Skyhook Wireless, Inc. v. GOOGLE, INC.

Filing 55

DECLARATION of Catherine R. Murphy in Support of Google Inc.'s Opposition to Skyhook Wireless, Inc.'s Opening Claim Construction Brief by GOOGLE, INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Manning, Susan)

EXHIBIT A

Skyhook Wireless, Inc. v. Google Inc.
Case No. 11-11571-RWZ
AMENDED SIDE-BY-SIDE COMPARISON OF GOOGLE’S AND SKYHOOK’S
POSITIONS REGARDING INDEFINITENESS AND PROPOSED CLAM CONSTRUCTIONS
The parties have stipulated to the proper construction of term nos. 1, 3, 5, 16, 26, 28, 29, 34 and 35.
The parties dispute the proper construction of term nos. 2, 4, 6, 8, 18, 22-25, 30 and 32.
Google contends, and Skyhook denies, that term nos. 7, 9-15, 17, 19, 20, 21, 27, 31 and 33 are indefinite, and not amenable to claim
construction.
Term
No.

Claim language

Google’s Position

Skyhook’s Position

1.

“Wi-Fi access
points”

Stipulated construction: Devices operating consistent with the IEEE 802.11 standard to provide
network connectivity.

Appears in
asserted
claims
‘988/1, 3
‘694/1
‘245/1, 2
‘897/1, 3, 4

2.

“target area”

A pre-identified geographic region throughout
which a shortest route is planned along all
drivable roads.

‘988/1
‘694/1, 2
‘245/1

3.

“a radius on the
order of tens of
miles”

Stipulated construction: A radius of ten miles or more but fewer than a hundred miles.

‘988/1
‘694/1

4.

“substantially all
Wi-Fi access points”
/ “for substantially
all Wi-Fi access
points in the target
area”

All but an insignificant number of Wi-Fi access
points in the target area.

Substantially all observed Wi-Fi access points.

‘988/1

See “Wi-Fi access points.”

‘694/1

A targeted geographic area.

For substantially all observed Wi-Fi access points
in the target area
See “Wi-Fi access points.”

A/74521804.2

1

Term
No.

Claim language

Google’s Position

Skyhook’s Position

5.

Stipulated construction: An identifier (e.g., a MAC address) for a corresponding Wi-Fi access point.
“identification
information for a
See “Wi-Fi access points.”
corresponding Wi-Fi
access point”

6.

“calculated position
information”

7.

“reference
symmetry”

The physical location (i.e., latitude and
longitude) attributed to each Wi-Fi access point
determined mathematically from readings
recorded along a shortest planned route
throughout all drivable roads in the target area
(i.e. by following the Chinese Postman routing
algorithm), that avoids arterial bias and meets the
stated reference symmetry criteria. The
“calculated position information” cannot be
based on randomly, or non-systematically,
collected readings of Wi-Fi access points.
Synonymous with “calculated locations” in the
‘245 patent, as well as “recorded location” and
“recorded location information” in the ‘897
patent.
This limitation is indefinite in violation
of 35 U.S.C. § 112, ¶ 2 because it does
not apprise one skilled in the art of the
bounds of the claim.
Alternatively, “the balanced or
symmetrical distribution of numerous
access points on all sides of the user
device and within range of the user
device’s WiFi radio.”

A/74521804.2

2

Appears in
asserted
claims
‘988/1
‘694/1

Estimated physical position(s) of the observed
Wi-Fi access point(s) calculated using
characteristics of their transmitted signals.

‘988/1
‘694/1

From the perspective of a user whose location is
being calculated, the calculated positions of
observed Wi-Fi access points in range of the user
tend to be distributed around the user with reduced
arterial bias.

‘988/1
‘694/1

Term
No.
8.

9.

Claim language

Google’s Position

Skyhook’s Position

“arterial bias”

The deviation of the calculated position
information for a Wi-Fi access point toward
heavily trafficked roads and away from the actual
geographic location of the access point due to the
tendency of random scanning to result in a
greater number of scans from heavily trafficked
roads.
“recording multiple This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
readings of the Wiskilled in the art of the bounds of the claim, and
Fi access point at
in particular (1) impermissibly recites a method
different locations
step in an apparatus claim; and (2) fails to apprise
around the Wi-Fi
the person of ordinary skill in the art as to what it
access point so that
the multiple readings means for “multiple readings of the Wi-Fi access
point at different locations around the Wi-Fi
have reference
symmetry relative to access point” to “have reference symmetry
relative to other Wi-Fi access points in the target
other Wi-Fi access
area.”
points in the target
area”
Alternatively, “systematically driving each road
in the target area using a pre-designed Chinese
Postman scanning route so as to collect multiple
readings of the Wi-Fi access point at different
locations around the Wi-Fi access point so that
the multiple readings have reference symmetry
relative to other Wi-Fi access points in the target
area.”

