Skyhook Wireless, Inc. v. GOOGLE, INC.

Filing 57

Statement of Material Facts L.R. 56.1 re 41 MOTION for Summary Judgment of Indefiniteness filed by Skyhook Wireless, Inc.. (Lu, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

SKYHOOK WIRELESS, INC.,
Plaintiff and
Counterclaim-Defendant,

Case No. 1:10-cv-11571-RWZ

v.
GOOGLE INC.,
Defendant and
Counterclaimant.

SKYHOOK WIRELESS, INC.'S
STATEMENT OF GENUINE ISSUES OF DISPUTED MATERIAL FACTS
IN OPPOSITION TO GOOGLE INC.'S
MOTION FOR SUMMARY JUDGMENT OF INDEFINITENESS

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I.

INTRODUCTION
Pursuant to Local rule 56.1, plaintiff Skyhook Wireless, Inc. ("Skyhook") submits the

following responses in opposition to Google Inc.'s ("Defendant's") Motion for Summary
Judgment of Indefiniteness: (1) Skyhook's rebuttal to Defendant's statement of allegedly
undisputed material facts; and (2) Skyhook's statement of additional material facts that are
disputed and preclude summary judgment.
II.

Skyhook's Rebuttal To Defendant's Statement Of Allegedly Undisputed Material
Facts
Set out below is Skyhook's rebuttal to Defendant's statement of allegedly undisputed

material facts. The rebuttal tracks the paragraph order of Defendant's statement.
Defendant's Statement of Allegedly
Undisputed Material Facts
1. Plaintiff Skyhook Wireless Inc.

Skyhook's Response
Undisputed.

("Skyhook") is a Delaware corporation, with
its principal place of business in Boston,
Massachusetts. Compl. ¶ 4.
2. Defendant and Counterclaim-Plaintiff

Undisputed.

Google Inc. ("Google") is a Delaware
Corporation, with its principal place of business
in Mountain View, California. Compl. ¶ 5.

3. Skyhook states that it is the owner of

Undisputed.

four patents: U.S. Patent Nos. 7,414,988 ("the
'988 patent"), 7,433,694 ("the '694 patent"),
7,305,245 ("the '245 patent"), and 7,474,897
("the '897 patent") (collectively, "the patents-in-

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response

suit"). Compl. ¶¶ 7, 14, 21, 27.

4.

On September 15, 2010, Skyhook

Undisputed.

filed suit against Google in the United States
District Court District of Massachusetts.
Compl.
5.

Skyhook accuses "Google's

Undisputed.

Location Services" of infringing claims 1-3
in the '988 patent, claims 1 and 2 in the '694
patent, claims 1, 2, 4-6 and 8 in the '245
patent, and claims 1-4 in the '897 patent. See
Plaintiff Skyhook Wireless, Inc.'s
Preliminary Infringement Disclosures (Feb.
14, 2011).
6.

On October 29, 2010, Google

Undisputed.

answered Skyhook's Complaint, asserting an
affirmative defense of invalidity. Ans. ¶ 33.
7.

The patents-in-suit are related. The

Undisputed.

patents-in-suit each identify the same four
individual inventors (Russel Kipp Jones,
Farshid Alizadeh-Shabdiz, Edward James
Morgan, and Michael George Shean). See

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Defendant's Statement of Allegedly
Undisputed Material Facts
Exs. C-F.
8.

The '988, '694, and '245 patents

Skyhook's Response

Undisputed.

each claims priority to U.S. Provisional
Application No. 60/623,108, which was filed
with the U.S. Patent and Trademark Office
on October 29, 2004. Exs. C-E.
9.

The applications that later issued as

Undisputed.

the '988, '694 and '245 patents were filed on
October 28, 2005. Id.
10. The '988, '694 and '245 patents each

Undisputed.

state that they are related to the others, as
well as to the unasserted '762 patent. See
Ex. C at 1:12-22; Ex. D at 1: 11-32; Ex. E at
1:14-19. The '897 patent issued from a
February 22, 2006 application that claims
priority as a continuation-in-part of the
application that issued as the '245 patent.
Ex. F.
11. The '897 patent states that it is

Undisputed.

related to: U.S. Provisional Application No.
60/654,811 (filed on February 22, 2005);

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Defendant's Statement of Allegedly
Undisputed Material Facts
U.S. Provisional Application No. 60/658,481

Skyhook's Response

(filed on Mar. 4, 2005); the application that
issued as the '988 patent (asserted); the
application that issued as the '694 patent
(asserted); the application that issued as the
'245 patent (asserted); the application that
issued as United States Patent No. 7,403,762
(unasserted); the application that issued on
February 19, 2009 as the U.S. Patent No.
7,493,127 (unasserted); and pending U.S.
Patent App. No. 11/359,154 (filed Feb. 22,
2006). Ex. F at 1:7-41.
12. The specification of the '988 patent

Undisputed.

is similar to that of the '694 patent. Exs. C,
D. The two patents share the same eleven
figures. Id. The two detailed descriptions of
the inventions are identical, using exactly the
same language to describe collection of WiFi access point data using the "Chinese
Postman" routing methodology to obtain
reference symmetry while avoiding arterial

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Defendant's Statement of Allegedly
Undisputed Material Facts
bias. Ex. C at 5:24-14:12 ; Ex. D at 4:44-

Skyhook's Response

13:20.
13. The specification of the '245 patent

Disputed. The evidence cited by Defendant does

is similar to that of the '988 and '694 patents.

not show that the descriptions of the "Chinese

See Exs. C-E. However, the summaries of

Postman" routing methodology in the '988, '694,

the inventions and discussions of related art

and '245 patents were included to try to

differ. Id. In other respects they are the

differentiate collection methods acknowledged in

same, sharing the same figures and detailed

the prior art. All three patents clearly state that

descriptions, including details regarding

the "Chinese Postman" routing algorithm is a

collection of Wi-Fi access point data using

"preferred embodiment." (See Def. Ex. E1 ('245)

the "Chinese Postman" routing methodology

8:36-39; Def. Ex. D ('694) 60-63; Def. Ex. C

to try to differentiate collection methods

('988) 8:41-44.)

acknowledged in the prior art. See Ex. C at
8:28-59; Ex. D at 7:47 - 8: 12; Ex. E at 8:24-

Undisputed that the specification of the '245

54.

patent is similar to that of the '988 and '694
patents. Undisputed that the summaries of the
inventions and discussions of related art differ.
Undisputed that in other respect they are the
same, sharing figures and descriptions, including

1

All citations in the form "Def. Ex. __" are to the exhibits attached to the declaration of
Susan Baker Manning in support of Defendant's motion for summary judgment and, in the
alternative, opening claim construction brief.

