Case 2:18-cv-01844-GW-KS Document 110-2 Filed 02/14/19 Page 2 of 317 Page ID
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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 KEVIN
`ALMEROTH, PH.D
`REGARDING CLAIM
`CONSTRUCTION
`
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`CASE NO. 2:18-cv-02693 GW(KSx)
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`05710-00015/10635439.7
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`Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ALMEROTH DECLARATION ON CLAIM CONSTRUCTION (‘236, ’351 AND ‘929 PATENTS)
`
`Twitter Exhibit 1050
`Twitter, Inc. v. BlackBerry Ltd.
`Page 00001
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`I, Kevin Almeroth, Ph.D., declare as follows:
`
`I.
`
`Introduction
`1. My name is Kevin Almeroth, Ph.D.
`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. 8,429,236 (the “’236 patent”), 8,296,351 (the “’351
`patent”) and 8,676,929 (the “’929 patent”). In particular, I have been asked to
`analyze what a person of ordinary skill in the art would understand certain claims
`terms to mean at the time of invention for each of the above-mentioned patents.
`3.
`I am being compensated at my standard billing rate of $700 per hour
`for time spent on this matter.
`4. My compensation is in no way dependent on the outcome of this
`investigation or the particular testimony or opinions I provide.
`5.
`The opinions expressed in this Declaration are my preliminary opinions
`based on my review to date of the evidence produced at this stage of the case. My
`opinions are subject to change based on additional opinions that Defendants’ experts
`may present and information I may receive in the future. I reserve my right to
`amend or update my opinions as appropriate in response to any future
`developments. With this in mind, based on the analysis I have conducted and for
`the reasons set forth below, I have preliminarily reached the conclusions and
`opinions in this Declaration.
`6.
`I understand that discovery in this litigation is still ongoing, and I
`reserve the right to amend or supplement my opinions in light of further documents,
`depositions, or discovery disclosures. I further reserve the right to rely upon any
`additional information or materials that may be provided to me or that are relied
`upon by any of Defendants’ experts or witnesses, if called to testify or to give
`additional opinions regarding this matter. I further reserve the right to supplement
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`-1- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ALMEROTH DECLARATION ON CLAIM CONSTRUCTION (‘236, ’351 AND ‘929 PATENTS)
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`at 2:57-3:19; ’929 Patent at 2:62-3:24. In doing so, the “proxy content server” does
`not simply perform the normal function of an intermediate cache, but instead
`prepares the information for distribution to mobile devices based on advertiser and
`user preferences. See ’351 Patent at 4:14-27, 3:3-19, 3:26-57; ’929 Patent at 4:19-
`32, 3:8-24, 3:31-62.
`107. In addition to aggregation procedures, the specialized “proxy content
`server” also leverages user-related data to combine targeted content and advertising
`information for transmission to mobile devices. When the “proxy content server”
`receives a request for information from a mobile device, the server tailors
`information based on certain types of information related to the mobile device (e.g.,
`feedback signal indicating location, triggering event, user interests, etc.). ’351
`Patent at 2:57-3:19, 4:28-46; ’929 Patent at 2:62-3:24; 4:33-51. Because the “proxy
`content server” aggregates and stores information for distribution by pre-defined
`category, it can distribute information by category instead of merely fulfilling a
`request for a stored file. ’351 Patent at 4:28-46; ’929 Patent at 4:33-51.
`108. For example, the “proxy content server” may receive and consider a
`feedback signal from a mobile device to determine which category of information to
`distribute. ’351 Patent at 5:16-22; ’929 Patent at 5:21-27 (“As noted above, the
`location of the mobile device 24 in the wireless network 22, along with other
`feedback information, may be tracked by the mobile device 24 and transmitted back
`to the Proxy Content Server 18 where it is used to determine relevant categories of
`information to push to the mobile device.”). In light of the additional functionality
`of deciding how and when to distribute select information, a skilled artisan would
`understand that the specialized “proxy content server” acts more like a an
`autonomous entity than merely a storage proxy facilitating exchange of data.
`109. In the same vein, the “proxy content server” may also determine a
`category of information for transmission based on a triggering event. For example,
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`Dictionary of Computer Science, Engineering, and Technology at 503-04 (2001).