A/74521804.2

3

The deviation of the calculated position
information for a Wi-Fi access point towards
heavily trafficked roads and away from the actual
geographic location of the access point.

Multiple scans of a Wi-Fi access point are
recorded. The scans are taken at different locations
around the Wi-Fi access point. This results in the
following: (1) the multiple readings produce
reference symmetry relative to other Wi-Fi access
points in the target area and (2) the calculated
position of the Wi-Fi access point reduces the
effects of arterial bias.
See “Wi-Fi access points,” “reference symmetry,”
“avoids arterial bias,” and “calculated position
information.”

Appears in
asserted
claims
‘988/1
‘694/1

‘988/1

Term
No.
10.

11.

Claim language

Google’s Position

Skyhook’s Position

“recording multiple
readings of the WiFi access point at
different locations
around the Wi-Fi
access point … so
that the calculation
of the position of the
Wi-Fi access point
avoids arterial bias
in the calculated
position
information”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
skilled in the art of the bounds of the claim, and
in particular
(1) impermissibly recites a method step in an
apparatus claim; and (2) fails to provide any
measure of when recording multiple readings …
around the Wi-Fi access point … so that the
calculation of the position of the Wi-Fi access
point avoids arterial bias is achieved.

"Multiple scans of a Wi-Fi access point are
recorded. The scans are taken at different
locations around the Wi-Fi access point. This
results in the following: (a) the multiple readings
produce a calculated position of the Wi-Fi access
point having reference symmetry relative to other
Wi-Fi access points in the target area and (b) the
calculated position of the Wi-Fi access point
reduces the effects of arterial bias."

“avoid arterial bias”
/”avoids arterial
bias”

In the alternative, “storing Wi-Fi access point
signals received while scanning along a shortest
planned route along each drivable road
throughout each target area, e.g. Chinese
Postman, and not using random scanning or
collection methods.”
This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
skilled in the art of the bounds of the claim.
In the alternative, “eliminates arterial bias.”

A/74521804.2

4

Appears in
asserted
claims
‘988/1

Reduce(s) the effects of arterial bias. See “arterial ‘988/1
bias.”
‘694/1

Term
No.
12.

Claim language

Google’s Position

Skyhook’s Position

“logic to recalculate
position information
for Wi-Fi access
points previously
stored in the
database to utilize
position information
for the newlydiscovered readings
of previously stored
Wi-Fi access points”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because the specification does
not disclose a structure corresponding to the
claimed “logic” capable of performing the recited
function of “recalculat[ing] position information
for Wi-Fi access points previously stored in the
database to utilize position information for the
newly-discovered readings of previously stored
Wi-Fi access points.”

Software and/or hardware to recalculate position
information for Wi-Fi access points previously
stored in the database This recalculation utilizes
new position information for such Wi-Fi access
points calculated using scans taken after the
previously stored Wi-Fi access points were
stored.
See “Wi-Fi access points.”
This is not a means plus function claim element.
If the Court were to construe this claim element
as a means plus function claim element, then
Skyhook identifies the following corresponding
structure:
12:24–38
“An additional enhancement to the algorithm
would include a weighting value based on the age
of the records such that new records represent a
more significant indication of the present location
for a given access point.

Once the parsing process has been completed the
central network system . . . begins processing the
new data. . . . 2) existing access points are
repositioned based on any new data recorded by
the scanners. The . . . algorithm factors in the
number of records and their associated signal
strengths to weight stronger signal readings more
than weaker signals with a quasi weighted
average model.”

A/74521804.2

5

Appears in
asserted
claims
‘988/1

Term
No.
13.

Claim language

Google’s Position

Skyhook’s Position

“computerimplemented logic
to add records to the
database for newlydiscovered Wi-Fi
access points”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because the specification does
not disclose a structure corresponding to the
claimed “computer-implemented logic” capable
of performing the recited function of “add[ing]
records to the database for newly-discovered WiFi access points.”

Computer-implemented software and/or hardware
to add data records to the database for newlydiscovered Wi-Fi access points.
See “Wi-Fi access points” and “database records.”
This is not a means plus function claim element.
If the Court were to construe this claim element as
a means plus function claim element, then Skyhook
identifies the following corresponding structure:
12:29–38

“Once the parsing process has been completed
the central network system . . . begins processing
the new data. During this process 1) new access
points are added to the database and their
physical location is calculated . . . . The . . .
algorithm factors in the number of records and
their associated signal strengths to weight
stronger signal readings more than weaker
signals with a quasi weighted average model.”

