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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SNAP, INC.,
`Petitioner
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`v.
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`BLACKBERRY LIMITED,
`Patent Owner
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`Case No. IPR2019-00715
`Patent No. 8,326,327
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`DECLARATION OF PATRICK McDANIEL, PH.D.
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`Page 1
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`BLACKBERRY 2001
`SNAP, INC. V. BLACKBERRY LIMITED
`IPR2019-00715
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`TABLE OF CONTENTS
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`
`
`VI. 
`
`I. 
`INTRODUCTION AND SCOPE OF WORK ................................................ 5 
`QUALIFICATIONS ........................................................................................ 6 
`II. 
`III.  MATERIALS CONSIDERED ...................................................................... 10 
`IV.  PERSON OF ORDINARY SKILL IN THE ART ........................................ 11 
`V. 
`BACKGROUND OF THE ’327 PATENT ................................................... 12 
`A. 
`’327 Patent Overview (Ex. 1001) ........................................................ 12 
`B. The Prosecution History of the ’327 Patent ............................................... 15 
`INTERPRETATION OF THE ’327 PATENT CLAIMS AT ISSUE ........... 18 
`A. 
`“action spot” ........................................................................................ 19 
`B. “determine/determining at least one action spot within a predetermined
`distance from the current location of the mobile device” ................... 20 
`VII.  ANALYSIS OF GROUND 1: ALLEGED OBVIOUSNESS IN VIEW OF
`WINKLER AND ALTMAN ......................................................................... 22 
`A.  Overview Of Prior Art ......................................................................... 23 
`i.  Winkler ...................................................................................... 23 
`ii. 
`Altman ....................................................................................... 27 
`B. Ground 1 Deficiencies ............................................................................... 27 
`iii. 
`The Petition Presents Inconsistent Mappings For “The At Least
`One Action Spot” Of Independent Claims 1, 10, and 13.......... 28 
`The Petition Has Not Shown That Winkler’s Map Elements
`Correspond To Activity That “Is Occurring” Under The ’327
`Patent’s Definition of “Action Spot” ........................................ 32 
`
`iv. 
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`Page 2
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`v. 
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`vi. 
`
`The Petition Has Not Shown Winkler’s Map Elements
`Correspond To A Location Where At Least One Other Mobile
`Device Has Engaged In Documenting Action .......................... 36 
`The Petition Has Not Shown That The Alleged Winkler-Altman
`Combination Would Have Set A “Predetermined Distance”
`Before Determining “The At Least One Action Spot” ............. 40 
`vii.  The Petition Conflates The Distance From A Tagged Location /
`Map Element With A Distance From Current Location Of A
`First Mobile Device .................................................................. 43 
`viii.  Winkler’s Color-Changing Map Element Is Not A “Graphical
`Item Identifying A Direction, Relative To The Current Location
`[Of The Mobile Device], In Which To Travel In Order To
`Arrive At The Determined At Least One Action Spot” As
`Recited In Claim 10 .................................................................. 46 
`VIII.  ANALYSIS OF GROUNDS 2-4: ALLEGED OBVIOUSNESS IN VIEW
`OF LEMMELA AND CROWLEY (GROUND 2) / IN VIEW OF
`LEMMELA, CROWLEY, AND WINKLER (GROUND 3) / IN VIEW OF
`LEMMELA, CROWLEY, AND WALDMAN (GROUND 4) ..................... 49 
`A.  Overview Of Prior Art ......................................................................... 50 
`ix. 
`Lemmela .................................................................................... 50 
`x. 
`Crowley ..................................................................................... 52 
`B. Grounds 2-4 Deficiencies .......................................................................... 52 
`xi. 
