Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21630 Page 1 of 17
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`
`
`Juliette P. White, USB #9616
`PARSONS BEHLE & LATIMER
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Facsimile: 801.536.6111
`JWhite@parsonsbehle.com
`ecf@parsonsbehle.com
`
`Attorneys for Plaintiffs – Additional Counsel Listed in Signature
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
`
`
`EAGLE VIEW TECHNOLOGIES INC.,
`and PICTOMETRY INTERNATIONAL
`CORP.,
`
`Plaintiffs,
`
`v.
`
`NEARMAP US, INC., NEARMAP
`AUSTRALIA PTY LTD., and NEARMAP
`LTD,
`
`
`PLAINTIFFS’ OPENING
`MARKMAN BRIEF
`
`
`Case No. 2:21-cv-00283-TS-DAO
`
`
`The Honorable Ted Stewart
`Magistrate Judge Daphne A. Oberg
`
`Defendant.
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`
`
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`
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`

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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21631 Page 2 of 17
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................................. 1
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`PRINCIPLES OF CLAIM CONSTRUCTION .............................................................. 1
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`BACKGROUND OF THE TECHNOLOGY AND THE ASSERTED
`PATENTS .......................................................................................................................... 3
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`A.
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`B.
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`The ’648 Patent ...................................................................................................... 3
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`The ’657 Patent ...................................................................................................... 4
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`IV. DISPUTED CLAIM TERMS ........................................................................................... 5
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`A.
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`B.
`
`C.
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`“Data Aggregation System” Does Not Require Explicit Construction............. 5
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`“Oblique Aerial Image(s)” Does Not Require Explicit Construction. ............. 8
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`“The Computer System Controls the First and Second Image-
`Capturing Devices Separately” Does Not Require Explicit
`Construction. ....................................................................................................... 10
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`CONCLUSION ................................................................................................................ 12
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`i
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`V.
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21632 Page 3 of 17
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`TABLE OF AUTHORITIES
`Cases
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)............................................................................................2, 11
`Aqua Shield, Inc. v. Inter Pool Cover Team
`No. 2:09–CV–13 TS, 2011 WL 5546234 (D. Utah Nov. 14, 2011) ........................................11
`ArcelorMittal Fr. v. AK Steel Corp.,
`700 F.3d 1314 (Fed. Cir. 2012)..................................................................................................3
`Aventis Pharm. Inc. v. Amino Chems. Ltd.,
`715 F.3d 1363 (Fed. Cir. 2013)..................................................................................................1
`Comark Commc’ns, Inc. v. Harris Corp.,
`156 F.3d 1182 (Fed. Cir. 1998)..................................................................................................2
`EdiSync Sys., Inc. v. Centra Software, Inc.,
`No. 03-cv-1587, 2012 WL 2196047 (D. Colo. 2012) ................................................................2
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................................9
`Kara Tech. Inc. v. Stamps.com Inc.,
`582 F.3d 1341 (Fed. Cir. 2009)................................................................................................11
`Liebel-Flarsheim Co. v. Medrad, Inc.,
`358 F.3d 898 (Fed. Cir. 2004)....................................................................................................7
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)........................................................................................ passim
`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015)............................................................................................2, 11
`SynQor, Inc. v. Artesyn Techs., Inc.,
`709 F.3d 1365 (Fed. Cir. 2013)..................................................................................................3
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)................................................................................................2, 3
`Other Authorities
`Angus Stevenson, Oxford Dictionary of English, Oxford University Press (2010) ........................5
`N. Kumar, An Illustrated Dictionary of Aviation, McGraw-Hill (2005) .........................................9
`
`
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`ii
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21633 Page 4 of 17
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`I.
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`INTRODUCTION
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`Like the patent claims discussed in the prior round of claim construction briefing, the
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`claims at issue here do not use complicated technical terminology or otherwise alter defined terms
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`in a manner different from their plain and ordinary meaning. Accordingly, Plaintiffs Eagle View
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`Technologies,
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`Inc. (“Eagle View Technologies”) and Pictometry International Corp.
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`(“Pictometry”) (collectively “Plaintiffs” or “EagleView”) respectfully submit that no term of any
`of the patents-in-suit requires construction because the plain and ordinary meaning of the terms
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`would be readily understandable to a person of ordinary skill in the art at the time of the invention.