A/74521804.2

6

Appears in
asserted
claims
‘988/1

Term
No.
14.

Claim language

Google’s Position

Skyhook’s Position

“computerimplemented
clustering logic to
identify position
information based
on error prone GPS
information”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because (1) it does not apprise
one skilled in the art of the bounds of the claim,
and in particular fails to apprise the person of
ordinary skill in the art what constitutes “error
prone GPS information”; and (2) in violation of
35 U.S.C. § 112, ¶ 2 because the specification
does not disclose a structure corresponding to the
claimed “computer-implemented clustering
logic” capable of performing the recited function
of “identify[ing] position information based on
error prone GPS information.”

Computer-implemented software and/or
hardware to identify when position information
for a Wi-Fi access point based on GPS readings
is likely erroneous the logic identifies position
information that is not located within a certain
threshold distance of other position information
for the Wi-Fi access point.
This is not a means plus function claim element.
If the Court were to construe this claim element as
a means plus function claim element, then Skyhook
identifies the following corresponding structure:
12:1-12:10
“In some cases the GPS receiver may record
erroneous or error records for some period of time,
which could negatively affect the final access point
location calculation. The parser and filter process
identifies these bad records and either corrects them
or removes them from the system. The filtering
process users clustering techniques to weed out
error prone GPS readings. For example, if 90% of
the readings are within 200 meters of each other but
the remaining 10% of the readings are 5 kilometers
away then those outliers are removed by the filter .
. . .”

A/74521804.2

7

Appears in
asserted
claims
‘988/2

Term
No.
15.

Claim language

Google’s Position

Skyhook’s Position

“logic to determine a
weighted centroid
position for all
position information
reported for an
access point”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because the specification does
not disclose a structure corresponding to the
claimed “logic” capable of performing the recited
function of “determine[ing] a weighted centroid
position for all position information reported for
an access point.”

Software and/or hardware to determine a
weighted centroid position for a Wi-Fi access
point. The weighted centroid position is
determined using all position information
reported for that Wi-Fi access point.
See “weighted centroid position” and “Wi-Fi
access points.”
This is not a means plus function claim element.
If the Court were to construe this claim element as
a means plus function claim element, then Skyhook
identifies the following corresponding structure:
12:11-13
“In particular, the system first calculates the
weighted centroid for the access point using all
reported data.”
12:34–38
“The . . . algorithm factors in the number of records
and their associated signal strengths to weight
stronger signal readings more than weaker signals
with a quasi weighted average model.”

A/74521804.2

8

Appears in
asserted
claims
‘988/3

Term
No.

Claim language

Google’s Position

Skyhook’s Position

16.

“a weighted centroid
position”

Stipulated construction: a position determined by weighted averaging of position information.

17.

“logic to identify
position information
that exceeds a
statistically-based
deviation threshold
amount away from
the centroid
position”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because the specification does
not disclose a structure corresponding to the
claimed “logic” capable of performing the recited
function of “identify[ing] position information
that exceeds a statistically-based deviation
threshold amount away from the centroid
position.”

18.

“calculated positions Synonymous with “calculated position
of the Wi-Fi access
information for the corresponding Wi-Fi access
points”
point” in claim 1 of the ‘988 patent; “calculated
locations” in the ‘245 patent, and “recorded
location” and “recorded location information” in
the ‘897 patent.

A/74521804.2

9

Appears in
asserted
claims
‘988/3

Software and/or hardware to identify position
information whose distance from the centroid
position exceeds a certain threshold distance.
This threshold distance is based on the
distribution of the position information used to
calculate the centroid position.
See “weighted centroid position.”
This is not a means plus function claim element.
If the Court were to construe this claim element
as a means plus function claim element, then
Skyhook identifies the following corresponding
structure:
12:11-17
“In particular, the system first calculates the
weighted centroid for the access point using all
reported data. It then determines the standard
deviation based on the distribution of the reported
locations. The system uses a definable threshold
based on the sigma of this distribution to filter out
access points that are in error.”

‘988/3

Estimated physical positions of the observed WiFi access points calculated using characteristics
of their transmitted signals.
See “Wi-Fi access points.”

‘988/3

Term
No.
19.

Claim language

Google’s Position

Skyhook’s Position

“the clustering logic
… excludes such
deviating position
information from the
database and from
influencing the
calculated positions
of the Wi-Fi access
points”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because the specification does
not disclose a structure corresponding to the
claimed “clustering logic” capable of performing
the recited function of “exclude[ing] such
deviating position information from the database
and from influencing the calculated positions of
the Wi-Fi access points.”

