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`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`BLACKBERRY LIMITED, a
`Canadian corporation,
`Plaintiff,
`
`v.
`
`FACEBOOK, INC., a Delaware
`corporation, WHATSAPP INC., a
`Delaware corporation, and
`INSTAGRAM, INC., a Delaware
`corporation, and INSTAGRAM,
`LLC, a Delaware limited liability
`company
`
`Defendants.
`
`BLACKBERRY LIMITED, a
`Canadian corporation,
`Plaintiff,
`
`v.
`
`SNAP INC., a Delaware corporation
`Defendant.
`
`)
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`
`CASE NO. 2:18-cv-01844
`GW(KSx)
`DECLARATION OF CRAIG
`ROSENBERG, PH.D.
`REGARDING CLAIM
`CONSTRUCTION
`
`CASE NO. 2:18-cv-02693
`GW(KSx)
`
`05710-00015/10634657.5
`
`Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ROSENBERG DECLARATION ON CLAIM CONSTRUCTION (’713 AND ’120 PATENTS)
`
`Facebook's Exhibit No. 1017 - Page 1
`
`

`

`
`
`I.
`
`I, Craig Rosenberg, declare as follows:
`Introduction
`1. My name is Craig Rosenberg.
`2.
`I have been retained by counsel for Plaintiff BlackBerry Limited
`(“BlackBerry”) as an expert in this litigation to provide opinions concerning certain
`claim terms in U.S. Patent Nos. 8,301,713 (’713 Patent) and U.S. Patent No.
`9,349,120 (’120 Patent).
`3.
`I am being compensated at my standard billing rate of $475 per hour
`for time spent on this matter.
`4. My compensation is in no way dependent on the outcome of this
`investigation.
`II. Background And Qualifications
`5.
`I am an independent consultant. The opinions stated in this declaration
`are my own and based on my personal knowledge and professional judgment. In
`forming my opinions, I have relied on my knowledge and experience in designing,
`developing and deploying a wide range of software application and graphical user
`interfaces, and on the documents and information referenced in this declaration.
`6.
`I hold a Bachelor of Science in Industrial Engineering, a Master of
`Science in Human Factors, and a Ph.D. in Human Factors from the University of
`Washington School of Engineering. For 30 years, I have worked in the areas of
`human factors, user interface design, software development, software architecture,
`systems engineering, and modeling and simulation across a wide variety of
`application areas, including aerospace, communications, entertainment, and
`healthcare.
`7.
`I graduated from the University of Washington in 1988 with a B.S. in
`Industrial Engineering. After graduation, I continued my studies at the University of
`Washington. In 1990, I obtained an M.S. in Human Factors. In 1994, I graduated
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`with a Ph.D. in Human Factors. In the course of my doctoral studies, I worked as an
`Associate Assistant Human Factors Professor at the University of Washington
`Industrial Engineering Department. My duties included teaching, writing research
`proposals, designing and conducting funded human factors experiments for the
`National Science Foundation, as well as hiring and supervising students. While
`studying at the University of Washington, I also worked as a human factors
`researcher and designed and performed advanced human factors experiments
`relating to virtual environments and interface design, stereoscopic displays, and
`advanced visualization research, which was funded by the National Science
`Foundation. My duties included user interface design, systems design, software
`development, graphics programming, experimental design, as well as hardware and
`software interfacing.
`8.
`I have published twenty-one research papers in professional journals
`and proceedings relating to user interface design, computer graphics, and the design
`of spatial, stereographic, and auditory displays. I also authored a book chapter on
`augmented reality displays in the book “Virtual Environments and Advanced
`Interface Design” (Oxford University Press, 1995). In addition, I created one of the
`first spatial musical instruments called the MIDIBIRD that utilized the MIDI
`protocol, two six-dimensional spatial trackers, a music synthesizer, and a computer
`graphics workstation to create an advanced and novel musical instrument.
`9. My Ph.D. dissertation was titled “Evaluating Alternative Controllers
`using the MIDI Protocol for Human-Computer Interaction.” This research explored
`the use of programming a musical keyboard to be used as a human-computer
`interaction device for controlling computer graphics.