`
`EagleView previously addressed why nine claim terms identified by Nearmap do not require
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`construction. Dkts. 245, 250. Since then, the Court granted leave for Plaintiffs to assert additional
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`patents. Dkt. 267. Defendants Nearmap US, Inc., Nearmap Australia Pty Ltd., and Nearmap Ltd
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`(collectively “Nearmap”) have proposed three additional claim terms from newly added U.S. Pat.
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`No. 9,182,657 (“the ’657 Patent”) and U.S. Pat. No. 10,671,648 (“the ’648 Patent”) for
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`construction in another legally impermissible attempt to narrow the claims to avoid infringement.
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`EagleView respectfully requests that the Court reject Nearmap’s attempt to construe the readily
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`understandable claim terms at issue here.
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`II.
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`PRINCIPLES OF CLAIM CONSTRUCTION
`
`Claim construction begins with the words of a claim itself, and there is a “heavy
`
`presumption” that those words will receive their ordinary and customary meaning. Aventis Pharm.
`
`Inc. v. Amino Chems. Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013). “[O]rdinary and customary”
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`corresponds to the meaning as understood by a person of ordinary skill in the art at the time of the
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`invention. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). As the Federal
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`1
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21634 Page 5 of 17
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`Circuit has explained, “[t]he construction that stays true to the claim language and most naturally
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`aligns with the patent’s description of the invention will be, in the end, the correct construction.”
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`Id. at 1316 (quotations omitted). In some instances, “the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted meaning
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`of commonly understood words.” Id. at 1314. Accordingly, a court need not construe every term.
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`Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1291 (Fed. Cir. 2015) (“Because the plain
`
`and ordinary meaning of the disputed claim language is clear, the district court did not err by
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`declining to construe the term.”); ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d
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`1312, 1326 (Fed. Cir. 2012) (“The district court did not err in concluding that these terms have
`
`plain meanings that do not require additional construction.”); EdiSync Sys., Inc. v. Centra
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`Software, Inc., No. 03-cv-1587, 2012 WL 2196047, at *13–14 (D. Colo. 2012) (finding the phrase
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`“given computer file” needed no construction because it was comprised of easily understood terms
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`and it possessed a clear meaning in the context of the patent).
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`Intrinsic evidence is “the most significant source of the legally operative meaning of
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`disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
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`1996). “Although the specification may aid the court in interpreting the meaning of disputed claim
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`language, particular embodiments and examples appearing in the specification will not generally
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`be read into the claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir.
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`1998) (quotations omitted); see also Phillips, 415 F.3d at 1323.
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`“In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity
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`in a disputed claim term[, and] it is improper to rely on extrinsic evidence.” Vitronics, 90 F.3d at
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`2
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`1583. Further, extrinsic evidence “may not be ‘used to contradict claim meaning that is
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`unambiguous in light of the intrinsic evidence.’” ArcelorMittal Fr. v. AK Steel Corp., 700 F.3d
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`1314, 1320 (Fed. Cir. 2012) (quoting Phillips, 415 F.3d at 1324). Finally, “[a] claim construction
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`that excludes the preferred embodiment is rarely, if ever, correct.” SynQor, Inc. v. Artesyn Techs.,
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`Inc., 709 F.3d 1365, 1378–79 (Fed. Cir. 2013) (quotations omitted).
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`III. BACKGROUND OF THE TECHNOLOGY AND THE ASSERTED PATENTS
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`Eagle View Technologies, launched in 2008, was a pioneer in remote aerial roof
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`measurement services. Since then, it has continued to develop technology that produces aerial
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`roof and wall measurement reports that are used, e.g., to estimate the costs of roof repairs,
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`construction, solar installation, and insurance claims. EagleView is the owner of all pertinent
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`rights to one of the asserted patents at issue here—the ’648 Patent.
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`Pictometry, founded in 1996, is an innovator in aerial oblique image capture and processing
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`techniques. Pictometry is the owner of all pertinent rights to another of the asserted patents—the
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`’657 Patent.
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`A.
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`The ’648 Patent
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`The ’648 Patent is generally directed to a method for “storing a plurality of data items in a
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`data aggregation system.” JA 007675 at Abstract. For example, claim 1 of the ’648 Patent is
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`directed to a method comprising the storing of a “plurality of data items in a data aggregation
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`system,” where stored data elements are “associated with one or more geographic location
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`identifiers of a particular geographic point on earth” and are also “associated with one or more
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`time identifiers including one or more time or time periods, indicative of a time history of an
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`associated data item regarding the associated geographic point on earth.” JA 007692 at 16:9–19.
