EXPERT DECLARATION OF KEVIN C. ALMEROTH
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`Page 1 of 38
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`ironSource Exhibit 1023
`ironSource Ltd. v. Digital Turbine Inc. PTAB-PGR2021-00096
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`

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`TABLE OF CONTENTS
`
`Background 2.0.0.2... ccccccccccccescceessecesscecseceeseecessceesseceseecessecesseecssecesssecssseeesseessseeeseeeesaes 1
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`Engagement... ....ceeccccecccccccceessececsceecesseecessaececeseeecesessecesaeeecesseecessseceesseeecssseeeessseees 1
`
`The 7951 Patent 0.00... .cccc cece cece cece cccesececesesceecesssececseaececsaeeesesseeseesseeeeeseeeessseseesteeeees2
`
`Person of Ordinary Skill in the Art... ccce cece eeceseeeessecesseeesseeesseeeesseeessaes2
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`The Patent Owner’s Proposed Claim Amendment..............00cccccecssceesecesseeesseeeeeeees 3
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`Summary of Applied Prior Art References............cccccccccccecceeeceessecesseeessecesseeenseeeeees5
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`US. Patent No. 10,353,686 to Pashaet alow... eee eeecceeeeeseesssseees 5
`
`U.S. Patent Publication No. 2017/0346853 to Wyatt et al...ee 6
`
`US. Patent No. 10,432.595 to Frederick et ale...cc cece eeeeeeeeeeeees 6
`
`US. Patent No. 9,348,572 to Farm et alii... eee cece ce ccceeeeeseeseseeees 7
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`Claim Construction and Person of Ordinary Skill and the Art...eee 7
`
`Required Written Description and Added Subject Matter in Substitute
`C1atis occ ece cece cc ccescececssecessseeecesseeceessececsssecceessecesssececsseesesseesessseeeeesseseessseeeseees 14
`
`Pasha Anticipates and/or Renders Obvious the Substitute Claims of CMA........... 15
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`Substitute Independent Claims 19, 30, and 35 oo... ccc cccecceceeseeesteeeeeeees 16
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`Pasha Discloses a “Link for Installation”’...........00000cccceeeeeceeeteeeeeees 17
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`Pasha Discloses “in Response to said Identifying” in the
`Substitute Claims ...........ccccccccccecccescceeceseceseceecesceeeseeescecseeceseeeseeesseesaes 19
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`Pasha discloses the “Invoking”limitation in the Substitute
`C1 eee cceccceecceceeesececeeeecessesecsseeecesseeceecssesecseeeeesseeceesseeeeneees 19
`
`Pasha discloses amended “Redirect” Limitation in the
`Substitute Claims...........cccccecccccecccsscceseceseceeceseeeseeeesecescecseeceseeeseeeseeesaes24
`
`Obviousness over Pasha, combined with Wyatt and/or Farm of Substitute
`Claims Of CMA 0.0.0... ccccccecccccccccccecessseceessececseseesesseesessseeecesseaesesseceesseeeessseeeeseeeeseees27
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`Page 2 of 38
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`i
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`Substitute Dependent Claims 20-39 020.0... ccccccescceecceeseceesecesseeeseeesseees 32
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`The Limitations set Forth in Substitute Claims Provided in CMA Recite
`Nothing More Than Conventional Hardware and Computer Functionality............ 33
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`Page 3 of 38
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`il
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`DECLARATION OF KEVIN C. ALMEROTH
`
`I, Kevin, C. Almeroth, declare as follows:
`
`1.
`
`I am over 18 years of age and I am competent to express the opinionsset
`
`forth herein.
`
`Background
`
`2.
`
`The information regarding my backgroundis provided the 1*' Declaration for
`
`this proceeding dated June 21, 2021 (Exh. 1008; pars. 2-26 — “1% Declaration’”’),
`
`which is hereby incorporated in this documentinits entirety.
`
`Engagement
`
`3.