`10. For the past 21 years, I have served as a consultant for Global
`Technica, Sunny Day Software, Stanley Associates, Techrizon, CDI Corporation,
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`and the Barr Group. In this capacity, I have provided advanced engineering services
`for many companies.
`11.
`I consulted for the Boeing Company for over 16 years as a senior
`human factors engineer, user interface designer, and software architect for a wide
`range of advanced commercial and military programs. Many of the projects that I
`have been involved with include advanced software development, user interface
`design, agent-based software, and modeling and simulations in the areas of missile
`defense, homeland security, battle command management, computer aided design,
`networking and communications, air traffic control, location-based services, and
`Unmanned Aerial Vehicle (“UAV”) command and control. Additionally, I was the
`lead system architect developing advanced air traffic controller workstations and air
`traffic control analysis applications, toolsets, and trade study simulations for Boeing
`Air Traffic Management.
`12.
`I was also the architect of the Boeing Human Agent Model. The Boeing
`Human Agent Model is an advanced model for the simulation of human sensory,
`cognitive, and motor performance as applied to the roles of air traffic controllers,
`pilots, and UAV operators. In another project, I was the lead human factors engineer
`and user interface designer for Boeing’s main vector and raster computer aided
`drafting and editing system that produces the maintenance manuals, shop floor
`illustrations, and service bulletins for aircraft produced by the Boeing Commercial
`Aircraft Company. Additional responsibilities in my time as a consultant include
`system engineering, requirements analysis, functional specification, use case
`development, user stories, application prototyping, modeling and simulation, object-
`oriented software architecture, graphical user interface analysis and design, as well
`as UML, C++, C#, and Java software development.
`13.
`In 1995 and 1996, I was hired as the lead human factors engineer and
`user interface designer for the first two-way pager produced by AT&T. Prior to this
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`-3- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
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`technology, people could receive pages but had no way to respond utilizing their
`pager. This new technology allowed users to use a small handheld device to receive
`and send canned or custom text messages, access and update an address book, and
`access and update a personal calendar. This high-profile project involved designing
`the entire feature set, user interface/user interaction design and specification, as well
`as all graphical design and graphical design standards.
`14. From 1999–2001, I was the lead human factors engineer and user
`interface designer for a company called Eyematic Interfaces that was responsible for
`all user interface design and development activities associated with real-time mobile
`handheld 3D facial tracking, animation, avatar creation and editing software for a
`product for Mattel. My work involved user interface design, human factors analysis,
`requirements gathering and analysis, and functional specifications.
`15.
`I was the lead user interface designer for a company called
`ObjectSpeed that developed a portable handheld telephone for use in homes and
`businesses that had many of the same capabilities that we take for granted in mobile
`cellular phones. This portable multifunction device supported voice, email, chat,
`video conferencing, internet radio, streaming media, Microsoft Outlook integration,
`photo taking and sharing, etc. The ObjectSpeed device was specifically designed
`and developed as a portable handheld device.
`16.
`I am the founder, inventor, user interface designer, and software
`architect of WhereWuz. WhereWuz is a company that produces advanced mobile
`software running on GPS-enabled smartphones and handheld devices. WhereWuz
`allows users to record exactly where they have been and query this data in unique
`ways for subsequent retrieval based on time or location. WhereWuz was specifically
`designed and developed to run on small handheld devices.
`17.
`I am the co-founder of a medical technology company called Healium.
`Healium developed advanced wearable and handheld user interface technology to
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`allow physicians to more effectively interact with electronic medical records. I am
`also the co-founder of a medical technology company called StratoScientific.
`StratoScientific is developing an innovative case for a smartphone that turns a
`standard handheld smartphone into a full featured digital stethoscope that
`incorporates visualization and machine learning that can be utilized for telemedicine
`and automated diagnosis.
`18.