`The Petition Has Not Shown That Lemmela’s Groups Of
`Virtual Location-Based Posts Correspond To Activity That “Is
`Occurring” Under The ’327 Patent’s Definition of “Action
`Spot” .......................................................................................... 53 
`xii.  Lemmela Does Not Provide An “Activity Level” As Recited In
`Independent Claims 1 and 13 .................................................... 58 
`xiii.  Winkler’s Color-Changing Map Element Is Not A “Graphical
`Item Identifying A Direction, Relative To The Current Location
`[Of A First Mobile Device], In Which To Travel In Order To
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`Arrive At The Determined At Least One Action Spot” As
`Recited In Claim 10 .................................................................. 62 
`IX.  LEGAL STANDARDS ................................................................................. 63 
`A.  Obviousness ......................................................................................... 64 
`XI.  ADDITIONAL REMARKS .......................................................................... 69 
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`Page 4
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`I, Patrick D. McDaniel, of State College, Pennsylvania, declare that:
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`I.
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`INTRODUCTION AND SCOPE OF WORK
`1.
`I have been retained by Fish & Richardson P.C. as an expert witness
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`on behalf of BlackBerry Limited (“Blackberry” or “Patent Owner”). I understand
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`that Snap, Inc. (“Snap” or “Petitioner”) filed a petition for inter partes review
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`(“IPR”) of claims 1-3, 8-11, 13-15, and 20 of U.S. Patent No. 8,326,327 (“the ’327
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`patent”), and the case was assigned case no. IPR2019-00715.
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`2.
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`I have been asked to provide my independent analysis of the ’327
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`patent in light of the materials cited below and my knowledge and experience in
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`this field during the relevant period. I have been asked to consider what a person
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`of ordinary skill in the art at the time of the invention of the ’327 patent (a
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`“POSITA”; refer to ¶¶16-17) would have understood from the teachings of the
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`’327 patent, including scientific and technical knowledge related to the ’327 patent.
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`I have also been asked to consider whether the references cited in the Petition
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`anticipate or render obvious the inventions described by claims 1, 10, and 13 of the
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`’327 patent. I have been told that this is only a preliminary stage of this
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`proceeding, and accordingly, I address at this stage only certain aspects of the
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`Petition and only some of my analysis of the cited grounds. I reserve the
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`opportunity to address other issues and provide further analysis at a later date
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`should it become necessary.
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`3.
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`I am being compensated according to my normal hourly rate for my
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`time providing my independent analysis in this aforementioned IPR proceeding,
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`but my compensation is not contingent in any way on the content of my analysis or
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`the outcome of this proceeding. I am not, and never was, an employee or agent of
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`BlackBerry Limited, the owner of the ’327 patent.
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`II. QUALIFICATIONS
`4. My findings, as explained below, are based on my study, experience,
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`and background discussed below, informed by my extensive experience in the
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`fields of mobile systems, computer software, networking, and user experience
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`design at the pertinent timeframe, and my education as a computer scientist and
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`subsequent decades of work in research and development in these field. As
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`described in more detail below, based on my experiences, I understand and know
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`of the capabilities of persons of ordinary skill in the fields of computer software,
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`networking, and user experience design during the late 2000s and early 2010s, and
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`indeed, I have personal knowledge and experience in working directly with many
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`such persons in these fields during that time frame. I have also relied on my
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`review and analysis of the prior art cited in the petition, information provided to
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`me in connection with this case, and information I have independently reviewed.
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`5.
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`I earned a Ph.D. in Computer Science and Engineering from
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`University of Michigan, Ann Arbor in 2001. I earned a Bachelor of Science degree
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`in Computer Science from Ohio University in 1989 and a Master of Science
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`degree, also in Computer Science, from Ball State University in 1991.
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`6.
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`Since 2017, I have been the William L. Weiss Professor of
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`Information and Communications Technology in the School of Electrical
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`Engineering and Computer Science at the Pennsylvania State University in
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`University Park, Pennsylvania. I am also the director of the Institute for Network
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`and Security Research, director of the National Science Foundation Funded Center
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`for Trustworthy Machine Learning, and founder and co-director of the Systems
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`and Internet Infrastructure Security Laboratory, a research laboratory focused on
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`the study of security in diverse network and computer environments. My research
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`efforts primarily involve computer systems, mobile device systems and security,
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`network, management, and authentication, systems security, and technical public
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`policy.
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`7.
