Match Group, LLC v. Bumble Trading Inc.

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

Exhibit A

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1 Exhibit A 1 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC, Plaintiff, v. Civil Action No. 6:18-cv-00080-ADA BUMBLE TRADING, INC., and BUMBLE HOLDING, LTD. Defendants. DEFENDANTS' PROPOSED CLAIM CONSTRUCTIONS Pursuant to the Scheduling Order entered in this case, D.I. 56, Bumble Trading, Inc. and Bumble Holding, Ltd. ("Bumble") proposes the constructions in Exhibit A for claim terms in the U.S. Patent Nos. 9,733,811 (the "ʼ811 Patent"), 9,959,023 (the "ʼ023 Patent"), and 10,203,854 (the "ʼ854 Patent"). Bumble proposes constructions for only those terms identified by the parties as currently disputed and requiring construction at this time. Bumble bases these constructions upon its current knowledge, understanding, and belief as to the facts and information available as of this date. Bumble reserves its right to argue, including in the alternative to construction, that one or more of the proposed claim terms or phrases are indefinite under 35 U.S.C. § 112. See, e.g., Bumble's March 22, 2019 Preliminary Invalidity Contentions. Bumble further reserves the right to modify the list of terms/phrases and constructions as claim construction proceeds and in response to proposed constructions provided by Plaintiff and the parties meet and confer efforts. 1 1 Dated: April 4, 2019 /s/ Joseph M. Drayton Deron R. Dacus (TX 00790553) THE DACUS FIRM, PC 821 ESE Loop 323, Suite 430 Tyler, TX 75701 Telephone: (903) 705-1117 Facsimile: (903) 581-2543 ddacus@dacusfirm.com Joseph M. Drayton (pro hac vice) NY Bar No. 2875318 COOLEY LLP 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 jdrayton@cooley.com Michael G. Rhodes (pro hac vice) CA Bar No. 116127 Matthew Caplan (pro hac vice) CA Bar No. 260388 COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 mrhodes@cooley.com mcaplan@cooley.com Rose S. Whelan (pro hac vice) DC Bar No. 999367 COOLEY LLP 1299 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20004 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 rwhelan@cooley.com Attorneys for Defendants Bumble Trading, Inc. and Bumble Holding, Ltd. 2 1 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served to counsel of record below via electronic mail on April 4, 2019. Joseph M. Drayton Joseph M. Drayton Bradley W. Caldwell Caldwell Cassady and Curry PC 2101 Cedar Springs Rd., Ste. 1000 Dallas, TX 75201 214-888-4840 Fax: 214-888-4849 Email: bcaldwell@caldwellcc.com John F. Summers Caldwell Cassady and Curry PC 2101 Cedar Springs Rd., Ste. 1000 Dallas, TX 75201 214-888-4840 Fax: 214-888-4849 Email: jsummers@caldwellcc.com Melissa Richards Smith Gillam and Smith, LLP 303 South Washington Avenue Marshall, TX 75670 903-934-8450 Fax: 903-934-9257 Email: melissa@gillamsmithlaw.com Warren J. McCarty Caldwell Cassady and Curry PC 2101 Cedar Springs Rd., Ste. 1000 Dallas, TX 75201 214-888-4840 Fax: 214-888-4849 Email: wmccarty@caldwellcc.com John P. Palmer Naman Howell Smith & Lee P.O. Box 1470 Waco, TX 76703-1470 254-755-4100 Fax: 254-754-6331 Email: palmer@namanhowell.com 3 1 EXHIBIT A 1 Claim Term Patent Proposed Construction Evidence1 Claims Graphical '811 summary of information '811 Patent, 3:13-14, 5:46-62, 6:12-22, 21:10-22, Fig. 1E, 1F, representation Patent, displayed on a graphical user Fig. 6 claims 1, interface Graphical 4, and 7 '023 Patent Prosecution Response Accompanying Request representation of a summary of information for Continued Examination ("RCE"), dated January 22, 2018 [first, second, third, '023 displayed on a graphical user etc.] potential match Patent, interface representing a [first, Bumble may rely on the declaration of an expert witness to claims 1, second, third, etc.] potential be disclosed later pursuant to the parties agreement (see April Graphical 2, 3, and 5 match 2, 2019 Email from John Summers to Rose Whelan). representation of a first [second] online '854 summary of information dating profile Patent, displayed on a graphical user associated with a first claims 1, interface representing a first [second] user 4, 7, and [second] online dating profile 10 associated with a first [second] Graphical user representation of a first item of summary of information information displayed on a graphical user interface representing a first Graphical [second] item of information representation of the first [second] user summary of information displayed on a graphical user interface representing the first [second] user 1 The page and line numbers cited refer to the '811 Patent citations. Bumble also identifies the corresponding citations from the '023 and '854 Patents. Bumble generally identifies the claim language itself for all claims and discloses its intent to rely on the claim language for all construed claims. 