`I designed and developed a large software project for Disney World
`called xVR that allowed the operational employees of Disney World to utilize a
`handheld device to view the current and historical status of all of the guests of
`Disney World within multiple attractions as well as within one of their restaurants.
`The application could run in a real-time/live mode where it would display data
`collected from sensors that showed the location and status of all guests within the
`attraction; the application could also be run in a fast-time/simulated mode. The
`application was developed on a laptop computer and was specifically designed to
`run on a variety of devices, including laptops, PCs, smartphones, and tablets.
`19.
`I have received several awards for my engineering work relating to
`interface design, computer graphics, and the design of spatial, stereographic, and
`auditory displays, including a $10,000 scholarship from the I/ITSEC for advancing
`the field of interactive computer graphics for flight simulation and a Link
`Foundation award for furthering the field of flight simulation and virtual interface
`design. I have also created graphics for several popular book covers as well as
`animations for a movie produced by MIRAMAR.
`20. No part of my compensation is dependent upon the outcome of this
`case or any issue in it. I have no other interests in this litigation or with any of the
`parties.
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`21. My curriculum vitae is attached as Exhibit A. In view of the foregoing,
`I am qualified to testify as one skilled in the art with respect to the technology at
`issue in this matter.
`III. Applicable Legal Standards
`22.
`I understand that claim construction is for the Court to decide.
`23.
`I further understand that claim terms should be given their ordinary and
`customary meaning within the context of the patent in which the terms are used, i.e.,
`the meaning that the term would have to a person of ordinary skill in the art in
`question at the time of the invention in light of what the patent teaches.
`24.
`I understand that to determine how a person of ordinary skill would
`understand a claim term, one should look to those sources available that demonstrate
`what a person of skill in the art would have understood disputed claim language to
`mean. Such sources include the words of the claims themselves, the remainder of
`the patent’s specification, the prosecution history of the patent (all considered
`“intrinsic” evidence), and “extrinsic” evidence concerning relevant scientific
`principles, the meaning of technical terms, and the state of the art.
`25.
`I understand that words or terms should be given their ordinary and
`accepted meaning unless it appears that the inventors were using them to mean
`something else. In making this determination, of paramount importance are the
`claims, the patent specification, and the prosecution history. Additionally, the
`specification and prosecution history must be consulted to confirm whether the
`patentee has acted as its own lexicographer (i.e., provided its own special meaning
`to any disputed terms), or intentionally disclaimed, disavowed, or surrendered any
`claim scope.
`26. Accordingly, a claim construction analysis must begin and remain
`centered on the claim language itself. Additionally, the context in which a term is
`used in the asserted claim can be highly instructive. Likewise, other claims of the
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`patent in question, both asserted and unasserted, can inform the meaning of a claim
`term. For example, because claim terms are normally used consistently throughout
`the patent, the usage of a term in one claim can often illuminate the meaning of the
`same term in other claims. Differences among claims can also be a useful guide in
`understanding the meaning of particular claim terms.
`27.
`I understand that a person of ordinary skill in the art is deemed to read a
`claim term not only in the context of the particular claim in which the disputed term
`appears, but in the context of the entire patent, including the specification. For this
`reason, the words of the claim must be interpreted in view of the entire specification.
`The specification is the primary basis for construing the claims.
`28.
`I understand that claim terms must be construed in a manner consistent
`with the context of the intrinsic record. In addition to consulting the specification,
`one should also consider the patent’s prosecution history. The prosecution file
`history provides evidence of how both the Patent Office and the inventor(s)
`understood the terms of the patent, particularly in light of what was known in the
`prior art. Further, where the specification describes a claim term broadly, arguments
`and amendments made during prosecution may require a more narrow
`interpretation.
`29.
`I understand that while intrinsic evidence is of primary importance,
`extrinsic evidence, i.e., evidence external to the patent and prosecution history,
`including expert opinions, dictionaries, and learned treatises, can also be considered.
`For example, technical dictionaries may help one better understand the underlying
`technology and the way in which one of skill in the art might use the claim terms.
`Extrinsic evidence should not be considered, however, divorced from the context of
`the intrinsic evidence.