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response
details regarding collection of Wi-Fi access point
data using the "Chinese Postman" routing
methodology.

14. The '897 patent contains additional

Disputed. The word "slightly" is vague and

disclosures beyond the '245 patent from

ambiguous and unsupported by the evidence

which it claims priority, and both the '897

cited by Defendant. Furthermore, Defendant's

patent and the '245 patent relate to a method

descriptions of the claims of the '897 and '245

of calculating the position of a Wi-Fi

patents are incomplete. The '897 patent claims:

enabled user device using a reference
database. Exs. E, F, N (comparing the '897
and '245 patents). The '245 and ''897 patents
claim slightly different aspects of the process
of determining the location of a Wi-Fi
enabled device; the '897 patent claims predefined rules for including and excluding
observed access points from a set used to
determine location, Ex. F at 12:21-25, while
the '245 patent claims a method of choosing
amongst algorithms for location
determination, Ex. E at 14:20-24. The
specification of the '245 discloses the use of

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Defendant's Statement of Allegedly
Undisputed Material Facts
the same "Chinese Postman" routing

Skyhook's Response

methodology for collection of access point
data disclosed in the '694 and '988 patents,
Ex. E at 8:24-54, while the '897 lists arterial
bias and lack of reference symmetry among
reference points as drawbacks in the related
art, Ex. F at 2:64-3:5, 3:27-33.

(Def. Ex. F ('897) 12:12-47.)
The '245 patent claims:

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response

(Def. Ex. E ('245) 14:4-53.)

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response
Undisputed that the '897 patent contains
additional disclosures beyond the '245 patent
from which it claims priority, and both the '897
patent and the '245 patent relate to a method of
calculating the position of a Wi-Fi enabled user
device using a reference database. Undisputed
that the specification of the '245 discloses the use
of the same "Chinese Postman" routing
methodology for collection of access point data
disclosed in the '694 and '988 patents, while the
'897 lists arterial bias and lack of reference
symmetry among reference points as drawbacks
in the related art.

15. On November 30, 2007, the

Undisputed.

Examiner rejected pending claim 1 in the
application for the '988 patent as obvious in
light of U.S. Patent App. Pub. No.
2005/0164710 (Beuck) in view of U.S.
Patent App. Pub. No. 2005/0037775
(Moeglein). Ex. G at GSHFED200-12. The
Examiner also objected to claim 1 because

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Defendant's Statement of Allegedly
Undisputed Material Facts
the term "radius on the order of tens of

Skyhook's Response

miles" "leaves the claim open ended." Id. at
GSHFED202. The Examiner also rejected
pending claims 2 and 3 as unpatentable in
light of the Beuck reference in view of
Moeglein and U.S. Patent No. 5,940,825
(Castelli). Id. at GSHFED207-10.
16. In response, the applicants amended

Undisputed.

the last two limitations of claim 1:
A Wi-Fi location server, comprising:
A database of Wi-Fi access points for
at least one target area having a
radius on the order of tens of miles,
said database being recorded in a
computer-readable medium and
including database records for
substantially all Wi-Fi access points
in the target area, each record
including identification information
for a corresponding Wi-Fi access
point and calculated position
information for the corresponding
Wi-Fi access point, wherein said
calculated position information is
obtained from recording multiple
readings of the Wi-Fi access point at
different locations around the Wi-Fi
access point so that the multiple
readings have to provide reference
symmetry relative to other Wi-Fi
access points in the target area when
calculating and so that the calculation
of the position of the Wi-Fi access

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Defendant's Statement of Allegedly
Undisputed Material Facts
point and to avoids arterial bias in the
calculated position information; and

Skyhook's Response

computer-implemented logic to add
records to the database for newlydiscovered Wi-Fi access points said
computer logic including logic to
recalculate 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.
Id. at GSHFED183.

Undisputed.

17. The applicants also provided
detailed remarks in which they argued the
amended claims were patentable over the
prior art. Id. at GSHFED185-91. The
applicants stated, inter alia:
In contrast to the cited references,
applicants' claim 1 is directed to a
Wi-Fi location server that includes
position information for Wi-Fi access
points without arterial bias.
Specifically, the calculated position
information for the Wi-Fi access
points is obtained from recording
multiple readings of the Wi-Fi access
point at different locations around the
Wi-Fi access point. These multiple
readings have reference symmetry
relative to other Wi-Fi access points
in the target area. Thus, the
calculation of the position of the WiFi access point avoids arterial bias in

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Defendant's Statement of Allegedly
Undisputed Material Facts
the calculated position information.
This technique of gathering readings
from Wi-Fi access points results in
higher quality estimates of access
point locations and more complete
information about the access points
in the area. Consequently, devices
using the calculated access point
locations to determine their position
have more accurate estimations of
their locations. See Application at
¶¶ 41-44.