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`3
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`The specification explains that “aggregated information may be related to parcels and buildings
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`associated with that point, insurance claims data, weather data, crime data, demographic data,
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`buildings on that point, reported activities and events, or other related data by time period.” JA
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`007686 at 3:57–61. This allows the centralized database to be “queried to retrieve any and all data
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`related to that point.” Id. at 3:63–65. The method of claim 1 also recites that that a processor
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`receives “a query regarding a geographic location and including time information” and in turn
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`retrieves and outputs data items that match the parameters of the query. JA 007692 at 16:20–27.
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`The ’648 Patent explains that “[o]ne of the advantages of tracking data associated with a
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`geographic point on the earth is the continuity of location description over time.” JA 007686 at
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`4:18–20. Thus, systems and methods disclosed in the ’648 Patent enable the availability of
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`limitless data tied to a geographic point, data which otherwise would have been siloed, if available
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`at all.
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`B.
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`The ’657 Patent
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`The ’657 Patent is directed to a “method and apparatus for capturing, geolocating, and
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`measuring oblique images.” JA 007293 at 1:27–28. In general terms, the patent teaches that,
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`before the instant invention, “[o]blique images [were] considered to be of little or no use in
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`photogrammetry”1 because “forcing the variously-sized foreground and background pixels . . . into
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`a uniform size . . . dramatically distorts the oblique image.” Id. at 2:47–52. A solution to that
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`problem was a single “system” with both a “first image-capturing device . . . capturing oblique
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`aerial images” and a “second image-capturing device” (JA 007299 at 14:66–JA 007300 at 15:2
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`1 “Photogrammetry is the science of making measurements of and between objects depicted within
`photographs, especially aerial photographs.” JA 007293 at 1:33–35.
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`4
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`(emphasis added)), in some embodiments “capturing orthogonal2 aerial images” (JA 007300 at
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`16:24–27 (emphasis added)). At each “image-capturing event” a “geo-locating device issu[es] [a]
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`geo-locating signal . . . indicative . . . of a geo-location” of the image-capturing devices. JA 007300
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`at 15:8–13. A computer system “receiv[es] and stor[es]” these “image-data signals” and “geo-
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`locating signal” (id. at 15:14–16) and “execut[es] software . . . associating [the] image-data
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`signal[s] with [a] geo-locating signal (id. at 15:18–24), “wherein the computer system transmits
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`image-capturing signals” and “controls the . . . image capturing devices separately” (id. at 15:25–
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`30). This novel approach allowed for reliable 3D photogrammetry of structures—such as roofs—
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`using oblique imagery.
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`IV. DISPUTED CLAIM TERMS
`A.
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`“Data Aggregation System” Does Not Require Explicit Construction.
`
`Terms
`
`Claims
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`“data aggregation system”
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`’648 Patent, Claim 1
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`Plaintiffs’ Proposed
`Construction
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`No construction is necessary because the plain and ordinary
`meaning would have been clear to one of ordinary skill in the art.
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`Defendants’ Proposed
`Construction
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`“system that aggregates data from multiple distributed external data
`sources into a centralized database.”
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`The term “data aggregation system” does not require explicit construction. Phillips, 415
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`F.3d at 1312–13. Rather, this term is easily understood according to its plain and ordinary meaning
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`without any construction. “Aggregation” is a widely used English word that means “the formation
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`of a number of things into a cluster,” and in the context of the Internet, it means “the collection of
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`2 “Orthogonal” means at a right-angle to the Earth’s surface—i.e., straight down—as was used in
`“[c]onventional photogrammetry.” See JA 007293 at 1:43–58.
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`5
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`related items of content so that they can be displayed or linked to.” Angus Stevenson, Oxford
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`Dictionary of English, Oxford University Press (2010), EVApp001. Thus, a fact finder would
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`easily understand that a “data aggregation system” is a system that aggregates data.
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`Nearmap’s proposed construction must be rejected because it is inconsistent with the
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`specification. First, in attempting to avoid literal infringement, Nearmap seeks to limit the term
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`“data aggregation system” to a system that aggregates data “from . . . external data sources.” But
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`nowhere does the ’648 Patent specification so limit that term. For example, the “Technical Field”
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`section of the patent’s specification specifically omits any limitation on the “distributed data
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`sources” from which the data aggregation system captures information:
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`This disclosure is in the field of aggregating information associated with all
`geographic points on the earth, where the information is captured from distributed
`data sources and integrated into a centralized database that may be queried for a
`complete time history of any geographic point on the earth.