`30.
`I understand that the Court has found that independent claims 1, 5, and
`9 of the ’713 Patent are addressed to unpatentable subject matter under 35 U.S.C.
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`time.” Thus, the term at issue should be understood as: “determining that a
`predetermined duration of time has elapsed since [the time of the identified first
`messaging communication] without additional communication between the
`electronic device and the second electronic device during that duration of time.”
`Although the surrounding claim language requires a determination that there was no
`“additional communication” in the elapsed duration of time (i.e., the first time plus
`the predetermined duration of time), the language places no limitation on when the
`determining must occur.”
`VI. The ’120 Patent
`A. Level of Ordinary Skill in the Art
`66.
`I understand that claim interpretation is from the perspective of a
`person of ordinary skill in the art at the time of the invention.
`67. The ’120 Patent was filed on February 26, 2010, and related provisional
`application No. 61/167,542 was filed on April 8, 2009. Accordingly, I consider the
`time of the invention to be April 2009.
`68.
`In my opinion, a person of ordinary skill in the art relevant to the ’120
`Patent at the time of its invention would have had a bachelor of science degree in
`Computer Engineering/ Computer Science or similar subject matter, or at least
`approximately two years of work or research experience in the fields of computer
`software, networking, and/or user experience design, or an equivalent subject
`matter, sufficient to understand fundamental computer networking and software
`architecture and user-interface design. My opinion remains the same regardless of
`whether the time of the invention is found to be April 2009, or some later time up
`until and including the February 25, 2010 filing date of the 120 Patent. Based on
`my qualifications, I am and was at the relevant time at least a person of ordinary
`skill in the art relevant to the ’120 Patent.
`B.
`Patent Background
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`69. The ’120 Patent is entitled “System and Method for Silencing
`Notifications for a Message Thread.” As the Abstract recites, the Patent relates to
`“[m]ethods, systems, and computer programming products . . . for silencing message
`threads.” ’120 Patent, Abstract. As the Patent explains, this silencing of message
`threads involves grouping “[i]ncoming messages related to the same matter into one
`or more message threads.” Id. Then, “[a] user can select to silence a message
`thread.” Id. “Once a message thread has been silenced, the user will no longer
`receive notifications of new messages added to the thread.” Id. Further, “new
`incoming electronic messages flagged as silenced [are displayed] in the inbox
`together with any message thread not flagged as silenced.” Id.
`70. The ’120 Patent explains that “[e]lectronic messages, such as electronic
`mail messages and messages posted to group sites, can be grouped into message
`threads. Each message thread can relate to a particular matter such as a particular
`topic of conversation or an activity. For example, a user may be part of an email
`group which is involved in an ongoing discussion. Each email in the discussion
`could be included in the same message thread. A user may receive a notification
`each time an electronic message is received. Notifications could include, for
`example, auditory user alerts such as ring tones, visual alerts such as flashing lights
`or pop-ups and physical alerts such as vibrations.” Id. at 1:22-32.
`71. The ’120 Patent provides a user with the capability to silence
`notifications associated with incoming messages on a per-thread basis and thereby
`override a currently enabled notification setting while still allowing notifications to
`be received for other non-silenced threads. Id. at 2:22-49.
`72. Fig. 5, depicted below, details an exemplary method by which a user
`may silence notifications for a specific thread. As shown in Fig. 5, “[a] method 500
`can begin at 502 where a user can, using suitably-configured GUI(s) and input
`device, select a message inbox. [An] inbox generally refers to a virtual folder with
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`which incoming messages are initially associated. . . . At 504, the user selects a
`message thread using, for example, a user interface such as a GUI 304, displaying
`one or more selectable options such as a list of one or more message threads. A
`message thread may be selected by the user by, for example, selecting a displayed,
`selectable option associated with the message thread using point-and-click
`functionality as described above. At 506, a user can silence a message thread or
`reactivate a message thread that had previously been silenced with respect to a
`device the user is using. . . . A message thread which has been silenced may be
`marked or flagged as silenced in memory 300 by, for example, setting a flag or other
`indicator in a data record associated with the message thread.” Id. at 11:11-13:12.
