Declaration of Christopher M. Schmandt in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`BUMBLE TRADING LLC,
`Petitioner
`
`v.
`
`KINECTUS LLC,
`Patent Owner
`
`
`
`Case No. IPR2021-00765
`
`U.S. Patent No. 9,294,428 B2
`
`Filing Date: January 17, 2013
`Issue Date: March 22, 2016
`
`Title: SYSTEMS AND METHODS FOR ESTABLISHING COMMUNICATIONS BETWEEN
`MOBILE DEVICE USERS
`
`
`DECLARATION OF CHRISTOPHER M. SCHMANDT
`
`
`
`
`
`
`
`
`
`
`
`Bumble Trading LLC
`Exhibit 1002
`Page 1 of 133
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`

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`Table of Contents
`
`
`Page
`
`
`I.
`
`V.
`
`INTRODUCTION AND QUALIFICATIONS .............................................. 1
`A. Qualifications and Experience ............................................................. 1
`B. Materials Considered ............................................................................ 3
`PERSON OF ORDINARY SKILL IN THE ART ......................................... 7
`II.
`III. STATEMENT OF LEGAL PRINCIPLES ................................................... 10
`A.
`Claim Construction............................................................................. 10
`B. Obviousness ........................................................................................ 12
`IV. RELEVANT TECHNOLOGY BACKGROUND ....................................... 17
`A.
`The Rise of Mobile Web Browsing and the Advent of Mobile
`User Interfaces and Mobile Applications ........................................... 17
`B. Online and Mobile Profile Matching Apps ........................................ 23
`THE ’428 PATENT ...................................................................................... 27
`A. Overview of the Specification ............................................................ 27
`B.
`The Prosecution History ..................................................................... 30
`C.
`The Challenged Claims ...................................................................... 31
`VI. APPLICATION OF THE PRIOR ART TO ASSERTED CLAIMS ........... 33
`A.
`Summary and Date Qualification of the Prior Art ............................. 34
`B.
`Claims 1-5, 7-13, 16, 19-31, 35, 37-41, 43, and 45 are Obvious ....... 39
`C. Ground 1: Analysis of Claims 1-5, 7-13, 16, 19-31, 35, 37-41,
`43, and 45 Based on Stackpole in View of Robson ........................... 40
`D. Ground 2: Analysis of Claims 1-5, 7-13, 16, 19-31, 35, 37-41,
`43, and 45 Based on Stackpole in View of Robson and Savjani ..... 109
`VII. NO SECONDARY CONSIDERATIONS OF NON-OBVIOUSNESS .... 121
`VIII. CONCLUSION ........................................................................................... 122
`
`
`
`
`i
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`Bumble Trading LLC
`Exhibit 1002
`Page 2 of 133
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`Declaration of Christopher M. Schmandt in Support of
`Petition for Inter Partes Review of
`U.S. Patent No. 9.294,428 B2
`
`I, Christopher M. Schmandt, declare as follows:
`
`I.
`
`INTRODUCTION AND QUALIFICATIONS
`A. Qualifications and Experience
`In 2019 I retired from my position as a Principal Research Scientist at
`1.
`
`the Media Laboratory at Massachusetts Institute of Technology (“M.I.T.”), after 40
`
`years of employment by MIT. In that role, I also served as faculty for the M.I.T.
`
`Media Arts and Sciences academic program. I have more than 40 years of
`
`experience in the field of Media Technology, and was a founder of the M.I.T. Media
`
`Laboratory.
`
`2.
`
`I received my Bachelor of Science degree in Electrical Engineering and
`
`Computer Science from M.I.T. in 1978, and my Master of Science degree in Visual
`
`Studies (Computer Graphics), also from M.I.T. I began my employment at M.I.T. in
`
`1980, initially at the Architecture Machine Group, which was an early computer
`
`graphics research lab. In 1985 I helped found the Media Laboratory and continued
`
`to work there until my retirement. I ran a research group titled “Living Mobile.” My
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`research spans distributed communication and collaborative systems, with an
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`emphasis on multi-media and user interfaces, as well as pioneering work in systems
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`that provide location-based services; I have more than 70 published conference and
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`journal papers and one book in these fields.