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`JA 007685 at 1:6–12 (emphasis added). The ’648 Patent explains that various types of data are
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`“collected from data sources 116 in a variety of ways.” See JA 007687 at 6:63–9:7. The ’648
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`Patent provides a long list of data, which it describes as a “very small subset of all possible data”
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`that is suitable for the data aggregation system described. JA 007686 at 4:57–6:63. The ’648
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`Patent further explains that the “data provided from data sources 116 may include any such type
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`of data that could be associated with a particular point on the earth.” JA 007689 at 10:59–61
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`(emphasis added).
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`
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`Second, limiting the aggregation to “external data sources,” as Nearmap proposes, is
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`entirely inconsistent with the stated goals of the systems and methods described in the ’648 Patent.
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`For example, the patent explains that “[o]ne benefit to the embodiments described herein is that a
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`user can input a query about a location on the earth and receive, from a single database and single
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`server, all activities and information associated with that location, sorted by date and type of
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`activity/information.” JA 007685 at 2:25–29 (emphasis added). However, limiting the term as
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`Nearmap proposes to “external data sources” would necessarily exclude certain other data
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`sources, which is inconsistent with the stated goal in the specification of providing “all activities
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`and information associated with that location” in response to a user query. As one example, in
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`EagleView’s work that led to the ’648 Patent, EagleView desired to aggregate data that the
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`company was generating internally about various properties. EagleView “was producing a lot of
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`data,” such as roof measurements, in connection with its roof report business, but the data was
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`“scattered in files so it was not easy to reuse.” Excerpts from Prem Kumar December 14, 2023
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`Deposition Tr., EVApp003–004 at 13:6–14:25. EagleView’s solution was to aggregate the data
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`in one place, including that internally generated data, id., just as the patent contemplates.
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`Third, Nearmap’s proposed construction is at odds with the doctrine of claim
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`differentiation. Under that doctrine, “the presence of a dependent claim that adds a particular
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`limitation gives rise to a presumption that the limitation in question is not present in the
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`independent claim.” Phillips, 415 F.3d at 1314–15; see also Liebel-Flarsheim Co. v. Medrad, Inc.,
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`358 F.3d 898, 910 (Fed. Cir. 2004). Here, independent claim 1 recites a “data aggregation system”
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`with a “plurality of data items . . . associated with one or more geographic location identifiers.”
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`JA 007692 at 16:10–19. Dependent claim 7 adds the requirement that “the one or more location
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`identifiers include content external to the data aggregation system.” Id. at 16:42–44. Similarly,
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`independent claim 12 recites the same “plurality of data items,” and dependent claim 16 further
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`specifies that “the one or more geographic location identifiers are associated with content external
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`to the system.” JA 007693 at 17:25–28, 18:15–17. Because the dependent claims explicitly
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`require “external” data, adding that requirement to the construction of “data aggregation system,”
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`as Nearmap proposes, would be improper. Further, these dependent claims show that the patentee
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`knew to use the word “external” when it wished to so limit the content or data source at issue. As
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`discussed above, the patent nowhere imposes such an external data requirement on the claimed
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`“data aggregation system.”
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`Thus, limiting the proposed data sources to external data sources, as Nearmap has
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`proposed, is contrary to both the claims and the specification. Accordingly, Nearmap’s proposed
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`construction should be rejected and the term given its ordinary meaning as EagleView has
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`proposed.
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`B.
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`“Oblique Aerial Image(s)” Does Not Require Explicit Construction.
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`Terms
`
`Claims
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`“oblique aerial image(s)”
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`’657 Patent, Claims 1, 4, 15, 20, 25–27
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`Plaintiffs’ Proposed
`Construction
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`No construction is necessary because the plain and ordinary
`meaning would have been clear to one of ordinary skill in the art.
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`Defendants’ Proposed
`Construction
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`“an aerial image capturing a generally trapezoidal area or view of the
`subject surface or object, with the foreground of the trapezoid having
`a substantially smaller ground sample distance (i.e., a higher
`resolution) than the background of the trapezoid.”
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`The term “oblique aerial image(s)” also does not require construction.3 There is no
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`evidence that the patentee here was its own lexicographer and provided an explicit definition in
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`the specification for any of this clearly understood set of terms that together are also readily
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`understood. The specification describes what “oblique image(s)” are in a manner consistent with
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`3 EagleView previously addressed why a similar-sounding term, “aerial image,” in other asserted
`patents does not require construction. Dkts. 245, 250.