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`73. Fig. 6, detailed below, shows an exemplary method of handling an
`incoming electronic message depending on whether or not the message thread with
`which the message is associated has been silenced by the user. “A method 600 can
`begin at 602 where a message is received which is addressed or otherwise identified
`in such a way as to be associated with an inbox. . . . At 604, it may be determined
`whether or not the message relates to a new matter, such as a new topic of
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`conversation or a new activity. . . . If the message does relate to a new matter, at
`606, a new message thread is started. At 608, the user is notified of the message
`according to any currently-enabled notification settings, as described above. If the
`message does not relate to a new matter, at 610, a thread to which the message
`belongs may be determined. . . . At 612, it is may determined whether or not the
`message thread to which the message belongs has been silenced by the user. For
`example, a data record in memory 300 which is associated with the message thread
`may be checked to determine whether a flag has been set indicating that the thread
`has been silenced. If the message thread has been silenced by the user then no
`notification may be activated. . . . If the message thread has not been silenced by the
`user, then at 616 the user may be notified of the incoming message according to any
`currently-enabled notification settings.” Id. at 14:5-55.
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`74. The ’120 Patent further allows incoming messages, despite being
`associated with a silenced message thread, to be displayed in an inbox. As the
`Patent states, “[n]ew messages in a silenced message thread may still be associated
`with an inbox and displayed with the inbox contents. In some embodiments, new
`messages received for a silenced message thread may appear to be greyed out or
`otherwise diminished in appearance when displayed with an inbox contents.” Id. at
`13:28-32.
`VII. ’120 Patent Claim Terms Proposed For Construction
`A. Claim Terms Proposed For Construction By Both Parties
`1. “Notification” (Claims 1, 8, 10, 13, 20, 21, 24)
`
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`BlackBerry Proposed Construction: plain and ordinary meaning; alternatively,
`“user alert”
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`75. Exemplary claim 1 of the ’120 Patent reads:
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`1. A communication system configured to silence notifications
`for incoming electronic messages, the system comprising a data
`processor, non-transitory media readable by the data processor
`and a communications subsystem:
`the communication subsystem adapted for receiving the
`incoming electronic messages; and
`the non-transitory media readable by the data processor
`comprising coded program instructions adapted to cause the
`processor to:
`receive a selected message thread for silencing;
`in response to receiving the selected message thread, activate
`a flag stored in the non-transitory media in association with
`the selected message thread, wherein the flag indicates that
`the selected message thread has been silenced;
`determine that a new incoming electronic message is
`associated with the selected message thread;
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`05710-00015/10634657.5
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`-24- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ROSENBERG DECLARATION ON CLAIM CONSTRUCTION (’713 AND ’120 PATENTS)
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`Facebook's Exhibit No. 1017 - Page 13
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`determine that the selected message thread has been flagged
`as silenced using the flag stored in the non-transitory media;
`override a currently-enabled notification setting to prevent a
`receipt notification pertaining to new incoming electronic
`messages associated with the selected message thread from
`being activated; and
`display the new incoming electronic message in an inbox
`together with any message thread not flagged as silenced,
`while silencing any further notifications pertaining to receipt
`of the new incoming electronic message, wherein the new
`incoming message thread flagged as silenced is displayed in
`the inbox in a different manner than any message thread not
`flagged as silenced.
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`76. BlackBerry proposes that the Court construe the term “notification” to
`have its plain and ordinary meaning, or, alternatively, to mean a “user alert.”
`77.
`I have reviewed the claims in the context of the specification, the file
`history, and the knowledge of a person of skill in the art at the time of the invention,
`and conclude that BlackBerry’s proposed construction is correct.
`78. The term “notification” has a well-understood meaning in the field of
`computing as an alert that notifies a user of an event’s occurrence and the ’120
`Patent uses the term according to this meaning. The term is clear on its face and
`therefore requires no construction.