`
`
`
`1
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`Bumble Trading LLC
`Exhibit 1002
`Page 3 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`3.
`
`In my faculty position, I taught courses and directly supervised student
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`research and theses at the Bachelors, Masters, and Ph.D. level. I oversaw the Masters
`
`and Ph.D. thesis programs for the entire Media Arts and Sciences academic program.
`
`Based on the above experience and qualifications, I have a solid understanding of
`
`the knowledge and perspective of a person of ordinary skill in this technical field
`
`since at least 1980.
`
`4.
`
`Some years later, in the mid-1990s, I was a member of the Media Lab
`
`News in the Future project. In this area, I worked on matching user interests in news
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`articles, based on personal preference profiles as well as learning from the history of
`
`what the users read. Similar techniques were also applied to filtering email and voice
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`messages. This is related to matching algorithms that may allow people to meet
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`others who meet personal criteria.
`
`5.
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`For many years my research included pioneering work in location-
`
`based services, such as learning where one traveled and who or what resources such
`
`might be found en route, as well as sharing location information with others in
`
`various ways. Additionally, in 1988 with my grad students I developed the first real
`
`time spoken driving direction system, a very early precursor to the common in-
`
`vehicle voice navigation systems in use today.
`
`6. My Curriculum Vitae is submitted herewith as Appendix A.
`
`
`
`2
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`Bumble Trading LLC
`Exhibit 1002
`Page 4 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`7.
`
`I have been retained by counsel for Petitioner to provide my expert
`
`opinion in connection with the above-captioned proceeding. More particularly, I
`
`have been asked to provide my opinion about the state of the art of the technology
`
`described in U.S. Patent No. 9,294,428 (“’428 patent” or “’428”) [Ex. 1001] and on
`
`the patentability of certain claims of this patent in light of certain prior art references
`
`discussed below. I am being compensated at a rate of $500 per hour for my study
`
`and other work in this matter. I am also being reimbursed for reasonable and
`
`customary expenses associated with my work in this investigation. My
`
`compensation is not contingent on the outcome of this matter or the specifics of my
`
`testimony. The following is my written report on these topics.
`
`8.
`
`Throughout my Declaration, all of my opinions about obviousness are
`
`expressed from the point of view of a person of ordinary skill in the art prior to the
`
`priority date of the claims of the ʼ428 patent.
`
`B. Materials Considered
`The analysis that I provide in this Declaration is based on my education,
`9.
`
`research and experience, as well as the documents I have considered, including U.S.
`
`the ʼ428 patent and its prosecution history (Ex. 1007). The ’428 patent states on its
`
`face that it issued from an application that claims priority to three provisional patent
`
`applications, the earliest of which was filed on January 18, 2012, application no.
`
`
`
`3
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`Bumble Trading LLC
`Exhibit 1002
`Page 5 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`61/587,946. I am informed that during the concurrent litigation between the Patent
`
`Owner and the Petitioner, the Patent Owner has identified the date of the alleged
`
`invention as no later than December 30, 2011. For the purposes of my analysis in
`
`this Declaration, I have assumed December 30, 2011 as the priority date.1 I have
`
`cited to the following documents in my analysis below:
`
`
`1 I am not offering an opinion that the ’428 patent should be entitled to this earlier
`
`priority date. I have formed no opinion as to whether the challenged claims are
`
`supported by the various provisional applications. Nor have I formed an opinion as
`
`to whether those claims can properly be afforded this alleged invention date, as the
`
`prior art on which I rely predates December 30, 2011. Moreover, my opinions as to
`
`the level of ordinary skill in the art, and all of the opinions presented in my
`
`Declaration, would remain the same whether December 30, 2011, or the date of the
`
`filing of the earliest provisional application (January 18, 2012), or the date of the
`
`filing of the application that issued as the ’428 patent (January 17, 2013) was
`
`established as the date of invention for purposes of the challenged claims. In the
`
`event the Patent Owner later asserts an even earlier date in an attempt to predate the
`
`prior art, I reserve my right to respond to such assertion as appropriate.
