Overture Services, Inc. v. Google Inc.

Filing 67

JOINT CASE MANAGEMENT STATEMENT -- Joint Claim Construction and Prehearing Statement filed by Overture Services, Inc.. (McMahon, Charles) Additional attachment(s) added on 6/26/2003 (vlh, ).

Overture Services, Inc. v. Google Inc.

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LATHAM & WATKINS Anthony I. Fenwick (Bar No. 158667) 135 Commonwealth Drive Menlo Park, California 94025 Telephone: [phone] Facsimile: [phone] BRINKS HOFER GILSON & LIONE Jack C. Berenzweig (Admitted Pro Hac Vice) William H. Frankel (Admitted Pro Hac Vice) Jason S. White (Admitted Pro Hac Vice) Charles M. McMahon (Admitted Pro Hac Vice) NBC Tower - Suite 3600 455 North Cityfront Plaza Drive Chicago, Illinois 60611 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff OVERTURE SERVICES, INC. KEKER & VAN NEST, LLP John W. Keker (Bar No. 49092) Daralyn J. Durie (Bar No. 169825) Michael S. Kwun (Bar No. 198945) 710 Sansome Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE TECHNOLOGY INC., sued under its former name GOOGLE INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
No. C 02-01991 JSW JOINT CLAIM CONSTRUCTION STATEMENT

OVERTURE SERVICES, INC., a Delaware Corporation, Plaintiff, vs. GOOGLE INC., a California Corporation, Defendant.

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Pursuant to Patent L.R. 4-3 (a) and (b) and Judge Jeffrey S. White's Standing Order For Patent Cases, Overture Services, Inc. ("Overture") and Google Technology Inc. ("Google") hereby submit the following Joint Claim Construction Statement. Pursuant to Patent L.R. 4-3 (c), the parties note that Judge Jeffrey S. White's Standing Order For Patent Cases states that the Claim Construction Hearing will generally be scheduled for no longer than four hours. The parties anticipate that the Claim Construction Hearing will last approximately four hours. Pursuant to Patent L.R. 4-3 (d), neither party presently anticipates calling any witnesses at the Claim Construction Hearing. Pursuant to Patent L.R. 4-3 (e), the parties note that Judge Jeffrey S. White's Standing Order For Patent Cases states that prehearing conferences are not generally held. Neither party presently intends to request a prehearing conference. In the event that either party later determines that a prehearing conference is necessary, that party will follow the procedures identified in Judge Jeffrey S. White's Standing Order For Patent Cases for requesting such a hearing. To the extent that issues related to the Tutorial or the Claim Construction Hearing require discussion with the Court, the parties intend to raise those issues at the July 25, 2003 Case Management Conference. As required by Judge Jeffrey S. White's Standing Order For Patent Cases, a copy of the patent-in-suit, U.S. Patent No. 6,269,361 (the "'361 Patent"), is attached hereto at Tab A, and a complete copy of the prosecution history for the '361 Patent will be made available to the Court upon request. Because Google has listed certain patent applications claiming priority to the '361 patent as intrinsic evidence, Overture has done so as well for the Court's convenience. However, Overture reserves the right to contest whether these applications constitute intrinsic evidence. Overture further reserves the right to object to extrinsic evidence offered by Google as alleged support for its claim constructions. Both parties reserve the right to supplement their disclosure based on information of which they hereafter become aware through discovery.
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Claim Language (Disputed Terms in Bold) '361 Patent search listing Found in claims: 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67

Plaintiff's Proposed Construction and Evidence in Support

Defendant's Proposed Construction and Evidence in Support

PROPOSED CONSTRUCTION: a collection of information that includes at least one search term and that can be included in a search result list DICTIONARY DEFINITIONS: Search to examine (one or more files, as databases or texts) electronically, to locate specific items (The Random House Dictionary of the English Language, Second Edition, 1987) to examine data in a computer in order to locate items having a given property (Webster's New World College Dictionary, Third Edition, 1997) try to find something by looking or otherwise seeking carefully and thoroughly; an act of searching for someone or something (The New Oxford Dictionary of English 1998) to make a thorough examination of; look over carefully in order to find something; explore (The American Heritage College Dictionary, Fourth Edition, 2002) to look into or over carefully or thoroughly in an effort to find something (Merriam Webster's Unabridged Dictionary) Listing an act or instance of making or including in a list or catalog; specifically: the admission of securities to trading on a securities exchange; an authorization to a realestate broker to sell or rent property; a broker's record of available properties; a piece of property listed with a real-estate broker (Merriam

PROPOSED CONSTRUCTION: an entry in (or intended to be in) a search result list

INTRINSIC EVIDENCE: '361 Patent Specification Abstract, ll. 3-4, 8-12, 15, 19, 20, 24-32; fig. 5; fig. 7; col. 3, ll. 51-54; col. 4, ll. 34-48, 55-67; col. 5, ll. 167; col.6. ll. 1-8, 20-24, 26, 28-34, 51-52, 57-58; col. 8, ll. 59-67; col. 9, ll. 1-12, 25-41, 66-67; col. 10, ll. 16, 22-35; col. 12, ll. 21-25, 28-29, 40-67; col. 13, ll. 1-2, 13-20, 41; col. 14, ll. 7-11, 14-16, 25-27; col. 17, ll. 14-67; col. 18, ll. 1-36, 40, 45, 47, 49; col. 19, ll. 1, 3, 8-9, 12, 15, 1820, 25, 32-33, 59-67; col. 20, ll. 1-5, 8, 14-17, 22-23, 27, 29, 32-40, 61, 63-64; col. 21, ll. 1-2, 8-18, 29-40; col. 22, ll. 20, 24-26. DICTIONARY DEFINITIONS: The American Heritage Dictionary of the English Language, 4th ed. The Random House Dictionary of the English Language, 2nd ed., Unabridged Webster's New World College Dictionary, 3rd ed. Merriam Webster's Collegiate Dictionary, 10th ed. The New Oxford Dictionary of English