`79. Alternatively, the term “notification” should be construed to mean a
`“user alert.” With regard to the types of notification settings a communication
`system may have, the specification states that “[t]hose of skill in the art will
`recognize that here may be many different types of notification settings, including
`visual alarms (including, for example, pop-up messages, blinking lights of one or
`more colors, frequencies, etc.) and/or physical alarms such as vibrators or shakers.”
`Id. at 9:26-31. Accordingly, “when a user silences a thread, the user will no longer
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`-25- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ROSENBERG DECLARATION ON CLAIM CONSTRUCTION (’713 AND ’120 PATENTS)
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`Facebook's Exhibit No. 1017 - Page 14
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`receive notifications (e.g. ring tones, flashing lights or vibrations) when a new
`message arrives belonging to the silenced message thread.” Id. at 13:19-22.
`80. The ’120 Patent’s specification, for example, consistently describes a
`“notification” as an alert provided to a user to attract the user’s attention when a new
`message is received. For example, the specification discloses that “[a] user may
`receive a notification each time an electronic message is received. Notifications
`could include, for example, auditory user alerts such as ring tones, visual alerts such
`as flashing lights or pop-ups and physical alerts such as vibrations.” ’120 Patent at
`1:28-32. Every one of the examples provided by the specification relate to a
`different type of “user alert.”
`81. That a “notification” is a type of “alert” that attracts the user’s attention
`from some other application or task is consistent with the understanding of a person
`of ordinary skill in the art. The term “notification” in electronic messaging is used
`to refer to some visual, auditory, or physical cue that is meant to alert the user to
`new information that the user would not otherwise notice. The concept of
`“notifications” in electronic messaging arose as communication devices became
`more multi-faceted, increasing the likelihood that a user’s attention would not be
`directed to a messaging application at any given time. In these situations, a
`“notification” is intended to alert the user to information that would not otherwise be
`immediately noticed.
`82. A person reviewing the literature at the time of the ’120 Patent’s filing
`would have understood notifications in the context of electronic messaging to relate
`to alerts provided to users in order to draw attention to a received message. For
`example, Hansson et al. equates a “notification” to a “user alert.” Hansson discusses
`how “[w]hen used in social contexts several problems regarding how mobile devices
`convey notifications arise. Auditory notification cues, such as those generally used
`by mobile phones, can be intrusive and attention demanding. Tactile cues, such as
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`-26- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ROSENBERG DECLARATION ON CLAIM CONSTRUCTION (’713 AND ’120 PATENTS)
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`Facebook's Exhibit No. 1017 - Page 15
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`vibrations, are very private and subtle. However, since it is hard for other people
`nearby to perceive such cues, it can be awkward to understand the actions which a
`notification cue can give rise to, i.e., tactile cues are not public.” Rebecca Hansson
`et al., Subtle and Public Notification Cues for Mobile Devices, UbiComp '01
`Proceedings of the 3rd International Conference on Ubiquitous Computing p. 240,
`(2001). As the paper teaches “notifications from mobile devices are conveyed
`mainly by sounds and beeps, and to a lesser extent by tactile cues such as
`vibrations.” Id.
`83. Similarly, in the context of e-mails Jackson et al. consider methods of
`reducing interrupt effects on e-mail recipients caused by an e-mails receipt. One
`such identified method is to “chang[e] the method of incoming email notification.”
`Thomas Jackson et al., Reducing the Effect of Email Interruptions on Employees,
`International Journal of Information management 23(1) 55-65 (2003). As Jackson
`describes, “[m]ost email applications allow different means of notifying the user of
`incoming email. These means can give different levels of intrusion, as some are
`easier to ignore than others. For example, a prominent sound accompanying a pop-
`up dialog box has a far more intrusive effect than a small icon that appears in one
`corner of the screen.” Id. Regardless of the type of notification used, the
`notification’s purpose is to draw the user’s attention in order to alert the user that a
`new e-mail has been received.
`84. The academic literature addressing electronic message notifications
`largely deals with the negative impacts of the interruptions caused by such
`notifications and ways to mitigate suc