Case 6:22-cv-00031-ADA Document 47-1 Filed 08/10/22 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`FL YPSI, INC., (D/B/ A FL YP),
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`Plaintiff,
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`V.
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`GOOGLELLC,
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`Defendant.
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`CIVIL ACTION NO. 6:22-cv-00031-ADA
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`JURY TRIAL DEMANDED
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`DECLARATION OF JAMES R. BRESS IN SUPPORT OF DEFENDANT GOOGLE
`LLC'S OPENING CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00031-ADA Document 47-1 Filed 08/10/22 Page 2 of 11
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`I, James R. Bress, hereby state and declare:
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`I.
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`INTRODUCTION
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`1.
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`I am over the age of 18 and am competent to make this declaration. I have personal
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`knowledge, or have developed knowledge, of these technologies based upon my education,
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`training, and/or experience, of the matters set forth herein.
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`2.
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`I have been retained by counsel for Defendant Google LLC ("Google"), in the
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`above matter. I am submitting this declaration to address the meaning and construction of certain
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`disputed terms in U.S. Patent Nos. 9,667,770 ("the '770 Patent"), 10,051,105 ("the '105 Patent"),
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`10,334,094 ("the '094 Patent"), 11,012,554 ("the '554 Patent"), and 11,218,585 (''the '585
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`Patent") ( collectively, the "Asserted Patents").
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`3.
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`My opinions are based on my years of education, research and experience, as well
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`as my investigation and study of relevant materials, including those identified in this declaration.
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`I may rely upon these materials, my knowledge and experience, and/or additional materials in
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`forming any necessary opinions. Further, I may also consider additional documents and
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`information to rebut arguments raised by PlaintiffFlypsi, Inc. ("Flyp").
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`4.
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`My analysis of materials is ongoing and I will continue to review any new material
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`as it is provided. This declaration represents only those opinions I have formed to date.
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`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE
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`5.
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`I am a former engineer at Bell Communications Research, Inc. (also known as
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`Bellcore) and an author ofBellcore network features and services requirements with over 35 years
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`of experience in telecommunications systems and equipment testing, hardware and software
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`design, and telecommunications network signaling and services. I am now President and Chief
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`Technical Officer of AST Technology Labs, Inc. (AST), providing a wide variety of
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`telecommunications product performance testing and design consulting services.
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`6.
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`I have experience with the technologies described in the Asserted Patents, including
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`telecommunications network architectures, protocols, services, provisioning, standards, Public
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`Switched Telephone Networks (PSTN), Advanced Intelligent Network (AIN), mobile networks,
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`interworking between PSTN and mobile networks, the Transmission Control Protocol (TCP), the
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`Internet Protocol (IP), call processing for PSTN, and mobile networks, network interfacing,
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`network interconnection, gateways, call controllers, soft switches, etc.
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`7.
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`I received a Bachelor of Science degree in electrical engineering from the
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`University of North Carolina at Charlotte in 1985, and a Master of Science degree in electrical
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`engineering from the California Institute of Technology in 1987, where I had a grade point average
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`of 4.0 out of a possible 4.0.
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`8.
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`In 1985, I was employed by Bell Communications Research, Inc. (also known as
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`Bellcore), located in Piscataway, NJ. I was a member of the Technical Staff at Bellcore with
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`responsibility for numerous telecommunications systems operations and development projects.
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`9.
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`In 1995, I founded AST Technology Labs, Inc. (AST), located in Melbourne, FL,
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`where I am the President and Chief Technical Officer. My responsibilities at AST, in addition to
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`performing product testing, include the development of detailed specifications, architectures,
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`hardware, and software for custom telecommunications test systems including analog, digital,
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`VoIP, and wireless.
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`10.
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`I have served on numerous standards setting projects for the Telecommunications
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`Industry Association (TIA) and have been a prime contributor to many published American
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`National Standards Institute (ANSI) / TIA telecommunications standards for the performance of
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`products used for traditional telephony (analog), VoIP, and mobile. I served continuously from
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`2000 to 2017 as chairman or vice chairman of the TIA TR41.3 subcommittee, and from 2017 to
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`the present as chairman of the TIA TR41 engineering committee for Communications Products
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`Performance and Accessibility. In relation to my work within the TIA, I received the HLAA
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`(Hearing Loss Association of America) 2018 National Access Award for my development work
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`and leadership in standards impacting telecommunications accessibility on a national level.
