Case 6:16-cv-00927-RWS-KNM Document 87-10 Filed 10/26/17 Page 2 of 40 PageID #:
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`T-REX PROPERTY AB,
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`Plaintiff,
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`v.
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`REGAL ENTERTAINMENT GROUP
`
`CLEAR CHANNEL OUTDOOR HOLDINGS,
`INC., CLEAR TV MEDIA USA, INC. AND
`MONSTER VISION, LLC D/B/A MONSTER
`MEDIA
`
`Civil Action No.: 6:16-cv-00927-RWS
`
`CONSOLIDATED LEAD CASE
`
`6:16-cv-00974-RWS-KNM
`
`AMC ENTERTAINMENT HOLDINGS, INC.
`
`6:16-cv-01029-RWS-KNM
`
`Defendants.
`
`DECLARATION OF ZAYDOON JAWADI
`REGARDING CLAIM CONSTRUCTION
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`I, Zaydoon Jawadi, hereby declare as follows:
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`1.
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`My name is Zaydoon Jawadi. I submit this declaration in support of Plaintiff T-
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`Rex Property AB (“T-Rex”). I have been asked to offer technical opinions relating to the claim
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`construction of certain terms of U.S. Patent Nos. RE39,470; 7,382,334; and 6,430,603 (“the ‘470
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`Patent,” “the ‘334 Patent,” and “the ‘603 Patent,” collectively “the patents-in-suit”).
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`2.
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`I have a Bachelor of Science in Electrical Engineering from Mosul University, a
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`Master of Science in Computer Science from Columbia University, and over 35 years of
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`experience in software development, engineering, consulting, and management in the fields of
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`computing systems, Internet, web technologies, data storage, data networking, software
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`applications, telephony, and telecommunication.
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`3.
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`In 2010, I cofounded and am the President of Rate Speeches, Inc., an Internet
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`company providing online communication rating and evaluation services.
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`4.
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`From 2001 to 2006, I was President and cofounder of CoAssure, Inc., a provider
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`of automated web-based telecommunication test services.
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`5.
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`From 1999 to 2001, I was CEO, Chairman, and cofounder of Can Do, Inc. an
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`Internet eCommerce and community company.
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`6.
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`From 1992 to 1996, I was President and founder of Zadian Technologies, Inc., a
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`supplier of data storage test systems, with over 50,000 units installed worldwide.
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`7.
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`In 1996, Zadian Technologies was acquired by Xyratex International LTD
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`(NASDAQ: XRTX, which was acquired in 2014 by Seagate, NASDAQ: STX). Following
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`Zadian's acquisition by Xyratex, I became a general manager at Xyratex until 1998. At Xyratex,
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`I was responsible for a data networking analysis tools business unit, which designed and built
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`Gigabit Ethernet network protocol analysis and monitoring products, which were sold, under
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`OEM agreement, by the largest network protocol analysis and monitoring products supplier.
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`8.
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`Prior to 1992, I worked as a software consultant, a software engineer, and an
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`electrical engineer.
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`9.
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`My experience specifically relevant to the digital signage includes being general
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`manager of a data networking analysis tools business unit at Xyratex, 1997-1998, being general
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`manager of a manufacturing test systems division at Xyratex, 1996-1997, and being president of
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`a manufacturing test systems supplier, Zadian Technologies, 1992-1996. The Xyratex and
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`Zadian manufacturing test systems comprised multiple individual test units (each with an
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`independent LCD display operated by an embedded system) connected through a network to a
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`central control system; the central control system has the ability to control the displays of the
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`individual test units. My experience (1984-1992) also included designing and implementing
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`networked individual devices (each with an independent display operated by embedded system
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`or PC) connected through a network to central control systems that control the display of the
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`individual devices, and included designing and implementing database, applications, and system
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`software as well as drivers and other software for controlling graphics and monitor displays. In
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`addition to my technical work, my background includes being involved with direct marketing
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`and advertising at Zadian Technologies (1992-1996), at Xyratex (1996-1998), at Can Do (1999-
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`2001), at CoAssure (2001-2006), and at Rate Speeches (2010-present).
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`10.
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`I have attached a true and correct copy of my curriculum vitae as Exhibit A,
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`which further sets forth my qualifications.
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`11.