`
`
`
`4
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`Bumble Trading LLC
`Exhibit 1002
`Page 6 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`Exhibit
`Description of Document
`No.
`1001 U.S. Patent No. 9,294,428 B2 to Christopher Andrew Norton, et al.
`(filed Jan. 17, 2013, issued March 22, 2016) (“’428” or “’428 patent”)
`
`1002 Declaration of Christopher M. Schmandt (“Schmandt”)
`1003 U.S. Pat. Publication No. US 2008/0140650 (filed November 28,
`2007, published June 12, 2008) (“Stackpole”)
`
`1004 U.S. Pat. Publication No. US 2011/0219310 (filed March 1, 2011,
`published September 8, 2011) (“Robson”)
`
`1005 U.S. Pat. Publication No. US 2009/0271212 (filed April 29, 2009,
`published October 29, 2009) (“Savjani”)
`
`1006 Complaint, KinectUs LLC v. Bumble Trading, LLC, Case No. 6:20-cv-
`942-ADA (W.D. Tex.)
`
`1007
`File History of the ’428 patent
`1008 U.S. Patent No. 8,059,169 to Yo-Hwan Noh (filed May 25, 2007,
`issued November 15, 2011) (“Noh”)
`1009 U.S. Patent 8,069,169 to Dudley Fitzpatrick et al. (filed September 28,
`2007, issued November 29, 2011) (“Fitzpatrick”)
`
`1010
`
`Scheduling Order, KinectUs LLC v. Bumble Trading, LLC, Case No.
`6:20-cv-942-ADA (W.D. Tex.) (February 4, 2021)
`
`1011 Answer to Amended Complaint and Amended Counterclaims,
`KinectUs LLC v. Bumble Trading, LLC, Case No. 6:20-cv-942-ADA
`(W.D. Tex.) (February 12, 2021)
`1012 Disclosure of Asserted Claims and Infringement Contentions,
`KinectUs LLC v. Bumble Trading, LLC, Case No. 6:20-cv-942-ADA
`(W.D. Tex.) (February 5, 2021)
`
`
`
`5
`
`Bumble Trading LLC
`Exhibit 1002
`Page 7 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`Exhibit
`Description of Document
`No.
`1013 Amended Disclosure of Asserted Claims and Infringement
`Contentions, KinectUs LLC v. Bumble Trading, LLC, Case No. 6:20-
`cv-942-ADA (W.D. Tex.) (February 18, 2021)
`
`1014 Claim Listing for the ’428 patent
`1015 U.S. Patent 6,529,136 to Kevin Cao et al. (filed February 28, 2001,
`issued March 4, 2003) (“Cao”)
`
`1016 U.S. Patent 6,549,768 to Federico Fraccaroli (filed August 24, 1999,
`issued April 15, 2003) (“Fraccaroli”)
`
`1017 U.S. Patent 6,618,593 to Charles Drutman et al. (filed September 8,
`2000, issued September 9, 2003) (“Drutman”)
`
`1018 U.S. Patent Application No. 2005/0181803 to Christopher Weaver et
`al. (filed February 17, 2004, published August 18, 2005) (“Weaver”)
`
`1019 U.S. Patent Application No. 2005/0250552 to Nathan Eagle et al.
`(filed May 5, 2005, published November 10, 2005) (“Eagle”)
`
`1020 Charles Newark-French, Mobile Apps Put the Web in Their Rear-view
`Mirror, FLURRY (June 20, 2011),
`https://web.archive.org/web/20110924031931/http:/blog.flurry.com/bi
`d/63907/Mobile-Apps-Put-the-Web-in-Their-Read-view-Mirror
`
`1021
`
`Julie Spira, Top 10 Best Mobile Dating Apps of 2012, CYBER-DATING
`EXPERT, https://cyberdatingexpert.com/mobiledating2012/ (last visited
`Mar. 14, 2019)
`
`1022 Charles Newark-French, Mobile Dating Apps: The Second (Lady)
`Killer App Category, FLURRY (Aug. 2011),
`https://web.archive.org/web/20110811173903/http:/blog.flurry.com/bi
`d/68668/Mobile-Dating-Apps-The-Second-Lady-Killer-App-Category
`1023 U.S. Patent 7,071,842 to James Brady Jr. (filed June 27, 2003, issued
`July 4, 2006) (“Brady”)
`
`
`
`6
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`Bumble Trading LLC
`Exhibit 1002
`Page 8 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`Exhibit
`Description of Document
`No.