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Webster's Unabridged Dictionary) a list; record; catalog (The Random House Dictionary of the English Language, Second Edition, 1987) INTRINSIC EVIDENCE: '361 Patent ­ col. 6, ll. 16-34 One embodiment of the system and method of the present invention provides a database having accounts for the web site promoters. Each account includes contact and billing information for a web site promoter. In addition, each account includes at least one search listing, each search listing having five components: a description of the web site to be listed, the Uniform Resource Locator (URL) of the web site, a search term comprising one or more keywords, a bid amount, and a title for the search listing. Each account may also include the promoter's payment history and a history of search listings entered by the user. The promoter logs in to his or her account via an authentication process running on a secure server. Once logged in, the promoter may add, delete, or modify a search listing. The functions of adding or deleting a search listing, or modifying the bid amount of a search listing is to initiate the competitive bidding process described above. All search listing changes and modifications are processed substantially in real time to support the online competitive bidding process. '361 Patent ­ col. 12, l. 40 ­ col. 13, l. 2 The search listing 344 corresponds to a search term/bid pairing and contains key information to conduct the online competitive bidding process. Preferably, each search listing comprises the following information: search term 352, web site description 354, URL 356, bid amount 358, and a title 360. The search term 352 comprises one or
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EXTRINSIC EVIDENCE: www.jsonline.com at GOG 1659-61. www.tundrawolfpromotions.com at GOG 32230-31. searchengineoptimism.com at GOG 32242-43, 32246-47. www.searchengineposition.com at GOG 32252. Documents produced by Overture: OVGE 52678, 52692, 52950, 52961, 52966-67, 52976, 53032, 53035, 53039, 53059, 53062, 53072-73, 53076-78, 53082, 53129-30, 53133, 53144, 53151, 53482, 53484, 53493, 53521, 53524-26, 53528, 53561, 53563, 53568-69, 53573, 53580, 53584, 53590, 53596, 53600, 53638, 53640, 53645-46, 53650, 53712, 54303, 54312, 55954, 55967, 55981, 55991-92, 55995-97, 56001, 56983, 59003, 59009-11, 59014, 59233-38, 59309, OVG 31561, 31563, 3156567, 31576, 31578, 31579, 31583-85.

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more keywords which may be common words in English (or any other language). Each keyword in turn comprises a character string. The search term is the object of the competitive online bidding process. The advertiser selects a search term to bid on that is relevant to the content of the advertiser's web site. Ideally, the advertiser may select a search term that is targeted to terms likely to be entered by searchers seeking the information on the advertiser's web site, although less common search terms may also be selected to ensure comprehensive coverage of relevant search terms for bidding. The web site description 354 is a short textual description (preferably less than 190 characters) of the content of the advertiser's web site and may be displayed as part of the advertiser's entry in a search result list. The search listing 344 may also contain a title 360 of the web site that may be displayed as the hyperlinked heading to the advertiser's entry in a search result list. The URL 356 contains the Uniform Resource Locator address of the advertiser's web site. When the user clicks on the hyperlink provided in the advertiser's search result list entry, the URL is provided to the browser program. The browser program, in turn, accesses the advertiser's web site through the redirection mechanism discussed above. The URL may also be displayed as part of the advertiser's entry in a search result list '361 Patent ­ Abstract, ll. 8-19 In addition, each account contains at least one search listing having at least three components: a description, a search term comprising one or more keywords, and a bid amount. The network information provider may add, delete, or modify a search listing after logging into his or her account via an authentication process. The network information provider influences a position for a search
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listing in the provider's account by first selecting a search term relevant to the content of the web site or other information source to be listed. The network information provider enters the search term and the description into a search listing. '361 Patent ­ col. 9, ll. 30-34 In one embodiment of the present invention, the relevance of a bidded search term to an advertiser's web site is determined through a manual editorial process prior to insertion of the search listing containing the search term and advertiser web site URL into the database 40. '361 Patent ­ col. 17, ll. 9-18 As indicated above and shown in FIG. 2, a routine displaying the account management menu 170 may be invoked from the advertiser main menu 120. Aside from the "Allocate Money Between Subaccounts" selection described above, the remaining selections all use to some extent the search listings present in the advertiser's account on the database, and may also affect the advertiser's entry in the search result list. '361 Patent ­ col. 18, ll. 37-53 As shown in the campaign management menu 170 of FIG. 2, several choices are presented to the advertiser to manage search listings. First, in the "Change Bids" selection, the advertiser may change the bid of search listings currently in the account. The process invoked by the system for the change bids function is shown in FIG. 8. After the advertiser indicates the intent to change bids by selecting the "Change Bids" menu option, the system searches the user's account in the database and displays the search listings for the entire account or a default subaccount in the advertiser's account, as shown in step 810. Search listings may be grouped into subaccounts defined by the advertiser and may comprise one or more search listings. Only one
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subaccount may be displayed at a time. The display should also preferably permit the advertiser to change the subaccount selected, as shown in step 815. The screen display will then show the search listings for the selected subaccount, as indicated in step 820. '361 Patent ­ col. 19, ll. 50-54 For example, the system may invoke a routine to locate the search listing in the search database having the desired rank/search term combination, retrieve the associated bid amount of said combination, and then calculate a bid amount that is N cents higher; where N=1, for example. '361 Patent ­ col. 19, l. 59 - col. 20, l. 12 The "Modify Listing Component" selection on Account Management menu 170 of FIG. 2 may also generate a display similar to the format of FIG. 9. When the advertiser selects the "Modify Listing Component" option, the advertiser may input changes to the URL, title, or description of a search listing via web-based forms set up for each search listing. Similar to the process discussed above, the forms for the URL, title, and description fields may initially contain the old URL, title and description as default values. After the advertiser enters the desired changes, the advertiser may transmit a request to the system to update the changes. The system then displays a read-only confirmation screen, and then writes the changes to the persistent state (e.g., the user account database) after the advertiser approves the changes. A process similar to those discussed above may be implemented for changing any other peripheral options related to a search listing; for example, changing the matching options related to a bidded search term. Any recalculations of bids or ranks required by the changes may also be
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determined in a manner similar to the processes discussed above. '361 Patent ­ col. 20, ll. 13-28 In the "Delete Bidded Search Term" option, the system retrieves all of the search listings in the account of the advertiser and displays the search listings in an organization and a format similar to the display of FIG. 9. Each search listing entry may include, instead of the new bid field, a check box for the advertiser to click on. The advertiser would then click to place a check (X) mark next to each search term to be deleted, although any other means known in the art for selecting one or more items from a list on a web page may be used. After the advertiser selects all the search listings to be deleted and requests that the system update the changes, the system preferably presents a read-only confirmation of the requested changes, and updates the advertiser's account only after the advertiser approves the changes. The "deleted" search listings are removed from the search database 36 and will not appear in subsequent searches. '361 Patent ­ col. 20, ll. 32-44 In the "Add Bidded Search Term" option, the system provides the advertiser with a display having a number of entry fields corresponding to the elements of a search listing. The advertiser then enters into each field information corresponding to the respective search listing element, including the search term, the web site URL, the web site title, the web site description, and the bid amount, as well as any other relevant information. After the advertiser has completed entering the data and has indicated thus to the system, the system returns a read-only confirmation screen to the advertiser. The system then creates a new search listing instance and writes it into the account database and the search database upon receiving approval from the
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advertiser. Additional Citations to '361 Patent Figure 2 Figure 5 Abstract, ll. 19-34 Col. 4, ll. 55-60 Col. 7, ll. 6-15 Col. 12, ll. 21-29 Col. 13, ll. 9-16 Col. 14, ll. 25-27 Col. 17, ll. 19-34 Col. 17, l. 53 ­ col. 18, l. 14 Col. 19, ll. 8-37 Col. 22, ll. 22-27 Prosecution History of '361 Patent Davis Declaration in Support of Petition to Make Special, ¶ 7(e) EXTRINSIC EVIDENCE: Overture does not believe that extrinsic evidence is necessary to interpret this term, and therefore has not proffered or cited any extrinsic evidence. However, if the Court considers any extrinsic evidence offered by Google, Overture reserves the right to cite to any of Google's extrinsic evidence, in rebuttal.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 search result list Found in claims: 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67

