Match Group, LLC v. Bumble Trading Inc.

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

Declaration of Dr. Mark T. Jones

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4 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. DECLARATION OF DR. MARK T. JONES I, Mark T. Jones, declare as follows: 1. I have been retained by Caldwell Cassady Curry P.C., counsel for Plaintiff Match Group LLC as an expert in the lawsuit captioned above. I submit this declaration based on personal knowledge and following a reasonable investigation. If called as a witness, I could and would competently testify to the truth of each statement herein. 2. On April 26, 2019, I offered a declaration concerning how a skilled artisan would understand certain claim terms and provided opinions on Bumble's disclosed indefiniteness positions. 3. I understand that the positions Bumble put forward in its opening claim construction brief differ somewhat from the positions that had been previously relayed and so my initial indefiniteness opinions do not address Bumble's current positions directly. I have been asked to address those positions directly in this responsive declaration. 4 I. Understanding of the Law 1. As I wrote in my opening declaration, I understand that a claim is invalid for indefiniteness if its language, when read in light of the specification and the prosecution history, fails to inform, with reasonable certainty, those skilled in the art about the scope of the invention. 2. I understand that the definiteness requirement does not demand absolute precision. 3. I also understand that terms of degree and relativity are not inherently indefinite where it provides enough certainty to one skilled in the art when read in the context of the invention. 4. I further understand that if claim language itself could be susceptible to multiple interpretations but the specification provides sufficient guidance to the skilled artisan on the appropriate definition, the claim is not invalid for indefiniteness. II. Response to Mr. Schmandt's Opinions Regarding "Associated." 5. I understand that Bumble now contends that the term "associated" is used in different contexts in the asserted claims and identifies the following claim elements: • "a first swiping gesture associated with the graphical representation"; • "a positive preference indication associated with the first item of information"; • "a first positive preference indication associated with the graphical representation"; • "online-dating profiles. . . associated with a social networking platform"; • "potential matches that are each associated with a geographic location"; • "the first user associated with the first online dating profile"; • "a right swiping direction associated with the gesture"; 2 4 • "plurality of items of information to be displayed are associated with performing an action"; • "a second swiping gesture associated with a graphical representation"; • "a first negative preference indication associated with a graphical representation"; • "a second positive preference indication associated with a graphical representation"; • "a second negative preference indication associated with a graphical representation"; and • "a third positive preference indication associated with a graphical representation." See ʼ811 Patent at claims 1, 3, 4, 6, 7; ʼ023 Patent at all claims; ʼ854 Patent at claims 1, 2, 4, 5, 7, 8, 10, 11. 6. I also understand that this position was not previously conveyed to Match at the time I submitted my declaration in support of Match's opening claim construction brief. I noted in that brief that given Bumble's lack of disclosure of evidence or specificity in its position, it was difficult to respond to Bumble's position regarding indefiniteness. 7. I understand that Bumble's expert Mr. Christopher Schmandt has provided a declaration stating that a "person of ordinary skill in the art would not be able to determine with reasonable certainty, the meaning of 'associated' as used in the claim phrases here," and that "the term is so vague that there is no discernable meaning and the term is indefinite." Schmandt Decl. at ¶ 32. I disagree. 8. I understand that Mr. Schmandt identifies a subset of the claim limitations identified by Bumble as "exemplar claim limitations": • "a [first, second] swiping gesture associated with the graphical representation;" (ʼ811 Patent, cls. 1, 4, 7) 3 4 • "a positive preference indication associated with the first item of information;" (ʼ023 Patent, cls. 1, 3, 5) and • "a [first, second, third] [positive, negative] preference indication associated with a graphical representation" (ʼ854 Patent, cls. 1, 4, 7, 10). Schmandt Decl. at ¶ 32. 9. Mr. Schmandt states that he has "reviewed the claims and the specification and neither make clear the claimed relationship between: (1) a swiping gesture and a graphical representation; (2) a positive preference indication and an item of information; and (3) a preference indication and a graphical representation." Schmandt Decl. at ¶ 32. 10. Mr. Schmandt states that the "term 'associated' is generally used relationally―to describe a relationship between two different things." Schmandt Decl. at ¶ 32. I note that Mr. Schmandt does not cite to any dictionary definitions to support this statement. 11. I note that Mr. Schmandt does not cite to anything in the specification or prosecution history to support his opinions and conclusions regarding the term "associated." Mr. Schmandt also does not explain what parts of the intrinsic evidence he reviewed and found were unhelpful to a person of ordinary skill in the art, such that he could arrive at his conclusions. 