Match Group, LLC v. Bumble Trading Inc.

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

BRIEF by Match Group, LLC.

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7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC Plaintiff, No. 6:18-cv-00080-ADA v. BUMBLE TRADING INC. and JURY TRIAL DEMANDED BUMBLE HOLDING, LTD., Defendants. PLAINTIFF MATCH GROUP, LLC'S OPENING CLAIM CONSTRUCTION BRIEF 7 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................ 1 II. OVERVIEW OF MATCH'S PATENTED TECHNOLOGY.............................................. 1 III. ARGUMENT CONCERNING CLAIM CONSTRUCTION .............................................. 4 A. Overview of Claim Construction Principles .................................................................. 4 B. The Court Should Adopt Match's Proposals Over Bumble's. ....................................... 5 1. "Graphical Representation" ......................................................................... 5 2. "Without Allowing Communication" ........................................................ 10 3. "Preventing Communication" .................................................................... 15 4. "Social Networking Platform" ................................................................... 19 IV. ARGUMENT CONCERNING INDEFINITENESS ......................................................... 23 A. Overview of Indefiniteness Standards .......................................................................... 23 B. The Court Should Deny Bumble's Motion for Summary Judgment of Indefiniteness................................................................................................................ 24 1. "Associated" .............................................................................................. 24 2. "The text area" ........................................................................................... 27 V. CONCLUSION .................................................................................................................. 30 i 7 TABLE OF AUTHORITIES Cases 3rd Eye Surveillance, LLC v. City of Fort Worth & E-Watch Corp. No. 6:14-CV-00725, Dkt. No. 120 (E.D. Tex. June 8, 2016) ................................................... 26 ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc. 694 F.3d 1312 (Fed. Cir. 2012) ................................................................................................. 10 All Dental Prodx, LLC v. Advantage Dental Prods., Inc. 309 F.3d 774 (Fed. Cir. 2002) ................................................................................................... 23 Ameranth, Inc. v. Menusoft Sys. Corp. No. CIVA 2-07-CV-271, 2010 WL 1610079 (E.D. Tex. Apr. 21, 2010) ................................. 12 Blackboard, Inc. v. Desire2Learn, Inc. No. 9:06-CV-155, 2007 WL 2255227 (E.D. Tex. Aug. 3, 2007) ............................................ 30 Bose Corp. v. JBL, Inc. 274 F.3d 1354 (Fed. Cir. 2001) ................................................................................................ 29 CBT Flint Partners, LLC v. Return Path, Inc. 654 F.3d 1353 (Fed. Cir. 2011) .......................................................................................... 27, 28 CCS Fitness, Inc. v. Brunswick Corp. 288 F.3d 1359 (Fed. Cir. 2002) ................................................................................................. 21 Comark Commc'ns, Inc. v. Harris Corp. 156 F.3d 1182 (Fed. Cir. 1998) ................................................................................................... 5 Constant v. Advanced Micro-Devices, Inc. 848 F.2d 1560 (Fed. Cir. 1988) ................................................................................................... 5 Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc. 2015 WL 6769049 (E.D. Tex. Nov. 5, 2015)...................................................................... 16, 17 Cypress Lake Software, Inc. v. ZTE (USA) Inc. No. 6:17-CV-00300-RWS, 2018 WL 4035968 (E.D. Tex. Aug. 23, 2018) ............................. 12 Energizer Holdings, Inc. v. International Trade Com'n 435 F.3d 1366 (Fed. Cir. 2006)..................................................................................................... 29 Enzo Biochem Inc. v. Applera Corp. 780 F.3d 1149 (Fed. Cir. 2015) ................................................................................................... 4 ii 7 GE Lighting Sols., LLC v. AgiLight, Inc. 750 F.3d 1304 (Fed. Cir. 2014) ................................................................................................... 4 Globetrotter Software, Inc. v. Elan Computer Grp., Inc. 362 F.3d 1367 (Fed. Cir. 2004) ................................................................................................. 16 Golden Bridge Tech., Inc. v. Apple Inc. 758 F.3d 1362 (Fed. Cir. 2014) ................................................................................................... 4 Hoffer v. Microsoft Corp. 405 F.3d 1326 (Fed. Cir. 2005) .......................................................................................... 28, 30 H-W Tech., L.C v. Overstock.com, Inc. 758 F.3d 1329 (Fed. Cir. 2014) ................................................................................................. 23 I.T.S. Rubber Co. v. Essex Rubber Co. 272 U.S. 429, 47 S. Ct. 136, 71 L. Ed. 335 (1926) .................................................................. 27 Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc. 381 F.3d 1111 (Fed. Cir. 2004) ................................................................................................. 20 Intamin Ltd. v. Magnetar Techs, Corp. 483 F.3d 1328 (Fed. Cir. 2007) ................................................................................................... 9 Interactive Gift Express, Inc. v. Compuserve, Inc. 256 F.3d 1323 (Fed. Cir. 2001) ................................................................................................. 20 Invitrogen Corp. v. Biocrest Mfg., L.P. 424 F.3d 1374 (Fed. Cir. 2005) ................................................................................................. 24 Joao Control & Monitoring Sys., LLC v. Protect Am., Inc. No. 1:14-CV-00134, 2015 WL 4937464 (W.D. Tex. Aug. 18, 2015) ...................................... 26 Lugus IP LLC v. Volvo Car Corp. No. 1-12-cv-02906, Dkt. 102 (D.N.J. May. 20, 2014) .............................................................. 28 Merck & Co., Inc. v. Teva Pharm., Inc. 395 F.3d 1364 (Fed. Cir. 2005) ............................................................................................... 7, 8 Nautilus, Inc. v. Biosig Instruments, Inc. 572 U.S. 898 (2014) ...................................................................................................... 23, 27, 29 Nellcor Puritan Bennett, Inc. v. Masimo Corp. 402 F.3d 1364 (Fed. Cir. 2005) ........................................................................................... 14, 17 iii 7 Novo Industries L.P. v. Micro Molds Corp. 350 F.3d 1348 (Fed. Cir. 2003) .......................................................................................... 28, 29 O2 Micro Intern. Ltd. v. Beyond Innovation Tech. Co., Ltd. 521 F.3d 1351 (Fed. Cir. 2008) ................................................................................................. 10 One-E-Way, Inc. v. Int'l Trade Comm'n 859 F.3d 1059 (Fed. Cir. 2017) ................................................................................................. 24 Phillips v. AWH Corp. 415 F.3d 1303 (Fed. Cir. 2005) (en banc) ......................................................................... 4, 5, 22 Phoenix Licensing, L.L.C. v. AAA Life Ins. Co. 2015 WL 1813456 (E.D. Tex. Apr. 20, 2015) .................................................................... 12, 16 Solocron Media, LLC v. Verizon Commc'ns Inc. No. 2:13-CV-1059-JRG-RSP, 2015 WL 1011310 (E.D. Tex. Mar. 5, 2015) ........................... 12 Spinal Concepts, Inc. v. EBI, L.P. No. A-02-CA-636 LY, 2004 WL 5680799 (W.D. Tex. Apr. 13, 2004) ................................... 12 Teleflex, Inc. v. Ficosa N. Am. Corp. 299 F.3d 1313 (Fed. Cir. 2004) ................................................................................................... 5 Thorner v. Sony Computer Ent't Am. 669 F.3d 1362 (Fed. Cir. 2012) ......................................................................................... 