`164. Accordingly, one of skill in the art at the time of invention would
`understand the ordinary and customary meaning of “triggering event” in light of the
`surrounding claim language, the specification, and extrinsic evidence. As a result,
`no construction is necessary. Should the term be construed, a skilled artisan would
`construe it according to its plain and ordinary meaning as simply “condition or event
`that causes another condition or event to occur or exist.”
`b.
`“Channel” / “Memory Location Channel”
`165. I understand that BlackBerry has proposed the following construction
`for this phrase:
`
`BlackBerry Proposed Construction
`Channel / Memory Location Channel: “memory location, accessible to the
`Proxy Content Server/Server, that stores a category of information”
`
`
`
`166. The term “channel” appears in all claims of the ’351 Patent. The
`phrase “memory location channel” appears in all claims of the ’929 Patent. Claim 1
`of the ’351 Patent recites, for example:
`1. A system for pushing information to a mobile device,
`comprising:
`a proxy content server that receives information over a
`computer network from an information source and stores
`the information to one of a plurality of channels based on
`pre-defined information categories, wherein the plurality
`of channels comprise memory locations included in at
`least one of the proxy content server or a proxy content
`server database;
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`the proxy content server to receive a feedback signal over
`a wireless network that indicates a position of the mobile
`device, and to use the feedback signal to select a channel
`for transmission of the information from the selected
`channel over the wireless network to the mobile device,
`wherein the information comprises at least one of static
`advertising information, dynamic advertising information,
`default advertising information, or content information,
`and wherein a combination of the static advertising
`information with one of the dynamic or default advertising
`information comprises an advertisement or an information
`bulletin.
`167. Claim 1 of the ’929 Patent recites:
`1. A method for pushing information to a mobile device,
`the method comprising:
`detecting a triggering event comprising a time triggering
`event;
`determining, by a server, information relevant to the
`detected triggering event from among information stored
`in one of a plurality of memory location channels,
`wherein the information is stored in the one of the plurality
`of memory location channels based on a category of the
`information matching a pre-defined category of the one of
`the plurality of memory location channels;
`when the information relevant to the detected triggering
`event comprises content information, inserting to the
`content information, by the server, a meta tag for one or
`more advertisements to be displayed with the content
`information, wherein the meta tag identifies the one or
`more
`advertisements
`and
`advertisement
`display
`requirements, and wherein the one or more advertisements
`are selected based on the detected triggering event; and
`transmitting the content information that includes the meta
`tag to the mobile device.
`168. 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,
`a skilled artisan would understand the meaning of “channel” and “memory location
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`05710-00015/10635439.7
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`channel” as “memory location, accessible to the proxy content server, that stores a
`category of information,” based on supporting intrinsic evidence.
`169. Claim 1 of the ’351 Patent recites a proxy content server that “stores
`the information to one of a plurality of channels based on pre-defined information
`categories, wherein the plurality of channels comprise memory locations included in
`at least one of the proxy content server or a proxy content server database.” The
`claim also recites that the proxy content server “select[s] a channel for transmission
`of the information from the selected channel over the wireless network to the mobile
`device.” In addition, Claim 1 of the ’929 Patent recites “determining . . .
`information stored in one of a plurality of memory location channels, wherein the
`information is stored in the one of the plurality of memory location channels based
`on a category of the information matching a pre-defined category of the one of the
`plurality of memory location channels.” Accordingly, the claims of the ’929
`and ’351 Patents indicate that a “channel” or “memory location channel” (1)
`comprises memory locations, (2) is associated with a pre-defined category, and (3)
`is used to store information based on a pre-defined category.
`170. The specification describes “channels” as memory locations that store
`received information:
`“As information 12 from an Information Sources 10 is received by the
`Proxy Content Server 18, the information is collected into channels or
`categories 21. The channels 21 may be memory locations on the Proxy
`Content Server 18, memory locations on a database 19 coupled to the
`Proxy Content Server 18, cache memory location on the Proxy Content
`Server 18, or memory locations on some other memory device
`accessible by the Proxy Content Server 18. In addition to storing
`information to the channel locations 21, the Proxy Content Server 18
`may also store the information and other data to a local Proxy Content
`Server Database 19. ’351 Patent at 3:58-4:1; ’929 Patent at 3:63-4:6
`(emphasis added).