12. I disagree that Mr. Schmandt's definition is the commonly understood meaning of the word "associated." As I noted in my opening declaration, the use of the term "associated" in the claims comports with its ordinary and commonly understood meaning. I also cited the following dictionary definitions for support: a. Merriam-Webster's Collegiate Dictionary (11th Ed. 2014) (listing definition of "associate" as to "to join or connect together: combine," "to bring together or into 4 4 relationship in any of various intangible ways (as in memory or imagination)," and "to combine or join with other parts") 1; and b. Oxford Dictionary of English (3d Ed. 2010) (listing definition of "associated" as "connected with something else"). 13. As these dictionary definitions reflect, the commonly understood meaning of the word "associated" is that there is relationship / connection between things. In particular, the word "associated" does not "describe" the relationship as Mr. Schmandt contends, but rather that there is a relationship/connection. 14. Reading the claims in light of the specification and the prosecution history, a person of ordinary skill in the art would have understood that the patents' use of the "associated" claim terms reflects that there is a relationship / connection between these elements—not the nature or the contours of that relationship / connection. And he or she would know and understand the various ways in which to implement this relationship / connection (e.g., by coding it in software and/or establishing it in a database). Portions of the intrinsic evidence that support this include: '023 Patent at 3:51-54; 3:57-67; 5:42-6:41; 10:28-32; 13:26-32;13:53-56; 14:24-25; 19:40-48; 20:40-43; 21:24-28; 21:40-46; 21:53-56; 22:4-20; 22:47-52; 23:29-33; 24:44-52; FIGS. 1A-1F, 2, 3, 6-9 (and associated descriptions in the specification); '023 FH, 1/22/2018 Response Accompanying RCE at 12-13. 15. So, as an initial matter, I disagree with Mr. Schmandt's apparent premise that the claims need to specify the nature of the relationship / connection between the claimed elements. 1 See also Merriam-Webster's Collegiate Dictionary (11th Ed. 2014) (listing another definition of "associated" as "closely connected (as in function or office) with another"). 5 4 That is because the patents simply claim there is a relationship / connection between the claimed elements. 16. Mr. Schmandt provides a variety of "possibilities" about what the claim limitations could mean. Schmandt Decl. at ¶¶ 33-35. But none of the possibilities presented reflect two claimed elements without any relationship at all, and as explained above, a person of ordinary skill in the art would read the claims to just reflect that there is a relationship / connection. 17. Additionally, it is my understanding that, for purposes of determining a claim's definiteness, breadth is not indefiniteness. It is also my understanding that where the full scope of a claim term's ordinary meaning or meanings is consistent with the intrinsic evidence, any claim construction determination should cover all such consistent meanings. Similarly, I understand that courts have found that it is acceptable to use a word in different contexts in the claim of a patent, and that there is no requirement that there only be one possible meaning even in different contexts if the different meanings in different contexts are consistent with the intrinsic evidence. 18. For example, with respect to the elements reciting a swiping gesture "associated" with a graphical representation, Mr. Schmandt states that it is not clear if a user would need to swipe directly on the graphical representation or somewhere else on the graphical user interface as long as the swipe was linked or connected to the graphical representation. Schmandt Decl. at ¶¶ 33, 35. However, a person of ordinary skill in the art would understand that in both cases, the swiping gesture is "associated" with the graphical representation. That is, in both cases there is a relationship / connection between the swiping gesture and the graphical representation. The difference in a user having to swipe directly on the graphical representation versus swipe 6 4 somewhere else linked to the graphical representation is an implementation or design choice that does not affect the fact that in both scenarios the detected swiping gesture will be "associated" with the graphical representation. Furthermore, a person of ordinary skill in the art would understand that, similar to a "view" or "like" button, the swiping gestures are already connected or "associated" to the graphical representation before a user even performs any action. See, e.g., '023 patent at 5:60-64; 6:25-29; 10:28-32; 21:41-46; 22:49-51. Thus, a person of ordinary skill in the art would not understand that the user's action is creating the relationship / connection between the swiping gesture and the graphical representation—it is already present in the code. 19. Similar reasoning applies as to Mr. Schmandt's assertions as to the other "associated" claim limitations. For example, Mr. Schamndt states that it is not clear if a preference indication acts upon, is linked or connected to, or is stored somewhere with an item of information or graphical representation. Schmandt Decl. at ¶ 34. Again, a person of ordinary skill in the art would understand that in all three cases, the preference indication is "associated" with the item of information or the graphical representation. In other words, in all three cases, a relationship / connection exists between the preference indication and the item of information or the graphical representation. The difference among these alternatives reflects implementation or design choices for