4, 5, 21 Tinnus Enters., LLC v. Telebrands Corp. 733 F. App'x 1011 (Fed. Cir. 2018) .................................................................................... 24, 25 TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc. 529 F.3d 1364 (Fed. Cir. 2008) ................................................................................................... 8 Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp. 587 F.3d 1339 (Fed. Cir. 2009) ................................................................................................ 28 Ventana Med. Sys., Inc. v. Biogenex Labs., Inc. 473 F.3d 1173 (Fed. Cir. 2006) ................................................................................................. 20 Vitronics Corp. v. Conceptronic, Inc. 90 F.3d 1576 (Fed. Cir. 1996) ............................................................................................. 14, 22 Warsaw Orthopedic, Inc. v. NuVasive, Inc. 778 F.3d 1365 (Fed. Cir. 2015) ........................................................................................... 23, 27 iv 7 Statutes 35 U.S.C. § 112 ............................................................................................................................. 23 35 U.S.C. § 112(b) ........................................................................................................................ 25 MPEP § 2173.05(e) ....................................................................................................................... 29 Other Authorities Merriam-Webster's Collegiate Dictionary (11th Ed. 2014) .......................................................... 16 Oxford Dictionary of English (3d Ed. 2010) ................................................................................ 16 v 7 I. INTRODUCTION As is clear from Match's operative complaint, Bumble copied Tinder's revolutionary matchmaking functionality. Match's Tinder application is a preferred embodiment of many of the innovations disclosed in the three asserted patents, and aspects of that commercial embodiment are claimed in each patent. Infringement in this case should be open-and-shut. To avoid taking responsibility for its rampant copying of Match's commercial embodiment, Bumble proposes construing terms in a number of unwarranted ways. To support an invalidity argument, Bumble asks the Court to expand the phrases "graphical representation of [profiles, potential matches, items of information, etc.]" beyond their ordinary meanings to encompass any representation, including purely textual ones, displayed on a graphical user interface. To support non-infringement positions, Bumble then asks the Court to re-define other claim terms to limit their proper scope without offering any evidence that Match itself redefined the words or disavowed the full scope of the claims. Finally, Bumble asks the Court to declare each asserted claim indefinite based on the two common and well-understood terms "associated" and "automatically," which appear in thousands of valid patents. As discussed below, the Court should adopt Match's proposed constructions, reject Bumble's proposed constructions, and deny Bumble's request to declare the claims indefinite. II. OVERVIEW OF MATCH'S PATENTED TECHNOLOGY The '811, '023, and '854 Patents' claims originate from the pioneers of online dating, with contributions from Sean Rad and Jonathan Badeen's 2012 invention of Tinder—a mobile application that revolutionized the world of online dating. The Tinder innovations, disclosed in a 2013 continuation-in-part of a 2007 patent application originally filed by employees working on Match.com, centered around two key aspects: (1) not allowing communication unless and until 1 7 both sides have indicated a mutual positive preference; and (2) a card-based interface characterized in part by a specific gesture, labeled in the patents as a "swipe." For example, the inventors disclosed the mutual opt-in concept, an embodiment of which is reflected in Figure 10 of each of the asserted patents: This concept addressed the problem that "large numbers of unwanted communications requested can become a nuisance to the user," and "too many nuisance requests may deter the user from further use of the system." '811 Patent at 1:56-59. Allowing communication between users only upon mutual opt-in "may be advantageous because users can avoid browsing, deleting, or responding to unwanted messages." Id. at 22:58-60. 2 7 A second key aspect was the method of navigating through the potential matches. The patents teach an interface that displays "the combination of image and one or more aspects of profile information" as a "'card' 88 representing the suggested user," and that "a set of suggested users may be displayed as stack of cards 88." '811 Patent at 21:12-16. In one embodiment, the specification goes on to disclose that "users 14 may navigate through the set of presented users by swiping through stack of cards 88." Id. at 21:61-63. "Users 14 may also express approval of a presented user by performing a right swipe gesture or express disapproval by performing a left swipe gesture." Id. at 63-65. One embodiment of this concept is disclosed in Figures 6-8: 3 7 III. ARGUMENT CONCERNING CLAIM CONSTRUCTION A. Overview of Claim Construction Principles As the Court is well aware, "it is a 'bedrock principle' of patent law that 'the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Claim construction presents an issue for the Court to resolve. Enzo Biochem Inc. v. Applera Corp., 780 F.3d 1149, 1153 (Fed. Cir. 2015). Absent limited exceptions,1 terms are construed according to the "ordinary and customary meaning" as viewed by a person of ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1312-14. "The patentee is free to choose a broad term and expect to obtain the full scope of its plain and ordinary meaning unless the patentee explicitly redefines the term or disavows its full scope." Thorner v. Sony Computer Ent't Am., 669 F.3d 1362, 1367 (Fed. Cir. 2012). In determining proper claim scope, the Court first examines the intrinsic evidence, including the claims themselves, the specification, and the prosecution history. "Although the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing the specification will not generally be read into the 1 Terms can be construed in a manner inconsistent with the ordinary meaning in only two situations: (i) where the inventor has acted as a "lexicographer" and defined terms in a different-than-ordinary manner; (ii) where the patentee disavows the full scope of the claim term in either the specification or the prosecution history. See Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365 (Fed. Cir. 2014). Both deviations from ordinary scope require heightened showings. See GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (describing standards as "exacting"). To act as a lexicographer, the patentee must "clearly set forth a definition of the disputed claim term." Thorner, 669 F.3d at 1365-66. To disavow claim scope, the patentee must set forth a "clear and unmistakable" surrender. Golden Bridge, 758 F.3d at 1365. Based on the parties' meet-and-confer process on claim construction issues, Bumble does not contend that lexicography or disavowal apply to limit any of the disputed terms presented for resolution from those terms' ordinary scope. 4 7 claims." Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)). Specifically, Courts may not rely on the specification to "redefine words" in the claim language. See Thorner, 669 F.3d at 1366-67. And importing limitations from the specification into the claims is a "cardinal sin" of claim construction. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2004). Courts may also consider extrinsic evidence, such as dictionaries and expert testimony that, while useful, is "less significant than the intrinsic record in determining the legally operative meaning of claim language." Phillips, 415 F.3d at 1317. B. The Court Should Adopt Match's Proposals Over Bumble's. 1. "Graphical Representation" Claim Term Match's Proposal Bumble's Proposal Graphical representation Pictorial portrayal summary of information displayed on a graphical user Graphical representation of a Pictorial portrayal of a [first, interface [first, second, third, etc.] second, third, etc.] potential potential match match summary of information displayed on a graphical user Graphical representation of a Pictorial portrayal of a first interface representing a [first, first [second] online dating [second] online dating profile second, third, etc.] potential profile associated with a first associated with a first match [second] user [second] user summary of information Graphical representation of a Pictorial portrayal of a first displayed on a graphical user first item of information item of information interface representing a first [second] online dating profile Graphical representation of Pictorial portrayal of the first associated with a first the first [second] user [second] user. [second] user summary of information displayed on a graphical user interface representing a first item of information summary of information 5 7 displayed on a graphical user interface representing the first [second] user. The term "graphical representation" appears in numerous instances throughout the asserted claims, describing a representation of something—potential matches, online dating profiles, items of information, and users—not merely that something independent of that representation may be graphical. For example, claim 4 of the '811 Patent recites: a non-transitory computer-readable medium comprising instructions. . . configured to. . . cause the display of a graphical representation of a first potential match. . . on a graphical user interface; determine that the first user expressed a positive preference indication. . . by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match on the graphical user interface. . .; in response to the determination that the first user expressed the positive preference indication. . . automatically cause the graphical user interface to display a graphical representation of a second potential match. . . instead of the graphical representation of the first potential match. . .2 The claims thus recite a number of representations of particular terms. The word "graphical" is used as an adjective describing the specific type of representation required for those specific terms. The Court should adopt Match's construction and reject Bumble's competing proposal. Bumble contends that, when the claims recite "a graphical representation" of, for example, a "first potential match," a skilled artisan would believe the claims referred to "a summary of information displayed on a graphical user interface representing" that "first potential 2 The '811 Patent was printed with a number of typographical errors in light of the PTO's inadvertent printing of an out-of-date claim amendment. A chart with the corrected claim language of the '811 Patent, as well as the claim language for the '023 and '854 Patents, are attached as Exhibit 1 to the Declaration of Dr. Mark Jones. 6 7 match." In other words, Bumble essentially contends that any "representation" displayed on a graphical user interface is per se a "graphical" one. This is wrong. Things may be represented in a number of ways. One way is "graphically"; another is "textually." And a graphical user interface merely provides the mechanism through with users interact with a computer. It can display both graphical and textual depictions of data. See Jones Decl. ¶ 13. For example, the word "tractor" represents a specific type of vehicle, but it does so textually—regardless of whether the phrase appears on a Post-It Note or in a box on a computer screen. Meanwhile, a picture of the tractor displayed on a computer would plainly be a "graphical" representation of it. Indeed, the dictionary definitions describing what makes something "graphical" define the adjective in terms of "pictorial" representations and images—not merely "summaries of information" on a graphical user interface. See Jones Decl. ¶¶ 14-15 (Webster's, Oxford, and IEEE definitions). Despite Bumble's desire for an overly broad interpretation of "graphical representation" to support a dubious invalidity position, the claims themselves also confirm that "graphical representation" must mean something more than simply "information displayed on a graphical user interface." "A claim construction that gives meaning to all the terms of the claim is preferred over one that does not do so." Merck & Co., Inc. v. Teva Pharm., Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005). Each claim of each of the patents in suit recites a "graphical user interface" that displays the "graphical representations." In the '811 Patent, the claims describe that the "graphical representation[s]" are "display[ed] . . . on a graphical user interface." In the '023 Patent, the claims describe "presenting, on a graphical user interface. . . a graphical representation of a first item of information. . . the first item of information comprising a graphical representation of a first online dating profile. . ." In the '854 Patent, the claims recite 7 7 the "display of a graphical representation of a first potential match. . . on a graphical user interface. . ." In other words, every instance in which claims describe a "graphical representation," the claims also recite that the representation must be displayed on a "graphical user interface." Given this consistent context, if any representation displayed on a graphical user interface were necessarily a "graphical representation," the word "graphical" modifying "representation" would be mere surplusage—the claims already indicate that the representation will be displayed on a graphical user interface. Thus, the Court should reject Bumble's proposal, which deprives the "representation" modifier "graphical" of any meaning. See Merck, 395 F.3d at 1372. Instead, consistent with Match's proposal, the modifier "graphical" makes clear that the representation must be one with a pictorial component. Bumble's identified intrinsic evidence also fails to support its construction. The specification nowhere specifically defines the term "graphical representation" in its various iterations. And while the written description does teach a variety of ways that "matches" and "profiles" may be "presented" or "displayed" to users of an embodiment of the system, these teachings do not support Bumble's position here. For example, Bumble relies on drawings and descriptions of one embodiment teaching that profiles may be represented with text alone displayed on a graphical user interface. See Ex. A at 1 (citing '811 Patent 3:13-14; 5:46-62, 6:12-22, and Fig. 1E). Yet, simply teaching one way to display information about a profile or user in the specification in conjunction with one embodiment does not indicate that this way is within the scope of the "graphical representation" claimed in each asserted claim of the patents- in-suit. Claim terms need not be read to capture every embodiment disclosed in the specification. TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc., 529 F.3d 1364, 1373 (Fed. Cir. 2008) ("[R]ead in the context of the specification, the claims of the patent need not encompass 8 7 all disclosed embodiments. Our precedent is replete with examples of subject matter that is included in the specification, but is not claimed.") (internal citations omitted); Intamin Ltd. v. Magnetar Techs, Corp., 483 F.3d 1328, 1337 (Fed. Cir. 2007) ("A patentee may draft different claims to cover different embodiments."). Thus, the disclosure of text-based portrayals of potential matches cannot change or modify the ordinary meaning of "graphical." This is particularly true where Figure 1E, and the relied-upon descriptions of it (at 5:46-62 and 6:12-22), were disclosed in connection with the 2007 Match.com application long before the Tinder app was born, and the corresponding continuation-in-part was filed. Compare U.S. Patent No. 8,566,327 at Fig. 1E. The specification also repeatedly discloses representation of profiles and potential matches that are within the ordinary scope of "graphical representation." For example, Figure 6 shows "one embodiment of system 100 displaying to a user the profile information of a second user." '811 Patent at 21:1-2 and Fig. 6. That figure shows a profile being displayed as a "card" containing a photograph of the user and the user's name. See Fig. 6. And the specification describes this card as "the combination of an image and one or more aspects of profile information," further teaching that this card "represent[s] the suggested user." '811 Patent at 21:13-15. In other words, the written description describes embodiments with representations including pictorial components and other representations consisting of text alone. Given the ordinary meaning of "graphical," Match clearly drafted the claims in the asserted patents to cover only those embodiments that include pictorial representations of the relevant match or profile rather than those that do not. Intamin Ltd., 483 F.3d at 1337. In most contexts, Match would leave its argument there. When an accused infringer seeks to import limitations without proper grounds, the Court can simply reject the defendant's 9 7 construction and otherwise decline to construe the claim. ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc., 694 F.3d 1312, 1326 (Fed. Cir. 2012) (explaining that when a party fails to show that a limitation should be imported into a claim and there are no further disputes as to the meaning of the claim language, the court may rule that no construction is necessary). In the present case, however—where Defendants have indicated to Match that Defendants believe the ordinary scope of the term is significantly broader than the context of the claims allows—Match asks that the Court affirmatively construe "graphical representation" as a "pictorial portrayal" of the respective claim terms to avoid an O2 Micro problem as the case progresses. O2 Micro Intern. Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1360 (Fed. Cir. 2008) ("When the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute."). As indicated in the various dictionary definitions, the term "graphical" has a well-defined meaning to skilled artisans. To be "graphical," something must include a pictorial component. Jones Decl. ¶¶ 14-15. And to be a "representation of [something]," it must portray that something. Jones Decl. ¶¶ 17-18. So, when the claims recite a "graphical representation of" certain elements, a skilled artisan would understand that the language requires a pictorial component portraying the element claimed. Jones Decl. ¶¶ 13-21. This is clear on its own to a person of skill in the art, but it is irrefutable in the context of the claims themselves, which separately recite display on a graphical user interface. The scope of the inventions claimed are limited to pictorial portrayals of the limitations recited. The Court should affirmatively confirm as much. 2. "Without Allowing Communication" Claim Term Match's Proposal Bumble's Proposal 10 7 "Without allowing Plain and ordinary meaning; An affirmative act to ensure [communication]" no construction necessary no communication between two users. The independent claims of the '854 Patent recite embodiments covering the communication-upon-mutual-opt-in concept. For example, Claim 1 recites a computer-readable medium comprising instructions that, when executed by a processer, are configured to: determine to allow the first user to communicate with the second user in response to receiving from the first electronic device of the first user the first positive preference indication regarding the second user and receiving from the second electronic device of the second user the positive preference indication regarding the first user; receive from the first electronic device of the first user a first negative preference indication associated with a graphical representation of a third potential match on the graphical user interface, . . ., the third potential match corresponding to a third user. . . without allowing communication between the first user and the third user, receive from the first electronic device of the first electronic device of the first user a second positive preference indication. . . In other words, the claims recite a context in which communication is "allowed" or the system "determines to allow" communication when specified conditions are met. If those conditions are not met, the interactions described proceed "without" so allowing. The claims distinguish between "allow[ing]" or "determin[ing] to allow," which are done "in response to" mutual opt- in, and "without allowing"—which is not claimed "in response to" anything. Solely to support a non-infringement position, Bumble seeks to construe this "without allowing" term to mean "an affirmative act to ensure no communication between two users." The Court should reject Bumble's proposal. As an initial matter Bumble's proposal does not even fit grammatically into the limitation. Bumble's proposed construction contains no operative verb. If plugged into the claim, Bumble's proposal would read as follows: "[A]n affirmative act to ensure no communication between two users communication between the first user and the third user. . ." 11 7 It is simply nonsensical. For this reason alone, the Court should reject Bumble's proposal. Cf. Phoenix Licensing, L.L.C. v. AAA Life Ins. Co., 2015 WL 1813456, at *27 (E.D. Tex. Apr. 20, 2015) (rejecting a proposed construction that replaced a term that is "unambiguous" and "easily understandable" with "a potentially confusing phrase intended to express the same meaning"). But even putting aside these obvious errors, the Court should reject Bumble's transparent attempt to re-define "without allowing" to limit its ordinary scope. There is simply nothing in the claims, specification, or prosecution history to support a requirement that "without allowing" requires "an affirmative act to ensure no communication." The scope of the term "allowing" in its ordinary sense plainly reaches merely "permit[ting]" communication or "neglect[ing] to restrain" communication. Jones Decl. ¶ 23. The term has been litigated a number of times, and courts regularly acknowledge its settled ordinary meaning.3 A skilled artisan could obviously understand the meaning of "allowing" and that "without allowing" means that this allowance does not occur. A skilled artisan certainly would not believe that "without allowing"—a phrase that describes the absence of an action (allowing)—to instead require the presence of an "affirmative" one. Beyond that, there is no need to clarify what constitutes the absence of allowing, particularly in a manner that is inconsistent with the full scope of the term. See Phoenix Licensing, 2015 WL 1813456, at *27. 3 Solocron Media, LLC v. Verizon Commc'ns Inc., No. 2:13-CV-1059-JRG-RSP, 2015 WL 1011310, at *30 (E.D. Tex. Mar. 5, 2015) (in software context, "allowing" means "providing a capability"); Ameranth, Inc. v. Menusoft Sys. Corp., No. CIVA 2-07-CV-271, 2010 WL 1610079, at *12 (E.D. Tex. Apr. 21, 2010) (holding that "allowed" meant that capability to perform functions needed to exist but functions need not be performed). See also Cypress Lake Software, Inc. v. ZTE (USA) Inc., No. 6:17-CV-00300-RWS, 2018 WL 4035968, at *24 (E.D. Tex. Aug. 23, 2018) (declining to construe "allowing" as "permitting" because "allowing" was well-understood); Spinal Concepts, Inc. v. EBI, L.P., No. A-02-CA-636 LY, 2004 WL 5680799, at *6 (W.D. Tex. Apr. 13, 2004) (declining to construe "allow" as "enable" for similar reasons). 12 7 Again, the claims provide the best evidence that Bumble's "affirmative act" limitation is wrong. Each claim in which the "without allowing" language is found also recites that "communication" is "allowed" "in response to" mutual positive-preference indications. Reading the claims in light of the specification, a skilled artisan would understand the feasibility of a system that defaults to non-allowed communication and only allows communication when certain conditions (mutually positive preferences) are met. They would further understand that, once enabled, this communication would be "allowed." In this context, if those conditions are not met between two users, the skilled artisan would understand that the system proceeded "without allowing" that communication to occur by that default design. See Jones Decl. ¶ 25. Nothing else in the intrinsic evidence supports grafting on this "affirmative act to ensure no communication" proposal. See Jones Decl. ¶ 28. This can be contrasted to an unrelated portion of the written description describing "blocking" users in the context of embodiments that predate the mutual-opt-in continuation-in-part. Notably, the specification never identifies "blocking" as synonymous withmuch less a definition of"not allowing communication" or "without allowing communication" after unsuccessful presentation of candidates. Rather, this limited discussion of "blocked" users describes how the "Matching Server" would not include blocked users in the match-candidate pool in the first place. See '811 Patent at 5:46-47, 6:48-52. The embodiments discussing allowed communication upon mutual preference, as claimed in the '854 patent, also do not describe any "affirmative act" ensuring non-communication. Rather, descriptions