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`8
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`those terms’ general understanding, confirming there is no need for construction. For example,
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`the ’657 Patent states: “Oblique images are images that are captured with the image-capturing
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`device aimed or pointed generally to the side of and downward from the platform that carries the
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`image capturing device.” JA 007293 at 2:25–28. That paragraph then proceeds to describe
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`characteristics that can be present for oblique images, including that they “display the sides of
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`terrestrial features, such as houses, buildings, and/or mountains,” they are more “natural and
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`intuitive” to view than orthogonal or ortho-rectified images, and they “capture a trapezoidal view
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`area or view of the subject surface or object . . . .” Id. at 2:28–46.
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`Nearmap’s proposed construction improperly cherry-picks one out of these five sentences
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`from the specification (the one concerning a “trapezoidal view”) and converts it into a definition.
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`But Nearmap does not (and cannot) show that the language in the specification is meant to define
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`the term. See, e.g., Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014)
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`(“To act as its own lexicographer, a patentee must clearly set forth a definition of the disputed
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`claim term other than its plain and ordinary meaning and must clearly express an intent to redefine
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`the term.” (internal quotations omitted)). To the contrary, nothing about the sentence that Nearmap
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`relies on indicates it is meant to be a definition.
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`Nearmap’s construction is also inconsistent with how Nearmap itself has used the term.
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`Like the patent’s description of oblique images as being captured by aiming an image-capturing
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`device (e.g., camera) “to the side . . . and downward,” Nearmap’s user-facing product
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`documentation explains that “Nearmap Oblique imagery provides a 45-degree angle view of a
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`location.” EVApp005 (View Oblique, Nov. 30, 2023, https://help.nearmap.com/kb/articles/704-
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`view-oblique). These descriptions also comport with contemporaneous dictionary definitions. See
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`9
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21642 Page 13 of 17
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`EVApp010 (N. Kumar, An Illustrated Dictionary of Aviation, McGraw–Hill (2005): Oblique
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`photography/oblique aerial photography) (“A type of aerial photography in which the camera axis
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`is deliberately kept tilted from the vertical by a specified angle. . . .”). The fact that these
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`descriptions all focus on the angle of image capture and bear no resemblance to Nearmap’s
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`proposed construction is further confirmation that Nearmap’s proposal should be rejected.
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`Nearmap’s proposed construction is also confusing, and would be unhelpful to a factfinder.
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`Notably, the claim is directed to a system for capturing oblique aerial images, not to the aerial
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`images themselves. Nearmap’s proposed construction would improperly and confusingly shift the
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`inquiry from (1) whether the accused camera system is configured to capture oblique images, e.g.,
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`by having angled cameras, to (2) the nature of the system’s output, which is not explicitly claimed.
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`Accordingly, Nearmap’s proposed construction should be rejected and the term should be
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`given its ordinary meaning as EagleView has proposed.
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`C.
`
`“The Computer System Controls the First and Second Image-Capturing
`Devices Separately” Does Not Require Explicit Construction.
`
`Terms
`
`Claims
`
`“the computer system controls the first and second image-capturing
`devices separately”
`
`’657 Patent, Claim 1
`
`Plaintiffs’ Proposed
`Construction
`
`No construction is necessary because the plain and ordinary
`meaning would have been clear to one of ordinary skill in the art.
`
`Defendants’ Proposed
`Construction
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`control data sent by the computer system that cause image-capturing
`devices to capture images at different instants and/or at different
`intervals
`
`
`The phrase “the computer system controls the first and second image-capturing devices
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`separately” does not require an explicit construction; rather it is easily understood according to its
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21643 Page 14 of 17
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`plain and ordinary meaning without any construction. Phillips, 415 F.3d at 1312–13. These words
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`are plain English and are not ambiguous, and therefore there is simply no reason for the Court to
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`construe the phrase.4
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`Nearmap’s proposed construction would improperly rewrite the claims with details that are
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`not supported by the intrinsic record. To the extent Nearmap asserts that its definition is derived
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`from an example from the specification, Nearmap is improperly attempting to limit all claims to a
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`particular embodiment of the invention absent a clear disavowal of scope or explicit basis in the
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`record—neither of which Nearmap can point to. See Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d
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`1341, 1348 (Fed. Cir. 2009) (“The patentee is entitled to the full scope of his claims, and we will
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`not limit him to his preferred embodiment or import a limitation from the specification into the
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`claims.”). The specification makes clear that capturing images at different instants and/or intervals
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`is merely optional. The specification of the ’657 Patent states “the present invention can be
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`alternately configured to separately cause the image-capturing devices to capture images at
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`different instants and/or at different intervals.” JA 007299 at 14:38–41 (emphasis added).