Skyhook's Response

As set forth above, none of the cited
reference teach or suggest conducting
an audit of an area to build a
reference database of the locations of
Wi-Fi access points in a target area
so as to provide reference symmetry
and avoid arterial bias. As stated in
the application, amateur scanners
("wardrivers") have attempted to
collect access point location data for
use in location estimation systems.
However, the methods employed by
wardrivers suffer from several
drawbacks. Namely, as described in
the application, the location data
collected by the wardrivers is often
inaccurate, incomplete, and grows
organically rather than being
collected in a systematic fashion to
purposefully avoid arterial bias. See
Application at ¶¶ 15-17.
As explained in greater detail in the
application, significant errors in
position calculation can result when
the reference points used for the
calculation lack symmetry around the
physical location of the device
performing the calculation.
Unsymmetrical location data (or

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Defendant's Statement of Allegedly
Undisputed Material Facts
"arterial bias") occurs when
individuals (e.g., wardrivers) collect
location data for Wi-Fi access points
without following designated
scanning routes. Such data tends to
aggregate around heavily traffic areas
(or "arteries"). Attempting to use
arterially biased data to estimate the
location of a mobile device causes a
"location pull" towards the main
arteries regardless of where the user
is currently located. This causes
substantial accuracy errors in the
location estimation. Figures 5 and 6
of the application illustrate this
effect. See Application at ¶¶ 15 and
44.
Collecting multiple readings of WiFi access points in a systematic
fashion, as described in the
application, provides reference
symmetry within the target area.
Thus, the distribution of reference
points (i.e., Wi-Fi access point
locations) is symmetric. By using a
collection of location data that is
symmetric, a mobile device
attempting to calculate its location
typically encounters physical
locations in which there are
numerous access point locations on
all sides of the device within range of
the device's Wi-Fi radio. Therefore,
a position calculation performed by
the mobile device will have reduced
location bias and will be more
accurate as a result. See Application
at ¶ 44.
Unlike the cited references and
known methods described in the
background of the application,

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Skyhook's Response

Defendant's Statement of Allegedly
Undisputed Material Facts
applicants' claim 1 clearly recites the
calculated position information is
obtained from recording 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 and so that the
calculation of the position of the WiFi access point avoids arterial bias in
the calculated position information.
The application describes the
discovery of the arterial bias problem
and the advantages of the solutions
devised by applicants. Namely, by
performing a planned audit, and
avoiding arterial bias, applicants at
least achieve more complete
information about access points in
the target area, higher quality
estimates of access point locations,
and reference symmetry. See
Application at ¶¶ 47-51.

Skyhook's Response

None of this is taught or suggested
by the cited references. Thus,
applicants submit that claim 1 is
patentable over the cited references.
Id. at GSHFED0000187-89.
18. As to the Examiner's objection to

Undisputed.

the "radius on the order of tens of miles"
limitation as "leav[ing] the claim open
ended," the Applicants argued that the
limitation "clearly communicates that the

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Defendant's Statement of Allegedly
Undisputed Material Facts
claimed target area is larger than, for

Skyhook's Response

example, a single floor of a building, such as
might be found in an indoor positioning
system. See Application at ¶ 16. Applicants
describe throughout the application an
embodiment that includes position
information for Wi-Fi access points within a
large metropolitan area." Id. at
GSHFED190.
19. The Examiner allowed the claims of Disputed. The examiner allowed claims 1-3 and
the '988 patent on May 5, 2008. In doing so,

provided the following statement of reasons for

he did not give any detailed reasoning,

allowance:

merely stating that amended claim 1, which
he quoted verbatim, was patentable over two

"Beuck teaches, the location finder 102 may

prior art references. He did not comment on

receive digital radio signals transmitted by GPS

his earlier rejection of claim 1 as "open

satellites 104-1 through 104-3. The signals may

ended." Id. at GSHFED168-72. The '988

include the satellites' location and the exact time.

patent issued on August 19, 2008. Ex. C.

The location finder 102 calculates the distance
and reports information indicative of a location of
the location finding device to a server via the
wireless access point. Also, the wireless access

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response
point 106 may communicate with the location
finder 102 using one of a number of wireless
communication protocols, such as Wi-Fi, or
Bluetooth. Beuck, US PGPub: US 2005/0164710
A1 Jul. 28, 2005.

Moeglein teaches, when an access point has not
been observed for a certain period of time, the
access point is removed from the database,
similarly, when a new access point is observed, it
is added to the database. Thus, the server may
update the information about the access point in
an ongoing basis. Moeglein, US PGPub: US
2005/0037775 A1 Feb. 17,2005.

None of the reference individually or combined
teaches, the claimed feature:
Claim 1:
a Wi-Fi location server, comprising:

a database of Wi-Fi access points for at least one

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response
target area having a radius on the order of tens of
miles, said database being recorded in a
computer-readable medium and including
database records for substantially all Wi-Fi
access points in the target area, each record
including identification information for a
corresponding Wi-Fi access point and calculated
position information for the corresponding Wi-Fi
access point, wherein said calculated position
information is obtained from recording 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 when and so that the calculation of the
position of the Wi-Fi access point avoids arterial
bias in the calculated position information; and

computer-implemented logic to add records to
the database for newly-discovered Wi-Fi access
points said computer logic including logic to

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Defendant's Statement of Allegedly
Undisputed Material Facts

Skyhook's Response
recalculate position information for Wi-Fi access
points previously stored in the database to utilize
the position information for the newly-discovered
readings of previously stored Wi-Fi access
points."
(Def. Ex. G ('988 patent prosecution history)
Notice of Allowability, p. 2-3.)

20. During the prosecution of the '694

Disputed. The examiner stated that "Khavakh

patent, the Examiner rejected claims 1 and 2

teaches a database of Wi-Fi access points for at

under 35 U.S.C. § 103(a) as being

least one target area (figure 3 and paragraphs 35,

unpatentable over U.S. Patent Application

36), said database being recorded in a computer-

Publication No. 2004/0039520 (Khavakh) in

readable medium and including database records

view of U.S. Patent Application Publication

for substantially all Wi-Fi access points in the

No. 2004/0058640 (Root). Ex. H at

target area, each record including identification

GSHFED311. The examiner stated that

information for a corresponding Wi-Fi access

Khavakh teaches a database of Wi-Fi access

point and calculated position information for the

points recorded on a computer-readable

corresponding Wi-Fi access point, wherein said

medium, each record containing calculated

calculated position information is obtained from

position information for each Wi-Fi access

recording multiple readings of the Wi-Fi access

point, and calculated position information

point to provide reference symmetry when

obtained from multiple readings of Wi-Fi

calculating the position of the Wi-Fi access point

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Defendant's Statement of Allegedly
Undisputed Material Facts
access point to provide reference symmetry

Skyhook's Response
and to avoid arterial bias in the calculated

and to avoid arterial bias. Id.

position information."
(Def. Ex. H ('694 patent prosecution history)
January 28, 2008 Office Action, p. 2.)