`1024 U.S. Patent No. 8,606,297 B1 to Joel Simkhai, et al. (filed Mar. 24,
`2011, issued Dec. 10, 2013) (“Simkhai”)
`
`1025 Hemanshu Nigam, How to Date Online Safely, from World’s Top
`Web-Security Expert, ABC News (June 20, 2011)
`
`1026 U.S. Patent Publication No. 2009/0176517 to Gregory Christie et al.
`(filed Jan. 26, 2008, published July 9, 2009) (“Christie”)
`
`1027 MG Siegler, Textie: A Handsome, Simple Messaging App From the
`Guys Behind Tweetie and Borange, TechCrunch (April 29, 2009)
`
`1028 Adam Nash, LinkedIn for iPhone 3.0: Let’s Get This Party Started,
`LinkedIn blog (December 28, 2009)
`
`1029 Online Social Networking Danger, SOCIAL NETWORKING
`(available as of May 21, 2009)
`
`1030 Find People by their Family Name on Facebook, Digital Inspiration
`(June 8, 2009) (available as of Nov. 6, 2011)
`
`1031
`
`Sachin Khosla, Phone Number List of Facebook Friends, Digimantra
`(Nov. 12, 2010)
`
`1032 Compare between Claim 1 Dependents and Claim 20 Dependents
`1033 Compare between Claim 1 Dependents and Claim 37 Dependents
`1034
`File History For Stackpole (U.S. Pat. Publication No. US
`2008/0140650), Sept. 22, 2008 Preliminary Amendment
`
`
`II.
`
`PERSON OF ORDINARY SKILL IN THE ART
`I understand that an assessment of claims of the ’428 patent should be
`11.
`
`undertaken from the perspective of a person of ordinary skill in the art as of the
`
`
`
`7
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`Bumble Trading LLC
`Exhibit 1002
`Page 9 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`earliest claimed priority date, which I understand is alleged to be December 30,
`
`2011.2
`
`12.
`
`I have also been advised that to determine the appropriate level of a
`
`person having ordinary skill in the art, the following factors may be considered: (1)
`
`the types of problems encountered by those working in the field and prior art
`
`solutions thereto; (2) the sophistication of the technology in question, and the
`
`rapidity with which innovations occur in the field; (3) the educational level of active
`
`workers in the field; and (4) the educational level of the inventor.
`
`13.
`
`In my opinion, a person of ordinary skill in the art as of December 2011
`
`(the alleged priority date of the ’428 patent) would have possessed at least a
`
`bachelor’s degree in computer science or an equivalent field requiring learning
`
`computation principles, and two years of experience in building software
`
`applications employing client/server communication architectures, database queries
`
`and graphical user interfaces. A person could also have qualified as a person of
`
`ordinary skill in the art with some combination of (1) more formal education (such
`
`
`2 As explained in footnote 1, all of the opinions presented in my Declaration would
`
`remain the same whether December 2011 or January 2012 or January 2013 was
`
`established as the date of invention for purposes of the challenged claims.
`
`
`
`
`
`8
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`Bumble Trading LLC
`Exhibit 1002
`Page 10 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`as a Masters of Science degree) and less technical experience, or (2) less formal
`
`education and more technical or professional experience in the fields listed above.