of these embodiments contemplate a system defaulting to non- communication that simply maintains that status when a user indicates a negative preference. See Jones Decl. ¶ 28. Because Bumble's construction would exclude every embodiment related to communication based on mutual preferences—the only embodiments possibly contemplated 13 7 by the claims—the Court should reject it. Nellcor Puritan Bennett, Inc. v. Masimo Corp., 402 F.3d 1364, 1368 (Fed. Cir. 2005) ("[A] construction that excludes all of the embodiments of an invention is 'rarely, if ever, correct.'" (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996)). Bumble also purports to rely on prosecution history arguments to support its redefinition of "without allowing." See Ex. A at 5 (identifying evidence). Yet, Bumble identifies only evidence from prosecution of the '811 Patent, the claims of which use the terms "enabl[ing] initial communication" and "prevent[ing]" communication rather than "allowing" / "without allowing" communication. See id.; see also Exs. B-C (exemplary '811 prosecution history arguments). It thus does not bear on the ordinary meaning of "without allowing." And since Bumble denied reliance on disavowal or disclaimer in the context of the meet-and-confer process, these arguments cannot possibly be relevant to the ordinary meaning of the "without allowing" term. In any event, as discussed in connection with the "prevent" term below, these identified arguments do not support Bumble's "affirmative act" requirement as to either the "without allowing" or the "prevent[ing]" terms. Bumble's proposed construction for "without allowing" is especially bizarre in light of its identical proposed construction for "preventing communication," discussed below. Bumble's apparent contention is that both "preventing" and "without allowing" require some affirmative act, regardless of the inverted language between the two terms. While neither phrase requires an affirmative act, Bumble's dogged effort to embed an unclaimed affirmative act of ensurance into the words "without allowing" merely highlights Bumble's unabashed attempt to create a non- infringement argument where none exists. 14 7 The Court should reject Bumble's proposed construction and determine that no construction is necessary. 3. "Preventing Communication" Claim Term Match's Proposal Bumble's Proposal "Prevent[ing] Plain and ordinary meaning; An affirmative act to ensure communication" no construction necessary no communication between two users. The independent claims of the '811 Patent cover a method, a computer-readable medium, and a system according to one embodiment of the invention. Each of these claims recite the limitation "prevent[ing] communication." For example, Claim 7 recites a system that: determine[s] to enable initial communication between the first user and the second user in response to the determination that both the first user has expressed the positive preference indication regarding the second user and the second user has expressed the positive preference indication regarding the first user; . . . and prevent[s] communication between the first user and the third user after determining that the first user has expressed a negative indication regarding the third user. . . Said differently, this claim covers a system that can enable communication, but where communication is disabled or unavailable unless and until both users express positive preferences for each other. Again to support a non-infringement position, and even though communication is prevented from the outset absent a match, Bumble seeks to construe the terms "prevent communication" and "preventing communication" identically to its proposal for "without allowing"—"an affirmative act to ensure no communication between two users." Here, too, the Court should reject this proposal. Again, Bumble's proposal does not fit grammatically into the limitation. Again, the phrases "prevent communication" and "preventing communication" function as verbs and participles in each context they appear. Yet Bumble's proposed construction contains no 15 7 corresponding operative verb or participle. And again, if plugged into the claim, Bumble's proposal would read as follows: "[A]n affirmative act to ensure no communication between two users between the first user and the third user. . ." It remains nonsensical, and the Court can reject it on that basis. Cf. Phoenix Licensing, L.L.C., 2015 WL 1813456, at *27. The ordinary meaning of "prevent" also does not support Bumble's proposed construction. Bumble itself identifies definitions of "prevent" that include omissions as well as affirmative acts within the word's ordinary scope. See Ex. A at 4; see also Jones Decl. ¶¶ 30 (presenting definitions of "3. To keep from happening or existing. 4. To hold or keep back" and "keep (something) from happening" or "stop (someone) from doing something" from Merriam- Webster's Collegiate Dictionary (11th Ed. 2014) and Oxford Dictionary of English (3d Ed. 2010), respectively). These ordinary definitions do not limit the scope of "preventing" to only affirmative actions. Rather, an omission that "keeps (something) from happening" is still squarely within the ordinary definition of the term as used in the '811 Patent. Not surprisingly, this is consistent with reported decisions interpreting the word. See, e.g., Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 2015 WL 6769049, at *24 (E.D. Tex. Nov. 5, 2015) (Gilstrap, J.) (rejecting proposed construction of "preventing the receiving of" to mean "take action to reject" because "an affirmative action to prevent receiving is not required as 'preventing the receiving of' may be accomplished through the use of preset settings or defaults and the like"); Globetrotter Software, Inc. v. Elan Computer Grp., Inc., 362 F.3d 1367, 1380-81 (Fed. Cir. 2004) (construing the phrase "a message preventing" a copy of an application being run to not require "active prevention," in light of the specification). The claims also undermine Bumble's position. Each claim in which the "prevent" or "preventing" communication language is found also recites that "initial communication" is 16 7 "enabled" "in response to" mutual positive preference indications. In other words, a skilled artisan would understand that the claims themselves contemplate a system that defaults to non- enabled initial communication that is only enabled when certain conditions (mutually positive preferences) are met. See Jones Decl. ¶ 32. Just as the Court can prevent an oral argument by not scheduling one, a skilled artisan would consider that this communication is "prevented" in the absence of such enablement. Moreover, as with the '854 Patent, the claims distinguish between the actions required to "enable initial communication" and the requirement for communication prevention. Each claim of the '811 Patent requires a "determination" to enable initial communication. Meanwhile, the claims are silent on any determination required to practice the claimed "prevention." This confirms that the claimed "prevention," as in Core Wireless, "may be accomplished through the use of preset settings or defaults and the like." Id. 2015 WL 6769049, at *24. Nothing else in the intrinsic evidence supports grafting on this "affirmative act to ensure" proposal either. See Jones Decl. ¶33. In fact, every time the specification discusses the communication-only-after-mutual-opt-in embodiment, it indicates that communication upon negative preference is "not allowed." See '811 Patent at Figs. 10 and 11; 3:22-29; 23:25-30. And again, while the written description describes "blocking" users in the context of non-mutual- opt-in embodiments, it never equates "blocking" with "preventing," just as it did not do so for "without allowing." As discussed above, the embodiments discussing communication upon mutual preference also do not describe any "affirmative act" ensuring non-communication and instead contemplate a system defaulting to non-communication that simply maintains that status when a user indicates a negative preference. See Jones Decl. ¶ 33; see also '811 Patent at Figs. 10 and 11; 17 7 3:22-29; 22:61-64; 23:25-30. As with Bumble's attempt to limit the "without allowing" term, Bumble's construction would improperly exclude every embodiment related to communication based on mutual preferences—the only embodiments possibly contemplated by the claims. See Nellcor, 402 F.3d at 1368. Nothing in the '811 