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`Additionally, in 2018, I received an ANSI Meritorious Service Award in recognition of my 20+
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`years of leadership and contributions to the U.S. voluntary standardization system.
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`11.
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`I include as part of my responsibilities regarding standards leadership to be
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`informed and to maintain a level of expertise regarding other standards bodies' VoIP and mobile
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`telephony related standards including those published by the IEEE (Institute of Electrical and
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`Electronics Engineers), the ETSI (European Telecommunications Standards Institute), the 3GPP
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`(3rd Generation Partnership Project), the ITU (International Telecommunication Union), the IETF
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`(Internet Engineering Task Force), and others.
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`12.
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`Starting in 2017 and to the present, I have been the chairman of the Bluetooth SIG
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`High Quality Audio study group to develop a new specification for Bluetooth audio device
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`conformance as an indication of meeting high quality audio performance standards.
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`13. My first assignment at Bellcore was in the software operations area including
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`PREMIS (PREMise Information System), SOAC (Service Order Analysis & Control), and LF ACS
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`(Loop Facility Assignment and Control System). These systems integrated hardware (network
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`switching and computers) and software ( database, reporting, network control and management,
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`and user interface) used by Bellcore's owners (the Regional Bell Operating Companies (RBOCs)
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`or "Baby Bells"). My responsibilities included software installation and testing, network
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`management and control, database configuration and schema development, systems provisioning,
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`troubleshooting network connectivity issues, and software documentation.
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`14.
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`After three years in the software operations area, I moved to Bellcore's area for
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`new services development for the RBOCs to offer to their customers. My responsibilities included
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`telecommunications services concept development, system hardware implementations, software
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`development, data network design, network connectivity implementations and troubleshooting,
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`network configurations and provisioning, prototype architectures development,
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`test lab
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`development and operations, and development of Technical Requirements (TR) documents used
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`by the RBOCs, switching equipment manufacturers, and customer premises equipment
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`manufacturers.
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`15.
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`The multiple new services development projects I worked on required an in-depth
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`understanding of telephone system network architectures, signaling, protocols, features, and
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`services operations. The Information Gateway projects provided remote access to distributed
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`databases, with the information presently graphically to the users. The Advanced Intelligent
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`Network (AIN) projects were based on integration with the AIN system features and components
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`(including Service Control Points (SCP) and Signaling Transfer Points (STP)). The Analog
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`Display Services Interface (ADSI) and the Caller ID on Call Waiting (CIDCW) projects provided
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`enhanced telephone services usability and interfaced Customer Premises Equipment (CPE) to
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`Central Office PSTN/AIN generated signaling and call progress tones. Related to these projects,
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`I am a named inventor on U.S. Patent No. 5,519,774, "Method and system for detecting at a
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`selected station an alerting signal in the presence of speech," and the first named inventor on U.S.
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`Patent No. 5,570,420, "Customer premise equipment network integrator," which were assigned to
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`Bellcore.
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`16. While employed at AST Technology Labs (AST), I was responsible for the
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`development of a "Call Generator" system for Telcordia Systems (formerly Bellcore ). The system
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`was used to demonstrate Telcordia's larger service goal of handling "one million calls per minute"
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`for emergency management. The system was installed at Telcordia and used for demonstrations
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`by Telcordia management and sales teams.
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`17.
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`I am the chief architect and design engineer for the development of AST's in-house
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`test systems used for evaluating VoIP products. These systems employ the SIP (Session Initiation
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`Protocol) and the SDP (Session Description Protocol) for establishing call connections, and the
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`RTP (Real Time Protocol) for the transmission of media (e.g., packets of digitized voice) after
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`session establishment. AST's test systems include VoIP components (SIP server, proxy, registrar,
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`and voicemail server) and are used for testing telephony devices (handsets, headsets, and
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`speakerphones), voice gateways (FXO/PSTN and FXS/ATA-Analog), and other VoIP products.