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`I have no financial interest in either party or in the outcome of this proceeding. I
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`am being paid for my work as an expert in these matters on an hourly basis. My compensation is
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`not dependent on the outcome of these proceedings or the content of my opinions. My opinions,
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`as explained below, are based on my education, experience, and background in the fields
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`discussed above, and my review of the patents-in-suit and their file histories, the materials cited
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`by the parties in the Joint Claim Construction chart, petitioners’ and patent-owners’ submissions
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`in the terminated and currently pending IPRs and CBM of the patents-in-suit (IPR 2016-01869,
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`IPR 2017-00006, CBM 2017-00008, IPR 2017-01909, IPR 2017-01911, and IPR 2017-01915),
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`and the other materials discussed herein.
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`12.
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`I understand that the purpose of claim construction is to determine the meaning
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`and scope of the limitations of the claims, so that they may be properly understood and applied in
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`considering issues such as infringement or validity.
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`13.
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`I understand that the claims themselves define the scope of the patented invention.
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`I understand that, unless there is a clear disclaimer of claim scope, terms in the claims of a patent
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`will generally be given their ordinary and customary meaning, as understood by one of ordinary
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`skill in the art at the time of the invention in light of the intrinsic record. I also understand that
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`the claims themselves can provide substantial guidance for the meaning of particular claim
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`terms.
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`14.
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`I understand that it is generally improper to read limitations of the preferred
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`embodiments from the specification into the terms of the claims. However, I also understand
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`that the claims must be read in view of the specification, of which they are a part.
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`15.
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`I understand that the claims are generally interpreted so that they cover what was
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`actually invented and what the inventor intended them to cover, and, in particular, that the claims
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`will generally not be construed as excluding the preferred embodiments described in the
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`specification.
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`16.
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`I understand that the specification is always highly relevant to the claim
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`construction analysis, particularly where it: (i) contains an explicit disclaimer of subject matter as
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`being outside the scope of the invention, (ii) distinguishes prior art or cites particular advantages
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`of the invention over the prior art, (iii) defines the terms contained in the claims, and/or (iv)
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`repeatedly and consistently characterizes “the invention” as having a certain limitation.
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`17.
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`I understand that the prosecution history is often considered less helpful evidence
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`than the specification. I understand that this is because the prosecution history lacks the clarity
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`provided in the specification as the prosecution history represents an ongoing negotiation
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`between the applicant and the Patent Office. However, I understand that statements made in the
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`prosecution history can control the construction of the claim language if they constitute a clear
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`and unambiguous disclaimer of claim scope. I understand that, for the purposes of claim
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`construction, the reexamination history of a patent can be consulted in the same manner as the
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`original prosecution history.
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`18.
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`I understand that evidence extrinsic to the patent may be consulted in performing
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`claim construction, including dictionaries or treatises, the prior art, and the testimony of experts.
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`I understand that dictionaries may help in understanding the underlying technology, the manner
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`in which one skilled in the art might use claim terms, and whether there is an established
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`ordinary meaning of a claim term.
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`19.
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`I understand that expert testimony can be useful in connection with claim
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`construction particularly to provide the background of the technology at issue, to explain how an
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`invention works, and to explain that a particular term in the patent or the prior art has a particular
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`meaning in the pertinent field.
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`20.
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`I understand that, according to paragraph 6 of section 112 of the Patent Act, a
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`claim element may be expressed as a means or step for performing a specified function without
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`the recital of structure, material, or acts in support thereof, and such claim shall be construed to
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`cover the corresponding structure, material, or acts described in the specification and equivalents
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`thereof, and that such a claim term is known as a “means-plus-function” term. I understand that
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`a claim term which recites the word “means” is presumed to be construed in that manner. I
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`understand that the structure disclosed in the written description of the specification is the
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`corresponding structure to a means-plus-function term only if the written description of the
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`specification or the prosecution history clearly links or associates that structure to the function
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`recited in a means-plus-function claim limitation. I understand that if the specification fails to
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`describe such a corresponding structure, then the means-plus-function term is invalid as
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`indefinite.
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`21.
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`I understand that a general-purpose computer is usually only sufficient as the
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`corresponding structure for performing a general computing function, such as for storing data,
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`but the corresponding structure for performing a specific function is required to be more than
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`simply a general purpose computer or microprocessor. I understand that when the disclosed
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`structure of a means-plus-function term is a computer programmed to carry out an algorithm, the
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`disclosed structure is not the general-purpose computer, but rather that special-purpose computer
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`programmed to perform the disclosed algorithm. I understand that, in this context, an algorithm
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`is defined as a finite sequence of steps for solving a logical or mathematical problem or
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`performing a task and may be expressed in the patent in any understandable terms including as a
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`mathematical formula, in prose, in a flow chart, or in any other manner that provides sufficient
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`structure.