representing a relationship / connection, but in each of these scenarios, the preference indication is "associated" with the item of information or the graphical representation. Moreover, with respect to Mr. Schmandt's opinions about storage, he suggests that "associated" could mean merely "stored" somewhere with something. But a person of ordinary skill in the art would not understand "associated" to be met by mere storage unless there is meaning in the program or storage to indicate a relationship / connection. Merely storing nearby is not sufficient to mean there is a relationship / connection. Mr. Schmandt has not cited to any evidence 7 4 supporting his opinion to the contrary. Likewise, with respect to Mr. Schmandt's opinion about one thing acting upon another, Mr. Schmandt has not cited to any evidence for this opinion. For example, Mr. Schmandt has not cited to any definitions of the word "associated" to show that it means "acted upon" or "stored" with or nearby. 20. A person of ordinary skill in the art would understand how and be capable of making a system that created the above-described relationships / connections claimed in the invention, but he or she might choose to implement that relationship / connection differently (e.g., by coding into software and/or establishing in a database). For example, at the time of the invention, it was common practice in computer programs for graphical user interfaces, particularly on phones, to classify a sequence of touches on a touchscreen as being a particular "gesture." See, e.g., '023 patent at 19:40-48; 22:4-15; 22:47-52; FIGS 6-9 (and associated description in specification). Because such gestures were an important way to interact with "apps," smartphone manufacturers provided programs to support identifying gestures. For example, Apple has provided software for use by apps to recognize multiple types of gestures, including a "swipe," since at least as early as iOS 3.2. 2 In addition to support for recognizing a gesture, there is support for linking that gesture to computer code in the app for "handling" that gesture; e.g., to register that the gesture occurred and take an action in response. Similarly, at the time of the invention, it was common practice to register a relationship/connection between two entities in a database. It was common practice to store such a database in computer servers as well as on user computers and smartphones. See, e.g., '023 patent at 3:51-54; 5:42-6:41; 13:26- 32; FIGS 1C-1E (and associated description in specification). Smartphone manufacturers 2 See, e.g., https://developer.apple.com/documentation/uikit/uiswipegesturerecognizer; see also https://www.theverge.com/2011/12/13/2612736/ios-history-iphone-ipad (showing release of iOS 3.2 in April 2010). 8 4 provided support for databases on smartphones. For example, Apple has provided a simple database, SQLite, on its iPhones for use by apps since at least as early as iOS 3.0. 3 It is often used as a way to represent relationships/connections between "objects" in an app; because of its importance, the representation of relationships/connections in apps was (and is) directly supported by the development tools that Apple provides to app developers. 4 III. Response to Mr. Schmandt's Opinions Regarding "Text Area" 21. I previously opined that "the text area" in claims 2 and 5 of the '811 Patent were not indefinite because a skilled artisan would understand that term to refer to "a text area," as claimed in claim 8 of the '811 Patent. 22. I now understand that Bumble contends "text area," not "the text area," is indefinite. 23. I understand that Mr. Christopher Schmandt has provided a declaration opining that a "person of ordinary skill in the art would not be able to determine with reasonable certainty" whether "text area" meant "(1) an area where text is displayed; or (2) a text input area." Schmandt Decl. ¶ 37. Because of this, Mr. Schmandt concludes that the term is indefinite. I disagree. 24. I have reviewed Mr. Schmandt's declaration. As an initial matter, Mr. Schmandt indicates that the term "the text area" appears in claims 2, 5, and 8. This is inaccurate. "Text area" appears in all three claims, but "the text area" is a term appearing only in claims 2 and 5. 3 See, e.g., https://developer.apple.com/documentation/coredata/nspersistentstore and https://developer.apple.com/documentation/coredata. 4 See, e.g., https://developer.apple.com/documentation/coredata; https://developer.apple.com/documentation/coredata/modeling_data. 9 4 The word "the" before "text area" was changed to "a" in claim 8 via the certificate of correction entered after the '811 Patent was printed. 25. I also note that Mr. Schmandt has provided no basis for his conclusion that a POSITA would understand the term in one of those two different ways at the time of the claimed inventions. He also does not describe the steps he took, if any, to investigate these alleged meanings or explain how or why a skilled artisan would understand them in this way. 26. Mr. Schmandt does indicate that he "reviewed Figure 12D" and appears to opine that, because Figure 12D does not have a "place to enter text," the scope of "text area" is not reasonably clear. He does not indicate what led him to review Figure 12D or why he believed Figure 12D was the only portion of intrinsic evidence for which a skilled artisan would seek guidance concerning the term "text area." 27. In my opinion, a person of ordinary skill would understand the scope of the term "text area" with reasonable certainty under the circumstances. 