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`18.
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`I was the chief architect for AST's test systems used for evaluating the features and
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`performance of mobile telephone devices. The test systems integrated a base station simulator, to
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`provide connectivity for 2G, 3G, and 4G (LTE) to establish voice calls between the device under
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`test handset and AST's audio test systems and to transmit SMS "text" messages between the base
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`station simulator and the device under test handset. AST's mobile device test system was also
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`used for analyzing network signaling transmitted bi-directionally between the base station
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`simulator and the device under test handset.
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`19.
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`I am a named inventor on U.S. Patent No. 9,020,621, "Network Based Media
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`Enhancement Function Based on an Identifier." The systems provided services to users connecting
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`to an IMS (Internet-protocol Multimedia Subsystem) network via SIP/SDP enabled devices.
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`Application servers were inserted in the media path of a VoIP telephone call and enhanced the
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`audio based on the user's hearing impairment parameters.
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`20.
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`The many PSTN, VoIP (SIP, SDP, RTP, etc.), and IMS related projects that I have
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`worked on have provided me ample experience with call related controls, signaling, protocols, and
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`services in the traditional PSTN, VoIP, and mobile network domains.
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`21.
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`I have provided expert consulting and expert witness services in over 25 patent
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`cases on behalf of plaintiffs and defendants regarding infringement and invalidity issues, and on
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`behalf of patent owners and petitioners for cases brought before the Patent Trial and Appeal Board
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`(PTAB) regarding validity challenges.
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`22. My Curriculum Vitae (Exhibit A) outlines my duties at Bellcore, AST, and as a
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`consultant, includes further details about my education and professional career, and lists my
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`patents and publications. Exhibit B summarizes the cases for which I have provided expert
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`services that included submitting one or more expert reports, and in some cases, testimony at
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`depositions and trial.
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`III. MATERIALS RELIED UPON IN FORMING MY OPINIONS
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`23.
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`In preparing my opinions, I have reviewed the Asserted Patents and their
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`prosecution histories.
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`24. My opinions are also based upon my education, training, research, knowledge, and
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`personal and professional experience.
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`IV. CLAIM CONSTRUCTION PRINCIPLES
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`25.
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`I am not an attorney. Counsel has informed me about several principles and
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`standards of patent law, which I have used in developing my opinions expressed herein.
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`26.
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`I have been informed by counsel that the claims of a patent define the scope of the
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`invention and the patentee's rights. I have been told by counsel that patent claims generally should
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`be interpreted consistent with their plain and ordinary meaning as would have been understood by
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`persons of ordinary skill in the art, after reviewing the patent claim language, the specification,
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`and the prosecution history (i.e., the intrinsic record). In this regard, I have also been told by
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`counsel that, in order to determine the proper meaning of a disputed claim term, I first look to the
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`claim language itself, the specification, and the prosecution history.
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`27.
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`I have been informed by counsel that a single claim term should be construed
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`consistently with its appearance in other places in the same claim or in other claims of the same
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`patent, unless it is clear from the specification and prosecution history that the terms have different
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`meanings at different portions of the claims.
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`28.
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`I have been informed by counsel, as a general rule, that unless a patent applicant
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`shows an intent to limit their invention, particular examples or embodiments discussed in the
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`specification are not to be read into the claims as limitations. I have also been told by counsel that
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`the construction that stays true to the claim language and most naturally aligns with the patent's
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`description of the invention will be the correct construction.
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`29.
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`I have been informed by counsel that extrinsic evidence outside the patent and
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`prosecution history, such as expert testimony, treatises and dictionaries, may also be considered as
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`an aid in arriving at the proper construction of a claim when a claim term is ambiguous.
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`30.
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`I have been informed by counsel that a patent claim is invalid as indefinite if it does
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`not "particularly point[] out and distinctly claim[] the subject matter which the inventor or a joint
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`inventor regards as the invention." 35 U.S.C. § 112(b). I have been informed by counsel that a
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`claim, viewed in light of the specification and prosecution history, must inform those skilled in the
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`art about the scope of the invention with reasonable certainty. However, I have been informed by
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`counsel that reasonable certainty does not require absolute precision.
