IconFind, Inc. v. Google, Inc.

Filing 97

[DISREGARD - Attorney to Re-File per Judge's Request] BRIEF Opening Claim Construction Brief by Google, Inc.. (Attachments: # 1 Declaration Kenneth Maikish Declaration, # 2 Exhibit 1 to Maikish Declaration, # 3 Exhibit 2 to Maikish Declaration, # 4 Exhibit 3 to Maikish Declaration, # 5 Exhibit 4 to Maikish Declaration, # 6 Exhibit 5 to Maikish Declaration, # 7 Exhibit 6 to Maikish Declaration, # 8 Exhibit 7 to Maikish Declaration, # 9 Exhibit 8 to Maikish Declaration, # 10 Exhibit 9 to Maikish Declaration, # 11 Exhibit 10 to Maikish Declaration, # 12 Exhibit 11 to Maikish Declaration, # 13 Exhibit 12 to Maikish Declaration, # 14 Exhibit 13 to Maikish Declaration, # 15 Exhibit 14 to Maikish Declaration)(Maikish, Kenneth) Modified on 5/22/2012 (Michel, G).

EXHIBIT 5

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
---o0o--BEFORE THE HONORABLE WILLIAM B. SHUBB, JUDGE
---o0o--ICONFIND, INC.,
Plaintiff,
vs.

No. Civ. S-09-00109

YAHOO, INC.,
Defendant.
/

---o0o--REPORTER'S TRANSCRIPT OF PROCEEDINGS
DEFENDANT'S MOTION FOR CLAIM CONSTRUCTION
MONDAY, DECEMBER 7, 2009
---o0o---

Reported by:

KATHY L. SWINHART, CSR #10150

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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unless there's something else that -MS. KASH:

There is one more term that we could

probably go through quickly.

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MR. HAAN:

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THE COURT:

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MS. KASH:

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THE COURT:

Oh, network page, right.

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MR. HAAN:

Your Honor, if I could --

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THE COURT:

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MR. HAAN:

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Right.
Which is that?
Network page.

A page which is part of a network.
Your Honor, if I could make one more point

about categorization label.
Once again, the specification says that category

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assignments can be sent to a search engine.

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does not have to include all the category assignments in the

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label in order to operate.

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So the invention

Yahoo's position was that the label itself must

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expressly indicate every category in order for the invention

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to operate.

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search engine as is discussed at column 6 and line 55, then

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the search engine already has those category assignments in

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its database.

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particular page, it can use that information that the search

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engine has, and then it can use whatever category assignments

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are expressly included in the label.

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But if category assignments are communicated to a

And if someone uses the search engine to find a

THE COURT:

Why do you think the Court needs to define

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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page?

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MR. HAAN:

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THE COURT:

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Court needs to define page?

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MR. HAAN:

We do not, Your Honor.
You do not.

Why does Yahoo think the

One thing I wanted to point out, Your

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Honor, was that Yahoo has changed its position halfway through

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the briefing on this term.

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to page 20, it has offered its construction for the whole term

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"network page" including both words.

In its opening brief, if we turn

In its response brief it

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offered its construction only for the term "page" and said

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that it agreed with IconFind's construction of the term

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"network."

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It did not inform IconFind of this change in its

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position.

Quite frankly we think it's unfair and also

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implicates new claims because the term "network page" together

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shows up in Claims 1, 30 and 31, and the term "page" by itself

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shows up in Claims 19, 22 and 28.

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THE COURT:

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Court needs to define page?

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MS. KASH:

Okay.

So, Ms. Kash, why do you think the

Well, Your Honor, we think that you need to

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define page because the manner in which the plaintiff is

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asserting its patent against Yahoo, who uploads and assigns to

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the extent any categories are assigned to photographs, and

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Flickr as we discussed earlier today only applies user

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selected settings to uploaded photographs, not to an entire

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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network page.
And we did not seek to redefine page in and of itself.

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We were simply stating in our reply brief that we don't

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disagree as to what constitutes a network.

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on what's a network.

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about when you say page?