`
`In addition to my prior engagement by ironSource Ltd. (“ironSource’’) in
`
`connection with its petition for post-grant review of U.S. Patent No. 10,782,951
`
`(“the ‘951 Patent” - Exh. 1001) for which I provided the 1*' Declaration, I have
`
`nowalso been askedby ironSource to provide information and opinions regarding
`
`the Patent Owner’s Contingent Motion to Amend (“CMA”) and substitute claims
`
`provided therewith, (See Paper 19).
`
`4.
`
`I am being compensated for my timeat a rate of $700 per hour. No
`
`component of my compensation is contingent on my opinions expressed herein or
`
`on the outcomeofthis (or any other) proceeding.
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`Page 4 of 38
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`5.
`
`I have reviewed CMA (Paper19), the substitute claims provided therewith,
`
`the ‘951 Patent (Exh. 1001), as well as the prosecution history thereof (Exh. 1002)
`
`and Declaration of Dr. Z. Morley Mao dated March 31, 2022 (Exh. 20005). In
`
`forming my opinions, I have also reviewed and considered the exhibits cited in my
`
`1‘' Declaration and the following additional exhibits:
`
`
`
`Exhibit
`
`Description
`
`1020
`
`U.S. Patent Publication No. 2017/0346853 by Wyatt
`et al.
`
`
`1021
`
`U.S. Patent No. 10,432.595 to Fredericket al.
`
`
`
`
`
`
`
`1022
`
`1024
`
`U.S. Patent No. 9,348,572 to Farm
`
`Transcript of the deposition of Dr. Mao, May 26, 2022
`
`The ’951 Patent
`
`6.
`
`I have provided information regarding the ’951 Patent in the 1‘ Declaration,
`
`whichis incorporated herein by reference as fully included herein. (Exh. 1008,
`
`pars. 29-36).
`
`Person of Ordinary Skill in the Art
`
`7.
`
`Information and my opinionsregarding a person of ordinary skill in theart
`
`(“POSIA”)at the time claimed invention was madeare providedin the 1*
`
`Page 5 of 38
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`Declaration, which are incorporated herein by reference as fully included herein.
`
`(See Exh. 1008, pars. 37-39).
`
`The Patent Owner’s Proposed Claim Amendments
`
`8.
`
`I understand that the Patent Owneris proposing substitute claims 19-36,
`
`which correspondto original claims 1-18 in the ‘951 patent. As confirmed by the
`
`Patent Owner, claims 19, 30, and 35 all retain features of correspondingoriginal
`
`claims 1, 12, and 17. Paper 19, pg. 2. My opinionsset forth in my 1* Declaration
`
`(Exh. 1008) for the unamended termsofthe substitute clatms remain unaltered and
`
`are incorporated by reference herein. I further understand the Patent Ownerhas
`
`proposed several amendmentsto claims 1, 12, 17 in substitute claims 19, 30, and
`
`35. Claim 19, which is representative of these claims, is set forth below with the
`
`new amendments shown in underline text for additions and brackets for deletions:
`
`19. (Substitute for claim 1) A mobile device configured for
`running software applications, comprising:
`
`a network interface configured for communicating over a
`network;
`
`at least one non-transitory computer readable storage
`medium storing instructions; and
`
`at least one processorassociated with said network interface
`and said storage medium, configured for executing said
`instructionsto:
`
`identify that a link for installation of a first software
`application is selected by user interaction with a second
`software application running onsaid device, the link being
`
`Page 6 of 38
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`embeddedin content displayed on said device by the second
`software application;
`
`in response to said identifying, determine whether an
`installation client for downloading andinstalling
`applications on said device is available on said device, said
`installation client comprising a third software application;
`
`whensaid installation client is determined to be
`available on said device in response to said identifying:
`
`invoke, without exiting said second software
`application, said installation client for downloading
`and installing applications on said device to run in the
`background on said device, wherein the invoking
`comprises authenticating the link for the installation of
`the first software;
`
`instruct said installation client to automatically
`download an installation file of said first software
`application to said device over said network using said
`network interface in the backgroundonsaid device,
`without directing said user interaction to an app store;
`and
`
`using said downloadedinstallation file, install
`said first software application on said device in the
`background onsaid device while maintaining a user
`experience of interaction with said second software
`application in the foreground; and
`
`whensaid installation client 1s determined to be unavailable
`on said device[[,|] in response to said identifying, using an
`ad server request to redirect said device to an app store for
`downloading andinstalling said first software application
`on said device.