Patent's prosecution history supports Bumble's argument that the ordinary meaning of "prevent" requires an affirmative act either. See Jones Decl. ¶ 33. In fact, the identified prosecution history contradicts Bumble's construction. Id. Bumble identifies certain arguments made to the Examiner concerning the Janssens reference.4 The Examiner issued rejections in the application maturing to the '811 Patent based on this reference. Janssens taught a system in which users could communicate freely within the system at any point, but the system facilitated communication after mutual expressions of interest by adding the "match" to a chat log. During prosecution, Match repeatedly contested the Examiner's conclusions that Janssens taught the proposed claims because Janssens did not "enable initial communication" in response to mutual preference indications; rather, the Janssens system defaulted to enabled initial communications. Ex. B at 12. This is the opposite of the system contemplated by the '811 Patent. Match also repeatedly described the scope of the '811 limitations as claiming a system where "users are prevented from communicating until the conditions specified in the claim are met"—i.e., the claimed inventions default to non-enabled initial communication and prevent communication with that default design until communication is enabled via mutual positive- preference indications. Ex. B at 12 ("This teaches away from the claimed manner of enabling 4 While the examiner initially considered Janssens prior art, Match offered a declaration from the Jonathan Badeen that Janssens was not prior art to the inventions claimed in the '811 Patent. The Examiner then withdrew the rejection. 18 7 initial communication as users are prevented from communicating until the conditions specified in the claim are met." (emphasis in original)); Ex. C at 12 (same). In other words, this evidence confirms Match's understanding during prosecution that "prevent" could refer to the default pre- match conditions of the claimed system. Nothing in the identified file history even arguably limits the scope of "prevent" to requiring an "affirmative act." See Jones Decl. ¶ 33. In short, the claims and intrinsic evidence establish that "prevent" and "preventing" are used in their ordinary sense to mean that the system keeps something from happening. The Court should reject Bumble's attempt to limit the claim. No construction is necessary. 4. "Social Networking Platform" Claim Term Match's Proposal Bumble's Proposal "Social networking platform" Plain and ordinary meaning; "Social networking platform no construction necessary independent of the system for profile matching" The phrase "social networking platform" appears in all claims of the '811 Patent as well as certain claims of the '854 Patent. In the '811 Patent, each claim recites "electronically receiv[ing] a plurality of user online-dating profiles, each profile comprising traits of a respective user and associated with a social networking platform." In the '854 Patent, dependent claims 2, 5, 8, and 11 recite "wherein at least one or more of the plurality of user on-line dating profiles is associated with a social networking platform." This phrase requires no construction. First, in discussing the parties' competing claim construction positions, Bumble disclaimed reliance on theories that Match acted as a lexicographer or disavowed claim scope as to this phrase (or any other term). Thus, Bumble apparently admits that this term should have its ordinary meaning. 19 7 Somewhat consistent with endorsing the plain meaning, and effectively admitting that the phrase "social networking platform" needs no construction, Bumble does copy the term itself into Bumble's construction. The problem is that Bumble thereafter simply appends a modifier to redraft the claims with more limited scope. Just as the ordinary meaning of "judge" alone is not limited to "federal judge," the ordinary meaning of "social networking platform" cannot itself ordinarily mean a specific type of social networking platform (i.e., one "independent of the system for profile matching"). Jones Decl. ¶ 35. And although the specification contemplates social networking platforms that are independent, this does not support Bumble's argument that the "ordinary meaning" of the term "in light of the specification" is limited in the proposed manner. Absent disavowal or lexicography, courts look to the specification solely to clarify ambiguous words and pick among possible definitions within the ordinary scope of the term. Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) ("If the claim language is clear on its face, then our consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified."). There is no arguable ordinary meaning of "social networking platform" that reaches only one specific type. See Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1118 (Fed. Cir. 2004) ("In the absence of modifiers, general descriptive terms are typically construed as having their full meaning."); Ventana Med. Sys., Inc. v. Biogenex Labs., Inc., 473 F.3d 1173, 1180-82 (Fed. Cir. 2006) (refusing to limit "dispensing" to "direct dispensing," despite the specification's disclosure of only "direct dispensing," because there are "other types of dispensing" that fall within the ordinary meaning of "dispensing"). Because Bumble admits this term should have its ordinary meaning, and no ordinary meaning supports its proposed construction, the Court should reject Bumble's attempt to limit the term's scope. 20 7 Even if Bumble retreats from its original position and argues that the specification supports an argument that the inventors acted as lexicographers and re-defined "social networking platform" to mean only a specific type of social networking platform, it would fail. As discussed supra, a limiting construction based on lexicography will occur only where the inventor "clearly set[s] forth a definition of the disputed claim term other than its plain and ordinary meaning." Thorner, 669 F.3d at 1365-66. While it is technically possible to meet this standard with an "implied" redefinition, that redefinition must still "be so clear that it equates to an explicit one." Id. at 1368. To support a redefinition argument, "[i]t is not enough for a patentee to simply disclose a single embodiment. . ." Id. at 1366 (emphasis added); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1368 (Fed. Cir. 2002) ("Life Fitness cannot use the intrinsic evidence's silence to narrow the ordinary meaning of an unambiguous claim term."). This standard dooms any lexicography-based argument. Nothing in the written description or prosecution history can be said to change the ordinary definition of "social networking platform." At best, the written description discloses an embodiment that uses a social networking platform that is separate from "matching server 20"—thus teaching that a "separate" social networking platform can be used to practice some embodiments of the invention. Yet it also discloses an embodiment in which the "system for profile matching" is not at all "independent" of the social networking platform. In Col. 16, ll. 14-19 of the '811 Patent, the specification discloses an embodiment where "matching server 20 may be configured to collect requests from users of social networking platform 50 and perform a search through pool and set 52." (emphasis added). As described in Figure 4, "pool and set 52" is the profile pool specifically emanating from "social networking platform 50." The patent goes on to teach that "matching server 20 may further be configured to present the results of this search from within 21 7 social networking platform 50." (emphasis added). In other words, the written description specifically contemplates a matching system presenting results within "within social networking platform 50" and encompassing only "pool and set 52" emanating from within "social networking platform 50." Thus, the written description expressly contemplates a matching system entirely self-contained within "social networking platform 50." Jones Decl. ¶ 36. Further, the specification uses language indicating that the matching system itself is (or can be) a social networking platform. '811 Patent at 2:42-44 ("Various embodiments may be capable of importing user profiles from other social-networking systems." (emphasis added)); id. at 2:44-46 ("Some embodiments may be capable of generating the pool of users based on both explicit and implicit