PROPOSED CONSTRUCTION: a set of search listings that is obtained by calculation

PROPOSED CONSTRUCTION: the series of entries, selected from the database being searched by a searcher, arranged one after the other, containing the information responsive to the searcher's search INTRINSIC EVIDENCE: '361 Patent Specification Abstract, ll. 1-34; fig. 7; col. 2, ll. 24-67; col. 3, ll. 1-67; col. 4, ll. 119; 26-29; 34-67; col. 5, ll. 4-14, 2527, 35-67; col. 6, ll. 1-8, 19-23, 5758; 66-67; col. 7, ll. 1-2; col. 8, ll. 52-67; col. 9, ll. 1-18, 42-67; col. 10, ll. 1-35; col. 12, ll. 21-25, 40-67; col. 13, ll. 1-24; col. 14, ll. 8-20, 2427; col. 17, ll. 16, 19-67; col. 18, ll. 1-36. DICTIONARY DEFINITIONS: The American Heritage Dictionary of the English Language, 4th ed. The Random House Dictionary of the English Language, 2nd ed., Unabridged Webster's New World College Dictionary, 3rd ed. Merriam Webster's Collegiate Dictionary, 10th ed. The New Oxford Dictionary of English EXTRINSIC EVIDENCE: www.tundrawolfpromotions.com at GOG 32230-31. searchengineoptimism.com at GOG 32242-43, 32246-47. www.searchengineposition.com at GOG 32252.

DICTIONARY DEFINITIONS: Search to examine (one or more files, as databases or texts) electronically, to locate specific items (The Random House Dictionary of the English Language, Second Edition, 1987) to examine data in a computer in order to locate items having a given property (Webster's New World College Dictionary, Third Edition, 1997) try to find something by looking or otherwise seeking carefully and thoroughly; an act of searching for someone or something (The New Oxford Dictionary of English 1998) to make a thorough examination of; look over carefully in order to find something; explore (The American Heritage College Dictionary, Fourth Edition, 2002) to look into or over carefully or thoroughly in an effort to find something (Merriam Webster's Unabridged Dictionary) Result something that happens as a consequence; outcome; a quantity, expression, etc. obtained by calculation (The Random House Dictionary of the English Language, Second Edition, 1987) something obtained by calculation or investigation (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) anything that comes about as a

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consequence or outcome of some action, process, etc. (Webster's New World College Dictionary, Third Edition, 1997) a consequence, effect, or outcome of something (The New Oxford Dictionary of English 1998) the consequence of a particular action, operation, or course (The American Heritage College Dictionary, Fourth Edition, 2002) something obtained, achieved, or brought about by calculation, investigation, or similar activity (Merriam Webster's Unabridged Dictionary) List a series of names or other items written or printed together in a meaningful grouping or sequence so as to constitute a record; a series of records in a file (The Random House Dictionary of the English Language, Second Edition, 1987) a simple series of words or numerals (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) a series of names, words, numbers, etc. set forth in order (Webster's New World College Dictionary, Third Edition, 1997) a number of connected items or names written or printed consecutively, typically one below the other (The New Oxford Dictionary of English 1998) a series of names, words, or other items written, printed, or imagined one after the other (The American Heritage College Dictionary, Fourth Edition, 2002) a simple series of words or numerals (as the names of persons or objects); index, catalog, checklist (Merriam Webster's Unabridged Dictionary)

Documents produced by Overture: OVGE 52678, 52692, 52950, 52961, 52966-67, 52976, 53032, 53035, 53039, 53059, 53062, 53072-73, 53076-78, 53082, 53129-30, 53133, 53144, 53151, 53482, 53484, 53493, 53521, 53524-26, 53528, 53561, 53563, 53568-69, 53573, 53580, 53584, 53590, 53596, 53600, 53638, 53640, 53645-46, 53650, 53712, 54303, 54312, 55954, 55967, 55981, 55991-92, 55995-97, 56001, 56983, 59003, 59009-11, 59014, 59233-38, 59309, OVG 31561, 31563, 3156567, 31576, 31578, 31579, 31583-85.