`
`9.
`
`Thus, the Patent Owner is amendingthe language regarding the availability
`
`determination for the installation client, the “invoke/invoking”limitation, and the
`
`“redirect” limitation.
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`10.
`
`Asdetailed herein, it is my opinion that proposed substitute claims 19-36 are
`
`not patentable since the substitute claims are not properly supported with an
`
`adequate written description, are anticipated and/or rendered obvious by Pasha,
`
`and/or are rendered obvious by Pashain view of one or more secondary references
`
`discussed herein. It is my further opinion that the substitute claims are also
`
`directed to ineligible subject matter and are not patentable under 35 U.S.C. 101.
`
`Summaryof Applied Prior Art References
`
`U.S. Patent No. 10,353,686 to Pashaet al.
`
`11.
`
`Information andthe description regarding U.S. Patent No. 10,353,686 to
`
`Pashaet al. (“Pasha’’) (Exh. 1003) are provided in the 1st Declaration, which are
`
`incorporated herein (See Exh. 1008, pars. 44-48).
`
`12.
`
`For context purposes, just to reiterate, Pasha is entitled “application
`
`installation system” and “generally relates to installing applications on computing
`
`devices.” Exh. 1003, col.1, lines 5-6. Pasha, like the ‘951 Patent, describes a
`
`method of downloading an application on mobile device as a backgroundtask
`
`without being redirected to an app store. In particular, Pasha discloses a method for
`
`installing applications on a mobile device using a “direct application install”
`
`feature, so that third party applications can be downloaded andinstalled onto a
`
`mobile device without the user having to leave the host application and be
`
`redirected to an app store. Exh. 1003, col. 1, lines 35-61. “This direct install feature
`
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`can be used to provide downloadlinks or buttons in third-party applicationsthat
`
`may download andinstall applications in responseto a single user action, such as
`
`touchingthe link or button.” Exh. 1003, col. 1, lines 38-43, and col. 15, lines 52-
`
`58. The download link — which can reference a downloadable application when
`
`selected - effectuates “downloadingandinstalling the host application while the
`
`host application performs the operations.” (Exh. 1003, Abstract).
`
`U.S. Patent Publication No. 2017/0346853 to Wyattet al.
`
`13. U.S. Patent Publication No. 2017/0346853 to Wyatt et al.(““Wyatt”) was
`
`filed on May 30, 2017, claims priority from U.S. Patent Application Ser. No.
`
`62/343,748 that was filed on May 31, 2016, and, I have been advised by counsel,
`
`constitutes prior art to the ‘951 Patent under 35 U.S.C. § 102(a). Wyatt relates to
`
`computer devices — including mobile devices which are “protected by detecting
`
`and preventing compromise of the network connections.” And discloses the use of
`
`“certificate or key pinning” procedures to mitigate such risks. (Exh. 1020, Abstract
`
`and para. [0072]; also see Fig. 1).
`
`U.S. Patent No. 10,432.595 to Frederick et al.
`
`14.
`
`US. Patent No. 10,432.595 to Frederick et al. (“Frederick’’) was filed on
`
`March8, 2017, and, I have been advised by counsel, constitutes prior art to the
`
`“951 Patent under 35 U.S.C. § 102(a). Frederick relates to an “improvedcertificate
`
`system that allow for additional security by having multiple certification
`
`Page 9 of 38
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`authorities validate the organization of the ownerofthe organization application...
`
`to provide seamless verification of the organization application should one or more
`
`digital signatures and/or certificates become compromised.” (Exhibit 1021,
`
`Abstract). Such system can be implementedon, e.g., a mobile device. (See Exh.
`
`1021, col. 7, In. 1). The described security procedure of Frederick can be
`
`implemented by a “pinning process [which] may prevent man-in-the-middle
`
`attacks by pinning the certification requirements ... .” (Exhibit 1021, col. 27, Ins.
`
`41-47).