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`Before my current position, I was an Assistant Professor (2004-2007),
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`Associate Professor (2007-2011), Full Professor (2011-2015), and Distinguished
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`Professor (2015-2017) of Computer Science and Engineering at the Pennsylvania
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`State University. Since 2004, I have taught several courses in the field of computer
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`systems, systems programming, networks, and network and computer security at
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`both the undergraduate and graduate level. I created and continue to maintain
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`several of these courses for Penn State.
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`8.
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`From 2003-2009, I was also an Adjunct Professor at the Stern School
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`of Business at New York University in New York, NY. At the Stern School of
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`Business, I taught courses in computer and network security and online privacy.
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`9.
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`I am a Fellow of the Association for Computing Machinery (the
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`leading professional association for computer science) for “contributions to
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`computer and mobile systems security” and the Institute for Electrical and
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`Electronics Engineering (the leading professional association for computer
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`engineering) for “contributions to the security of mobile communications”.
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`10.
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`I was the Program Manager (PM) and lead scientist for the Cyber
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`Security Collaborative Research Alliance (CRA) from 2012 to 2018. The CRA is
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`led by Penn State University and includes faculty and researchers from the Army
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`Research Laboratory, Carnegie Mellon University, Indiana University, the
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`University of California-Davis, and the University of California-Riverside. This
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`national scale initiative is a research project aimed at developing a new science of
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`cyber-security for military networks, computers, and installations.
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`11.
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`I have served as an advisor to several Ph.D. and master’s degree
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`candidates, several of whom have gone on to become professors at various
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`institutions such as Purdue University, North Carolina State University, the
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`University of Oregon, and the Georgia Institute of Technology. I am currently an
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`advisor to two Ph.D. candidates and a number of master’s students.
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`12. Before joining Pennsylvania State University as a professor, I was a
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`software developer and project manager for companies in the networking industry
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`including Applied Innovation, Inc. and Primary Access Corporation. I was also a
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`senior researcher at AT&T Research-Labs. As part of my duties in these industrial
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`positions, I designed and implemented online services and features in various
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`contexts.
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`13.
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`I have published extensively in the fields of network and security
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`management, mobile networking and device operating systems, computer systems,
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`authentication, systems security, applied cryptography and network security. In
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`addition to writing several articles for industry journals and conferences, I have
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`authored portions of numerous books related to computer systems, applied
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`cryptography and network security. I have served on the editorial boards of several
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`peer-reviewed journals including ACM Transactions on Internet Technology, for
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`which I was the Editor-in-Chief. I was also an Associate Editor for ACM
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`Transactions on Information and System Security and IEEE Transactions of
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`Software Engineering, two highly-regarded journals in the field. A complete list of
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`my publications in the last 10 years, as well as a list of editorial positions can be
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`found in my curriculum vitae, which I have attached to this declaration as
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`Appendix A.
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`14.
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`In view of the foregoing, I believe I possess the expertise to testify
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`from the perspective of a POSITA with respect to the technology at issue in this
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`case.
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`III. MATERIALS CONSIDERED
`15.
`In preparing this declaration, I have considered the claims,
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`specification, and prosecution history of the ’327 patent. I have also read and
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`considered the Petition for inter partes review in Case No. IPR2019-00715. As
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`part of my analysis for this Declaration, I have considered my own knowledge and
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`experience, including my work and experience in the fields of computer software,
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`networking, and user experience design, and my experience in working with others
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`in these fields. Some additional materials that I have reviewed in preparing this
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`declaration include the following documents:
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` Ex. 1001: U.S. Patent No. 8,326,327 (“the ‘327 Patent”)
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` Ex. 1002: Declaration of Dr. Samrat Bhattacharjee
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` Ex. 1004: U.S. Patent No. 8,750,906 (“Winkler”)
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` Ex. 1005: U.S. Patent Application Publication No 2008/0250337
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`(“Lemmela”)
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` Ex. 1006: U.S. Patent Application Publication No. 2007/0281716
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`(“Altman”)
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` Ex. 1007: File History of U.S. Patent No. 8,326,327
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`Page 10
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` Ex. 1008: U.S. Patent No. 7,593,740 (“Crowley”)
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` Ex. 1010: Complaint for Patent Infringement, Case No. 2:18-cv-
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`02693 (C.D. Cal.)