Undisputed that during the prosecution of the
'694 patent, the Examiner rejected claims 1 and 2
under 35 U.S.C. § 103(a) as being unpatentable
over Khavakh (US 2004/0039520) in view of
Root (US 2004/0058640).
21. The examiner stated that Root

Undisputed.

teaches having a radius on the order of tens
of miles. Id.
22. The examiner determined that it

Undisputed with the clarification that "special

would have been obvious to provide the

range" and "dynamic special location" should be

teaching of Root into the system of Khavakh

"spatial range" and "dynamic spatial location."

to predict events within a particular special
range of a particular dynamic special
location; therefore claim 1 was rejected. Ex.
H at GSHFED312.
23. Claim 2 was rejected because the

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Undisputed.

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Defendant's Statement of Allegedly
Undisputed Material Facts
combination of Khavakh and Root teaches

Skyhook's Response

the database of claim 1 having records for a
plurality of target areas, organized by target
areas. Id.
24. On April 7, 2008, the Applicants

Undisputed.

held a telephonic interview with the
Examiner. Id. at GSHFED298.
Undisputed.

25. One day later, on April 8, 2008, the
Applicants amended claim 1 to "more
particularly recite characteristics of the
calculated position information," and
submitted that the amendments overcome
the rejection. Ex. H at GSHFED295-99.
Specifically, the Applicants amended the
fourth limitation of claim 1 of the '694 patent
(regarding the avoidance of arterial bias) and
added the fifth limitation (regarding the
provision of reference symmetry):
A database of Wi-Fi access points for
at least one target area having a
radius on the order of tens of miles,
said database being recorded in a
computer-readable medium and
including database records for

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Defendant's Statement of Allegedly
Undisputed Material Facts
substantially all Wi-Fi access points
in the target area,

Skyhook's Response

each record including identification
information for a corresponding WiFi access point and calculated
position information for the
corresponding Wi-Fi access point,
wherein said calculated position
information is obtained from
recording multiple readings of the
Wi-Fi access point at different
locations around the Wi-Fi access
point so that the multiple readings to
provide reference symmetry when
calculating the position of the Wi Fi
access point and to avoid arterial bias
in the calculated position information
of the Wi-Fi access point, and
wherein the database records for
substantially all Wi-Fi access points
in the target area provide reference
symmetry within the target area.
Id. at GSHFED297.
26. According to the Applicants'

Undisputed.

Remarks accompanying the Amendment,
"During the telephone call, applicants
submitted that the cited references do not
teach or suggest these features [i.e., the
claims as amended]. Examiner Danh stated
that the amendments overcome the cited

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Defendant's Statement of Allegedly
Undisputed Material Facts
references." Id. at GSHFED298.
27. The Examiner issued a Notice of

Skyhook's Response

Undisputed.

Allowability on June 16, 2008. Id. at
GSHFED285-88. The '694 patent issued on
October 7, 2008. Ex. D.
28. The Examiner allowed both the '245 Undisputed.
and '897 patents to issue with the original
claims as-filed. Ex. I at GSHFED87-90
(September 12, 2007 Notice of Allowabilty
[sic] re '245 patent); Ex. J at GSHFED39295 (August 14, 2008 Notice of Allowabilty
[sic] re '897 patent).
29. In allowing the '245 patent,
Examiner Le identified the limitation "based

Undisputed with the clarification that "Masouka"
should be "Masuoka."

on the number of Wi-Fi access points
identified via received messages, choosing a
corresponding location-determination
algorithm from a plurality of locationdetermination algorithms, said chosen
algorithm being suited for the number of
identified Wi-Fi access points" as the point

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Defendant's Statement of Allegedly
Undisputed Material Facts
of novelty over seven identified U.S. patents

Skyhook's Response

or published applications (Masouka,
Krumm, Meunier, Patil, Sheynblat, Vesuna,
and Reeves). See Ex. I at
GSHFED0000089-90.
Undisputed.

30. In allowing the '897 patent eleven
months later, Examiner Le identified steps c)
and d) of claim 1 as the point of novelty over
the prior art. See Ex. J at GSHFED000039495 (noting the Choti, Agrawa, Orwant,
Biffar, Nagda, and Zellner references).
Those limitations recite:
c)
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
d)
using the recorded location
information of only the WiFi access
points included in the set and
omitting the recorded location
information of the excluded WiFi
access points to calculate the
geographical position of the WiFienabled device
'897 patent, claim 1. Ex. F at 12:20-30.

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Defendant's Statement of Allegedly
Undisputed Material Facts
31. The '988 and '694 claims require "a

Skyhook's Response
Undisputed.

database of Wi-Fi access points for at least
one target area …." Ex. C at 14:15; Ex. D at
14:2.
32. The '988 and '694 claims also

Disputed. The evidence cited by Defendant does

require that location information be obtained

not support the allegedly undisputed fact that the

from "recording multiple recordings of the

'988 and '694 claims require that location

Wi-Fi access point at different locations

information be obtained using a particular

around the Wi-Fi access point" using a

methodology for determining the scanning route.

particular methodology for determining the
scanning route. Ex. C at 14:24¬31; Ex. D at

The '694 patent claims in part "wherein said

14:10-16.

calculated position information is obtained from
recording multiple readings of the Wi-Fi 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, and wherein the
database records for substantially all Wi-Fi
access points in the target area provide reference
symmetry within the target area." (Def. Ex. D
('694) 14:9-16.)

