice the claims. Claim 1 recites, in part, a
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`method that “produce[s] a new second participant identifier,” but that is not all; the claim also
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`requires “processing the second participant identifier and the at least one first participant
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`attribute, using the at least one processor, to produce a new second participant identifier based
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`on at least one match between the second participant identifier and the at least one first
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`participant attribute” [emphasis added].
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`Id. The ‘606 patent specification discloses specific
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`examples of how to compare portions of the second participant identifier with first participant
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`attributes to translate a dialed number from one format to another format (see, e.g. ‘606 Patent
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`at Fig. 8B; 20:33-58). A POSITA would appreciate that the examples disclosed in the
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`specification constitute exemplary steps and would have no difficulty in understanding the
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`claim element of processing “based on at least one match” as a concrete limitation for “how”
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`the processing is achieved (see, e.g. ‘606 Patent at Fig. 8B; 20:33-60; 22:3-23:22). This recited
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`feature distinguishes the claimed invention from methods and systems that do not rely on “first
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`participant attributes,” which, Claim 1 states, are identified in a “first participant profile.” For
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`example, switchboard operators did not use a stored “profile,” nor did they identify “attributes”
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`based on that profile, nor did they “match” the called party’s identifier against such “attributes”
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`(which were not needed) as part of their decision-making in how they acted upon a caller’s
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`instructions. The specification also has various other examples of how to perform a match, and
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`this would further inform the POSITA as to various types of matching methods.
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`Id., 17:27,
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`24:10-11, 26:16-26, 27:18-21. More generally, the concept of comparing stored values in
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`order to generate a match is something that a POSITA would understand based on their
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`knowledge and experience, in light of the specification. The profile attributes being matched
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`could be retrieved from a “memory” that stores them (as recited in Claim 1), such as a RAM,
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`EEPROM or database, to take a few examples. Thus, it would be within the ordinary skill of a
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`POSITA to know how to implement a mechanism to produce a new second participant
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`identifier. This feature of the claims does not require an explanation of “how”.
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`24.
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`As another source of information, the POSITA could look to embodiments
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`recited in the dependent claims, which describe how to implement features recited in the
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`independent claims. For example, Claims 11 and 12 recite, in part: “wherein processing the
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`second participant identifier comprises locating the new second participant identifier in a
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`database based on the second participant identifier”. Id. at 39:6-18. A POSITA would
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`understand that locating the new second participant identifier in a database as an example of
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`how a new second participant identifier could be produced.
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`25.
`
`To take another example, Claim 1 recites a step involving processing “the new
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`second participant identifier [to] determine whether the second network element is the same as
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`the first network element.” Again, it is clear that a POSITA would have no difficulty
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`understanding “how” these claimed steps are performed in view of the intrinsic and extrinsic
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`evidence. For example, the specification of the ‘606 Patent discloses specific steps in which a
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`comparison is made between the first and second participant usernames (see, e.g. ‘606 Patent at
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`Fig. 8A, 8B; 21:11-29; 25:62-26:7). The specification also discloses that the usernames (or a
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`portion of the username, such as a prefix) can be mapped to an IP address or fully qualified
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`domain name of a node.
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`Id., 21:30-46, FIGS. 17 and 18. A POSITA would appreciate that
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`database records that associated subscribers (e.g., the Calgary subscriber in FIG. 18) with
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`particular node addresses, could be a source for making a comparison, and determining
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`whether the calling party was associated with the same node as the called party. It will be
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`appreciated that this is just one example of an implementation. In addition to using node table
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`records, a POSITA would know other methods and data structures for storing information that
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`associated subscribers with nodes, such as binary trees. Therefore, it would be well within the
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`ordinary skill of a POSITA to know “how” to implement a mechanism to produce a new
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`second participant identifier.
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`26.
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`In addition to the foregoing, the specification’s disclosure of how node
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`addresses can be mapped to usernames (see, e.g., 21:30-46), illuminates also the fact that this
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`database is available and can be searched by the routing algorithm (e.g., FIGS. 8A-8D) and
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`provides a useful example of a way of determining how the “first” or “second” network
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`addresses of suitable “network element(s)” can be generated in Claim 1. More generally, the
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`specification provides a detailed of illustrative examples and implementations of routing intra-
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`and inter- node communications. Id., e.g., 25:61-28:44 (how to route calls between subscribers
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`that are associated with the same node); and 21:10-23:49 (how to route calls between
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`subscribers that are associated with respective different nodes). The specification would enable
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`a POSITA to practice Claim 1, although it will be appreciated that other implementations,
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`consistent with the claims, could be used by the POSITA, too.
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`27.
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`Claims 19 and 24 state that the underlying communication system may provide
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`a “node” in “geographical proximity” to at least one network element “to provide load
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`sharing.” In my view, how to do this would be readily understandable to a POSITA in light of
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`general knowledge and the specification. The concept of load sharing is a term of art in the
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`field of network communication that a POSITA would know and therefore would understand
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`generally how to implement. In addition, the specification illustratively describes setting up a
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`distributed architecture of nodes that provides communication services to respective
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`geographical areas and indicates that a node could be setup to provide load sharing in a
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`particular service region if needed.
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`Id. at 13:20-47; compare 1:52. A POSITA would also
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`have access to technical literature on methods of performing load sharing, which could be
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`implemented in the context of this architecture. Therefore, a POSITA’s general knowledge in
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`light of the specification would be enough to understand how to add load sharing as claimed.
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`28.
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`In summary, a POSITA would understand and know how to perform the
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`invention in Claim 1 and other claims in the context of general knowledge, the specification,
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`and the other claims.
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`C.
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`29.
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`Historical switchboard operators and processes are not analogous.
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`I have been asked whether historical switchboard operators, performed the
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`same, or a substantially the same (i.e., analogous), process as the one described in Claim 1, and
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`also, whether it is correct to say that a switchboard operator would have directed a call based
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`on where a caller was located. In my opinion, the answer is “no” to both questions, as
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`explained below.
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`30.
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`As already explained above, the claim recites limitations that had no counterpart
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`or analog in the processes for switchboard operators. To the best of my knowledge, in contrast
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`to the language recited in Claim 1, switchboard operators did not require access to a stored
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`caller “profile,” nor did they need to identify caller “attributes” based on any such profile, nor
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`did they “match” any such attributes from a “profile” (which as explained above, didn’t exist)
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`with a “second participant identifier” (e.g., the name of the called party). Instead, they simply
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`acted upon the instructions given by plugging in a wire associated with the incoming call into
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`the appropriate switchboard connection.
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`31.
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`Additionally, while it is true that the operator of a first switchboard might call
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`upon a second switchboard operator at a remote location to help route the call, this sequence of
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`Case 6:20-cv-00272-ADA Document 106-3 Filed 12/13/23 Page 15 of 18
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`steps differs from Claim 1, as well. Notably, involving a second operator/switchboard required
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`two routing decisions: one, by the first switchboard operator (i.e., to decide that the call could
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`not be routed on the same switchboard); and then, once the first operator successfully
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`connected to the second operator’s switchboard, the second operator needed to make a second
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`decision (i.e., to route the call to the called party). This multi-step process involving two
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`operators and switchboards required at least two “routing” decisions, taken in a particular
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`sequence. However, Claim 1 does not require two separate decisions, nor does it require that
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`two routing decisions be taken in a particular sequence. Instead, Claim 1 decides whether the
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`second participant is associated with the same element or a differen