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INTRINSIC EVIDENCE: '361 Patent ­ col. 8, l. 53 ­ col. 9, l. 7 A search engine program permits network users, upon navigating to the search engine web server URL or sites on other web servers capable of submitting queries to the search engine web server 24 through their browser program 16, to type keyword queries to identify pages of interest among the millions of pages available on the World Wide Web. In a preferred embodiment of the present invention, the search engine web server 24 generates a search result list that includes, at least in part, relevant entries obtained from and formatted by the results of the bidding process conducted by the account management server 22. The search engine web server 24 generates a list of hypertext links to documents that contain information relevant to search terms entered by the user at the client computer 12. The search engine web server transmits this list, in the form of a web page, to the network user, where it is displayed on the browser 16 running on the client computer 12. A presently preferred embodiment of the search engine web server may be found by navigating to the web page at URL http://www.goto.com/. In addition, the search result list web page, an example of which is presented in FIG. 7, will be discussed below in further detail. '361 Patent ­ col. 10, ll. 16-21 When the searcher has finished entering the search term, the searcher may transmit the query to the search engine web server 24 by clicking on a provided hyperlink. The search engine web server 24 will then generate a search result list page and transmit this page to the searcher at the client computer 12. '361 Patent ­ col. 6, ll. 1-8 The rank value determines the position where the promoter's web
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site description will appear on the search results list page that is generated when the search term is entered into the query box on the search engine by a searcher. A higher bid will result in a higher rank value and a more advantageous placement, which is preferably near the beginning of the search results list page. '361 Patent ­ col. 17, ll. 19-26 When a remote searcher accesses the search query page on the search engine web server 24 and executes a search request according to the procedure described previously, the search engine web server 24 preferably generates and displays a search result list where the "canonicalized" entry in search term field of each search listing in the search result list exactly matches the canonicalized search term query entered by the remote searcher. '361 Patent ­ col. 17, ll. 53-56 An example of a search result list display used in an embodiment of the present invention is shown in FIG. 7, which is a display of the first several entries resulting from a search for the term "zip drives". Additional Citations to '361 Patent Figure 7 Abstract, ll. 1-4 Abstract, ll. 27-32 Col. 4, ll. 60-64 Col. 5, ll. 35-52 Col. 7, ll. 6-15 Col. 9, l. 42 ­ col. 10, l. 6 Col. 12, ll. 21-25 Col. 12, l. 40 ­ col. 13, l. 2 Col. 14, ll. 8-17 Col. 17, l. 56 ­ col. 18, l. 36 Col. 27, ll. 65-67 Col. 28, ll. 1-3 Col. 30, ll. 10-12 Patent Applications Claiming Priority to the '361 Patent Application Soulanille U.S. Patent App. (GOG 32122-51) at ¶¶ 110-132.
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EXTRINSIC EVIDENCE: Overture does not believe that extrinsic evidence is necessary to interpret this term, and therefore has not proffered or cited any extrinsic evidence. However, if the Court considers any extrinsic evidence offered by Google, Overture reserves the right to cite to any of Google's extrinsic evidence, in rebuttal.

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1

PROPOSED CONSTRUCTION: [modifiable] bid amount Found in claims: 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 a quantity of money [which can be changed] that a customer or client is willing to pay per click

PROPOSED CONSTRUCTION: the price the website promoter will pay upon occurrence of a triggering event [changes to which can be controlled by the website promoter] INTRINSIC EVIDENCE: '361 Patent Specification Abstract, ll. 8-13, 19-34; fig. 2; fig. 5; fig. 7; fig. 8; fig. 9; col. 3, ll. 5467, col. 4, ll. 1-9, 20-39, 65-67; col. 5, ll. 1-67; col.6, ll. 1-35, 43-44, 5152, 57-62; col. 8, ll. 59-65; col. 9, ll. 19-67; col. 10, ll. 1-7, 36-58; col. 12, ll. 21-31, 40-55; col. 13, ll. 3-24, 5056; col. 14, ll. 11-17; col. 18, ll. 828, 37-67; col. 19, ll. 1-17, 31-58; col. 20, ll. 33-67; col. 21, ll. 1-65. Microfiche Appendix to '361 Patent Application <goto/content/jhdocs/about /advertisers/mediakit /rates.jhtml> at 2.1 File History Davis Decl. in Supp. of Petition to Make Special, at ¶ 7(c)-(e) & Exhs. 10-11, 17, 20-21. Jan. 12, 2000 Preliminary Amendment at 1-8. Jan. 17, 2000 Office Action (misdated Jan. 17, 1999) at 2-3. April 6, 2000 Response at 2. June 18, 2000 Office Action at 2-3. March 23, 2001 Notice of Allowability at 2-3.

DICTIONARY DEFINITIONS: Modifiable capable of being modified (Merriam Webster's Unabridged Dictionary) Modify to change somewhat the form or qualities of; alter partially; amend (The Random House Dictionary of the English Language, Second Edition, 1987) to make minor changes in (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) to change or alter; esp., to change slightly or partially in character, form, etc. (Webster's New World College Dictionary, Third Edition, 1997) make partial or minor changes to (something), typically so as to improve it or to make it less extreme (The New Oxford Dictionary of English 1998) to change in form or character; alter (The American Heritage College Dictionary, Fourth Edition, 2002) to make minor changes in the form or structure of : alter without transforming (Merriam Webster's Unabridged Dictionary) Bid an offer of a price, especially at an auction (The New Oxford

The first two pages of this document are on the final two frames of the microfiche sheet labeled OVG 022003 ("Consumer Site (J) HTML 1 of 4," Series 33, Fiche # 1 of 2) and the last two pages are on the third and fourth frames of the microfiche sheet labeled OVG 022004 ("Consumer Site (J) HTML 1 of 4," Series 33, Fiche # 2 of 2).
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Dictionary of English 1998) an offer or proposal or a price; the amount offered or proposed (The American Heritage College Dictionary, Fourth Edition, 2002) to offer (a price) whether for payment or acceptance (Merriam Webster's Unabridged Dictionary) Amount quantity; measure (The Random House Dictionary of the English Language, Second Edition, 1987) the total number or quantity (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) a quantity (Webster's New World College Dictionary, Third Edition, 1997) a quantity of something, especially the total of a thing or things in number, size, value, or extent (The New Oxford Dictionary of English 1998) a number; a sum (The American Heritage College Dictionary, Fourth Edition, 2002) the total number or quantity (Merriam Webster's Unabridged Dictionary) INTRINSIC EVIDENCE: Microfiche Appendix to '361 Patent The bid price is the amount you're willing to pay for a user to clickthrough to your site from the GoTo search results listings after they have performed a search on one of your search terms. (See frames 81-82 of the microfiche sheet labeled OVG 022003). '361 Patent ­ Abstract, ll. 19-24 The network information provider influences the position for a search listing through a continuous online competitive bidding process. The
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Prior Art Cited in the File History OVG 001402. Patent Applications Claiming Priority to the '361 Patent Application Soulanille U.S. Patent App. (GOG 32122-51) at ¶ 93. Singh et al. U.S. Patent App. (GOG 32152-206) at ¶¶ 17-19, 30. DICTIONARY DEFINITIONS: Webster's New World College Dictionary, 4th ed. The Random House Dictionary of the English Language, 2nd ed., Unabridged Webster's New World College Dictionary, 3rd ed. Merriam Webster's Collegiate Dictionary, 10th ed. The New Oxford Dictionary of English EXTRINSIC EVIDENCE: Roth et al. U.S. Patent (GOG 3192146) at col. 2, ll. 20-65; col. 3 l. 51 ­ col. 4, l. 25; col. 4, l. 58 ­ col. 5, l. 63; col.7, ll.11-33; col. 8, ll. 29-31; col. 8, ll. 44-48); figs. 2B & 6C. Colorstamps, Inc. PCT Patent App. (GOG 32061-121) at 10:6-12:3, 19:9-20:3, 23:20-28. Cheung et al. U.S. Patent App. (GOG 32207-24) (whole document). pages.ebay.com at GOG 32225-27. www.alphastudiosinc.com at GOG 32228. www.tundrawolfpromotions.com at GOG 32231.