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Undisputed Material Facts

Skyhook's Response

The '988 patent claims in part "wherein said
calculated position information is obtained from
recording 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 and so that the
calculation of the position of the Wi-Fi access
point avoids arterial bias in the calculated
position information." (Def. Ex. C ('988) 14:2231.)
33. The '988 and '694 patents also

Undisputed.

require "reference symmetry." Ex. C at
14:27; Ex. D at 14:15.
34. The '988 patent includes six

Undisputed.

different limitations directed to "logic":
(1)

"computer-implemented logic

to add records to the database for newlydiscovered Wi-Fi access points" (claim 1);
(2)

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Defendant's Statement of Allegedly
Undisputed Material Facts
information for Wi-Fi access points

Skyhook's Response

previously stored in the database to utilize
position information for the newlydiscovered readings of previously stored WiFi access points" (claim 1);
(3)

"computer-implemented

clustering logic to identify position
information based on error prone GPS
information" (claim 2);
(4)

"logic to determine a

weighted centroid position for all position
information reported for an access point"
(claim 3);
(5)

"logic to identify position

information that exceeds a statistically-based
deviation threshold amount away from the
centroid position" (claim 3); and
(6)

"the clustering logic . . .

excludes such deviating position information
from the database and from influencing the
calculated positions of the Wi-Fi access

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Defendant's Statement of Allegedly
Undisputed Material Facts
points" (claim 3).

Skyhook's Response

Ex. C at 14:15-48.
35. Claim 1 of the '988 patent requires

Undisputed.

that "calculated position information is
obtained from recording multiple readings of
the Wi-Fi 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." Ex. C at
14:22-30.
36. Claim 1 of the '694 patent requires

Undisputed.

that: "said calculated position information is
obtained from recording multiple readings of
the Wi-Fi 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." Ex. D at 14:9-13.
37. In claim 1 of the '897 patent, the

Undisputed.

inventors recite the step of "using the

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Defendant's Statement of Allegedly
Undisputed Material Facts
recorded location information for each of the

Skyhook's Response

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." Ex. F at 12:21-25.
38. Dependent claim 3 further requires

Undisputed.

"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." Id. at 12:36-40.
39. Claim 1 of the '245 patent includes

Undisputed.

the term "said chosen algorithm being suited
for the number of identified Wi-Fi access
points." Ex. E at 14:22-23.

III.

Skyhook's Statement Of Additional Material Facts That Are Disputed And Preclude
Summary Judgment
Skyhook hereby sets forth the following additional facts (and supporting evidence),

which, in addition to the facts set forth in Skyhook's rebuttal to Defendant's supposedly
undisputed facts 1 through 39, inclusive above (which are incorporated here by this reference as
though set forth in full), preclude summary judgment in this case:

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A.

The "Logic" Limitations

1.

In the '988 patent, all of the operations performed by the logic limitations occur

within the "Central Network Server." (Def. Ex. C ('988) 11:47-13:31.)
2.

Each logic limitation in the '988 patent is "computer-implemented." (Def. Ex. C

('988) 14:31-48.)
3.

"Logic" denotes structure, specifically, hardware and/or software. (Pl. Ex. J2

(The American Heritage College Dictionary (3rd ed. 1997)) at 797 (defining "logic" as "[t]he
nonarithmetic operations performed by a computer, such as sorting, that involve yes-no
decisions"); Pl. Ex. K (Wiley Electrical and Electronics Engineering Dictionary (2004)) at 432
(defining logic as "[t]he functions performed by a computer which involve operations such as
mathematical computations and true/false comparisons," or "[t]he circuits in a computer which
enable the performance of logic functions or operations, such as AND, OR, and NOT"); Pl. Ex. L
(McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989)) at 1101 (defining
logic as a "[g]eneral term for the various types of gates, flip-flops, and other on/off circuits used
to perform problem-solving functions in a digital computer" ); Pl. Ex. B (Anthony S. Acampora,
An Introduction to Broadband Networks (1994)) at 1 ("[e]mitter coupled logic . . . can operate at
clock speeds approaching 1 GHz"); Pl. Ex. C (U.S. Patent No. 4,425,639) 7:60-63 ("the
technology for building the satellite switch changes from exotic, custom high-speed logic to
presently commercially available logic families"); Pl. Ex. D (U.S. Patent Application No.
20080039130) ¶ 76 ("[e]ach agent is most commonly a small radio transceiver plus logic and
power supply"); Pl. Ex. E (U.S. Patent No. 7,869,667 B1) 12:48 ("[c]omputer programs [are]
2

All citations in the form "Pl. Ex. __" are to the exhibits attached to the declaration of
Samuel K. Lu filed concurrently herewith.

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also called computer control logic"); Pl. Ex. F (U.S. Patent No. 7,627,548) 5:61-62 ("Search
engine software/logic may provide a mechanism for receiving query information . . . ."); Pl. Ex.
G (U.S. Patent No. 7,751,592) 12:51-54 ("This logic may include hardware, . . . software, or a
combination of hardware and software.") .)
4.

"Computer-implemented logic" denotes structure, specifically, hardware and/or

software. (Pl. Ex. J (The American Heritage College Dictionary (3rd ed. 1997)) at 797 (defining
"logic" as "[t]he nonarithmetic operations performed by a computer, such as sorting, that involve
yes-no decisions"); Pl. Ex. K (Wiley Electrical and Electronics Engineering Dictionary (2004))
at 432 (defining logic as "[t]he functions performed by a computer which involve operations
such as mathematical computations and true/false comparisons," or "[t]he circuits in a computer
which enable the performance of logic functions or operations, such as AND, OR, and NOT");
Pl. Ex. L (McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989)) at 1101
(defining logic as a "[g]eneral term for the various types of gates, flip-flops, and other on/off
circuits used to perform problem-solving functions in a digital computer" ); Pl. Ex. B (Anthony S.
Acampora, An Introduction to Broadband Networks (1994)) at 1 ("[e]mitter coupled logic . . .
can operate at clock speeds approaching 1 GHz"); Pl. Ex. C (U.S. Patent No. 4,425,639) 7:60-63
("the technology for building the satellite switch changes from exotic, custom high-speed logic
to presently commercially available logic families"); Pl. Ex. D (U.S. Patent Application No.
20080039130) ¶ 76 ("[e]ach agent is most commonly a small radio transceiver plus logic and
power supply"); Pl. Ex. E (U.S. Patent No. 7,869,667 B1) 12:48 ("[c]omputer programs [are]
also called computer control logic"); Pl. Ex. F (U.S. Patent No. 7,627,548) 5:61-62 ("Search
engine software/logic may provide a mechanism for receiving query information . . . ."); Pl. Ex.
G (U.S. Patent No. 7,751,592) 12:51-54 ("This logic may include hardware, . . . software, or a

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combination of hardware and software.") .)
5.

