Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

Affidavit of Chris Schmandt

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC, Plaintiff, v. Civil Action No. 6:18-cv-00080-ADA BUMBLE TRADING, INC., and BUMBLE HOLDING, LTD. Defendants. DECLARATION OF CHRISTOPHER M. SCHMANDT IN SUPPORT OF DEFENDANTS' RESPONSIVE CLAIM CONSTRUCTION BRIEF I, Christopher M. Schmandt, submit this declaration in support of Defendants Bumble Trading, Inc. and Bumble Holding, Ltd.'s (collectively, "Bumble") Responsive Claim Construction Brief, and declare as follows: I. INTRODUCTION 1. In my declaration in support of Bumble's Opening Claim Construction Brief, I provided my opinions as to why certain claim terms were indefinite and why the Court should adopt Bumble's proposed claim constructions. I have reviewed Plaintiff's opening claim construction brief as well as Dr. Jones' declaration, and my opinions are unchanged. I submit this short rebuttal declaration to respond to arguments made by Plaintiff regarding the term "graphical representation" in its opening brief. II. BACKGROUND 2. In my declaration in support of Bumble's Opening Claim Construction brief, I provided an over view of my expert qualifications, including my educational background, my relevant professional experience, and my publications. 3. As I mentioned there, in 1985, I helped found the Media Laboratory at M.I.T. My early work preceding the Media Lab focused on digital typography and the display of media, such as electronic books on conventional televisions. This involved the fusion of graphic design principles to inform and software engineering to implement interactive computer graphic user interfaces. In this early work, my mentor was Muriel Cooper, a prominent graphic designer, who was moving into digital media. This also fit in with the Visual Arts program in the M.I.T. Department of Architecture, with which we were affiliated. As we became the Media Lab, what has set our organization apart from somewhat similar labs at other universities has always been a strong design element, and I have had the fortune to work with our design faculty over the years in critiques of my students' user interface designs and theses. 2 III. LEGAL STANDARDS 4. As noted in my prior claim construction declaration, certain legal standards have been explained to me by counsel for Bumble. I stated and applied them to my detailed opinions in my earlier declaration, and I have again applied them to my opinions below. IV. DISPUTED TERMS a. "graphical representation" Bumble's Construction Plaintiff's Construction "summary of information [displayed on a "pictorial portrayal" graphical user interface]" "pictorial portrayal of a [first, second, third, "summary of information [displayed on a etc.] potential match" graphical user interface] representing a [first, second, third, etc.] potential match" "pictorial portrayal of a [first, second] online dating profile" "summary of information [displayed on a graphical user interface] representing a [first, "pictorial portrayal of a [first, second] item of second] online dating profile" information" "summary of information [displayed on a "pictorial portrayal of the [first, second] user" graphical user interface] representing a [first, second] item of information" "summary of information [displayed on a graphical user interface] representing the [first, second] user" 5. I understand that all of the asserted patents' independent claims recite a "graphical representation," along with a dependent claim in the ʼ023 Patent. 6. I reviewed Dr. Jones' declaration in support of Plaintiff's opening claim construction brief. Dr. Jones cites definitions of the term "graphic" in ¶ 15 of his declaration and states, "The Oxford Dictionary of English defines graphic, in reference to computing, as 'relating to or denoting a visual image.'" Dr. Jones and Plaintiff then equate "visual image" and "pictures," but a person of ordinary skill in the art would not do so. In my opinion, Dr. Jones and Plaintiff are trying to excessively narrow the term "visual image" just as they excessively narrow "graphical 3 representation." "Visual images" may be created based on principles of graphic design and can involve text, typefaces, shapes, colors, and objects and characters of different sizes, so on and so forth. A "visual image" is created when these items are arranged in a specific way. Examples of "visual images" include the Home Depot and Lowes logos (shown below), which include shapes with text arranged in a specific way. A person of ordinary skill in the art would understand "graphic" or "graphical representation" to include such visual images. 7. The field of graphic design involves the creation of "graphical representations" and displays on graphical user interfaces. As I explained in my prior declaration, graphical user interfaces can display a variety of types of objects, such as windows, menus, icons, symbols, text, pictures, or some combination thereof and the user interface design includes screen layout, i.e. positions, sizes, typefaces, etc. of all these elements to make a coherent whole. Graphic design is similarly not limited to only pictures or images. Rather, graphic design pertains to how one creates the layout of the display as a whole. These layouts can contain, individually or in some combination, text boxes, pictures, icons, symbols, so on and so forth. In graphic design, these items are laid out in an aesthetically pleasing, specific, intentional manner. This layout can take the form of cards, for example, if preferred. Early computer interfaces were text-based only, with monotype characters fitting only within the 80-by-24-character grid of a computer terminal. 4