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`22.
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`It is my opinion that one of ordinary skill in the field of the patent would have at
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`least a bachelor’s degree in computer science, or a comparable field, or comparable work
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`experience, and at least two years of work experience in designing, operating, or maintaining
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`computer networks and computer display systems.
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`23.
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`For consistency and ease of review, all of my column and line citations to the
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`patent specifications are in “column:line” format.
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`A.
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`“permitting said exposure list to be dynamically updated” (‘470 Patent: cl. 25)
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`24.
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`The term “permitting said exposure list to be dynamically updated” is recited in
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`claim 25 of the ‘470 Patent. I understand that T-Rex has proposed that the term be construed as
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`“Providing the functionality to update the exposure list when and as needed.” Joint Claim Chart,
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`Ex. A at 11. I also understand that Defendants have proposed that the term be construed as
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`“Automatically sorting, in real time, control instructions received from the external information
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`mediator into an existing queue.” Id.
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`25.
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`It is my opinion that the construction proposed by T-Rex is how one of ordinary
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`skill in the art, informed by the specification and teachings of the patent, would interpret the
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`phrase “permitting said exposure list to be dynamically updated” in claim 25 of the ‘470 Patent.
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`It is also my opinion that Defendants’ proposed construction of the term as “automatically
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`sorting, in real time, control instructions received from the external information mediator into an
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`existing queue” is inconsistent with how one of skill in the art would interpret the phrase.
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`26.
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`First, the claim language requires only permitting the exposure list to be
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`dynamically updated, whereas Defendants’ construction requires an automatic sorting.
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`Fundamentally, permitting something and automatically doing something are different concepts.
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`Additionally, in the field of computer science, sorting is a particular and distinct task separate
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`from “updating.” Memory locations and data structures are often updated during the execution
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`of most computer programs without sorting.
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`27.
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`Second, Defendants’ construction appears to require the exposure list to take the
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`form of a queue of control instructions. It is my understanding that the ‘470 Patent teaches the
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`use of a queue, or line, as a structure used to implemented one embodiment. See ‘470 Pat. at
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`7:18-36 (“In one embodiment … in accordance with a preferred embodiment.”). However, it is
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`my opinion that, in light of the overall contents of the specification, a person of skill in the art
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`would understand that not all embodiments of the invention would follow that teaching, and that
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`a person of skill in the art would understand that an exposure list could be implemented in
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`numerous ways, including but not limited to, as a queue of control instructions. Indeed, in
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`computer science, a queue is a particular type of data structure, and not all “lists” are “queues.”
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`28.
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`And finally, Defendants’ construction adds in a requirement of “in real time” that
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`makes no appearance in the claim language. The specification does mention “real time” in
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`describing an object of the invention as “to provide a flexible system in which external
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`information mediators are able to dynamically control in real time the transmission of display
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`instructions to a larger public in different places situated at any chosen distance apart through
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`projectors which project information onto displays intended therefor.” ‘470 Pat. at 2:39-44.
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`However, there is no language in the claim term that incorporates this aspect of the described
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`object of the invention. Moreover, it is my opinion that one of skill in the art would understand
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`this objective as a goal of the invention as a whole, rather than a limitation, and that not all of the
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`described objectives or goals of the patent would be met by all embodiments of the patent. I
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`understand that the specification also describes “the organizing of information being effected in
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`real time” in “one embodiment.” See ‘470 Pat. at 6:42-46, 7:10-36. However, it is my opinion
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`that a person of skill in the art would understand that not all embodiments of the invention would
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`implement that teaching and that a person of skill in the art would understand that the invention
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`could be implemented in numerous ways, including but not limited to, updating the exposure list
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`in real time.
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`29.
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`If Defendants are seeking to interpret “dynamically updated” as “updated in real
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`time,” such interpretation is not supported by the above description of an object of the invention
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`in the specification, which clearly describes, in the preferred embodiment, the external
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`information mediators’ control as being both “dynamically” and “in real time.” See ‘470 Pat. at
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`2:39-44. Thus, one of ordinary skill in the art would thus understand the patent to be describing
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`“in real time” as a different feature than “dynamic” control.