One of ordinary skill in the art would recognize that "logic" includes computer

instructions designed to carry out a specified task. (Pl. Ex. J (The American Heritage College
Dictionary (3rd ed. 1997)) at 797 (defining "logic" as "[t]he nonarithmetic operations performed
by a computer, such as sorting, that involve yes-no decisions"); Pl. Ex. K (Wiley Electrical and
Electronics Engineering Dictionary (2004)) at 432 (defining logic as "[t]he functions performed
by a computer which involve operations such as mathematical computations and true/false
comparisons," or "[t]he circuits in a computer which enable the performance of logic functions
or operations, such as AND, OR, and NOT"); Pl. Ex. L (McGraw-Hill Dictionary of Scientific
and Technical Terms (4th ed. 1989)) at 1101 (defining logic as a "[g]eneral term for the various
types of gates, flip-flops, and other on/off circuits used to perform problem-solving functions in a
digital computer" ); Pl. Ex. D (U.S. Patent Application No. 20080039130) ¶ 76 ("[e]ach agent is
most commonly a small radio transceiver plus logic and power supply"); Pl. Ex. E (U.S. Patent
No. 7,869,667 B1) 12:48 ("[c]omputer programs [are] also called computer control logic"); Pl.
Ex. F (U.S. Patent No. 7,627,548) 5:61-62 ("Search engine software/logic may provide a
mechanism for receiving query information . . . ."); Pl. Ex. G (U.S. Patent No. 7,751,592) 12:5154 ("This logic may include hardware, . . . software, or a combination of hardware and
software.") .)
6.

One of ordinary skill in the art would recognize that "logic" includes circuitry by

which computer instructions may be carried out. (Pl. Ex. K (Wiley Electrical and Electronics
Engineering Dictionary (2004)) at 432 (defining logic as "[t]he circuits in a computer which
enable the performance of logic functions or operations, such as AND, OR, and NOT"); Pl. Ex. L
(McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989)) at 1101 (defining

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logic as a "[g]eneral term for the various types of gates, flip-flops, and other on/off circuits used
to perform problem-solving functions in a digital computer" ); Pl. Ex. B (Anthony S. Acampora,
An Introduction to Broadband Networks (1994)) at 1 ("[e]mitter coupled logic . . . can operate at
clock speeds approaching 1 GHz"); Pl. Ex. C (U.S. Patent No. 4,425,639) 7:60-63 ("the
technology for building the satellite switch changes from exotic, custom high-speed logic to
presently commercially available logic families"); Pl. Ex. D (U.S. Patent Application No.
20080039130) ¶ 76 ("[e]ach agent is most commonly a small radio transceiver plus logic and
power supply"); Pl. Ex. G (U.S. Patent No. 7,751,592) 12:51-54 ("This logic may include
hardware, . . . software, or a combination of hardware and software.") .)
7.

"Logic" is not a nonce word. (Pl. Ex. J (The American Heritage College

Dictionary (3rd ed. 1997)) at 797 (defining "logic" as "[t]he nonarithmetic operations performed
by a computer, such as sorting, that involve yes-no decisions"); Pl. Ex. K (Wiley Electrical and
Electronics Engineering Dictionary (2004)) at 432 (defining logic as "[t]he functions performed
by a computer which involve operations such as mathematical computations and true/false
comparisons," or "[t]he circuits in a computer which enable the performance of logic functions
or operations, such as AND, OR, and NOT"); Pl. Ex. L (McGraw-Hill Dictionary of Scientific
and Technical Terms (4th ed. 1989)) at 1101 (defining logic as a "[g]eneral term for the various
types of gates, flip-flops, and other on/off circuits used to perform problem-solving functions in a
digital computer" ); Pl. Ex. B (Anthony S. Acampora, An Introduction to Broadband Networks
(1994)) at 1 ("[e]mitter coupled logic . . . can operate at clock speeds approaching 1 GHz"); Pl.
Ex. C (U.S. Patent No. 4,425,639) 7:60-63 ("the technology for building the satellite switch
changes from exotic, custom high-speed logic to presently commercially available logic
families"); Pl. Ex. D (U.S. Patent Application No. 20080039130) ¶ 76 ("[e]ach agent is most

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commonly a small radio transceiver plus logic and power supply"); Pl. Ex. E (U.S. Patent No.
7,869,667 B1) 12:48 ("[c]omputer programs [are] also called computer control logic"); Pl. Ex. F
(U.S. Patent No. 7,627,548) 5:61-62 ("Search engine software/logic may provide a mechanism
for receiving query information . . . ."); Pl. Ex. G (U.S. Patent No. 7,751,592) 12:51-54 ("This
logic may include hardware, . . . software, or a combination of hardware and software.") .)
8.

Dr. Acampora's patents and publications use the word "logic" in a manner that

denotes structure, specifically, hardware in the form of digital circuitry. (E.g., Anthony S.
Acampora, An Introduction to Broadband Networks 1 (1994) ("[e]mitter coupled logic . . . can
operate at clock speeds approaching 1 GHz") (Pl. Ex. B); U.S. Patent No. 4,425,639 7:60-63
("the technology for building the satellite switch changes from exotic, custom high-speed logic
to presently commercially available logic families") (Pl. Ex. C); U.S. Patent Application No.
20080039130 ¶ 76 ("Each agent is most commonly a small radio transceiver plus logic and
power supply") (Pl. Ex. D).)
9.