`
`14. My opinions regarding the level of ordinary skill in the art are based
`
`on, among other things, my over 40 years of experience in the field of computer
`
`science, multimedia, and Web technology, my understanding of the basic
`
`qualifications that would be relevant to an engineer or scientist tasked with
`
`investigating methods and systems in the relevant area, and my familiarity with the
`
`backgrounds of colleagues, co-workers, and employees, both past and present. I also
`
`note that in describing the alleged invention the ’428 patent refers to underlying
`
`technology that is itself not overly sophisticated. The specification notes that the
`
`alleged invention of the ’428 patent can be practiced in an environment that includes
`
`a social networking environment were two or more mobile device users can
`
`communicate with one another over a network in conjunction with a computer
`
`system. (’428 patent, 6:22-56.) The computer system can include a collaboration
`
`system described as employing hardware and/or program code stored in memory
`
`that is executed by a processor in the computer system. (’428 patent, 7:21-45.) The
`
`specification ascribes certain functionality to the collaboration system (e.g., ’428
`
`patent, 7:46-10:45) but does so in the context of relying on high level flow charts
`
`such as those shown in Figures 2, 5 and 6.
`
`
`
`9
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`Exhibit 1002
`Page 11 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`
`15. Although my qualifications and experience exceed those of the
`
`hypothetical person having ordinary skill in the art defined above, my analysis and
`
`opinions regarding the ’428 patent have been based on the perspective of a person
`
`of ordinary skill in the art as of December 2011.
`
`III. STATEMENT OF LEGAL PRINCIPLES
`A. Claim Construction
`I have been instructed by counsel that a purpose of claim construction
`16.
`
`is determine what a person of ordinary skill in the art would have understood the
`
`claim terms to mean. Claim terms are generally given their ordinary and customary
`
`meaning, which is the meaning that the term would have to a person of ordinary skill
`
`in the art in question at the time of the invention, i.e., as of the effective filing date
`
`of the patent application. Additionally, the 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. I am further informed that the patent specification may be highly
`
`relevant to the claim construction, and has been described as the single best guide to
`
`the meaning of a disputed term. For terms that do not have a customary meaning
`
`
`
`10
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`Exhibit 1002
`Page 12 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`within the art, the specification usually supplies the best context for understanding
`
`the meaning of those terms.3
`
`17.
`
`I am further informed that other claims of the patent in question can
`
`also be valuable sources of information as to the meaning of a claim term. 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.
`
`18.
`
`I understand that the prosecution history can further inform the meaning
`
`of the claim language by demonstrating how the inventors understood the invention
`
`and whether the inventors limited the invention in the course of prosecution, making
`
`
`3 I understand that, in Inter Partes Review (IPR) proceedings filed after November
`
`13, 2018, claims are generally construed according to the “Phillips” claim
`
`construction standard, and not the broadest reasonable interpretation (BRI) standard
`
`that previously governed IPRs. The description of the legal principles set forth in
`
`the text, therefore, provides my understanding of the “Phillips” claim construction
`
`standard as provided by counsel.
`
`
`
`11
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`Exhibit 1002
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`the claim scope narrower than it otherwise would be. Extrinsic evidence may also
`
`be consulted in construing the claim terms, such as my expert testimony.
`
`19.
`
`In my analysis of the claims and the prior art below, I have applied the
`
`ordinary and customary meaning of the claim terms in light of the specification and
`
`prosecution history.
`
`B. Obviousness
`20. Counsel has advised me that under pre-AIA 35 U.S.C. § 103, effective
`
`before March 16, 2013, a patent claim may be found invalid as obvious if, at the time
`
`when the invention was made, the subject matter of the claim, considered as a whole,
`
`would have been obvious to a person having ordinary skill in the field of the
`
`technology (the “art”) to which the claimed subject matter belongs. I have been
`
`advised that this pre-AIA rule applies to the claims of the ‘428 patent because it
`
`claims priority to an application filed prior to March 16, 2013.
`
`21.
`
`I understand that the following factors should be considered in
`
`analyzing obviousness: (1) the scope and content of the prior art; (2) the differences
`
`between the prior art and the claims; and (3) the level of ordinary skill in the pertinent
`
`art. I also understand that certain other factors known as “secondary considerations”
`
`such as commercial success, unexpected results, long felt but unsolved need,
`
`industry acclaim, simultaneous invention, copying by others, skepticism by experts
`
`
`
`12
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`Bumble Trading LLC
`Exhibit 1002
`Page 14 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`in the field, and failure of others may be utilized as indicia of nonobviousness. I
`
`understand, however, that secondary considerations should be connected, or have a
`
`“nexus”, with the invention claimed in the patent at issue.