28. First, a skilled artisan would know that "text" can mean words or letters appearing on a computer screen, but that it could also mean "text" as in "texting," which is a type of communication. Mr. Schmandt appears to agree that a skilled artisan would recognize "text area" as potentially related to "texting" when he describes the possibility that the term means a "text input area." 29. A skilled artisan would see from the text of the claims, for example, that the "graphical notification," that comprises that claimed "text area" occurs in response to particular conditions: "determining both that the first user has expressed the positive preference indication regarding that second user and the second user has expressed the positive preference indication regarding the first user." The skilled artisan would know that the independent claims to which 10 4 the "text area" dependents relate contain another limitation occurring "in response to" this same condition. Specifically, the independent claims recite "determining to enable initial communication between the first user and the second user" in response to these same criteria. 30. A skilled artisan would also notice that the dependent claims containing the "text area" term recite a "graphical notification," that this notification must be "that a match exists," and that the notification must comprise "a user interface control enabling the [or a] text area to be presented to the user." The skilled artisan would see that, in Col. 3, lls. 19-21, the '811 Patent describes "Fig. 9" as "show[ing] the matching system displaying a match of a first user and a second user, in accordance with a particular embodiment." The skilled artisan would know that this figure would bear on the meaning of a "text area." 31. Figure 9 shows "user interface controls." One, labeled "92" displays text indicating that the control is to "Send A Message." The specification also describes this button. In Col. 22, lls. 27-29, the patent describes that, in some embodiments, "direct communication may be initiated by pressing 'Send a Message' button 92." 32. The fact that the graphical notification containing the user interface control enabling the "text area" to be displayed occurs after a mutual positive preferences would also cause the skilled artisan to look at Figure 12D, "an example communication interface between users of the matching system. '811 Patent at 24:30-31. The skilled artisan would be drawn to this figure as it is a interface showing a "chat box 1208 for each of the matches that exist for user 14." Because "chat box 1208" involves matches and the graphical notification comprising the user interface control "enabling the [a] text area to be displayed" also is a notification "that a match exists" and is sent in response to the same conditions that "enable initial communication," 11 4 the skilled artisan would understand that "chat box 1208" bears on the meaning of the term "text area." 33. At the time of the inventions, the skilled artisan would also know that the "chat box 1208" icon displayed in Figure 12D is a widely recognized icon denoting text or chat functions. For example, the picture below 5 shows a user interface from the iPhone iOS 1.1,released in September 2007: In the top left, the "text" icon shows a "speech bubble," indicating texting or chat functionality. This icon is similar to the "chat box" in Figure 12D. This would further inform the skilled artisan as to the scope of "text area" as an area relating to text or chat functionality. 34. The skilled artisan, when reviewing the prosecution history, would also see that a prior version of the claims recited, "a text area, the text area configured to receive texting inputted by the first user." 5 https://www.theverge.com/2011/12/13/2612736/ios-history-iphone-ipad 12 4 35. They would also see that the examiner mapped this term to chat functionality in the Janssen reference. This would further confirm the skilled artisans understanding that the term referred to an area related to text or chat functionality. 36. The skilled artisan would not believe that the "text area" term, in the context of the claims in which the term appears, could refer to any area in which text might appear. The specification repeatedly and consistently describes the creation of the ability to communicate after a match is made. It further describes different text-based ways to communicate. For example, chats and SMS messages. See '811 Patent at 22:10-15. And "area[s] where text is displayed" exist throughout the operation of the system, both before mutual positive preference and after. A skilled artisan would be reasonably certain that in a claim reciting "causing the display of a graphical notification. . . that a match exists. . . the graphical notification comprising a user interface control enabling the [a] text area to be presented to the first user" referred to a texting or chatting area, not any area in which text is displayed. 37. In my opinion, a skilled artisan would not understand the term "text area" to refer to only a text input area, however. While a "text area" in the context of the claimed invention could include a text input area and comprise an entire chat or text interface, a skilled artisan would not believe that all "text area[s]" must require a text input area. Rather, the skilled artisan would understand the "text" in "text area" to describe any area related to "texting," areas related to chat functionality, SMS functionality, and the like. The skilled artisan would understand there are a number of ways to code and display such an area, some with areas to input text and some related to text and chatting functionality in other ways. I declare under penalty of perjury that foregoing is true and correct to the best of my knowledge, information, and belief. 13 4