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bidding process occurs when the network information provider enters a new bid amount, which is preferably a money amount, for a search listing. '361 Patent ­ col. 6, ll. 8-15 Preferably, the quantity used in the competitive bidding process is a money amount that the web site promoter will pay to an owner of the Internet search engine each time the advertiser's web site is referred by the search engine. Most preferably, this money amount will be deducted from an account balance that is retained in the promoter's account for each time the promoter's web site is referred by the search engine. '361 Patent ­ col. 9, ll. 45-52 In a preferred embodiment of the present invention, the amount bid by an advertiser comprises a money amount that is deducted from the account of the advertiser for each time the advertiser's web site is accessed via a hyperlink on the search result list page. A searcher "clicks" on the hyperlink with a computer input device to initiate a retrieval request to retrieve the information associated with the advertiser's hyperlink. '361 Patent ­ col. 19, ll. 38-58 Many of the other selections listed in the "Account Management" menu 170 of FIG. 2 function as variants of the "Change Bid" function described above. For example, if the advertiser selects the "Change Rank Position" option, the advertiser may be presented with a display similar to the display of FIG. 9 used in the "Change Bid" function. However, in the "Change Rank Position" option, the "New Bid" field would be replaced by a "New Rank" field, in which the advertiser enters the new desired rank position for a search term. After the advertiser requests that the ranks be updated, the system then calculates a new bid price by any of a variety of algorithms easily available to one skilled in the art.
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www.payperclickanalyst.com at GOG 32234-41. searchengineoptimism.com at GOG 32244-45. www.searchengineposition.com at GOG 32252. www.searchengines.com at GOG 32255. searchenginesinfo.com at GOG 32256. Documents produced by Overture: OVGE 52650-52, 52678, 52950, 53035, 53130, 53484, 53521, 53563, 53580, 53640, 55954, 59019, 59309, Depo. Exh. 15 at 1.

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For example, the system may invoke a routine to locate the search listing in the search database having the desired rank/search term combination, retrieve the associated bid amount of said combination, and then calculate a bid amount that is N cents higher; where N=1, for example. After the system calculates the new bid price and presents a read-only confirmation display to the advertiser, the system updates the bid prices and rank values upon receiving approval from the advertiser. '361 Patent ­ col. 18, l. 66 ­ col. 19, l. 4 As shown in step 840 of FIG. 8, upon receiving the request to update the advertiser's bids, the system calculates the new current bid amounts for every search listing displayed, the rank values, and the bid amount needed to become the highest ranked search listing matching the search term field. '361 Patent ­ col. 20, ll. 6-12 A process similar to those discussed above may be implemented for changing any other peripheral options related to a search listing; for example, changing the matching options related to a bidded search term. Any recalculations of bids or ranks required by the changes may also be determined in a manner similar to the processes discussed above. Additional Citations to '361 Patent Figure 5 Figure 8 Figure 9 Col. 4, l. 65 ­ col 5, l. 34 Col. 5, ll. 53-65 Col. 6, ll. 28-34 Col. 7, ll. 6-15 Col. 13, ll. 3-9 Col. 13, ll. 50-56 Col. 18, l. 37 ­ col. 19, l. 17

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Patent Applications Claiming Priority to the '361 Patent Application Singh et al. U.S. Patent App. (GOG 32152-206) at ¶ 264. EXTRINSIC EVIDENCE: Overture does not believe that extrinsic evidence is necessary to interpret this term, and therefore has not proffered or cited any extrinsic evidence. However, if the Court considers any extrinsic evidence offered by Google, Overture reserves the right to cite to any of Google's extrinsic evidence, in rebuttal.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a modifiable bid amount that is independent of other components of the search listing Found in claims: 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67

PROPOSED CONSTRUCTION: a modifiable bid amount that is not dependent or contingent upon other components of the search listing DICTIONARY DEFINITIONS: Independent not dependent; not depending or contingent upon something else for existence, operation, etc. (The Random House Dictionary of the English Language, Second Edition, 1987) not dependent: as not subject to control by others (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) not connected or related to another, to each other, or to a group; separate (Webster's New World College Dictionary, Third Edition, 1997) not connected with another or each other (The New Oxford Dictionary of English 1998) not determined or influenced by someone or something else; not contingent (The American Heritage College Dictionary, Fourth Edition, 2002) not dependent: as not subject to control by others (Merriam Webster's Unabridged Dictionary) INTRINSIC EVIDENCE: '361 Patent ­ col. 18, ll. 37-47 As shown in the campaign management menu 170 of FIG. 2, several choices are presented to the advertiser to manage search listings. First, in the "Change Bids" selection, the advertiser may change the bid of search listings currently in the account. The process invoked by the system for the change bids
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PROPOSED CONSTRUCTION: modifiable bid amount that is unconstrained by other components of the search listing

INTRINSIC EVIDENCE: '361 Patent Specification Title; Abstract, ll. 1-4, 14-34; fig. 2; fig. 7; fig. 8; fig. 9; col. 2, ll. 46-67; col. 3, ll. 12-15, 42-67; col. 4, ll. 119, 26-29, 34-39, 59-60, 65-67; col. 5, ll. 1-67; col. 6, ll. 1-15, 43-44, 5762; col. 8, ll. 59-64; col. 9, ll. 25-30, 42-45; col. 10, ll. 27-35; col. 12, ll. 21-25, 40-55; col. 13, ll. 9-24; col. 14, ll. 8-16; col. 18, ll. 4-28, 30-36, 66-67; col. 19, ll. 1-5, 10-15, 38-58; col. 20, ll. 66-67; col. 21, ll. 1-65. Prior Art Cited in the File History OVG 001222, 001226, 001229, 001232, 001235, 001236, 001242, 001249, 001251, 001254, 001366, 001402. DICTIONARY DEFINITIONS: The Random House Dictionary of the English Language, 2nd ed., Unabridged Webster's New World College Dictionary, 3rd ed. Merriam Webster's Collegiate Dictionary, 10th ed. The New Oxford Dictionary of English EXTRINSIC EVIDENCE: Roth et al. U.S. Patent (GOG 3192146) at col. 2, ll. 20-65; col. 3 l. 51 ­ col. 4, l. 25; col. 4, l. 58 ­ col. 5, l. 63; col.7, ll.11-33; col. 8, ll. 29-31; col. 8, ll. 44-48); figs. 2B & 6C.