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`V. LEVEL OF ORDINARY SKILL IN THE ART
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`31.
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`I have been informed by counsel that there is a concept in patent law known as a
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`person having ordinary skill in the art ("POSIT A"). I have been informed by counsel that this
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`concept refers to a person who is trained in the relevant technical field of a patent without
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`possessing extraordinary or otherwise exceptional skill. Further, I have been informed by counsel
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`that factors such as the education level of those working in the field, the sophistication of the
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`technology, the types of problems encountered in the art, prior art solutions to those problems, and
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`the speed at which innovations are made may help establish the level of skill in the art.
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`32.
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`Taking these factors into consideration, it is my opinion that a person of ordinary
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`skill in the art at the time of the alleged invention of the Asserted Patents ("POSIT A") would have
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`been a person with a bachelor's degree in electrical engineering or computer science with at least
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`two years of experience in the field of telephone and network systems, and call routing or a person
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`with a master's degree in electrical engineering or computer science with a specialization in the
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`field. A person with less education but more relevant practical experience may also meet this
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`standard.
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`33.
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`I understand that Flyp is asserting a priority date of July 17, 2013. Based on my
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`qualifications above, I was at least a POSITA as of July 17, 2013.
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`VI. DISPUTED CLAIM TERMS - "primary telephone number" / "secondary telephone
`number" ('770 Patent Claims 1, 2, and 4; '105 Patent Claims 1, 2, 4, 6, 8, 10, and 11;
`'094 Patent Claim 1; '554 Patent Claim 1; '585 Patent Claim 1)
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`Plaintiff's Proposed Construction
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`Defendant's Proposed Construction
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`Plain and ordinary meaning
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`Indefinite
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`34.
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`As used in the Asserted Patents, the terms "primary telephone number" and
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`"secondary telephone number" are inherently subjective and relative.
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`35.
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`"Primary" implies that a given telephone number is more important or relevant to
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`something (perhaps a user, device or technological goal) than a "secondary" telephone number,
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`which implicitly is less important or relevant to the desired user/device/goal.
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`36.
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`Yet the specification offers no objective or defined criteria for determining the
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`primacy of particular telephone numbers relative to each other.
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`37.
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`For example, it is impossible to know, as between a personal telephone number and
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`a business telephone number utilized by a user, which might be the "primary telephone number"
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`and which might be the "secondary telephone number," or whether both are considered "primary"
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`or "secondary."
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`38.
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`One user might treat their personal telephone number as primary, while another
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`might treat their business telephone number as primary, while a third user might view and treat
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`both numbers as "primary."
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`39.
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`To further complicate the inquiry, a user could deem the business telephone number
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`primary during business hours, but the personal number primary in the evening and on weekends.
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`40.
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`As used in the Asserted Patents, the terms "primary telephone number" and
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`"secondary telephone number" are subjective because they may depend on the opinion of the
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`individual practicing the claimed method.
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`41.
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`The specification references embodiments where the pnmary and secondary
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`numbers are assigned to the same handset. For example, the specification discloses both that "[t]he
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`primary telephone number, preferably, may be a SIM number or ESN which is assigned to the
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`handset 340 at the time of activation" ('770 Patent, Col. 5:2-11) and that "the server 100 may
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`automatically assign one or more secondary telephone numbers to the handset 340, as opposed to
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`them being selected." ('770 Patent, Col. 5: 12-14). In the case of a telephone handset that has been
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`assigned two different telephone numbers, a POSITA would have no objective guidance or means
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`to determine which telephone number was the "primary" and which was the "secondary." This
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`fact renders it impossible for a POSIT A to determine if an accused product is, or is not, infringing
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`the claims of the Asserted Patents that recite "primary telephone number" and "secondary
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`telephone number."
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`VII. ADDITIONAL REMARKS
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`42.
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`I currently hold the opinions expressed in this declaration. But my analysis may
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`continue, and I may acquire additional information and/or attain supplemental insights that may
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`result in added observations.
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`43.
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`I declare under penalty of perjury that the foregoing is true and correct.
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`Executed this day on August 9, 2022 in Melbourne, Florida.
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