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` Ex. 1011: U.S. Patent Application Publication No. 2011/0199479
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`(“Waldman”)
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` Ex. 2002: Corrected Final Ruling on Claim Construction/Markman
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`Hearing, Blackberry Limited v. Snap Inc., Case Nos. CV 18-1844-GW
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`& 18-2693-GW (C.D. Cal. April 5, 2019) (“Markman Order”)
`
`IV. PERSON OF ORDINARY SKILL IN THE ART
`16.
`I understand that the teaching of the prior art is viewed through the
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`eyes of a POSITA. My analysis is thus based on the perspective of a POSITA
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`having this level of knowledge and skill at the relevant time of the invention. For
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`purposes of my analysis, I have been informed that the priority date of the ’327
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`patent is no later than the August 27, 2010 timeframe, and I have applied this
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`timeframe as being the relevant time for the perspective of a POSITA. For
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`purposes of assessing the level of ordinary skill in the art, I have considered the
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`types of problems encountered in the art, the prior solutions to those problems
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`found in prior art references, the speed with which innovations were made at that
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`time, the sophistication of the technology, and the level of education of active
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`workers in the field. As previously described, I have reviewed and understand the
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`’327 patent. Based on my above-described experience, I am familiar with and
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`know of the capabilities of a POSITA in this field during the late 2000s and early
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`2010s.
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`17. Based upon my knowledge and experience in this area, I believe a
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`POSITA at the time of the invention would have had a bachelor of science degree
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`in computer engineering/computer science or similar subject matter, or at least
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`approximately two years of work or research experience in the fields of computer
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`software, networking, and/or user experience design, or an equivalent subject
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`matter. My opinion as to the level of ordinary skill in the art would remain the
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`same regardless of whether the time of the invention is found to be August 2010,
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`or anytime in the late 2000s to early 2010s.
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`V. BACKGROUND OF THE ’327 PATENT
`A.
`’327 Patent Overview (Ex. 1001)
`18. The ’327 patent is titled “System and Method For Determining Action
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`Spot Locations Relative To The Location Of A Mobile Device.” As the title
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`indicates, the ’327 patent relates to determining action spot locations relative to the
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`current location of a mobile device.
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`19. Prior to the ’327 patent, users could use an electronic device, such as a
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`mobile phone, to locate nearby events and happenings. EX1001, 3:2-20. The
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`patentee recognized this process as tedious and inefficient. Id. Users searching for
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`events were forced to consult multiple sources and/or applications. Id. Users
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`would then cross-reference the locations of those events with a map, such as a map
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`application on a smartphone, but the mapping applications contained limited
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`functionality:
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`Typically, the maps and directions are limited in
`information. For example, maps are limited to displaying
`the streets within a city. In order to find information
`relating to events and happenings currently occurring
`proximate to the mobile device's present location, the user
`of the mobile device will have to search an external
`resource, such as an electronic events calendar, internet
`sites, internet calendars of individual business or event
`holders (stores, restaurants, concert venues, bars, etc.), and
`compare the locations of the found events and happenings
`to the mobile device's current location. Such a process of
`manually researching events and happenings, determining
`the location of the events and happenings, and comparing
`the location of the events and happenings to the user's
`current location is tedious and results in user frustration.
`Moreover, the results of the user's research of current
`events and happenings can be incomplete and inaccurate,
`and the user can miss certain happenings that are close in
`proximity to the current location of the user's mobile
`device.
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`EX1001, 3:2-20.
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`20. The ’327 patent presented a new solution. Namely, the ’327 patent
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`determines locations or events at which one or more mobile devices are engaged in
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`certain activity, such as taking pictures or videos, posting pictures or videos to
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`social networking sites, or sending or posting messages. EX1001, 3:64-4:23. The
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`’327 patent then presents a visual indication of these locations, known as “action
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`spots,” and may visually depict the amount of activity occurring at the action
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`spot(s). Id., 4:24-44. Thus, “a user can review information related to current
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`happenings within the vicinity of the user’s mobile device” by drawing upon
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`locations at which mobile devices are performing activities such as documenting
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`actions. Id.