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`30.
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`It is my opinion that T-Rex’s construction captures the ordinary meaning of
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`“dynamically updated” as a person of skill in the art at the time of the invention would
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`understand it. For instance, the fourth edition of the Microsoft Computer Dictionary’s definition
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`of “dynamic”: “describ[ing] some action or event that occurs when and as needed.” MS
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`Computer Dictionary at 158.
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`31.
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`It is my opinion that T-Rex’s construction is also consistent with the plain and
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`ordinary meaning of the term as a person of ordinary skill in the art at the time of the invention
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`would understand it after reviewing the specification. In particular, the specification teaches that
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`“it should be possible to update and change the information quickly.” ‘470 Pat. at 2:26-27. The
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`specification describes the ramifications of not dynamic updating, stating that “the displays on
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`which information is presented will often become static, for instance show the time of the next
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`display or show a pause picture, i.g. [sic] dead time. This becomes nerve-wracking to travellers
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`[sic], who often wait for long periods in waiting halls or stand on platforms.” ‘470 Pat. at 2:29-
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`33. The specification further explains that one object of the invention is “to enable a picture,
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`image or other information to be changed in practice as often as is desired.” ‘470 Pat. at 2:49-53.
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`The specification further explains that “an external information mediator 24 is able to put
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`through information to the system 12 twenty-four hours a day, whereupon the information can be
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`included instantaneously in the exposure list.” ‘470 Pat. at 5:30-35. The specification also
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`explains that “the digital information system is able to insert a change at short notice or to
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`operate a completely different spot. The system is thus highly flexible and enables quick
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`changes to be made with regard to what shall be exposed on the exposure means, where it shall
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`be exposed and when.” ‘470 Pat. at 9:23-28. It is my opinion that a person of skill in the art at
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`the time of the invention would understand these disclosures to mean that the invention includes
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`the ability to update the list of exposures as needed based on input from the user or external
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`information mediator.
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`32.
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`The patent also distinguishes “updating” from “generating” and “organizing.”
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`For example, claim 1 recites “generating, organizing, and dynamically updating an exposure
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`list.” ‘470 Pat. at cl. 1. It is my opinion that a person of skill in the art at the time of the
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`invention would have understood claim 1 to recite “generating,” “organizing,” and “dynamically
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`updating” as distinct, but related, concepts. In general, sorting is a form of “organization,” and,
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`therefore, one of skill in the art would understand the claim’s reference to “organizing” as
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`distinct from “dynamically updating” to imply that “dynamically updating” would not
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`necessarily include “sorting.”
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`“update said exposure list in real time with control instruction fields via dynamic
`booking of information in time for exposure from mediators” (‘334 Patent: cl. 22) /
`“able to create and update said exposure list in real time with control instruction
`fields via dynamic booking of information in time for exposure from mediators”
`(‘334 Patent: cl. 22) / “update an exposure list having control instruction fields, via
`dynamic booking of display information from mediators” (‘334 Patent: cl. 32)
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`10
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`B.
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`33.
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`The term “able to create and update said exposure list in real time with control
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`instruction fields via dynamic booking of information in time for exposure from mediators” is
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`recited in independent claim 22 of the ‘334 Patent. I understand that T-Rex has proposed that the
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`term be construed as “able to create and update the exposure list when and as needed at the time
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`information is submitted by the mediator with at most a short delay due to processing or other
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`quickly passing causes using control instruction fields.” Joint Claim Chart, Ex. A at 11-12. I
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`also understand that Defendants contend this term is indefinite. Id.
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`34.
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`It is my opinion that the one of skill in the art, informed by the specification and
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`the teachings of the patent, would understand this term with reasonable certainty. Further, it is
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`my opinion that the construction proposed by T-Rex is how one of ordinary skill in the art,
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`informed by the specification and teachings of the patent, would interpret the phrase “able to
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`create and update said exposure list in real time with control instruction fields via dynamic
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`booking of information in time for exposure from mediators” in the claims of the ‘334 Patent.
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`35.
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`It is further my opinion that a data field is a well-known term in the art,
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`commonly used to refer to a place designated for particular types of data. It is further my
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`opinion that a person of ordinary skill in the art would understand the term “control instruction
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`fields” with reasonable certainty to refer to a data field designated for control instructions. I
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`discuss this term in more detail below with respect to “control instructions,” and “control
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`instruction fields.”