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`Therefore, limiting the claim term to this discussion in the specification would impermissibly limit
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`the scope of the claims to an example in the specification and exclude other examples and
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`embodiments. See Kara Tech., 582 F.3d at 1348.
`
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`4 See, e.g., Summit 6, 802 F.3d at 1291 (“Because the plain and ordinary meaning of the disputed
`claim language is clear, the district court did not err by declining to construe the term.”);
`ActiveVideo, 694 F.3d at 1326 (“The district court did not err in concluding that these terms have
`plain meanings that do not require additional construction.”); Aqua Shield, Inc. v. Inter Pool Cover
`Team, No. 2:09–CV–13 TS, 2011 WL 5546234, at *2 (D. Utah, Nov. 14, 2011) (rejecting
`defendants’ proposed construction limiting “end panels” to “quadrant shaped” panels, and
`adopting Plaintiff’s construction that “end panels should be given its plain meaning”).
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`
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`11
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`

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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21644 Page 15 of 17
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`
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`In addition, the doctrine of claim differentiation, discussed above, again precludes
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`Nearmap’s proposed construction. See Phillips, 415 F.3d at 1314–15 (“[T]he presence of a
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`dependent claim that adds a particular limitation gives rise to a presumption that the limitation in
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`question is not present in the independent claim”). Here, multiple dependent claims add a
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`requirement of capturing images at different instants and/or different time intervals. Compare
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`claim 1 (JA 007299) with claims 6–7, 16–17, 22–23 (JA 007300–01). Thus, the presumption is
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`that the language of independent claim 1 does not impose such a requirement.
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`Accordingly, Nearmap’s proposed construction should be rejected and the term given its
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`ordinary meaning as EagleView has proposed.
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`V.
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`CONCLUSION
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`For the foregoing reasons, EagleView respectfully requests that the Court reject Nearmap’s
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`proposed constructions and find that no constructions are necessary.
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`
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`Dated: March 8, 2024
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`Respectfully submitted,
`
`
`
`
`
`Juliette P. White .
`
`L. Kieran Kieckhefer
`Lillian J. Mao
`Christina E. Myrold
`GIBSON DUNN & CRUTCHER LLP
`One Embarcadero Center, Suite 2600
`San Francisco, CA 94111
`Telephone: 415.393.8200
`Fax: 415.393.8306
`KKieckhefer@gibsondunn.com
`LMao@gibsondunn.com
`CMyrold@gibsondunn.com
`
`Stuart M. Rosenberg
`Michael M. Polka
`
`12
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21645 Page 16 of 17
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`GIBSON DUNN & CRUTCHER LLP
`310 University Avenue
`Palo Alto, CA 94301
`Telephone: 650.849.5389
`SRosenberg@gibsondunn.com
`MPolka@gibsondunn.com
`
`Ahmed ElDessouki
`GIBSON DUNN & CRUTCHER LLP
`200 Park Ave.
`New York, NY 10166
`Telephone: 212.351.4000
`AElDessouki@gibsondunn.com
`
`Juliette P. White
`Sarah Jenkins Dewey
`PARSONS BEHLE & LATIMER
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Fax: 801.536.6111
`JWhite@parsonsbehle.com
`SDewey@parsonsbehle.com
`ecf@parsonsbehle.com
`
`Attorneys for Plaintiffs Eagle View
`Technologies, Inc. and Pictometry
`International Corp.
`
`13
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`Case 2:21-cv-00283-TS-DAO Document 404 Filed 03/08/24 PageID.21646 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on the 8th day of March 2024, I caused to be electronically filed and
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`served the foregoing PLAINTIFFS’ OPENING MARKMAN BRIEF with the Clerk of the Court
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`using the Court’s electronic filing system, which sent notification of such filing to all attorneys
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`listed on the docket.
`
` /s/ Juliette P. White
`Juliette P. White
`Attorney for Plaintiffs
`
`
`
`4883-8576-5036.v1
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`14
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`