criteria derived from other social networking systems" (emphasis added)); id. at 19:38-44 ("In some embodiments, matching server 20 may import profiles from other social networking systems" (emphasis added)). By describing "other" social networking systems, the written description indicates that the matching system itself is considered a social networking system, albeit one that may gain peripheral benefits if interacting with others. In light of these disclosures, a construction requiring "social networking platform" to mean "social networking platform independent of the system of profile matching" is plainly inappropriate. See Vitronics, 90 F.3d at 1583; Jones Decl. ¶ 36-37. Even without these teachings, however, Bumble's limiting construction would be unwarranted as a matter of lexicography. The Federal Circuit has repeatedly cautioned against importing limitations from the specification into the claims. See, e.g., Phillips, 415 F.3d at 1319- 20. And that court has repeatedly held that a patentee does not limit the scope of claim terms simply by disclosing "a single embodiment" that might be consistent with a limiting definition. Id. at 1323 ("[W]e have expressly rejected the contention that if a patent describes only a single 22 7 embodiment, the claims of the patent must be construed as being limited to that embodiment."). Absent some clear indication that "social networking platform" is specifically limited to platforms independent of the profile matching system, a construction importing that limitation is erroneous. No such indication exists, and the Court should reject Bumble's proposal. IV. ARGUMENT CONCERNING INDEFINITENESS A. Overview of Indefiniteness Standards A patent claim must "particularly point[ ] out and distinctly claim[ ] the subject matter which the applicant regards as his invention." 35 U.S.C. § 112. The primary purpose of the definiteness requirement is to ensure that patent claims are written in such a way that they give the public reasonable notice of what the claims cover. All Dental Prodx, LLC v. Advantage Dental Prods., Inc., 309 F.3d 774, 779–80 (Fed. Cir. 2002). Indefiniteness is a question of law for the court to evaluate from the perspective of someone skilled in the relevant art at the time the patent was filed. H-W Tech., L.C v. Overstock.com, Inc., 758 F.3d 1329, 1332 (Fed. Cir. 2014). Defendants bear the burden of demonstrating that a claim is invalid as indefinite by clear and convincing evidence. Warsaw Orthopedic, Inc. v. NuVasive, Inc., 778 F.3d 1365, 1371 (Fed. Cir. 2015). "[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention." Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901, 910 (2014). This requirement strikes a "delicate balance" between "the inherent limitations of language" and providing "clear notice of what is claimed." Id. at 909 (internal citations omitted). Given the limitations of language, "absolute precision is unattainable," and "the certainty which the law requires in patents is not greater than is reasonable, having regard to their subject-matter." Id. at 910. Thus, "a patentee need not define his invention with 23 7 mathematical precision in order to comply with the definiteness requirement." Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1384 (Fed. Cir. 2005) (citation omitted). "As long as claim terms satisfy [the Nautilus] test, relative terms and words of degree do not render patent claims invalid." Tinnus Enters., LLC v. Telebrands Corp., 733 F. App'x 1011, 1018 (Fed. Cir. 2018) (citing One-E-Way, Inc. v. Int'l Trade Comm'n, 859 F.3d 1059, 1063 (Fed. Cir. 2017)) (internal quotations marks omitted). B. The Court Should Deny Bumble's Motion for Summary Judgment of Indefiniteness.5 1. "Associated" Patent Claims Match's Proposal Bumble's Proposal '811 patent, Not indefinite; Indefinite claims 1, 3 4, 6, No construction necessary / and 7 plain and ordinary meaning '023 patent, claims 1-6 '854 patent, claims 1, 2, 4, 5, 7, 8, 10, and 11 The word "associated" appears in numerous contexts throughout each of the asserted patents. For example, claim 1 of the '811 Patent recites: Electronically receiving a plurality of user online-dating profiles, each profile. . . associated with a social networking platform; ... 5 Until 1:00 PM on April 26, 2019, Bumble also contended that the word "automatically" was indefinite but withdrew that contention at the last minute. Ex. F. Although Match believed based on discussions between the parties that "the text area" construction was agreed between the parties, Bumble indicated at that time that it was contending "the text area" was indefinite after all. 24 7 Determining that the first user expressed a positive preference regarding a potential match at least by determining that the first user performed a first swiping gesture associated with the graphical representation of the first potential match; Determining that the first user expressed a negative preference indication. . . at least by determining that the first user performed a second swiping gesture associated with a graphical representation. . . Claim 1 of the '023 Patent, meanwhile, recites: A method of navigating a user interface, comprising Presenting on a graphical user interface, a graphical representation of a first item of information of a plurality of items of information, the first item of information comprising a graphical representation of a first item of online dating profile associated with a first user. . . Detecting a gesture associated with the graphical representation of the first item of information, the gesture corresponding to a positive preference indication associated with the first item of information, the positive preference indication associated with the first item of information comprising an expression of approval for the first user associated with the first online dating profile. . . . During the parties' meet-and-confer regarding claim terms, Match asked Bumble why it thinks the word "associated" is indefinite. Rather than provide any competing definitions that could not be picked between or providing any absurd result stemming from some definition of associated, Bumble responded that it simply thought the term was vague or ambiguous. Bumble provided no additional clarification on its position. As an initial matter, Bumble's attempt to excise the word "associated" out of the claim language and context in which it appears invites an analysis that ends in legal error. See Tinnus, 733 Fed. App'x at 1020 ("The Board erred in its analysis when it read the disputed claim term in isolation rather than in the context of the surrounding claim language as § 112(b) requires.") (citation omitted). In the claims, the word "associated" always appears in the commonly understood phrase "associated with" and with surrounding claim language that itself explains the two things that are "associated with" each other, thereby giving additional clarity and context to 25 7 the use of the phrase. The word "associated" should not be construed or analyzed in isolation but rather in the context of the surrounding claim language. See id. It is also not clear why Bumble thinks this term is vague or ambiguous. As another court in this District has recognized: The words 'associated with' are a common English phrase with a clear meaning and connotation, and the fact that the phrase is used in a patent claim does not somehow render the words ambiguous. A skilled artisan reading the claims would certainly be able to ascertain, with reasonable certainty, the contours of each of the claims where 'associated with' is used." Joao Control & Monitoring Sys., LLC v. Protect Am., Inc., No. 1:14-CV-00134, 2015 WL 4937464, at *8 (W.D. Tex. Aug. 18, 2015). Similarly, the Eastern District of Texas has found the phrase "associated with" to be definite. See 3rd Eye Surveillance, LLC v. City of Fort Worth & E-Watch Corp., No. 6:14-CV-00725, Dkt. No. 120 at 6 (E.D. Tex. June 8, 2016) ("Reading the patent, a POSITA would be able to determine with reasonable certainty the relationship between the different 'associated' elements…. One of skill in the art could ascertain that each use of 'associated with' in [the claim] references a relationship between two elements…. Further, one skilled in the art would also be able to determine the 'association' between the various elements described throughout the specification."). Moreover, Bumble's claim construction disclosures identify no support in either the specification or prosecution history or any dictionaries to support its position on definiteness. See Ex. A at 2 (evidence column listing no specification or prosecution history citations and no dictionary definitions). In contrast, Match has identified numerous portions of the specification that illustrate that the term is used according to its commonly understood meaning and connotation and further underpin the definiteness of the term. See Ex. D at 3 (intrinsic evidence column citing to '023 patent at 3:57-67, 5:59-64, 6:19-29, 10:28-32, 13:53-56, 14:24-25, 20:40- 43, 21:53-56, 22:16-20, 22:49-52, Fig. 1F); Jones Decl. ¶¶ 38-42. Likewise, Match has 26 7 identified dictionary definitions for the term that demonstrate the definiteness of the term and are consistent with its plain usage in the claims. See Jones Decl. ¶ 41. This amounts to a critical absence of evidence on Bumble's part, and in turn, a failure to carry its clear and convincing burden to prove indefiniteness. See Warsaw Orthopedic, 778 F.3d at 1371. Rather, the claims at issue "viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty" and are definite. See Nautilus, 572 U.S. at 910. 