Weisner v. Google LLC

Filing 141

ORDER. After consideration of the proposed constructions submitted by the parties, the Court adopts the constructions set out in Column Four of the attached chart. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 4/4/23) (yv)

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 1 of 15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- x
SHOLEM WEISNER,
:
:
Plaintiff,
:
:
-against:
:
:
GOOGLE LLC and SHMUEL NEMANOV.
:
:
Defendant and Involuntary Party. :
:
--------------------------------------------------------------- x

ORDER
20 Civ. 2862 (AKH)

ALVIN K. HELLERSTEIN, U.S.D.J.:
Pursuant to Markman v. Westview Instr., Inc. 517 U.S. 370 (1998), the Court has
reviewed the parties’ respective positions regarding ambiguities in the claim language of U.S.
Patent Nos. 10,394,905 and 10,642,911. After consideration of the proposed constructions
submitted by the parties, the Court adopts the constructions set out in Column Four of the
attached chart.

SO ORDERED.
Dated:

4 2023
April ___,
New York, New York

/s/ Alvin Hellerstein
_______________________
ALVIN K. HELLERSTEIN
United States District Judge

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 2 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

‘905 Specifications 4:30-55:

’905 Patent, Claims 1, 11 and 14,
Preamble
“method/system of combining
enhanced [computerized]
searching for a target business
with use of humans as physical
encounter links”

Id. 17: 10-65
Id. 18: 1-65
Id. 19:1-65
Id. 20:1-65
Id. 21: 1-10
Id 4:3-55

The method of enhancing
computerized internet
searches for
for a target business
by implementing utilization
of human (individual member
carrying a mobile device)
physical encounters with
business locations as ranking
parameters to improve,
custom tailor, and personalize
web search results.

Preamble is limiting; The
claimed method/system
adjusts search result rankings
by consulting records of
humans’ physical encounters
to identify physical location
history entries members have
in common.

Court’s Construction
Methods and systems of
enhancing searches for a
business by use of records of
humans' physical encounters.

See, e.g., FH-000439, FH000447-49, FH-000451, FH00627, FH-00689-90, ’905
patent at 4:35-55, 17:53-18:35,
FIG. 9; see also FH-000219220, FH-000264-266.

Disclaimer: listing a claim phrase in this table on January 12, 2023 does not prevent a party from taking a position at a later date that
the claim phrase requires no construction or that a listed claim phrase should either be broken into shorter phrases or combined with
other phrases to form a longer listed claim phrase.
1

-1-

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 3 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

905 Specification; 4: 45
Id. 14:30

’905 Patent, Claims 1, 11 and 14
’911 Patent, Claims 1 and 12

Court’s Construction
No construction necessary.

Processing system that
utilizes manipulation and
control of information
(data) within the computer
system that houses the
database.

“processing system”

No construction necessary;
plain and ordinary meaning.
See, e.g., ’905 patent at FIGs.
1-6, 9, 2:33-41, 3:30-32, 4:3655, 21:34.

For listed phrases that are partially bolded, Google proposes to construe those parts of the claims that are bolded (having originally
used ellipses in place of intervening words in the claim for which it was not requesting a construction). The non-bolded parts
comprise additional language appearing in the claims that neither party proposes to construe; Plaintiff asked that the ellipses should be
filled in the Patent Claim language so the phrase would reflect the Patent Claim. Bracketed words are provided where largely the
same phrase is included in multiple claims with the differences shown by the bracketed words.
3 Plaintiff Weisner reserves his ability to cite to other Claim Specifications in the 905 and 911 Patents as supported herein and is not
bound by the Claim specification(s) cited herein.
2

-2-

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 4 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Court’s Construction
No construction necessary.

Id. 3:20-30
Id. 4:25-30
Id. 8:30-45

’905 Patent, Claims 1 and 14

Software installed on a device
that allows a user to interact
with their account at system
network database.

“providing an application”

-3-

No construction necessary;
plain and ordinary meaning.
See, e.g., ’905 patent at 3:2329, 4:24-31, 8:31-47, 9:30-31,
9:37-46, 14:27-34, 15:21-30.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 5 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3
Id. 7:45-55
Id. 11:10-40
Id. 15:45-60

’905 Patent, Claims 1, 11 and 14
“upon a physical encounter
between the individual member
and a stationary vendor member
of a plurality of stationary vendor
members of the member network
[at a physical premises of the
stationary vendor member], to
transmit key data of the
stationary vendor member and of
the individual member to the
processing system automatically
as a result of the physical
encounter”

Upon a Physical Encounter
meaning that a mobile user
physically entered a
stationary member business
premises (Stationary vendor
means any business/ vendor
who sells goods, or services at a
location) that is part of a

plurality of stationary
vendor members.
Key data (meaning URLs, or

information attached to members'
accounts and system network
URLs such as location data, type of
business, date/time data, contact
information, physical encounters,
etc.) from both the business

and store visitor are
automatically transmitted to
the processing system to be
implemented in improving
web search results.