`
`U.S. Patent No. 9,348,572 to Farm etal.
`
`15. U.S. Patent No. 9,348,572 to Farm et al. (“Farm”) was issued on May 24,
`
`2014, and, I have been advised constitutes prior art to the “951 Patent under 35
`
`U.S.C. 102(a). Farm relates to downloadingandinstallation of apps in response to
`
`advertising, and describes “communication between a device, ad server computer,
`
`and app store.” (Exh. 1022, col 2, Ins. 21-28; also see Figs. 7 and 8).. Farm notes
`
`that in an operation, “the user selects the ad for the second app 710, at which point,
`
`the SDK 706 sends a messageto the ad server 714 specifying that the ad was
`
`selected. The ad server 714 then creates an SDK-less click ID from this action”
`
`which is then used to open the APP store which displays the app to be downloaded
`
`and installed. (Exh. 1022, col. 15, Ins. 38-42).
`
`Claim Construction and Person of Ordinary Skill and the Art
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`Page 10 of 38
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`16. My understandings and opinions regarding the person of ordinary skill in the
`
`art (““POSIA”) and the claim constructions of the recitations in the claims of the
`
`“951 Patent have been provided in the 1st Declaration, which are incorporated
`
`herein. (See Exh. 1008, pars. 52-58). To the extent such recitations have not been
`
`modified in the CMA, my opinionsregarding the constructions of these claim
`
`terms remain the same as provided in the 1st Declaration.
`
`17.
`
`I have now beenasked by counsel to consider the various termsrecited in
`
`the claims providedin the substitute claims of CMA and opined by Dr. Maoin Dr.
`
`MaoDeclaration. (Exh. 2005).
`
`18. With respect to the recitations of the terms “invoke” and “invoking”,I
`
`understand that the Patent Ownerin its CMA,and Dr. Maoin herdeclaration,
`
`interpreted the terms “invoke” and “invoking”as “invoke to run” and “invoking to
`
`run,”from a state in which theinstallation client was not previously running,
`
`respectively. (See Paper 19, pp. 10-13; and Exh. 2005, pars. 77-82). I disagree.
`
`19.
`
`Asset forth in my 1“ Declaration, the proper plain meaning construction of
`
`“mvoke”is simply to call or activate. See Exh. 1008, 9163. The proposed
`
`amendmentto the “invoke”limitation does not alter my opinion. In my opinion, a
`
`POSIA would not depart from a plain meaning understanding of “invoke” and
`
`would not view the claim term as_
`
`requiring the inclusion of the additional
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`language “to run” and “from a state in whichthe installation client was not
`
`previously running.”
`
`20.
`
`The relevant claim languagein each substitute claims 19, 30, and 35
`
`provided in CMA is “invoke[/invoking], without exiting said second software
`
`application, said installation client for downloadingandinstalling applications on
`
`said device to run in the backgroundonsaid device.” In this context, the claim
`
`terms “invoke” and “invoking” are being used according to their ordinary and
`
`customary meaning to specify what happensafter the installation clientis
`
`“invoked”(i.e., for the device to run in the background for downloading and
`
`installing applications on such device). The subject recitation of each substitute
`
`claims 19, 30, and 35 does not specify the state of the installation client at the time
`
`it is being invoked, which could either be running or not running.
`
`21.
`
`The claims themselves confirm that the installation client may be running or
`
`not running. Substitute claim 20 (correspondingto original claim 2 of the 951
`
`Patent) depends from independentclaim 19 (corresponding to original claim 1),
`
`and further recites that the installation client is “closed” wheninstallation of the
`
`first software application is completed. Thus, in substitute claim 19, where
`
`“closing”is not required, it is my opinion POSIA that would understandthat the
`
`installation client may remain runningafter the installation ofthe first software
`
`application is completed. In this case, a subsequent “invoking”ofthe installation
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`client would necessarily be to software that is already running. Accordingly,
`
`reading substitute claims 19 and 20 indicates that the Patent Owner’s proposed
`
`construction is incorrect.
`
`22.