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`36.
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`The term “update an exposure list having control instruction fields, via dynamic
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`booking of display information from mediators” is recited in independent claim 32 of the ‘334
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`Patent as part of the larger phrase “exposure handler means whereby the control center functions,
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`in real time, and through the medium of said exposure handler, to create and update an exposure
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`list having control instruction fields, via dynamic booking of display information from
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`mediators,” which I discuss below. I understand that T-Rex has proposed that this term be
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`construed as “update when and as needed an exposure list having control information fields
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`based on display information from mediators.” Joint Claim Chart, Ex. A at 7-8. Defendants
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`appear to have proposed to construe this term as “updating an exposure list having control
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`instruction fields, via dynamic booking of display information from mediators.” Id. However,
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`given the similarities between this term and the term “able to create and update said exposure list
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`in real time with control instruction fields via dynamic booking of information in time for
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`exposure from mediators,” it is my understanding that Defendants may also contend that this
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`term is indefinite. For the reasons discussed above with respect to the term “able to create and
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`update said exposure list in real time with control instruction fields via dynamic booking of
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`information in time for exposure from mediators,” it is my opinion that a person of skill in the
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`art, informed by the specification and teachings of the patent, would understand this term with
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`reasonable certainty. Further, it is my opinion, again for the reasons discussed above, that the
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`construction proposed by T-Rex is how one of ordinary skill in the art, informed by the
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`specifications and teachings of the patent, would interpret the phrase “update an exposure list
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`having control instruction fields, via dynamic booking of display information from mediators” in
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`the claims of the ‘334 Patent.
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`37.
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`It is also my opinion, for the reasons set forth in the section “permitting said
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`exposure list to be dynamically updated,” that the term “dynamic booking” in each of these
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`phrases should be interpreted, consistent with my opinion above regarding the term “permitting
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`said exposure list to be dynamically updated,” i.e., that the exposure list is updated when and as
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`needed.
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`C.
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`“means for generating and dynamically updating an exposure list from said control
`instructions” (‘470 Patent: cl. 26)
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`38.
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`The term “means for generating and dynamically updating an exposure list from
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`said control instructions” is recited in independent claim 26 of the ‘470 Patent. I understand that
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`this is a means-plus-function term that should be governed by pre-AIA section 112, paragraph
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`six. I understand that T-Rex has proposed that the function for this term is “generating and
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`updating when and as needed an exposure list from control instructions.” Joint Claim Chart, Ex.
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`A at 3. I further understand that Defendants have proposed that the function for this term is
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`“generating and dynamically updating an exposure list from said control instructions.” Id. As
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`discussed above, it is my opinion that the plain and ordinary meaning of “dynamic” as one of
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`ordinary skill in the art, informed by the specification and teachings of the patent, would
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`understand the term is captured by the definition “when and as needed.” Therefore, it is my
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`opinion that there is no difference between the parties’ proposed constructions for the function
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`for this term. To the extent the Court believes “dynamically” should be explained, it is my
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`opinion that T-Rex’s construction best captures how one of ordinary skill in the art would
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`understand the function of the term “means for generating and dynamically updating an exposure
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`list from said control instructions.”
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`39.
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`I also understand that T-Rex has proposed that the corresponding structure for the
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`term “means for generating and dynamically updating an exposure list from said control
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`instructions” is “a ‘central computer’ (central computer 28 of Fig. 1 of ‘470 Pat.) and associated
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`exposure handler (exposure handler 3 of Fig. 1 of ‘470 Pat.) configured to allocate information
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`relating to projector control instructions according to the following algorithm:
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`1) mediator information is sorted into the exposure list in accordance with the wishes
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`of the mediator or its instructions when available space is found in the exposure list or
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`in alternative places in the exposure list given by the mediator;
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`2) if the exposure list is completely filled with instructions, the mediator instructions
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`to the control centre remain in the queue list in the server in readiness for later
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`inclusion in the exposure list.
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`(‘470 Pat. at 7:25-35)
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`and equivalents thereof.” Joint Claim Chart, Ex. A at 3.
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`40.
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`I also understand that Defendants have proposed that the corresponding structure
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`for this term is “software running on a computer server that creates a queue and automatically
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`sorts the control instructions, in real time into an existing queue, according to the algorithms
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`described in the ’470 patent, col. 7 ll. 18-36, or equivalents thereof.” Joint Claim Chart, Ex. A at
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`3.