-4-

Defendant’s (Google)
Proposed Construction

When an individual member
enters a stationary vendor
member’s physical business
location that causes an
application on the individual
member’s device to, at that
time, automatically transmit to
the processing system the
individual member’s “key
data” and “key data” received
from the stationary vendor
member.
See, e.g., ’905 patent at
Abstract, 1:6-10, 2:33-41,
3:18-29, 15:15-23, 11:929; see also ’905 patent at
FIG. 3, 7:45-55, 8:31-43, 9:58, 11:29-39, 15:45-60, FH00311-312, FH-000439.

Court’s Construction
When an individual who is
a member of the network
enters the physical business
location of a stationary
vendor which is also part of
the network, that causes an
application on the
individual member’s device
to automatically transmit to
the processing system the
“key data” of the stationary
vendor member and of the
individual member.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 6 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

’905 Patent, Claims 1, 11 and 14
“[upon] a location of each
individual member’s [device]
determined by the positioning
system”

905 Patent, Claims 1, 11 and 14
’911 Patent, Claims 1 and 12
“a stationary vendor member”

’905 Patent, Claims 1, 11 and 14
“key data”

Plaintiff Weisner’s Proposed
Construction 3
Id 13:30-35
Id 15:45-50

The application software
determines instances of physical
visits to business locations by
making use of a positioning
system such as GPS or any
other type of positioning
system.

Id 15:15-20
Any business/vendor that is a
member of the network who
sells goods, or services at a
location.

Defendant’s (Google)
Proposed Construction
The individual member
entering and exchanging “key
data” with the stationary
vendor member triggers the
positioning system to
determine the location of the
individual member [device].
See, e.g., ’905 patent at 13:5467, 13:31-34.

No construction necessary;
plain and ordinary meaning.

The individual member
entering and exchanging
“key data” with the
stationary vendor member
automatically causes the
positioning system to
determine the location of the
individual member [device].

A business at a physical
location that is a member of
the member network.

See, e.g.,’905 patent at 7:4652.

Data, including a URL or
other information, that the
Id 9:10-25
member previously designated
for transmission to other
Key Data includes a URL itself, members during “physical
or data describing the nature of encounters.”
business type and information or
advertisements associated with a See, e.g., ’905 patent at 3:37URL that a business chooses to 40, 7:37-40, 9:5-16, 21:32-33;
-5-

Court’s Construction

The information which a
member has selected to
receive from or transmit to the
network database or other
members.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 7 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Defendant’s (Google)
Construction 3
Proposed Construction
have that is updatable by vendor see also ’905 patent at
member.
Abstract, 4:6-9, 11:20-29,
17:20-34, FIGs. 1 and 9.

Logs with entries that capture
members’ physical
interactions and include “key
data” of the interacting
members.
’905 Patent, Claims 1, 11 and 14
“physical location histories”

Physical Location Histories
meaning the totality of the
captured physical interactions
between individual mobile
members and stationary vendor
members over time.

-6-

See, e.g., ’905 patent at 21:2733, Abstract (lines 1-12), 1:410, 2:33-41, 8:22-26, 10:3948; see also ’905 patent at
1:33-37, 2:63-3:22, 3:37-40,
7:61-64, FIG. 5, 8:31-42,
11:20-39, FH-000264-266,
FH-000307, FH-000311, FH000312.

Court’s Construction

Histories of physical
interactions over time that
include “key data” of the
interacting members.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 8 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Improves the search result
ranking of the first stationary
vendor member based on a
physical location relationship
wherein:

Id 17:50-67
Id 18:1-15
Id 20:1-65

’905 Patent, Claims 1, 11 and 14
“increases the ranking of a first
stationary vendor member based on
the physical location relationship
wherein the relationship is as
follows”

Court’s Construction

The system implements
physical location histories to
improve web search
algorithms that provide the
pieces of content that will best
answer a searcher's query,
which means that results are
ordered by most relevant to
least relevant. This is
accomplished by comparing a
plurality of physical location
histories of individual
members where they had incommon visits to certain
businesses or class of
businesses or services.
physical location relationship
meaning as explained below;

-7-

Improves the position of the
first stationary vendor member
in search result order based on
the physical location
relationship further described
in (a) and (b) below.
See, e.g., ’905 patent at 4:4255, 17:53-18:15, FIG. 9; see
also ’905 patent at 17:8-19,
17:43-52, Abstract (lines 1-8,
16-17), 18:16-36, 19:27-44,
19:45-20:1.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 9 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Id 17:50-65
Id 18:1-15

’905 Patent, Claims 1, 11 and 14
“(a) the reference individual
member’s physical location history
includes key data of the first
stationary vendor member; and (b)
the searching person’s physical
location history and the reference
individual member’s physical
location history each include key
data of a second stationary vendor
member”

When a searching person has
physically visited a business
that a reference individual (who
they may have never met, from
a plurality of reference
individuals) has also visited,
other businesses visited by the
reference individual that are
relevant to the search are
increased in ranking for search
results: 4

A reference member’s
physical location history has:
(1) key data from the first
stationary vendor member, and
(2) key data from a second
stationary vendor member
which key data from the
second stationary member is
also in the searching members’
physical location history.