The software and/or hardware excludes such
deviating position information from being stored
in the database of WiFi access points. Such
deviating position information is not used to
determine the calculated positions of the Wi-Fi
access points.
See “computer-implemented clustering logic . . .
“ and “Wi-Fi access points.”
This is not a means plus function claim element.
If the Court were to construe this claim element
as a means plus function claim element, then
Skyhook identifies the following corresponding
structure:
12:1–12:19

“In some cases the GPS receiver may record
erroneous or error records for some period of
time, which could negatively affect the final
access point location calculation. The parser and
filter process identifies these bad records and
either corrects them or removes them from the
system. The filtering process users clustering
techniques to weed out error prone GPS readings.
For example, if 90% of the readings are within
200 meters of each other but the remaining 10%
of the readings are 5 kilometers away then those
outliers are removed by the filter . . . . In

A/74521804.2

10

Appears in
asserted
claims
‘988/3

Term
No.

Claim language

Google’s Position

Skyhook’s Position

Appears in
asserted
claims

particular, the system first calculates the
weighted centroid for the access point using all
reported data. It then determines the standard
deviation based on the distribution of the reported
locations. The system uses a definable threshold
based on the sigma of this distribution to filter out
access points that are in error. Once these error
records are marked, the centroid is recalculated
with the remaining location records to determine
the final centroid. . . . .”
20.

“recording multiple
readings of the WiFi access point at
different locations
around the Wi-Fi
access point so that
the multiple readings
avoid arterial bias in
the calculated
position information
of the Wi-Fi access
point”

A/74521804.2

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
skilled in the art of the bounds of the claim, and
in particular impermissibly recites a method step
in an apparatus claim.

Multiple scans of a Wi-Fi access point are
recorded. The scans are taken at different locations
around the Wi-Fi access point. The multiple
readings avoid arterial bias in the calculated
position information of the Wi-Fi access point.

In the alternative, “storing Wi-Fi access point
signals received while scanning along a shortest
planned route along each drivable road
throughout each target area, e.g. Chinese
Postman and not using random scanning or
collection methods to avoid the tendency of
random scanning to result in a greater number of
scans of the Wi-Fi access point from heavily
trafficked roads.”

See “Wi-Fi access points,” “avoid arterial bias,”
and “calculated position information.”

11

‘694/1

Term
No.

Claim language

Google’s Position

Skyhook’s Position

Appears in
asserted
claims
‘694/1

21.

“wherein the
database records for
substantially all WiFi access points in
the target area
provide reference
symmetry within the
target area”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
skilled in the art of the bounds of the claim, and
in particular fails to apprise the person of
ordinary skill in the art as to what it means to
“provide reference symmetry within the target
area.”

Wherein the database records for substantially all
Wi-Fi access points in the target area are
distributed such that when the database records
are used to calculate a user’s location, the
calculated positions of the observes Wi-Fi access
points in range of the user tend to be distributed
around the user with reduced levels of arterial
bias.
See “database records” “substantially all Wi-Fi
access points,” “target area.” “Wi-Fi access
points,” and “reference symmetry.

22.

“a user-device
having a Wi-Fi
radio”

An end user or consumer device having a Wi-Fi
radio.

‘245/1

23.

“providing a
reference database
of calculated
locations of Wi-Fi
access points in a
target area”

A database that contains calculated locations for
all the Wi-Fi access points collected in the preidentified target area by scanning a shortest
planned route along all drivable roads, including
information about the target area. The database
does not include information about Wi-Fi access
points gathered using random or end-user based
collection methods.

Does not need to be construed.
But if construed:
A user device having a Wi-Fi radio.
Does not need to be construed.
But if construed:
Providing a database of calculated locations of WiFi access points in a target area. The database is
used to locate a user device having a Wi-Fi radio.
See “calculated locations,” “Wi-Fi access
points,” and “target area.”

Estimated physical locations of Wi-Fi access
points calculated using characteristics of signals
transmitted by such Wi-Fi access points

‘245/1, 2

‘245/1

See also “a database of Wi-Fi access points for at
least one target area” in the ‘988 and ‘694
patents.
24.

“calculated
locations”

A/74521804.2

Synonymous with “calculated position
information” in the ‘988 patent, as well as
“recorded location” and “recorded location
information” in the ‘897 patent.
12

Term
No.
25.

26.

27.

Claim language

Google’s Position

Skyhook’s Position

“in response to a
user application
request to determine
a location of a userdevice having a WiFi radio”

In response to a request made by an end-user
facing application, i.e., not by the operating
system, to determine the location of an end userdevice using a Wi-Fi radio.