`
`22.
`
`I understand that a person of ordinary skill in the art is assumed to have
`
`knowledge of all prior art. I understand that one skilled in the art can combine
`
`various prior art references based on the teachings of those prior art references, the
`
`general knowledge present in the art, or common sense. I understand that a
`
`motivation to combine references may be implicit in the prior art, and there is no
`
`requirement that there be an actual or explicit teaching to combine two references.
`
`Thus, one may take into account the inferences and creative steps that a person of
`
`ordinary skill in the art would employ to combine the known elements in the prior
`
`art in the manner claimed by the patent at issue. I understand that one should avoid
`
`“hindsight bias” and ex post reasoning in performing an obviousness analysis. But
`
`this does not mean that a person of ordinary skill in the art for purposes of the
`
`obviousness inquiry does not have recourse to common sense.
`
`23.
`
`I understand that when determining whether a patent claim is obvious
`
`in light of the prior art, neither the particular motivation for the patent nor the stated
`
`purpose of the patentee is controlling. The primary inquiry has to do with the
`
`
`
`13
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`Bumble Trading LLC
`Exhibit 1002
`Page 15 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`objective reach of the claims, and that if those claims extend to something that is
`
`obvious, then the entire patent claim is invalid.
`
`24.
`
`I understand one way that a patent can be found obvious is if there
`
`existed at the time of the invention a known problem for which there was an obvious
`
`solution encompassed by the patent’s claims. I understand that a motivation to
`
`combine various prior art references to solve a particular problem may come from a
`
`variety of sources, including market demand or scientific literature. I understand
`
`that a need or problem known in the field at the time of the invention can also provide
`
`a reason to combine prior art references and render a patent claim invalid for
`
`obviousness. I understand that familiar items may have obvious uses beyond their
`
`primary purpose, and that a person of ordinary skill in the art will be able to fit the
`
`teachings of multiple prior art references together like the pieces of a puzzle. I
`
`understand that a person of ordinary skill is also a person of at least ordinary
`
`creativity. I understand when there is a design need or market pressure to solve a
`
`problem and there are a finite number of identified, predictable solutions, a person
`
`of ordinary skill has good reason to pursue the known options within his or her
`
`technical grasp. If these finite number of predictable solutions lead to the anticipated
`
`success, I understand that the invention is likely the product of ordinary skill and
`
`common sense, and not of any sort of innovation. I understand that the fact that a
`
`
`
`14
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`Bumble Trading LLC
`Exhibit 1002
`Page 16 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`combination was obvious to try might also show that it was obvious, and hence
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`invalid, under the patent laws. I understand that if a patent claims a combination of
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`familiar elements according to known methods, the combination is likely to be
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`obvious when it does no more than yield predictable results. Thus, if a person of
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`ordinary skill in the art can implement a predictable variation, an invention is likely
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`obvious. I understand that combining embodiments disclosed near each other in a
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`prior art reference would not ordinarily require a leap of inventiveness.
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`25.
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`I have been advised by counsel that obviousness may be shown by
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`demonstrating that it would have been obvious to modify what is taught in a single
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`piece of prior art to create the patented invention. Obviousness may also be shown
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`by demonstrating that it would have been obvious to combine the teachings of more
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`than one item of prior art. I have been advised by counsel that a claimed invention
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`may be obvious if some teaching, suggestion, or motivation exists that would have
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`led a person of ordinary skill in the art to combine the invalidating references.
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`Counsel has also advised me that this suggestion or motivation may come from the
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`knowledge of a person having ordinary skill in the art, or from sources such as
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`explicit statements in the prior art. Alternatively, any need or problem known in the
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`field at the time and addressed by the patent may provide a reason for combining
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`elements of the prior art. Counsel has advised me that when there is a design need
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`15
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`Exhibit 1002
`Page 17 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
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`or market pressure, and there are a finite number of predictable solutions, a person
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`of ordinary skill may be motivated to apply common sense and his skill to combine
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`the known options in order to solve the problem.
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`26.