`
`J understand that Dr. Maoalsotestified that her definition of the terms
`
`“mvoke” and “invoking”,1.e., “invoke to run” from a state in which the installation
`
`client was not previously running”does not preclude something being invokedifit
`
`is running in the background. See Exh. 1024, 199:3-200:12; 200:14-23; and
`
`201:15-202:4. (Indeed, Dr. Mao makesa similar point in her declaration. (Exh.
`
`2005, par. 103 - “[w]ithin the context of the claim, ‘clos[ing] can also mean to
`
`allow the app to run in the background...so that it can be invoked in the
`
`999
`background again for the next use.’”) While I certainly agree that something
`
`running in the background can be “invoked”undera proper construction of this
`
`term, “running in the background”appearsto be in direct conflict with the “not
`
`previously running”clause provided in the Patent Owner’s and Dr. Mao’s
`
`proposed construction. In my opinion,it is difficult, if not impossible, to reconcile
`
`these conflicting statements. As such, Dr. Mao’s testimony strongly suggests that
`
`the Patent Owner’s proposed construction is not correct.
`
`23.
`
`In my opinion,the specification of the “951 Patent does not support the
`
`Patent Owner’s proposed “invoke to run” construction. In addition to the ten
`
`citations that the Patent Owneralleges support its “invoke to run” construction, the
`
`Page 13 of 38
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`specification of the ‘951 Patent has a comparable numberof mentions of the term
`
`“mvoke”without the term “to run” thereafter. (See Exh. 1001, 4:45-49; 10: 22-23;
`
`10-32-33; 12:24-26; 12:50-51; 13:2-4; 14: 47-50; Fig. 4A; Fig. 4B; Fig. 5; Fig. 6).
`
`Moreover, I have reviewed the ten citations by the Patent Owner, but do not agree
`
`that these passages in the ‘951 patent actually support its proposed construction. In
`
`each case, the installation client is not merely being “invoked to run”as the Patent
`
`Ownersuggests, but is being “invoked to run in the background”to allow the
`
`downloadandinstallation to be completed without disturbing the user experience,
`
`whichis in line with both the stated purpose of the ‘951 Patent and the explicit
`
`recitations of the claims thereof. This language in the ‘951 Patent is describing
`
`howtheinstallation client will run once invoked, and not that it must be in a non-
`
`running state when invoked. Based on myreviewofthe ‘951 Patent, in my
`
`opinion, it never indicates a required state of the installation client whenitis
`
`invoked. I see no express support in the ‘951 Patent for the proposed negative
`
`limitation “from a state in whichtheinstallation client was not previously running”
`
`which Patent Owneris attempting to imported into the claims through its proposed
`
`construction.
`
`24.
`
`J understand that the Patent Ownerand Dr. Maostate that — based on
`
`extrinsic evidence - “‘invoke’ or ‘invoking’ would have been understood by a
`
`person of ordinary skill in the art to be an “action of passing specific
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`Page 14 of 38
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`arguments/parameters to the program so it can run according to the desired inputs.”
`
`(Paper 19, p. 12, citing Ex. 2005, par. 80). As the Patent Owneris not proposing
`
`this as its construction, it is unclear why this definition is being proffered or how
`
`this supports its proposed construction. As an initial matter, the ‘951 Patent does
`
`not disclose any “specific arguments/parameters” being passedto the installation
`
`client. Further, this extrinsic definition does not require that the thing being
`
`invokedis not previously running, as urged in the Patent Owner’s proposed claim
`
`construction. In my opinion, “passing specific arguments/parameters to the
`
`program so it can run according to the desired inputs” may occur whetherthe
`
`installation client is already running (either in the backgroundor the foreground) or
`
`not whenit is invoked.
`
`25.
`
`Thus, it remains my opinion that the terms “invoke” and “invoking”are
`
`properly understood by POSIA as simply meaning“to call or activate” for both the
`
`original claims and the substitute claims. (Exh. 1008, par. 163).
`
`26. Next, in the CMA,the Patent Ownernow offers a construction for the
`
`recitation of “redirected to an app store” in support of substitute claims 19, 30, and
`
`35 as “causing the user device to be shifted to an app store without requiring a user
`
`interaction”, and Dr. Mao supports such claim construction in her declaration.