Google's patents use the word "logic" synonymously with both computer software

and/or hardware. (E.g., U.S. Patent No. 7,869,667 B1 12:48 ("[c]omputer programs [are] also
called computer control logic") (Pl. Ex. E); U.S. Patent No. 7,627,548 5:61-62 ("Search engine
software/logic may provide a mechanism for receiving query information . . . .") (Pl. Ex. F); U.S.
Patent No. 7,751,592 12:51-54 ("This logic may include hardware, . . . software, or a
combination of hardware and software.") (Pl. Ex. G).)
10.

"Logic" in the '988 patent claims is limited to the context of computers. (Pl. Ex.

A (Acampora Dep. Tr.) 204:16-19 (Claim 1 of the '988 patent relates to a "Wi-Fi location
server," which Dr. Acampora admits is a computer); Kotz Decl. ¶ 59.)
11.

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A definition of logic in the context of computers and computer electronics could

- 33 -

include hardware or a combination of software and hardware. (Pl. Ex. A (Acampora Dep. Tr.)
208:2-17.)
12.

For the '988 patent, a person of ordinary skill in the art would have a bachelor's

degree in electrical engineering or computer science, 3-5 years of experience working in wireless
communications software design, and would be able to read and write computer source code.
(Kotz Decl. ¶ 32.)
13.

The limitation "logic to add records to the database for newly-discovered Wi-Fi

access points" has a corresponding structure in the '988 patent specification. (Kotz Decl. ¶¶ 6265.)
14.

Adding records to a database is equivalent to "storing" records. (Kotz Decl. ¶ 63.)

15.

Adding records to a database can be achieved by any general purpose computer

without specific programming. (Kotz Decl. ¶ 64.)
16.

One of ordinary skill in the art would know how to use any commercially

available database program to accomplish the function of adding records to a database. (Kotz
Decl. ¶ 65.)
17.

The limitation "logic to recalculate 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" has a corresponding structure in the '988
patent specification. (Kotz Decl. ¶¶ 66-68.)
18.

The corresponding structure is disclosed in the following passages: "[E]xisting

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 . . . ." and "[T]he algorithm would include a

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weighting value based on the age of the records . . . ." (Def. Ex. C ('988) 12:33-37, 12:25-26;
Kotz Decl. ¶ 67.)
19.

Based on this disclosure, a person of ordinary skill would understand this

disclosure to convey an algorithm for performing this function, and would be able to implement
software to perform 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." (Kotz Decl. ¶ 68.)
20.

The limitation "computer-implemented clustering logic to identify position

information based on error prone GPS information" has a corresponding structure in the '988
patent specification. (Kotz Decl. ¶¶ 69-72.)
21.

"Clustering techniques" refers to a well-known type of statistical analysis. (Kotz

Decl. ¶ 70.)
22.

The specification further provides a specific example of the results of the

clustering technique. (Def. Ex. C ('988) 12:6-11; see also Kotz Decl. ¶ 71.)
23.

Based on this disclosure, a person of ordinary skill would understand this

disclosure to convey an algorithm for performing this function, and would be able to implement
software to perform the recited of "clustering . . .to identify position information based on error
prone GPS information." (Kotz Decl. ¶ 72.)
24.

The limitation "logic to determine a weighted centroid position for all position

information reported for an access point" has a corresponding structure in the '988 patent
specification. (Kotz Decl. ¶¶ 73-76.)
25.

The determination of a weighted centroid position is a well-known algorithm.

(Kotz Decl. ¶ 74.)

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26.

The corresponding structure is disclosed in the following passage: the weighted

centroid calculation "factors in the number of records and their associated signal strengths to
weight stronger readings more than weaker signals." (Def. Ex. C ('988) 12:35-37; Kotz Decl.
¶ 75.)
27.

Based on this disclosure, a person of ordinary skill would understand this

disclosure to convey an algorithm for performing this function, and would be able to implement
software to perform the recited of "determin[ing] a weighted centroid position for all position
information reported for an access point." (Kotz Decl. ¶ 76.)
28.

The limitation "logic to identify position information that exceeds a statistically-

based deviation threshold amount away from the centroid position" has a corresponding structure
in the '988 patent specification. (Kotz Decl. ¶¶ 77-80.)
29.

The corresponding structure is disclosed in the following passages: the algorithm

"determines the standard deviation based on the distribution of the reported locations" and then
"uses a definable threshold based on the sigma of this distribution to filter out access points that
are in error." (Def. Ex. C ('988) 12:13-17; Kotz Decl. ¶ 79.)
30.

Based on this disclosure, a person of ordinary skill would understand this

disclosure to convey an algorithm for performing this function, and would be able to implement
software to perform the recited of "identify[ing] position information that exceeds a statisticallybased deviation threshold amount away from the centroid position." (Kotz Decl. ¶ 80.)
31.

The limitation "the clustering logic . . . excludes such deviating position

information from the database" has a corresponding structure in the '988 patent specification.
(Kotz Decl. ¶¶ 81-85.)
32.

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Excluding records from a database can be achieved by any general purpose

- 36 -

computer without specific programming. (Kotz Decl. ¶ 82.)
33.

One of ordinary skill in the art would know how to use any commercially

available database program to accomplish the function of excluding records from a database.
(Kotz Decl. ¶ 83.)
34.

The limitation "the clustering logic . . . excludes such deviating position

information . . . from influencing the calculated positions of the Wi-Fi access points" has a
corresponding structure in the '988 patent specification. (Kotz Decl. ¶¶ 81-85.)
35.

The corresponding structure is disclosed in the following passage: "[o]nce these

error records are marked, the centroid is recalculated with the remaining location records to
determine the final centroid . . . ." (Def. Ex. C ('988) 12:17-19 ; Kotz Decl. ¶ 84.)
36.

Based on this disclosure, a person of ordinary skill would understand this

disclosure to convey an algorithm for performing this function, and would be able to implement
software to perform the recited function of "exclud[ing] such deviating position information
from the database and from influencing the calculated positions of the Wi-Fi access points."
(Kotz Decl. ¶ 85.)
B.
"Said Chosen Algorithm Being Suited For The Number Of Identified Wi-Fi
Access Points"
37.