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function is shown in FIG. 8. After the advertiser indicates the intent to change bids by selecting the "Change Bids" menu option, the system searches the user's account in the database and displays the search listings for the entire account or a default subaccount in the advertiser's account, as shown in step 810. '361 Patent ­ col. 18, l. 54 ­ col. 19, l. 7 An example of screen display shown to the advertiser in step 810 is shown in FIG. 9 and will be discussed below. To change bids, the advertiser user may specify new bids for search terms for which the advertiser already has an existing bid by entering a new bid amount into the new bid input field for the search term. The advertiser-entered bid changes are displayed to the advertiser at step 820 of FIG. 8 as discussed above. To update the bids for the display page, the advertiser requests, at step 830 of FIG. 8, to update the result of changes. The advertiser may transmit such a request to the account management server by a variety of means, including clicking on a button graphic. As shown in step 840 of FIG. 8, upon receiving the request to update the advertiser's bids, the system calculates the new current bid amounts for every search listing displayed, the rank values, and the bid amount needed to become the highest ranked search listing matching the search term field. Preferably, the system then presents a display of changes at step 850. After the user confirms the changes, the system updates the persistent state by writing the changes to the account in the database. Col. 19, ll. 31-37 The advertiser may specify a new bid for a displayed search listing by entering a new bid amount into the new bid input field 908 for the search listing. To update the result of the advertiser-entered changes,
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Colorstamps, Inc. PCT Patent App. (GOG 32061-121) at 10:6-12:3, 19:9-20:3, 23:20-28. Cheung et al. U.S. Patent App. (GOG 32207-24) (whole document). pages.ebay.com at GOG 32225-27. www.alphastudiosinc.com at GOG 32228. www.tundrawolfpromotions.com at GOG 32231. www.payperclickanalyst.com at GOG 32234-41. searchengineoptimism.com at GOG 32244-45. www.searchengineposition.com at GOG 32252. www.searchengines.com at GOG 32255. searchenginesinfo.com at GOG 32256. Documents produced by Overture: OVGE 52650-52, 52678, 52950, 53035, 53130, 53484, 53521, 53563, 53580, 53640, 55954, 59019, 59309, Depo. Exh. 15 at 1.

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the advertiser clicks on button graphic 912 to transmit an update request to the account management server, which updates the bids as described above. Col. 19, ll. 38-47 Many of the other selections listed in the "Account Management" menu 170 of FIG. 2 function as variants of the "Change Bid" function described above. For example, if the advertiser selects the "Change Rank Position" option, the advertiser may be presented with a display similar to the display of FIG. 9 used in the "Change Bid" function. However, in the "Change Rank Position" option, the "New Bid" field would be replaced by a "New Rank" field, in which the advertiser enters the new desired rank position for a search term. Additional Citations to '361 Patent Figure 2 Figure 5 Figure 8 Figure 9 Abstract, ll. 1-34 Col. 6, ll. 16-34 Col. 7, ll. 6-15 Col. 12, l. 21 ­ col. 13, l. 24 Col. 18, ll. 47-53 Col. 19, ll. 7-37 Col. 19, l. 47 ­ col. 20, l. 65 EXTRINSIC EVIDENCE: Overture does not believe that extrinsic evidence is necessary to interpret this term, and therefore has not proffered or cited any extrinsic evidence. However, if the Court considers any extrinsic evidence offered by Google, Overture reserves the right to cite to any of Google's extrinsic evidence, in rebuttal.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ordering . . . in accordance with the values of the respective bid amounts Found in claims: 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13

PROPOSED CONSTRUCTION: ordering in agreement with the values of the respective bid amounts

PROPOSED CONSTRUCTION: ordering . . . in conformance with the values of the respective bid amounts INTRINSIC EVIDENCE: '361 Patent Specification Title; Abstract, ll. 1-4, 14-34; fig. 2; fig. 7; fig. 8; fig. 9; col. 2, ll. 46-67; col. 3, ll. 12-15, 42-67; col. 4, ll. 119, 26-29, 34-39, 59-60, 65-67; col. 5, ll. 1-67; col. 6, ll. 1-15, 43-44, 5762; col. 8, ll. 59-64; col. 9, ll. 25-30, 42-45; col. 10, ll. 27-35; col. 12, ll. 21-25, 40-55; col. 13, ll. 9-24; col. 14, ll. 8-16; col. 18, ll. 4-28, 30-36, 66-67; col. 19, ll. 1-5, 10-15, 38-58; col. 20, ll. 66-67; col. 21, ll. 1-65. Microfiche Appendix to '361 Patent Application <goto/content/jhdocs/about /advertisers/mediakit /rates.jhtml> at 2. File History Davis Decl. in Supp. of Petition to Make Special, at ¶ 7(c)-(e) & Exhs. 10-11, 17, 20-21. Nov. 8, 2000 Office Action at 4. Prior Art Cited in the File History OVG 001222, 001226, 001229, 001232, 001235, 001236, 001242, 001249, 001251, 001254, 001366. DICTIONARY DEFINITIONS: The Random House Dictionary of the English Language, 2nd ed., Unabridged Webster's New World College Dictionary, 3rd ed.