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`21. Figure 3, depicted below, is an illustrative implementation of a
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`graphical user interface displaying an action spot within a predetermined distance
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`from a current location of a mobile device. Id., 1:46-48. In the figure, the current
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`location of the mobile device is depicted by item 302, and “the processor 110
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`identifies two action spots with[in] a predetermined distance from the current
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`location 302 of the mobile device 100. The action spots 304, 306 are signified on
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`the map 206 by graphical items that are clouds” Id., 6:9-16. In this example, items
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`are sized to indicate the level of activity associated with the action spot, with 304
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`being larger than 306 to indicate more activity, such as more postings to social
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`media sites being made by mobile devices at that location. Id., 6:23-50. Activity
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`levels may also be depicted by varying colors, such as by using yellow to indicate
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`moderate action and green to indicate large action. Id.
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`EX1001, FIG. 3. I note that, according to the teachings of the ’327 patent, not all
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`elements on the map are “action spots” within the meaning of the term as it is
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`defined in the ’327 patent; for example, the specification expressly teaches some
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`elements on the map are simply “graphical representations 308” that identify pre-
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`existing “venues, locations, monuments, buildings, streets, lakes, and other
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`location landmarks.” Id., 5:54-58.
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`B.
`22.
`
`The Prosecution History of the ’327 Patent
`I understand the ’327 patent was filed on August 27, 2010. The
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`original independent claim 1 recited the following language:
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`EX1007, 34.
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`23. The examiner mailed a first office action on April 18, 2012, and
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`alleged that the original claims were anticipated by U.S. Patent Application
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`Publication No. 2010/0004005 (“Pereira”) or obvious in view of Pereira and
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`certain secondary references. Id., 143-151.
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`24.
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`In a response to the first office action dated July 2, 2012, the applicant
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`amended independent claims 1 and 10 as follows (claim 13 was amended in a
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`similar manner):
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`Id., 166-169.
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`25.
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`In remarks addressing the rejections in the first office action, the
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`applicant argued that the claims were novel and non-obvious over Pereira because
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`Pereira failed to disclose “at least one action spot” that met each of the required
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`characteristics of the at least one action spot recited in the independent claims.
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`See, e.g., id., 171 (“Pereira determines the presence of a friend simply by that
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`friend’s device’s location data and does not determine a location where an
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`electronic device has engaged in documenting action.”).
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`26.
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` Following the applicant’s response to the first office action, the
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`examiner mailed a Notice of Allowance on August 16, 2012. Id., 178.
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`27. The examiner did not expressly describe his reasons for allowance.
`
`Id.
`
`VI.
`
`INTERPRETATION OF THE ’327 PATENT CLAIMS AT ISSUE
`28.
`I understand that, for purposes of my analysis in this IPR proceeding,
`
`the terms appearing in the patent claims should be interpreted according to their
`
`plain and ordinary meaning under the Phillips standard. Phillips v. AWH Corp.,
`
`415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc). According to Phillips, the
`
`structure of the claims, the specification, and the patent prosecution history are
`
`used to construe a claim, and the “ordinary meaning” of a claim term is its
`
`meaning that would have been recognized by a POSITA after reading the entire
`
`patent. Moreover, Phillips provides that even treatises and dictionaries may be
`
`used, albeit under limited circumstances, to determine the meaning attributed by a
`
`POSITA to a claim term at the time of filing. For example, Phillips cautions
`
`against heavy reliance on the dictionary divorced from the intrinsic record of the
`
`patent, such as the patent’s specification. I have followed this approach in my
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`analysis.
`
`29.
`
`I also understand that the words of the claims should be interpreted as
`
`they would have been interpreted by a POSITA at the time the invention was made
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`(not today). For purposes of my analysis here, I have used the August 27, 2010
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`filing date of the ’327 patent as the date of invention. Without exception, however,
`
`my analysis of the proper meaning of the recited claim elements (under the Phillips
`
`standard) in this Declaration would be correct if the date of invention was
`
`anywhere in the late 2000s or early 2010s.
`
`30.