`171. The specification also describes that “channels” are associated with a
`pre-defined category. For example, the specification describes that each channel
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`may “represent a category of information that the user may, or may not, be
`interested in receiving at her mobile device 24 at a given point in time or at a
`particular geographical location.” ’351 Patent at 4:43-46; ’929 Patent at 4:48-51
`(emphasis added). The specification also states that “the proxy content server stores
`information received from the information source to one of a plurality of channels
`based on pre-defined information categories, and automatically transmits
`information from a selected channel over the wireless network to the mobile
`device.” ’351 Patent at 1:53-57; ’929 Patent at 1:58-62 (emphasis added); see ’351
`Patent at 4:14-57, 6:15-24, 12:45-13:53, Claims 1, 9, 10, 11, 14, 21-23, Figs. 1, 3-8;
`’929 Patent at 4:19-62, 6:20-29, 12:48-13:58, Claims 1, 7, 9 and 15, Figs. 1, 3-8.
`“The Proxy Content Server 18 may be implemented in several ways and
`one embodiment is shown in FIG. 1. In this illustration, the Proxy
`Content Server 18 has advertising channels 21 a, content channels 21 b
`and general advertising channels 21 c. If advertisers have a preference
`for their advertisements to be included with a particular type of content
`channel, then all advertisements go into the corresponding channel for
`that content. If advertisers do not have a preference, then the general
`advertising channel 21 c is used and it is applied across all content
`channels 21 b equally. For example, a company offering financial
`services may advertise in the stock quotes and financial content channel,
`while advertising for new movies may be applied across all content
`channels equally.” ’351 Patent at 4:14-27; ’929 Patent at 4:19-32
`(emphases added).
`172. Furthermore, the specification describes that the “channels” are used to
`store information based on a pre-defined category. For example, the specification
`states that “the proxy content server stores information received from the
`information source to one of a plurality of channels based on pre-defined
`information categories, and automatically transmits information from a selected
`channel over the wireless network to the mobile device.” ’351 Patent at 1:53-57;
`’929 Patent at 1:58-62 (emphasis added); see ’351 Patent at 4:14-57, 6:15-24, 12:45-
`13:53; ’929 Patent at 4:19-62, 6:20-29, 12:48-13:58. In one exemplary embodiment
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`described in the specification, information is stored in categories that are based on
`user specific information:
`“The Proxy Content Server 18 stores received information 12 to a
`particular channel 21 based on user specific information categories. For
`example, the Proxy Content Server 18 may provide the user of a mobile
`device 24 with the ability to control content information or other
`information that is streaming from the Proxy Content Server 18 to the
`mobile device 24 by offering direct control over each type of information
`being pushed.” ’351 Patent at 4:28-35; ’929 Patent at 4:33-40 (emphasis
`added).
`173. Furthermore, the specification does not limit where the channels are
`located. Rather, the specification provides embodiments wherein the channels are
`located on the Proxy Content server (’352 Patent at 3:58-4:35; ’929 Patent at 3:63-
`4:40), on the Proxy Content Server Database (’352 Patent at 3:58-4:11; 11:42-65;
`’929 Patent at 3:63-4:16; 11:45-12:1), and on the mobile device (’352 Patent at
`3:58-4:11; 6:41-7:34; 7:50-67; ’929 Patent at 3:63-4:16; 6:46-7:39; 7:55-8:5). For
`example, the specification describes one exemplary embodiment wherein a mobile
`device includes a channel content database containing content and advertising
`channels. ’351 Patent at 6:41-59, Fig. 3; ’929 Patent at 6:46-64.
`174. In each case however, the channels are accessible by the Proxy Content
`Server. For example, the specification describes an exemplary embodiment wherein
`a mobile device includes a channel content database containing content and
`advertising channels received from the Proxy Content Server. ’352 at 7:50-67; ’929
`Patent at 7:55-8:5 (“Content channels are separated by tags provided by the Proxy
`Content Server 18, and therefore match what has been provided and configured on
`the Proxy Content Server 18. This allows for dynamic additional channels to be
`added on the Proxy Content Server 18 and the content database 50 on the mobile
`device 24 mirrors those content channels.”) (emphasis added).
`175. As another example, the specification describes an exemplary
`embodiment wherein information is stored in channels on the proxy content server
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`database at the behest of the proxy content server. The specification states that
`channels may be “memory locations on a [Proxy Content Server] database 19
`coupled to the Proxy Content Server.” ’351 Patent at 3:60-63; ’929 Patent at 3:65-
`4:1. The specification goes on to clarify that “[i]n addition to storing information to
`the channel locations 21, the Proxy Content Server 18 may also store the
`information and other data to a local Proxy Content Server Database 19,” including
`“information received from an Information Sources 10 [sic].” ’351 Patent at 3:65-
`4:7; ’929 Patent at 4:3-12.