Whether a given algorithm is suited for a given number of access points would be

readily apparent to one of skill in the art. (Kotz Decl. ¶¶ 87-88.)
38.

It would be readily apparent to an ordinary artisan how the number of access

points impacts which algorithm is appropriate, the possible algorithms that could be used, and
how to determine whether any algorithm is suited or not suited. (Kotz Decl. ¶ 88.)
C.

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Predefined Rules

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39.

The plain and ordinary meaning of predefined is "something that was defined

before this process was begun, as an example." (Pl. Ex. A (Acampora Dep. Tr.) 222:11-223:5.)
40.

The plain and ordinary meaning of "rule" is "an instruction to be followed." (Pl.

Ex. A (Acampora Dep. Tr.) 221:14-19.)
41.

Calculating geographic position of the Wi-Fi enabled device based on "whether it

is Tuesday" would not practice claim 1 of the '897 patent. (Kotz Decl. ¶ 92.)
42.

Calculating geographic position of the Wi-Fi enabled device always using every

observed access point would not practice claim 1 of the '897 patent. (Kotz Decl. ¶ 92.)
D.

The "Reference Symmetry" Limitations

43.

The purpose of the database claimed in the '988 patent is to calculate the location

of mobile devices. (Def. Ex. C ('988) 4:4-9, 5:35-37.)
44.

Symmetry can relate to the distribution of Wi-Fi access points around the device

performing the calculation. (Kotz Decl. ¶ 109.)
45.

Symmetry can relate to the distribution of Wi-Fi access points throughout a target

area, as shown in Figure 3 of the patents. (Kotz Decl. ¶ 109.)
46.

The distribution of Wi-Fi access points is unpredictable because Skyhook's

system takes advantage of Wi-Fi access points that are installed by third parties rather than
"intentionally seeding" Wi-Fi access points. (Pl. Ex. A (Acampora Dep. Tr.) 168:11-18, 167:1421 ("they have no way of knowing if this is going to be produced or not because they have no
way of knowing in advance where the access points are . . . [t]he access point locations may not
be conducive to production of reference symmetry").)
47.

Some areas may have Wi-Fi access points more evenly distributed than others

(though, given the density of Wi-Fi access points in most cities this may not be a wide variation).

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(Kotz Decl. ¶ 111.)
48.

Figure 5 from the '988 patent shows a lack of reference symmetry. (Def. Ex. C

('988) Fig. 5; Kotz Decl. ¶ 113.)
49.

Figure 6 from the '988 patent shows reference symmetry. (Def. Ex. C ('988) Fig.

6; Kotz Decl. ¶ 114.)
50.

Reference symmetry refers to the distribution of calculated locations of access

points. (Def. Ex. C ('988) 9:51-10:4; Kotz Decl. ¶ 115.)
51.

Reference symmetry with reference to a user requires the calculated locations of

access points to be distributed around a user whose location is being calculated. (Def. Ex. C
('988) 9:51-10:4; Kotz Decl. ¶ 116.)
52.

A person having ordinary skill in the art would understand that reference

symmetry can relate to both to the distribution of Wi-Fi access points around the device
performing the calculation and the distribution of Wi-Fi access points throughout a target area, as
shown in Figure 3 of the patents. ((Def. Ex. G ('988 patent prosecution history) Reply to NonFinal Office Action of Nov. 30, 2007, p. 8.) Kotz Decl. ¶ 109.)
53.

Reference symmetry does not require the distribution of calculated locations of

access points to be exactly symmetrical or balanced. (Def. Ex. C ('988) Fig. 6, 9:51-10:4; Kotz
Decl. ¶ 117.)
54.

Figures 5 and 6 provide accused infringers with an objective standard by which to

measure reference symmetry. (Kotz Decl. ¶¶ 112.)
55.

An accused infringer could map the locations of the Wi-Fi access points collected

in its database and determine whether there is reference symmetry. (Kotz Decl. ¶ 118.)
56.

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Skyhook's claim construction for "reference symmetry" is as precise as the subject

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matter of the '988 and '694 patents permits. (Kotz Decl. ¶ 111.)
E.

"Avoid(s) Arterial Bias"

57.

The degree by which arterial bias will be avoided will depend on numerous

factors, including the number of roads in the target area, the location of each of the Wi-Fi access
points in the target area, and the capabilities of the scanning device used to collect Wi-Fi access
point information. (Kotz Decl. ¶ 125.)
58.

Skyhook's claim construction for "avoid(s) arterial bias" is as precise as the

subject matter of the '988 and '694 patents permits. (Kotz Decl. ¶ 126.)
59.

Figure 4 of the '988 patent shows a reduction in arterial bias from Figure 3 of the

'988 patent. (Def. Ex. C ('988) Figs. 3, 4; Kotz Decl. ¶ 128.)
60.

An accused infringer could map the locations of the Wi-Fi access points collected

in its database and determine whether there is arterial bias. (Kotz Decl. ¶ 129.)

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Respectfully submitted,
SKYHOOK WIRELESS, INC.,
By their attorneys
/s/ Samuel K. Lu________________
Samuel K. Lu (pro hac vice)
IRELL & MANELLA LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
[phone]
[e-mail]
Of counsel:
Thomas F. Maffei (BBO 313220)
Douglas R. Tillberg (BBO 661573)
GRIESINGER, TIGHE & MAFFEI, LLP
176 Federal Street
Boston, Massachusetts 02110
[phone]
[e-mail]
[e-mail]
Morgan Chu (pro hac vice)
John C. Hueston (pro hac vice)
Samuel K. Lu (pro hac vice)
Glenn K. Vanzura (pro hac vice)
Lina F. Somait (pro hac vice)
IRELL & MANELLA LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Dated: September 28, 2011

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Certificate of Service
I, Samuel K. Lu, hereby certify that this document filed through the ECF system will be
sent electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF) on September 28, 2011.

/s/ Samuel K. Lu
Samuel K. Lu

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