`
`I understand that the district court in a related proceeding involving
`
`the ’327 patent issued a Corrected Final Ruling on Claim Construction (“Markman
`
`Order”) on April 5, 2019. EX2002. I have reviewed the sections of the Markman
`
`Order that pertain to the ’327 patent. I understand that the claim construction
`
`standard under Phillips that applies in this inter partes review is the same standard
`
`that the court applied in its Markman Order. For purposes of my analysis of the
`
`challenged claims in this IPR proceeding, I have employed the same constructions
`
`that were adopted by the court in the Markman Order (including those
`
`constructions that were agreed upon by the parties). I also specifically address two
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`constructions below that have particular relevance to issues in the petition for inter
`
`partes review and that are consistent with the constructions adopted by the court in
`
`the Markman Order.
`
`A. “action spot”
`31. The ’327 patent explicitly defines the term “action spot” as “a location
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`or an event where at least one activity is occurring relative to the current location
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`of another mobile device.” EX1001, 2:63-65. I understand that the parties in the
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`related litigation agreed to this exact definition for purposes of that proceeding, and
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`the court also adopted this construction under the Phillips standard. EX2002, 9.
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`Based on my review of the claims in the context of the specification and the file
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`history, I agree with this definition of the term “action spot” and I have applied this
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`definition in my analysis as set forth throughout this declaration.
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`32. The petition did not specifically provide any formal construction for
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`the term “action spot,” and as explained in detail below, the petition does not
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`expressly compare the cited prior art references to the formal construction of the
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`claimed “action spot” as it was defined in the specification and adopted by the
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`parties and the court. See Pet., 15-19.
`
`B.
`
`33.
`
` “determine/determining at least one action spot within a
`predetermined distance from the current location of the mobile
`device”
`Independent claims 1, 10, and 13 of the ’327 patent each recite the
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`phrase “determine/determining at least one action spot within a predetermined
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`distance from [a] current location of [a] mobile device.” EX1001, 19:26-31, 20:6-
`
`11, 13:28-33. I understand the petition proposes to construe this phrase to mean
`
`“determine each action spot within a specific distance from the current location of
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`the first mobile device, the specific distance being set prior to the determining
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`step.” Pet., 16-17 (emphasis added). Petitioner’s construction thus emphasizes
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`three limitations: (1) that “each” action spot must be determined within a distance
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`from the current location of the first mobile device, (2) that action spots are to be
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`determined within “specific distance” from the current location of the first mobile
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`device, and (3) that the specific distance is set prior to the determination of the
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`action spots.
`
`34.
`
`I also understand that petitioner argued for the same construction in
`
`the related litigation over the ’327 patent. EX2002, 36. However, the district court
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`rejected petitioner’s construction, and specifically found that the claims do not
`
`require either of the petitioner’s first two limitations—i.e., the claims do not
`
`require determining “each” action spot within the predetermined distance and also
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`do not require determining action spots within a “specific distance” from the
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`current location of the first mobile device. EX2002, 36-38. The district court did
`
`agree that “the plain language of the claim requires that the predetermined distance
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`be set before the at least one action spot is determined.” Id., 38.
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`35. Based on my review of the claims in the context of the specification
`
`and the file history, I believe the phrase “determine/determining at least one action
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`spot within a predetermined distance from [a] current location of [a] mobile
`
`device” does not require a formal construction and should be interpreted according
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`to its plain and ordinary meaning. In particular, the terms in the original claim
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`language would have been readily understandable by a POSITA, especially in the
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`context of the ’327 patent specification, and there is no specialized terminology
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`that would require a formal construction. Also, the petitioner’s proposed
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`construction for this phrase attempts to import added limitations that seem to be
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`inconsistent with the actual claim language (“at least one” action spot, not “each”
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`action spot) and inconsistent with the language of other claims (e.g., petitioner’s
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`proposal for the “specified distance” limitation would appear to create a scope for
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`claim 1 that is not consistent with dependent claim 5). These facts are also
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`explained in the court’s Markman order. EX2002, 36-38. For purposes of my
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`analysis in this declaration, I have applied the district court’s conclusions as set
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`forth in the Markman Order as consistent with the plain and ordinary meaning of
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`this limitation. For example, neither of claims 1, 10, or 13 require determination of
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`“each” action spot, a “predetermined distance” is not limited to a “specific
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`distance,” and the “predetermined distance” must be set before the at least one
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`action spot is determined.