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`41.
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`It is my opinion that the construction proposed by T-Rex is how one of ordinary
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`skill in the art, informed by the specification and teachings of the patent, would interpret the
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`corresponding structure for “means for generating and dynamically updating an exposure list
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`from said control instructions” in claim 26 of the ‘470 Patent. In particular, col. 7, ll. 25 to 35 of
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`the ’470 patent describe an algorithm for updating the exposure list and expressly associate that
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`algorithm with “server 1” and “server 3” (which are components of the central computer) and
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`“exposure handler 3.” One of ordinary skill in the art would understand that “mediator
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`information is sorted into the exposure list” would generate an exposure list and/or update an
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`14
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`14
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`existing exposure list and thus associates the structure of the algorithm, exposure handler, and
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`central computer with the recited function.
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`42.
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`It is also my opinion that Defendants’ proposed construction of the corresponding
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`structure as “software running on a computer server that creates a queue and automatically sorts
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`the control instructions, in real time into an existing queue, according to the algorithms described
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`in the ’470 patent, col. 7 ll. 18-36, or equivalents thereof” is inconsistent with how one of skill in
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`the art would interpret the phrase. In particular, Defendants’ proposed algorithm fails to include
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`the specific central computer structure recited and associated with the exposure handler for
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`precisely the function for this term. See ‘470 Pat. at 7:10-51, Fig. 1. Additionally, Defendants’
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`proposed construction appears to conflate the queue of information material received by server 1
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`with an exposure list, which the specification treats as distinct elements. See ‘470 Pat. at 7:32-36
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`(“If the exposure list is completely filled with instructions, the mediator instructions to the
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`control centre remain in the queue list in the servo [sic] 1 in readiness for later inclusion in the
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`exposure list, in accordance with a preferred embodiment.”). From this, one of ordinary skill in
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`the art would understand that the queue would not be performing the function of “generating and
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`dynamically updating an exposure list from said control instructions.”
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`D.
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`“computerized control center means” (‘334 patent: cl. 32)
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`43.
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`The term “computerized control center means” is recited in independent claim 32
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`of the ‘334 Patent. I understand that this is a means-plus-function term that should be governed
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`by pre-AIA section 112, paragraph six. I understand that T-Rex has proposed that the function
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`for this term is “receive and process information from information mediators and transmit
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`information to electronic display stations.” Joint Claim Chart, Ex. A at 5-6. I also understand
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`that Defendants contend that the function for this term is indefinite. Id. I further understand that
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`15
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`T-Rex has proposed that the corresponding structure for this term is “’control center 12’ (‘334
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`Pat. of Fig. 1; 5:59-6:7, 6:17-26) and equivalents thereof.” Joint Claim Chart, Ex. A at 5-6. I
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`also understand that Defendants contend that the corresponding structure for this term is
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`indefinite. Id.
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`44.
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`It is my opinion that the one of skill in the art, informed by the specification and
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`the teachings of the patent, would understand the function and corresponding structure of this
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`term with reasonable certainty. Further, it is my opinion that the construction proposed by T-
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`Rex is how one of ordinary skill in the art, informed by the specification and teachings of the
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`patent, would interpret the function and corresponding structure for the term “computerized
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`control center means.”
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`45.
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`T-Rex’s proposed function accurately describes the function of the claimed
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`“computerized control center means” as “receive and process information from information
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`mediators and transmit information to electronic display stations.” For example, the preamble of
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`claim 32 recites: “[a]n arrangement for coordinating and controlling electronic displays in a
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`digital information system for displaying information on at least one display device through the
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`medium of at least one electronic display, said information being supplied by mediators of
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`information, for exposure or display.”
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`46.
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`Additionally, the specification identifies the function and structure of this term
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`consistently with T-Rex’s construction, and explains that “the system is comprised of a control
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`center 12 having a communication interface 14 which connects an unlimited number of
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`computerized devices 16, 18, 20 which are placed at desired distances from one another for the
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`control of television sets 40 or cameras 22.” ‘334 Pat. at 5:59-63. The specification further
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`explains: “an external information mediator 24 is able to put through information to the system
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`16
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`16
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`12 [the control center] twenty-four hours a day, whereupon the information can be included
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`instantaneously in an exposure list.”