`
`(Paper 19, pg. 17; and Exh. 2005, pars. 83-86). I disagree.
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`Page 15 of 38
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`27. As set forth in my 1* Declaration, the ‘951 Patent provides an express
`
`definition for the term “redirected to an app store” as “user interaction using the
`
`device is shifted to a site and/or application for obtaining apps.” (Exh. 1001 at col.
`
`11, Ins. 10-16; Exh. 1008, 955). The proposed amendedclaim languagein the
`
`“redirect” limitation does not alter my opinion that this term should be construed as
`
`expressly defined in the specification of the “951 Patent. I do not find any support
`
`in the ‘951 Patent to change such explicit definition to insert the “shifting”to take
`
`place “without requiring a userinteraction”into the claim term, in either the
`
`original claimsor the substitute claims.
`
`28.
`
`The proposed language in the Patent Owner’s construction is ambiguous.
`
`The phrase “without requiring a user interaction” is permissive — user interaction is
`
`not “required”so it could be involved or not. This, however,is already true in the
`
`claims based on the intrinsic definition in the ‘951 Patent without this surplus
`
`language. Despite the permissive phrasing of its proposed construction, Patent
`
`Ownerseemsto be arguing, however,that this should be read as the redirection
`
`being required to take place without a user interaction. I disagree. I have reviewed
`
`the examples in the ‘951 Patent where a redirection may take place without further
`
`user interaction. I have also located examples in the “951 Patent where user
`
`interaction is required in connection with “redirect to an app store.” For example,
`
`the flow chart of Fig. 10 of the “951 Patent showsthe step “click ad” 1110
`
`Page 16 of 38
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`preceding the “redirect to app store” in step 1120. Column 1 of the ‘951 Patent
`
`also describes (a user being “redirected to an app store” following clicking on a
`
`link in an ad). Exh. 1001, col. 1, Ins. 15-31.
`
`29.
`
`Therefore, it is my opinion that the term “redirected to an app store” should
`
`be construed as “user interaction using the device is shifted to a site and/or
`
`application for obtaining apps,” as explicitly defined in the 951 Patent.
`
`Required Written Description and Added Subject Matter in Substitute Claims
`
`30.
`
`Itis my understanding that the substitute claims must find written
`
`description support in the originally-filed application.
`
`31.
`
`J understand that to comply with this written description requirement, the
`
`original disclosure of the application must reasonably convey to a POSIA at the
`
`time offiling of such application that the inventor(s) had possession of the claimed
`
`subject matter provided in the substitute claims.
`
`32.
`
`Iam also informedthat the substitute claims provided in CMA maynot
`
`proposerecitations that introduce new subject matter which was not provided in
`
`the application as filed which matured into the “951 Patent.
`
`33.
`
`Substitute claims 19, 30, and 35 provided in CMA eachrecites that the “the
`
`invoking comprises authenticating the link for the installation of the first
`
`software.” Based on my review ofthe specification and drawingsofthe
`
`application which matured into the ‘951 Patent, and my understanding of the
`
`Page 17 of 38
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`14
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`

`written description requirement and introduction of new matter, it is my opinion
`
`that this newly-addedrecitation does not have written description support in the
`
`original application which matured in to the ‘951 Patent.
`
`34. With respect to “authenticating the link,” the’951 Patent only describes this
`
`as a function that is performedby the installation client, stating that “the
`
`installation client includes integrated security measures that authenticate the
`
`instant install link whenthe installation client is invoked.” (Exh. 1002, col. 21, Ins.
`
`2-4). Fig. 12 of the ‘951 Patent also showsthat “authenticating a link”is a
`
`function of the installation client.
`
`35.
`
`The substitute claims, however, amendthe “invoking”recitation, and require
`
`the “authenticating the link” operation to be performedbythe softwarethatis
`
`invoking the installation client, rather than this operation being performed by the
`
`installation client. This is not disclosed in the ‘951 Patent. Thus, I am of an
`
`opinion that the ‘951 Patent does not provide adequate written description or
`
`support for the proposed amendmentthat “invoking comprises authenticating the
`
`link for the installation ofthe first software,” as recited in the substitute claims 19,
`
`30 and 35 of CMA.