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`VII. ANALYSIS OF GROUND 1: ALLEGED OBVIOUSNESS IN VIEW
`OF WINKLER AND ALTMAN
`36.
`I understand that the petition relies on Winkler and Altman in alleging
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`obviousness of claims 1-3, 8, 10-11, and 13-15. Based on my knowledge and
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`experience in the field and my review of Winkler and Altman, I believe the petition
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`commits a number of errors in its application of Winkler’s and Altman’s teachings
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`to the limitations of independent claims 1, 10, and 13. Specifically, I believe the
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`petition has failed to show that claims 1, 10, or 13 would have been obvious in
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`view of Winkler and Altman for at least the following reasons.
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`A. Overview Of Prior Art
`i.
`Winkler
`37. Winkler, titled “Dynamic Elements On a Map Within a Mobile
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`Device, Such As Elements That Facilitate Communications Between Users,” is a
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`U.S. patent that was filed February 20, 2009, and published June 10, 2014.
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`EX1004, 1. Winkler generally describes “[a] system and method for providing
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`information on a map displayed by a mobile device.” EX1004, Abstract.
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`Winkler’s system presents location-based information to a user through “map
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`elements” overlaid on a map on the user’s mobile device. Id., 2:6-26, 3:62-4:5,
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`FIGS. 5, 6A-6C. A “map element” can be a pin, icon, or other visual indicator
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`associated with a particular location or map feature (e.g., a restaurant, store, bar, or
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`other venue). Id., 3:62-4:5, 10:10-31, 11:1-15, FIGS. 6A-6C.
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`38. Winkler also describes that the system “changes” the pre-existing map
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`elements “based on events that occur at or proximate to … a location associated
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`with the element.” Id., 10:3-7; see also 2:16-33, 11:16-26. Figures 6A-6C
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`illustrate a relevant example:
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`EX1004, FIGS. 6A-6C.
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`39.
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`In FIG. 6A, a map element 610 is depicted in the form of a light-
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`colored pin that points to a particular location on the map. Id., 11:3-5. Winkler
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`discloses a number of ways in which the map element 610 may be initially
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`generated. See, e.g., id., 10:10-16 (“In step 510, the system generates a map
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`element based on input received from a user. For example, a user selects a map
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`application, the mobile device launches a map application to display a map, and the
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`user selects a location on the map via a touch screen. Alternatively, the user input
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`may include a search query in a browser or other application that is relevant to
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`locations. The map application may present one or more user-selectable icons to
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`place at the location(s). The system generates one or more map elements, such as
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`pin icons, based on the input identifying a location of a user’s mobile device, a
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`location input by the user or another location.”), 6:14-26, 11:61-63.
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`40. As I explain further in my analysis below, the display of a map
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`element in Winkler’s system does not mean that activity (e.g., “documenting
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`action”) is occurring at the location associated with the map element—and
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`certainly not relative to the current location of the user’s mobile device. See
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`supra, Section VI.A (explaining the ’327 patent’s definition of an “action spot” as
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`“a location or an event where at least one activity is occurring relative to the
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`current location of another mobile device”); EX1001, 2:63-65. First, Winkler’s
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`map elements are displayed merely, for example, as a result of having been
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`“tagged” by a user for generation on the map, e.g., thereby allowing the user to
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`communicate with other users by posting comments to the pre-existing element
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`over time or allowing the user to monitor for the occurrence of “events” at the pre-
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`existing element. Id., 5:64-6:2, 5:60-7:15 (communication between users via map
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`elements), 11:16-24 (update displayed map elements responsive to events).
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`Second, in many cases, the user generating the map element need not be at the
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`actual location, and the map element may be displayed regardless of the user’s
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`current location.
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`41. After map element 610 is initially displayed, Figure 6B shows that the
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`pin icon for the elemen