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`I understand the following are examples of approaches and rationales
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`that may be considered in determining whether a piece of prior art could have been
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`combined with other prior art or with other information within the knowledge of a
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`person having ordinary skill in the art:
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`(1) Some teaching, motivation, or suggestion in the prior art that would have
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`led a person of ordinary skill to modify the prior art reference or to combine
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`prior art reference teachings to arrive at the claimed invention;
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`(2) Known work in one field of endeavor may prompt variations of it for use
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`in the same field or a different field based on design incentives or other market
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`forces if the variations would have been predictable to a person of ordinary
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`skill in the art;
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`(3) Combining prior art elements according to known methods to yield
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`predictable results;
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`(4) Applying a known technique to a known device, method, or product ready
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`for improvement to yield predictable results;
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`16
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`Exhibit 1002
`Page 18 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
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`(5) Applying a technique or approach that would have been “obvious to try”
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`(choosing from a finite number of identified, predictable solutions, with a
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`reasonable expectation of success);
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`(6) Simple substitution of one known element for another to obtain predictable
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`results; or
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`(7) Use of a known technique to improve similar products, devices, or
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`methods in the same way.
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`IV. RELEVANT TECHNOLOGY BACKGROUND
`A. The Rise of Mobile Web Browsing and the Advent of Mobile User
`Interfaces and Mobile Applications
`27. With the rise of the laptop computer in the 1980s, and the World Wide
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`Web in the second half of the 1990s, by the turn of the century the large majority of
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`content consumed over networks in the U.S. was through web browsers. Laptop and
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`desktop computers ran identical or similar operating systems, browsers could run on
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`either, and the only significant difference, screen size, was generally handled within
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`the browsers. So publishing on the Web was the preferred way of providing services
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`to networked customers.
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`28. Especially with the introduction of hand-held mobile phones (such as
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`Motorola’s revolutionary MicroTAC in 1989) there was a surge in uptake for mobile
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`voice services, but data lagged behind. This was in part a network issue – text
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`
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`17
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`Exhibit 1002
`Page 19 of 133
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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`messaging started in Europe in 1993 but was limited to a few characters, and
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`deployment in the U.S. was much slower) – and early “flip” phones had very small
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`screens.
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`29. Although cell phones started as a closed environment for developers,
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`by the late 1990s the Symbian operating system, especially on Nokia phones,
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`allowed more flexible application development, as did Java’s J2ME mobile edition.
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`Still data bandwidth was limited and often unavailable. In order to provide Internet
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`access the WAP (Wireless Access Protocol) communication suite was developed
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`and standardized. WAP allowed web developers to write pages in WML (Wireless
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`Markup Language) for use on phones. But WAP never really caught on, in large
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`part because WML was fairly limited and simply could not mimic web pages users
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`were seeing on their laptops.
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`30.
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`In the second half of the 1990s, as mobile phones and associated
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`services were evolving as I just described, another form of personal communication
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`devices, Personal Digital Assistants (PDAs) appeared. The Palm Pilot, released in
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`1997, is perhaps the most well-known of such devices. PDAs from the beginning
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`had larger screens and superior graphics, allowing them to support the “desktop”
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`metaphor of icons and multiple applications which we are familiar today. They
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`usually had touch screens, or, early on, stylus-based touch screens (e.g. the Palm
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`
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`18
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`Exhibit 1002
`Page 20 of 133
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`

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`Declaration of Christopher M. Schmandt in Support
`of Petition for Inter Partes Review of
`U.S. Patent No. 9,294,428 B2
`
`Pilot). Some supported handwriting recognition (the Graffiti writing system from
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`Palm, for example). The combination no pixel-based graphic display and touch
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`screens allowed PDAs to employ m any of the same graphical user interface
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`techniques laptop users were already familiar with, such as menu bars, pull down
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`menus, sliders and toggles, and touch selectable calendars.
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`31. PDAs initially concentrated on a suite of “personal information system”
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`applications such as calendar and contact list, but once modems for the devices were
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`introduced, they also included email. Although modems required a phone
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`connection, by late 1990 wireless data services such as Mobitex were being deployed
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`in major metro markets, and PDAs started using them as well. Of course email
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`requires connecting to a centralized email server, as email is a store-and-forward
`
`s