`
`Pasha Anticipates and/or Renders Obvious the Substitute Claims of CMA
`
`36. My understanding regarding the applicability of Pasha as prior art under 35
`
`U.S.C. § 102 and 35 U.S.C. § 103 to the ‘951 Patent, and my analysis and opinions
`
`Page 18 of 38
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`confirming anticipation and obviousnessofthe original claims is providedin the
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`1st Declaration, which is repeated herein. (See Exh. 1008, paras 60-110 - claims1,
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`3-12, and 14-18 are anticipated by Pasha; paras.111-130, claims 2, 4-6, 13, and 14
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`are rendered obvious over Pasha).
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`Substitute Independent Claims 19, 30, and 35
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`37.
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`The CMA proposesthe following amendments to each of independent
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`claims 1, 12 and 17, (shown in underlined text) which are presented as substitute
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`claims 19, 30 and 35, respectively:
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`e whensaid installation client is determined to be available on said device in
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`responseto said identifying;
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`e
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`invoke, without exiting said second software application, said installation
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`client for downloading and installing applications on said device to run in
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`the background on said device, wherein the invoking comprises
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`authenticating the link for the installation of the first software: and
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`e when said installation client is determined to be unavailable on said device
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`in response to said identifying, using an ad server request to redirect said
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`device to an app store for downloading andinstalling said first software
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`application on said device.
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`Page 19 of 38
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`38. As detailed below,it is my opinion that Pashadisclosesall of the newly
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`presented claim elements of substitute independent claims 19, 30, and 35 and,
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`therefore, anticipates these claims.
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`Pasha Discloses a “Link for Installation”
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`39.
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`Substitute claims 19, 30, and 35 recite “identifying that a link for installation
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`of a first software application is selected by user interaction.” This limitation is
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`also found in the original claims of the ‘951 Patent and is addressed in my 1*
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`Declaration. (See Exh. 1008, pars. 69-71). In CMA,the Patent Ownerclaimsthat
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`Pasharefers to a “download link”rather than an “installation link,” that
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`downloading andinstalling are different concepts, and for that reason, the Patent
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`Ownerstates that Pasha does not disclose the claimed “installation link.” (Paper
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`19, pp. 10-11; and Exh. 2005, par. 109). I disagree. While downloading and
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`installing are distinct operations, the labels used for the links in Pasha and the ‘951
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`Patent are not significant, and do not result in any meaningful distinctions
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`therebetween, as both of these links perform the same function.
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`40.
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`In myopinion,this limitation is understood by the plain and customary
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`meaning of the wordsin the claim, which would be understood by POSIA. It is
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`simply a link that, whenselected, triggers the subsequentsteps leading to
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`installation of an app. The ‘951 Patent does not define the term “a linkfor
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`installation” but provides an “instant install link” as an example. The ‘951 Patent
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`Page 20 of 38
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`defines an “instant install link”as “a link which whenselected causes the
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`installation client to becomeactive in order to perform actions necessary to
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`download andinstall an app.” Exh. 1001, 10:5-8, emphasis added. Thus, the
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`primary example ofa “link forinstallation” results in both the downloading and
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`installation of an app. Accordingly, despite the Patent Owner’s argumentsthat
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`downloading andinstallation are different concepts, they are often coupled and
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`described together, including in the ‘951 Patent.
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`41.
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`Pasha discloses that “[t]his direct install feature can be used to provide
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`downloadlinks or buttons in third-party applications that may download and
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`install applications in responseto a single user action, such as touching the link or
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`button.” (Ex. 1003, col. 1, Ins. 38-42, emphasis added) Pashafurther discloses that
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`“Ta] user may perform a single action, such as touching the link or an associated
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`button on a touch screen, to downloadandinstall an application.” (Exh. 1003,
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`col. 15, Ins. 50-58, emphasis added).
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`42.