DICTIONARY DEFINITIONS: Accordance agreement; conformity (The Random House Dictionary of the English Language, Second Edition, 1987) agreement, conformity (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) agreement; harmony; conformity (Webster's New World College Dictionary, Third Edition, 1997) in a manner conforming with (The New Oxford Dictionary of English 1998) agreement, conformity (The American Heritage College Dictionary, Fourth Edition, 2002) agreement, accord (Merriam Webster's Unabridged Dictionary) INTRINSIC EVIDENCE: '361 Patent ­ Abstract, ll. 19-34 The network information provider influences a position for a search listing in the provider's account by first selecting a search term relevant to the content of the web site or other information source to be listed. The network information provider enters the search term and the description into a search listing. The network information provider influences the position for a search listing through a continuous online competitive bidding process. The bidding process occurs when the network information provider enters a new bid amount, which is preferably a money amount, for a

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search listing. The system and method of the present invention then compares this bid amount with all other bid amounts for the same search term, and generates a rank value for all search listings having that search term. The rank value generated by the bidding process determines where the network information providers listing will appear on the search results list page that is generated in response to a query of the search term by a searcher located at a client computer on the computer network. A higher bid by a network information provider will result in a higher rank value and a more advantageous placement. '361 Patent ­ col. 3, l. 51 ­ col. 4, l. 9 Ideally, web site promoters should be able to control their placement in search result listings so that their listings are prominent in searches that are relevant to the content of their web site. The search engine functionality of the Internet needs to be focused in a new direction to facilitate an on-line marketplace which offers consumers quick, easy and relevant search results while providing Internet advertisers and promoters with a cost-effective way to target consumers. A consumer utilizing a search engine that facilitates this on-line marketplace will find companies or businesses that offer the products, services, or information that the consumer is seeking. In this on-line marketplace, companies selling products, services, or information bid in an open auction environment for positions on a search result list generated by an Internet search engine. Since advertisers must pay for each click-through referral generated through the search result lists generated by the search engine, advertisers have an incentive to select and bid on those search keywords that are most relevant to their web site offerings. The higher an advertiser's position on a search
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Merriam Webster's Collegiate Dictionary, 10th ed. The New Oxford Dictionary of English EXTRINSIC EVIDENCE: www.searchengineposition.com at GOG 32252. Documents produced by Overture: Depo. Exh. 15 at 1.

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result list, the higher likelihood of a "referral"; that is, the higher the likelihood that a consumer will be referred to the advertiser's web site through the search result list. The openness of this advertising marketplace is further facilitated by publicly displaying, to consumers and other advertisers, the price bid by an advertiser on a particular search result listing. '361 Patent ­ col. 4, l. 55 ­ col. 5, l. 40 More particularly, the present invention relates to a system and method to enable a web site promoter to define a search listing for a search result list, select a search term relevant to the promoter's web site, and influence a search result list position for the search listing on an Internet search engine. When an Internet user enters the search terms in a search engine query, the search engine will generate a search result list with the web site promoter's listing in a position influenced by one or more parameters defined by the promoter. In a preferred embodiment of the present invention, a web site promoter selects a search term and influences a position within the search result list generated by that search term by participating in an online competitive bidding process. This online competitive bidding process is known as a "pay-forperformance" process and may be employed in conjunction with an Internet search engine. "Pay-forperformance" applies market principles to advertising on the Internet. Conventional Internet search engines do not provide a way for web site promoters to easily predict the position of their web site in search results or guarantee their appearance in search results containing their web site description. A tool enabling advertisers to target web search terms relevant to their business and to pinpoint the placement of their web site description within the search results
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provides a powerful advantage to businesses and others seeking to increase their web exposure. Furthermore, a competitive bidding process and pricing based on number of web site referrals generated helps ensure that the pricing structure reflects the market and is accessible to advertisers of all budget sizes. To participate in the process, an advertiser, such as a web site promoter, may access the advertiser's user account through a secure web site. The advertiser may use the account to place bids on search terms that are relevant to the advertiser's web site. Each bid is specific to a search term web site combination and corresponds to a money amount that the advertiser will pay to the owner of the search engine each time a searcher clicks on the advertiser's hyperlinked listing in the search result list generated by the search engine. The searcher's click will result in an access request being sent to the advertiser's web site, which will respond by transmitting the advertiser's web page to the searcher's browser. The charge to the advertiser for the placement is therefore directly proportional to the benefit received, since the charge is based on the number of referrals to the advertiser's web site that were generated by the search engine. The higher the bid, the more advantageous the placement in the search result list that is generated when the bidded search term is entered by a searcher using the search engine. The search result list is arranged in order of decreasing bid amount, with the search listing corresponding to the highest bids displayed first to the searcher. '361 Patent ­ col. 5, l. 53 ­ col. 6, l. 8 According to a first embodiment of the present invention, there is provided a system and method for enabling the web site promoters to influence a position for a search
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listing within a search result list generated by an Internet search engine. The web site promoter first selects a search term comprising one or more keywords relevant to the content of the web site to be listed. The web site promoter influences the rank position for the search listing through an ongoing online competitive bidding process with other web site promoters. The bidding process occurs when an advertiser enters a new bid amount for an existing search listing or enters a bid amount for a new search listing. Preferably, the promoter's bid is then processed in real time. This bid amount is compared with all other bid amounts from other promoters for the same search term, and generates new rank values for all search listings having that search term. The rank value determines the position where the promoter's web site description will appear on the search results list page that is generated when the search term is entered into the query box on the search engine by a searcher. A higher bid will result in a higher rank value and a more advantageous placement, which is preferably near the beginning of the search results list page. '361 Patent ­ col. 9, ll. 42-45 The higher bids receive more advantageous placement on the search result list page generated by the search engine 24 when a search using the search term bid on by the advertiser is executed. '361 Patent ­ col. 13, ll. 9-24 Finally, a rank value is a value generated dynamically, preferably by the processing system 34 of the account management server 22 shown in FIG. 1, each time an advertiser places a bid or a search enters a search query. The rank value of an advertiser's search listing determines the placement location of the advertiser's entry in the search result list generated when a search is executed on the corresponding
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search term. Preferably, rank value is an ordinal value determined in a direct relationship to the bid amount 358; the higher the bid amount, the higher the rank value, and the more advantageous the placement location on the search result list. Most preferably, the rank value of 1 is assigned to the highest bid amount with successively higher ordinal values (e.g., 2, 3, 4, . . . ) associated with successively lower ranks and assigned to successively lower bid amounts. '361 Patent ­ col. 18, ll. 4-28 Search result list entries 710a-710h may also show the rank value of the advertiser's search listing. The rank value is an ordinal value, preferably a number, generated and assigned to the search listing by the processing system 34 of FIG. 1. Preferably, the rank value is assigned through a process, implemented in software, that establishes an association between the bid amount, the rank, and the search term of a search listing. The process gathers all search listings that match a particular search term, sorts the search listings in order from highest to lowest bid amount, and assigns a rank value to each search listing in order. The highest bid amount receives the highest rank value, the next highest bid amount receives the next highest rank value, proceeding to the lowest bid amount, which receives the lowest rank value. Most preferably, the highest rank value is 1 with successively increasing ordinal values (e.g., 2, 3, 4, . . . ) assigned in order of successively decreasing rank. The correlation between rank value and bid amount is illustrated in FIG. 7, where each of the paid search list entries 710a through 710f display the advertiser's bid amount 750a through 750f for that entry. Preferably, if two search listings having the same search term also have the same bid amount, the bid that was received earlier in time will be assigned the higher rank value. Unpaid listings 710g and
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710h do not display a bid amount and are displayed following the lowest-ranked paid listing. '361 Patent ­ col. 19, ll. 38-58 Many of the other selections listed in the "Account Management" menu 170 of FIG. 2 function as variants of the "Change Bid" function described above. For example, if the advertiser selects the "Change Rank Position" option, the advertiser may be presented with a display similar to the display of FIG. 9 used in the "Change Bid" function. However, in the "Change Rank Position" option, the "New Bid" field would be replaced by a "New Rank" field, in which the advertiser enters the new desired rank position for a search term. After the advertiser requests that the ranks be updated, the system then calculates a new bid price by any of a variety of algorithms easily available to one skilled in the art. For example, the system may invoke a routine to locate the search listing in the search database having the desired rank/search term combination, retrieve the associated bid amount of said combination, and then calculate a bid amount that is N cents higher; where N=1, for example. After the system calculates the new bid price and presents a read-only confirmation display to the advertiser, the system updates the bid prices and rank values upon receiving approval from the advertiser. '361 Patent ­ col. 20, l. 66 ­ col. 21, l. 53 The "Account Management" menu 170 of FIG. 2 also preferably provides advertisers with a "Project Expenses" selection. In this selection, the advertiser specifies a search listing or subaccount for which the advertiser would like to predict a "daily run rate" and "days remaining to expiration." The system calculates the projections based on a cost projection algorithm, and displays the predictions to the advertiser on a read-only screen.
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The predictions may be calculated using a number of different algorithms known in the art. However, since the cost of a search listing is calculated by multiplying the bid amount by the total number of clicks received by the search listing at that bid amount during a specified time period, every cost projection algorithm must generally determine an estimated number of clicks per month (or other specified time period) for a search listing. The clicks on a search listing may be tracked via implementation of a software counting mechanism as is well known in the art. Clicks for all search listings may be tracked over time, this data may be used to generate estimated numbers of clicks per month overall, and for individual search terms. For a particular search term, an estimated number of searches per day is determined and is multiplied by the cost of a click. This product is then multiplied by a ratio of the average number of clicks over the average number of impressions for the rank of the search listing in question to obtain a daily run rate. The current balance may be divided by the daily run rate to obtain a projected number of days to exhaustion or "expiration" of account funds. One embodiment of the present invention bases the cost projection algorithm on a simple predictor model that assumes that every search term performs in a similar fashion. This model assumes that the rank of the advertiser's search listing will remain constant and not fluctuate throughout the month. This algorithm has the advantages of being simple to implement and fast to calculate. The predictor model is based on the fact that the click through rate, e.g. the total number of clicks, or referrals, for a particular searcher listing, is considered to be a function of the rank of the search listing. The model therefore assumes that the usage curve of each search term, that is, the curve that result when the number of clicks on a
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 // // // // //