1 Claim Term Patent Proposed Construction Evidence1 Claims Associated '811 Indefinite Bumble may rely on the declaration of an expert witness to Patent, be disclosed later pursuant to the parties agreement (see April claims 1, 2, 2019 Email from John Summers to Rose Whelan). 3 4, 6 and 7 '023 Patent, all claims '854 Patent, claims 1, 2, 4, 5, 7, 8, 10, and 11 Social networking '811 Social networking platform '811 Patent, 2:42-45, 15:54-67, 16:1-17:12, 19:38-20:15, platform Patent, independent of the system for 20:32-34 claims 1, profile matching 4, and 7 Bumble may rely on the declaration of an expert witness to be disclosed later pursuant to the parties agreement (see April '854 2, 2019 Email from John Summers to Rose Whelan). Patent, claims 2, 5, 8, and 11 Automatically/ '811 Indefinite Bumble may rely on the declaration of an expert witness to automatically causing Patent, be disclosed later pursuant to the parties agreement (see April the graphical user 2, 2019 Email from John Summers to Rose Whelan). interface to display/ 2 1 Claim Term Patent Proposed Construction Evidence1 Claims automatically cause claims 1, the interface to 4, and 7 remove/ automatically presenting. . . in response to detecting '023 the gesture / Patent, 1, automatically present. 3 and 5. . . in response to the processor detecting the gesture/ automatically removing. . . in response to detecting the gesture / automatically remove. . . in response to detecting the gesture Prevent[ing] '811 An affirmative act to ensure no '811 Patent, 6:48-52, 15:4-7, 15:16-19, 23:10-30, 23:52-59, communication Patent, communication between two Fig. 10, claims 1, 4, and 7 claims 1, users 4, and 7 '811 Prosecution History Response to Office Action, dated November 18, 2015 '811 Prosecution History Response to Office Action, dated February 9, 2016 '811 Prosecution History Request for Continued Examination, dated May 26, 2016 '811 Prosecution History Response Pursuant to 37 C.F.R. § 1.111, dated July 29, 2016 3 1 Claim Term Patent Proposed Construction Evidence1 Claims '811 Prosecution History Applicant Initiated Interview Summary, dated July 37, 2016 '811 Prosecution History Response Pursuant to 37 C.F.R. § 1.111, dated October 31, 2016 '811 Prosecution History Response Accompanying Request for Continued Examination, dated January 31, 2017 Extrinsic Evidence Collins English Dictionary 2011 (prevent (pri-'vent) vb l (tr) to keep from happening, esp by taking precautionary action 2 (tr; often foll by from) to keep (someone from doing something); hinder; impede 3 (intr) to interpose or act as a hindrance 4 (tr) archaic to anticipate or precede) Merriam Webster Dictionary 2012 (prevent: to keep from happening or existing; to hold or keep back: HINDER, STOP; to interpose an obstacle) Bumble may rely on the declaration of an expert witness to be disclosed later pursuant to the parties agreement (see April 2, 2019 Email from John Summers to Rose Whelan). The text area '811 Indefinite Bumble may rely on the declaration of an expert witness to Patent be disclosed later pursuant to the parties agreement (see April claims 2, 2, 2019 Email from John Summers to Rose Whelan). 5, and 8 4 1 Claim Term Patent Proposed Construction Evidence1 Claims Without allowing '854 An affirmative act to ensure no '811 Patent, 6:48-52, 15:4-7, 15:16-19, 23:10-30, 23:52-59, patent, communication between two Fig. 10 claims 1, users 3, 4, 6, 7, '854 Patent, claims 1, 4, 7, and 10 and 10 '811 Prosecution History Response to Office Action, dated November 18, 2015 '811 Prosecution History Response to Office Action, dated February 9, 2016 '811 Prosecution History Request for Continued Examination, dated May 26, 2016 '811 Prosecution History Response Pursuant to 37 C.F.R. § 1.111, dated July 29, 2016 '811 Prosecution History Applicant Initiated Interview Summary, dated July 37, 2016 '811 Prosecution History Response Pursuant to 37 C.F.R. § 1.111, dated October 31, 2016 '811 Prosecution History Response Accompanying Request for Continued Examination, dated January 31, 2017 Extrinsic Evidence Collins English Dictionary 2011 (prevent (pri-'vent) vb l (tr) to keep from happening, esp by taking precautionary action 2 (tr; often foll by from) to keep (someone from doing 5 1 Claim Term Patent Proposed Construction Evidence1 Claims something); hinder; impede 3 (intr) to interpose or act as a hindrance 4 (tr) archaic to anticipate or precede) Merriam Webster Dictionary 2012 (prevent: to keep from happening or existing; to hold or keep back: HINDER, STOP; to interpose an obstacle) Collins English Dictionary 2011 (allow: to permit (to do something); let) Merriam Webster 2012 (allow: PERMIT; to forbear or neglect to restrain or prevent; to make a possibility) Bumble may rely on the declaration of an expert witness to be disclosed later pursuant to the parties agreement (see April 2, 2019 Email from John Summers to Rose Whelan). 6