`176. The prosecution history of the ‘351 and ’929 Patents also support
`BlackBerry’s construction. On June 23, 2009, during prosecution of Application
`No. 11/763,595 (parent application to both ‘351 and ’929 Patents), the Examiner
`rejected the claims as indefinite because “[c]laim 1 reads ‘stores the information to
`one of a plurality of channels’” and “[t]his renders claimed limitation of a plurality
`of channels indefinite since channel is a communication path and is not used for
`storing information.” Non-Final Rejection, June 23, 2009, pp. 3-4. On September
`23, 2009, Applicant responded that “[t]he specification states that ‘channels [] may
`be memory locations on the Proxy Content Server.’ The Applicant has chosen to
`define ‘channel’ to include memory location. (Lazaridis, p. 6, ll. 15-18).”
`Applicant Remarks, Sept. 23, 2009, pp. 14-15 (emphasis added) (Lazaridis, p. 6, ll.
`15-18: “The channels 21 may be memory locations on the Proxy Content Server 18,
`memory locations on a database 19 coupled to the Proxy Content Server 18, cache
`memory location on the Proxy Content Server 18, or memory locations on some
`other memory device accessible by the Proxy Content Server 18.”); see also ’351
`Patent at 3:60-65; ’929 Patent at 3:65-4:3. The examiner relied on these statements
`by the Applicant. In reasons for allowance on March 9, 2010, the Examiner stated
`that “[t]he prior art of record fails to expressly teach a proxy content server coupled
`to the information source and the wireless network that receives information form
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`the information source and stores the information to one of a plurality of channels.”
`Reasons For Allowance, March 9, 2010, pp. 5-6.
`177. A similar exchange occurred in the prosecution history of Application
`No. 11/451,083, also parent application to both ‘351 and ’929 Patents. On October
`4, 2006, the Examiner rejected the claims as indefinite because “[t]he term
`‘Channel’ or ‘Channels’ [is] used by the claims 1-14 to mean ‘storage’, while the
`accepted meaning is ‘communication medium’.” Non-Final Rejection, Oct. 4, 2006,
`pp. 6-7. On December 26, 2006, Applicant responded that “[w]ith regard to claims
`1-14, the office action concludes that the claim term ‘channel’ or ‘channels’ is
`indefinite. The applicants disagree. Nonetheless, the claim term ‘channel’ has been
`replaced with the term ‘memory location.’” Applicant Remarks, Dec. 26, 2006, pp.
`7-8. Finally, in reasons for allowance on March 20, 2007, the Examiner stated that
`“the claimed invention requires inter alia classifying the advertisement data into
`static, dynamic, and default data, storing the classified data in corresponding storage
`locations, and further generate the advertisement message with based on the
`following condition.” Reasons For Allowance, March 20, 2007, pp. 3-5.
`178. Accordingly, one of skill in the art at the time of invention would
`construe “channel” and “memory location channel” as “memory location, accessible
`to Proxy Content Server/Server, that stores a category of information” to comport
`with intrinsic evidence and is broad enough to encompass all embodiments.
`c.
`“When the Information Relevant to the Detected
`Triggering
`Event
`Comprises
`Advertisement,
`Transmitting the Advertisement to the Mobile Device
`Instead of the Content Information that Includes the
`Meta Tag”
`179. I understand that BlackBerry has proposed the following construction
`for this phrase:
`
`BlackBerry Proposed Construction
`No construction necessary – plain and ordinary meaning
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`I declare under penalty of perjury under the laws of the United States of
`America that the foregoing is true and correct.
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`Case 2:18-cv-01844-GW-KS Document 110-2 Filed 02/14/19 Page 82 of 317 Page ID
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`DATED: January 17, 2019
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`By:
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`Kevin Almeroth, Ph.D.
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`05710-00015/10635439.7
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`-80- Case Nos. 2:18-cv-01844 & 2:18-cv-02693 GW(KSx)
`ALMEROTH DECLARATION ON CLAIM CONSTRUCTION (’236, ’351, AND ’929 PATENTS)
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`Page 00012
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