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`Thus, it is my opinion that the “download link” of Pasha andthe “instant
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`install link” of the “951 Patent are the same. This is becausethese links are both
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`user-actuated links which are displayedin the content of a first application, which-
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`whenselected - cause the downloadandinstallation of a second application in the
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`backgroundwithoutthe user exiting the first application.
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`Page 21 of 38
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`43.
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`Thus,it is my opinion the “download link” discussed in Pashais “a linkfor
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`installation ofa first software application”as recited in substitute claims 19, 30,
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`and 35 of CMA,andthe claims which depend therefrom.
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`Pasha Discloses “in Response to said Identifying” in the Substitute Claims
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`44.
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`Substitute claims 19, 30, and 35 now further recite “in response to said
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`identifying” whichrefers to the prior step of “identifying that a link. ..is selected.”
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`It is my opinion that Pasha discloses this new recitation.
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`45.
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`Pashadiscloses that “when a download is requested, a check may be
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`performed to determine whether the App Manager180 and installer 182 are
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`present and accessible on the client device.” (Exh. 1003, col. 18, Ins. 50-58).
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`Pasha further discloses that a download can be requested by a userselecting a link.
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`(See Exh. 1003, col. 18, Ins. 59-60; and col. 19, Ins. 3-10). Thus, it is my opinion
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`that Pasha discloses that the host application determines whetherthe installation
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`client (Z.e., the App Manager 182 andthe Installer 182) is available in response to
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`identifying that the user selected the link and anticipates the proposed amendments
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`providedin substitute claims 19, 30 and 35 of CMA.
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`Pashadiscloses the “Invoking” limitation in the Substitute Claims
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`46.
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`In CMA,with respect to the recitation of “invoke” and “invoking” of
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`substitute claims 19, 30, and 35, the Patent Owner states (and Dr. Mao concurs)
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`that Pasha does not disclose that the app manageris “invoked,” “since Pasharelies
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`Page 22 of 38
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`on the App Manager 180 andInstaller 182 already running or being available
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`irrespective of any action taken by the user.”” (Paper 19, p. 14; and Exh. 2005, par.
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`124). I disagree with this position.
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`47.
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`The claim terms “invoke” and “invoking”of substitute claims 19, 30, and 35
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`should be construed — as indicated above — to mean “‘tocall or activate.” In my
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`opinion, whether or not the App Manager180 andInstaller 182 of Pashais/are
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`“already running,” is irrelevant and does not preclude those applications from
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`being “invoked.”
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`48.
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`[also disagree that Pasha’s reference to these applications being “available”
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`meansthat these processesare necessarily already running, as the Patent Owner
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`suggests. An application can certainly be installed and “available” on a device, but
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`not running. “Availability” provides no indication of whether an application is
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`running ornot.
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`49.
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`The Patent Ownerstates (and Dr. Mao concurs) that that “being available”
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`somehowprecludes these applications from being invoked. (Paper 19, pp. 12-13;
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`and Exh. 2005, par. 124). In my opinion, however, the opposite is true.
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`50. An application cannot be invoked unless it is “available” on a device.
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`Indeed, the ’951 Patent also states that the “installation client is available” before it
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`is invoked. (Exh. 1001, col. 14, Ins. 57-60 - “[i]f an installation client is available,
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`in 630 the installation client is invoked to run on the device in the background.”’)
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`Page 23 of 38
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`51.
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`I previously testified and continue to believe that POSIA would understand
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`that once Pasha makes the determination that the App Manager 180 andInstaller
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`182 is/are “available”, and these components are subsequently used to perform the
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`downloading andinstallation operations, these components were “invoked”by the
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`system after the availability determination. Exh. 1008, 977. Otherwise, if not
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`invoked, the components would remain “available,” but would not be used.
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`Moreover, confirming this understanding, Pasha expressly discloses that “the
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`downloading andinstalling are performed by application manager program code
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`invoked bythe host application.” (Exh. 1003, col. 28, Ins. 8-10 - claim 5; and Fig.
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`5, Step 590).
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`52.
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`In addition, as indicated herein above, substitute claims 19, 30, and 35
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`provided in CMA now newlyrecite that the “the invoking comprises authenticating
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`the link for the installation of the first software.” As noted abo