“triggering the WiFi device to transmit
a request to all WiFi access points
within range of the
Wi-Fi device”

Stipulated construction: Causing the Wi-Fi device to actively search for Wi-Fi access points. The Wi-Fi
device transmits a request to all Wi-Fi access points within range of the Wi-Fi device to identify
themselves.

“said chosen
algorithm being
suited for the
number of identified
Wi-Fi access points”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because it does not apprise one
skilled in the art of the bounds of the claim, and
in particular fails to apprise the person of
ordinary skill in the art which algorithm(s) is
(are) “suited” for a particular number of
identified Wi-Fi access points.

In response to a request made by an application
running on user-device having a Wi-Fi radio to
determine the location of the user-device.

Appears in
asserted
claims
‘245/1

See “a user-device having a Wi-Fi radio.
‘245/1

See “Wi-Fi access points.”

Does not need to be construed.

‘245/1

But if construed:
The chosen location-determination algorithm is
suited for the number of Wi-Fi access points that
are identified.

See “Wi-Fi access points.”

28.

“simple signal
strength weighted
average model”

Stipulated construction: An algorithm that includes taking a simple average of the calculated
locations of identified Wi-Fi access points weighted according to a function of their received signal
strengths.

‘245/6

29.

“triangulation
technique”

Stipulated construction: An algorithm that includes (1) estimating the distances from the user device
to at least two identified Wi-Fi access points using their received signal strengths and (2) determining
a location based on the estimated distances

‘245/8

A/74521804.2

13

Term
No.

Claim language

Google’s Position

Skyhook’s Position

30.

“a WiFi-enabled
device
communicating with
WiFi access points
within range of the
WiFi-enabled device
so that observed
WiFi access points
identify themselves”

A user device having a Wi-Fi radio actively
searching for Wi-Fi access points by transmitting
a signal to all Wi-Fi access points within range
and receiving a response that includes a unique
identifier (e.g., a MAC address) from each such
Wi-Fi access point.

A user device having a Wi-Fi radio
communicates with Wi-Fi access points within
range of the user device. Communications
received by the user device include an identifier
(e.g., a MAC address) for observed Wi-Fi access
points.
See “Wi-Fi access points.”

31.

“using the recorded
location information
for each of the
observed WiFi
access points in
conjunction with
predefined rules to
determine whether
an observed WiFi
access point should
be included or
excluded from a set
of WiFi access
points”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because (a) it does not apprise
one skilled in the art of the bounds of the claim,
and in particular fails to apprise the person of
ordinary skill in the art what constitutes the
claimed “predefined rules.”

Does not need to be construed.

“recorded location
information”

Synonymous with “calculated position
Estimated physical location of Wi-Fi access
information” in the ‘988 and ‘694 patents, as well points calculated using characteristics of signals
as “calculated locations” in the ‘245 patent.
transmitted by such Wi-Fi access points.

32.

A/74521804.2

Appears in
asserted
claims
‘897/1

‘897/1

But if construed:
Predefined rules are used to determine whether
each observed WiFi access point should be
included or excluded from a set of WiFi access
points that is to be used to calculate location. The
predefined rules consider recorded location
information for each of the observed WiFi access
points.
See “recorded location information” and “WiFi
access points.”

14

‘897/1, 3

Term
No.
33.

34.

35.

Claim language

Google’s Position

Skyhook’s Position

Does not need to be construed.

“rules to determine a
reference point and
to compare the
recorded location
information for each
of the observed
WiFi access points
to the reference
point”

This limitation is indefinite in violation of 35
U.S.C. § 112, ¶ 2 because (a) it does not apprise
one skilled in the art of the bounds of the claim,
and in particular fails to apprise the person of
ordinary skill in the art what constitutes the
claimed “rules.”

“WiFi access points
having a recorded
location within a
predefined threshold
distance of the
reference point”

Stipulated construction: WiFi access points having a recorded location that is within a certain distance
of the reference point. That distance was previously defined.

“WiFi access points
having a recorded
location in excess of
the predefined
threshold distance of
the reference point”

Stipulated construction: WiFi access points having a recorded location that exceeds a certain distance
from the reference point. That distance was previously defined.

A/74521804.2

Appears in
asserted
claims
‘897/3

But if construed:
Rules that (1) first determine a reference point and
(2) then compare the recorded location information
for each of the observed WiFi access points to the
reference point.
See “recorded location information” and “WiFi
access points.”

‘897/3

See “WiFi access points.”

See “WiFi access points.”

15

‘897/3