2. "The text area" Patent Match's Proposal Bumble's Proposal Claims '811 patent, Not indefinite. "The text area" Indefinite claims 2 and 5 is an obvious typographical error that is subject to judicial correction. "The text area" should read "a text area." Bumble contends this term is indefinite for lack of antecedent basis. However, the term "the text area" appears in claims 2 and 5 of the '811 Patent. It is an obvious clerical error that should read "a text area," and this would readily be understood by a person of ordinary skill in the art considering the claim in light of the intrinsic evidence. See Nautilus, 572 U.S. at 901, 910. "It is well-settled law that, in a patent infringement suit, a district court may correct an obvious error in a patent claim." CBT Flint Partners, LLC v. Return Path, Inc., 654 F.3d 1353, 1358 (Fed. Cir. 2011) (citing I.T.S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 442, 47 S. Ct. 136, 71 L. Ed. 335 (1926)). A district court may correct an obvious clerical error when "(1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the 27 7 claims." See id. (quoting Novo Industries L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003)) (internal quotations omitted). "Those determinations must be made from the point of view of one skilled in the art." Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1353 (Fed. Cir. 2009); see also CBT Flint Partners, 654 F.3d at 1358 (finding district court erred when it found it had no authority to correct an obvious error because "the court here failed to consider those alternatives from the point of view of one skilled in the art"). Here, the correction is not subject to reasonable debate. Claim 8 recites "a text area." Given the parallel claim language and structures between Claim 8 on the one hand, and claims 2 and 5 on the other, a person of ordinary skill in the art would recognize that the requested correction in claim 2 and 5 is not subject to reasonable debate; "the text area" in Claims 2 and 5 was an obvious error that should have read "a text area" as it was amended in the prosecution history and appears in Claim 8. See id. This is particularly true where the other corrections in the certificate of correction applied across all claims in which similarly parallel language appeared. This error would be confirmed by review of the prosecution history. Hoffer v. Microsoft Corp., 405 F.3d 1326, 1331 (Fed. Cir. 2005) (holding that the Court had authority to correct PTO's printing error after the case was filed). Here, there was an obvious error during prosecution resulting in the phrase "the text area." During prosecution, Match amended the phrase "the text area" to "a text area" in a request for continued examination. See Ex. E (May 26, 2016 Request for Continued Examination and claim amendment) at 3 (correcting "the" to "a" in prosecution claim 25, issued as claim 2), 6 (correcting "the" to "a" in prosecution claim 32, issued as claim 5), 9 (correcting "the" to "a" in prosecution claim 39, issued as claim 8). Ultimately, however, the PTO printed the '811 Patent based on different claim language than that 28 7 which was allowed by the Examiner. When Match requested a certificate of correction to address numerous printing errors from the Patent office in the '811 Patent, Match specifically called out the need to change the term "the text area" to "a text area" with respect to Claim 8. See Ex. E (Request for Expedited Issuance of Certificate of Correction) at 3 (requesting the following correction: "Col. 28, line 50, after "control enabling", delete "the" and insert --a--."). Match also submitted, as supporting documentation, its claim amendments from the May 26, 2016 response as well as an examiner's notice of allowability to show the state of the claims at the time of allowance; those claims included the "a text area" language in each claim in which "text area" appeared. Match simply inadvertently omitted from the certificate request that the term "the text area" be changed to "a text area" with respect to Claims 2 and 5. In any event, even if the error were not subject to judicial correction, indefiniteness analysis looks at whether a person of ordinary skill in the art could reasonably ascertain the scope of a claim based on the intrinsic evidence (see Nautilus, 572 U.S. at 901, 910). And even in scenarios where a term lacks an explicit antecedent basis, it is not necessarily indefinite if those skilled in the art could reasonably ascertain the meaning of a claim. See id.; Energizer Holdings, Inc. v. International Trade Com'n, 435 F.3d 1366, 1369-71 (Fed. Cir. 2006); Bose Corp. v. JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir. 2001); see also MPEP § 2173.05(e) (explaining that "the failure to provide explicit antecedent basis for terms does not always render a claim indefinite"). Given that a skilled artisan is presumed to review the prosecution history summarized above, a person of ordinary skill in the art would have easily understood that the phrase "the text area" meant "a text area." See Jones Decl. ¶¶ 49-52, 54. Quite simply, the correction is not subject to reasonable debate, and the prosecution history does not suggest a different interpretation. See Novo Industries, 350 F.3d at 1354. 29 7 Rather, the prosecution history compels only this result—that "the text area" should read "a text area." This is the obvious type of clerical error that can be corrected and does not render a claim indefinite. See Hoffer v. Microsoft Corp., 405 F.3d 1326, 1331 (Fed. Cir. 2005) ("This error in dependency of claim 22 is apparent on the face of the printed patent, and the correct antecedent claim is apparent from the prosecution history."); Blackboard, Inc. v. Desire2Learn, Inc., No. 9:06-CV-155, 2007 WL 2255227, at *13 (E.D. Tex. Aug. 3, 2007) ("The court concludes that when printing the patent, the PTO simply omitted one letter from the word. This is the type of error the court may correct."). Even if not, a skilled artisan could nevertheless reasonably ascertain the scope of the claims in light of the combined context of the patent and prosecution history described above. The Court should reject Bumble's indefiniteness position on this term and correct the phrase to read "a text area." V. CONCLUSION For the reasons described above, the Court should adopt Match's proposed constructions, reject Bumble's proposed constructions, and deny Bumble's request to declare the asserted claims indefinite. 30 7 DATED: April 26, 2019 Respectfully submitted, Caldwell Cassady & Curry /s/ Bradley W. Caldwell Bradley W. Caldwell Texas State Bar No. 24040630 Email: bcaldwell@caldwellcc.com John F. Summers Texas State Bar No. 24079417 Email: jsummers@caldwellcc.com Warren J. McCarty, III Texas State Bar No. 24107857 Email: wmccarty@caldwellcc.com Caldwell Cassady Curry P.C. 2101 Cedar Springs Road, Suite 1000 Dallas, Texas 75201 Telephone: (214) 888-4848 Facsimile: (214) 888-4849 John P. Palmer State Bar. 15430600 Email: palmer@namanhowell.com Naman, Howell, Smith & Lee, PLLC 400 Austin Avenue, 8th Floor P.O. Box 1470 Waco, TX 76701 Telephone: (254) 755-4100 Facsimile: (254) 754-6331 ATTORNEYS FOR PLAINTIFF MATCH GROUP, LLC CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel registered as Filing Users on this 26th day of April, 2019. /s/ Bradley W. Caldwell Bradley W. Caldwell