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have happen is to expand this patent to cover things, simply a

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photograph, where a network page is what the categories this

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whole patent are being assigned to.

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THE COURT:

We can all agree

The issue here is what are you talking
Because what the plaintiff wants to

Did I get this backwards?

Because it

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looks like you're the one asking to define as files, data and

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information presented when a network address is accessed

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including any text, audio, advertising, images, files,

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graphics or graphical user interface.

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the jury into thinking that an audio, an advertisement, an

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image or a graphic could be a page?

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MS. KASH:

Wouldn't that confuse

What it is is anything that is -- there's a

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difference in this patent between the fact that -- there's

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very clear language that when something is being -- a category

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is assigned to the network page versus a category assigned to

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material on the page.

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THE COURT:

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MS. KASH:

Right.
They're arguing that the photograph itself,

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in and of itself constitutes -- can constitute a network page.

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And we're saying no, no, no, the network page is the whole

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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thing.

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that's located on that, that is the page and that that is not

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something -- so that when you -- Yahoo does not categorize the

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IP address itself.

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all the stuff that's found at a network page or a web page,

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however you want to define it in common Internet usage.

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Everything that's found in an IP address, everything

THE COURT:

MR. HAAN:

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THE COURT:

Let me ask you then, Mr. Haan, the

Right.
Is it your position that page could be an

image which is found on a web page?
MR. HAAN:

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Okay.

It doesn't categorize

patent uses the term "material on a page."

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It doesn't do that.

That the image itself constitutes a network

page?

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THE COURT:

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MR. HAAN:

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THE COURT:

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MR. HAAN:

Yeah.

Is that your position?

No, that's not our position.
Okay.
Our position is you assign the page based

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on the material that's on the page, but that doesn't

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necessarily include all files, data and information.

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look at a website, it may have the logo of a company.

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we include Yahoo's proposed construction and you look at it in

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the context of the claims, it says assigning said network

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page.

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THE COURT:

If you
And if

Well, we can get to the question of

whether this is an infringement or not later on.

But for

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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right now it seems that you're both in agreement that the

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image that's on a page is not a, quote, page, unquote.

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material on a page.

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doesn't need to be defined.

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define network page in order to define what a network is.

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Network page is a page on the Internet, a private corporate

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network, intranet, local area network or other network.

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MR. HAAN:

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THE COURT:

It's

And so we should simply define -- page

Yes.

It seems that we should just

That's our position, Your Honor.

What's wrong with that since nobody is

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going to take the position that an image on a page is a page

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in and of itself?

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MS. KASH:

If that is an admission that we have from

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plaintiff and Your Honor is accepting of it, then network page

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is fine.

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THE COURT:

All right.

Well, if you want to just --

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we can put it on the record.

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which is on a page is a, quote, page, unquote, itself.

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MR. HAAN:

THE COURT:

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MS. KASH:

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THE COURT:

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MR. HAAN:

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An image itself, in and of itself the image

file is not a page.

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You do not claim that an image

All right.
Thank you.
Okay.
So I guess I don't understand what the

construction of this term is.
THE COURT:

There is no construction?

No, there will be a construction.

But I

KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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don't think we need to define the word "page" because

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everybody understands what it means.

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image, it means a page.

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MR. HAAN:

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THE COURT:

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It doesn't mean an

or a network page.

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MR. HAAN:

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THE COURT:

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MS. KASH:

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THE COURT:

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MR. HAAN:

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Right.
It's got a common definition, a web page

Right.
Right.
Thank you, Your Honor.
Okay.

Anything else?

Not unless Your Honor has any further

questions.
THE COURT:

No.

This is interesting.

I've enjoyed

the discussion.

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MS. KASH:

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THE COURT:

Thank you, Your Honor.
The matter is taken under submission.

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(Proceedings were concluded at 3:56 p.m.)

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---o0o---

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KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]

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I certify that the foregoing is a correct transcript

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from the record of proceedings in the above-entitled matter.

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/s/ Kathy L. Swinhart
KATHY L. SWINHART, CSR #10150

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KATHY L. SWINHART, OFFICIAL COURT REPORTER, USDC -- [phone]