search listing is plotted against the rank of the search listing, is similar to the usage curve for all search terms. Thus, known values extrapolated over time for the sum of all clicks for all search terms, the sum of all clicks at a given rank for all search terms, and the sum of all clicks for the selected search term may be employed in a simple proportion to determine the total of all clicks for the given rank for the selected search term. The estimated daily total of all clicks for the selected search term at the selected rank is then multiplied by the advertiser's current bid amount for the search term at that rank to determine a daily expense projection. In addition, if particular search terms or classes of search terms are known to differ markedly from the general pattern, correction values specific to the search term, advertiser, or other parameter may be introduced to fine-tune the projected cost estimate. Additional Citations to '361 Patent Figure 7 Col. 7, ll. 6-15 EXTRINSIC EVIDENCE: Overture does not believe that extrinsic evidence is necessary to interpret this term, and therefore has not proffered or cited any extrinsic evidence. However, if the Court considers any extrinsic evidence offered by Google, Overture reserves the right to cite to any of Google's extrinsic evidence, in rebuttal.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arranged in an order determined using the bid amounts Found in claims: 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 48 position . . . determined using the bid amount Found in claim: 14, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67

PROPOSED CONSTRUCTION: arranged in an order ascertained by an analysis that utilizes the bid amounts

PROPOSED CONSTRUCTION: arranged in an order established by the bid amounts

position . . . ascertained by an analysis that utilizes the bid amount DICTIONARY DEFINITIONS: Determine to conclude or ascertain, as after reasoning, observation, etc. (The Random House Dictionary of the English Language, Second Edition, 1987) to find out or come to a decision about by investigation, reasoning, or calculation (Merriam Webster's Collegiate Dictionary, Tenth Edition, 1995) to reach a decision about after thought and investigation; decide upon (Webster's New World College Dictionary, Third Edition, 1997) ascertain or establish exactly, typically as a result of research or calculation (The New Oxford Dictionary of English 1998) to establish or ascertain definitively, as after investigation or calculation (The American Heritage College Dictionary, Fourth Edition, 2002) to come to a decision concerning as the result of investigation or reasoning (Merriam Webster's Unabridged Dictionary)

position . . . established by the bid amount

INTRINSIC EVIDENCE: '361 Patent Specification Title; Abstract, ll. 1-4, 14-34; fig. 2; fig. 7; fig. 8; fig. 9; col. 2, ll. 46-67; col. 3, ll. 12-15, 42-67; col. 4, ll. 119, 26-29, 34-39, 59-60, 65-67; col. 5, ll. 1-67; col. 6, ll. 1-15, 43-44, 5762; col. 8, ll. 59-64; col. 9, ll. 25-30, 42-45; col. 10, ll. 27-35; col. 12, ll. 21-25, 40-55; col. 13, ll. 9-24; col. 14, ll. 8-16; col. 18, ll. 4-28, 30-36, 66-67; col. 19, ll. 1-5, 10-15, 38-58; col. 20, ll. 66-67; col. 21, ll. 1-65 Microfiche Appendix to '361 Patent Application <goto/content/jhdocs/about /advertisers/mediakit /rates.jhtml> at 2. File History Davis Decl. in Supp. of Petition to Make Special, ¶ 2(b) & Exhs. 1-2 & 4. Prior Art Cited in the File History OVG 001222, 001226, 001229, 001232, 001235, 001236, 001242, 001249, 001251, 001254,