Court’s Construction
(a) key data from the first
stationary vendor member is
included in a reference
individual member's physical
location history, and (b) key
data from a second stationary
vendor member is included in
both the searching person's
physical location history and
the reference individual
member's location history.

See, e.g., ’905 patent at 21:5063; 4:42-55, 17:53-18:15, FIG.
9; see also 17:8-19, 17:43-52,
Abstract (lines 1-8, 16-17),
18:16-36, 19:27-44, 19:4520:1.

Google Diagram from Weisner v. Google LLC, 51 F.4th 1073, 1086 (October 13, 2022)(“Even Google recognizes the specificity in
this process with the following diagram from its appeal brief [Appellee's Br.12] illustrat[ing the relationships”).
4

-8-

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 10 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

911 Patent Specification

’911 Patent, Claims 1 and 12,
Preamble
“method/system of enhancing
digital search results for a business
in a target geographic area using
URLs of location histories”

Id.15: 1-20
Id.17:30-35
Id. 20:60-65

Id. 21:1-10

The system enhances digital
search results [for a business in
a target geographic area] by
utilizing URLs of location
histories that record details of
physical interactions such as
frequency of interactions,
geographic area, time and type
of business that were previously
visited by individual members.

-9-

Preamble is limiting; claimed
method/system adjusts search
result ranking by considering
URLs of businesses found in a
log of entries that captured
information about physical
interactions between
individual members and
stationary vendor members.
See, e.g., FH-000451, FH001266-67, FH-001309,
FH0001314; ’911 patent at
4:43-62, 17:12-23, FIG. 9,
15:25-39, 17:47-56, 18:39-52,
20:62-67.

Court’s Construction

Methods and systems of
enhancing searches by use
of URLs of stationary
vendor members found in a
log of entries that captured
information about physical
interactions between
individual members and
stationary vendor members.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 11 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Each individual member and
stationary vendor member has
an account, and each of these
accounts has a unique URL
associated with it.

Id 15:15-25

’911 Patent, Claims 1 and 12
“an account to (i) an individual
member and (ii) a stationary vendor
member, of a member network, the
account associated with a URL”

Court’s Construction

Individual mobile user members
of the network and business
vendor members of the network
are both registered with accounts
to access and enable the features
of the system network. Each
individual account and its key
data are connected to an
individualized URL thereby
making the data internet
searchable and improving web
algorithm search results.

-10-

Each of the individual member
account and stationary vendor
member account has a unique
URL associated with it.
See, e.g., ’911 patent at 3:3749, 9:1-9, 11:31-36.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 12 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Id 5:45-60
Id 13:55-65
Id 14:1-5
*See ‘911 figure 7

’911 Patent, Claims 1 and 12
“accumulate a location history on
a database maintained by the at least
one processing system from
physical encounters by the
individual member at multiple
stationary vendor members upon
the mobile communication device
being set to enter instances of a
physical encounter between the
individual member carrying the
mobile communication device and
the stationary vendor member at
a physical premises of the
stationary vendor member”

The individual member has the
ability to set a cue on his
account to automatically
accumulate physical location
history URLs that have contact
data or advertisements or other
data of the stationary vendor
member which the system
automatically stores in the
individual members account
[on a database maintained by
at least one processing system]
upon an individual member
visiting a stationary vendor
member business premises.

-11-

The device is programmed to
automatically make successive
entries to an individual
member’s log that include the
time, place and URL of a
business when an individual
member physically interacts
with a business and at the
business’s physical location.
See, e.g., ’911 patent at 13:5864, 21:14-16, 21:42-44, 21-4751, Abstract (lines 1-12), 1:612, 3:25-29, 4:14-17, 7:53-62,
FIG. 3, 11:16-39; see also
’911 patent at 5:1-7, 6:14-26.

Court’s Construction

The device is configured to
allow the user to set the
individual member's device
to make successive entries
automatically to an
individual member’s log that
include key data of a
business, and time, place,
and URL, when an
individual member
physically interacts with a
business and at the
business’s physical location.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 13 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

Defendant’s (Google)
Proposed Construction

Court’s Construction

’911 Patent, Claims 1 and 12
Id 15:45-55

“[upon] determining a location of
the individual member”

The individual member
entering and exchanging key
data with the stationary vendor
member triggers determining
the location of the individual
member [device].

The system makes use of a
positioning system (such as
GPS or any other type of
positioning systems) which
See, e.g., ’911 patent at 13:58determines the location of an
14:4, 13:35-40.
individual member when they
enter a business vendor location.

-12-

Upon a physical encounter
between the individual
member and the stationary
vendor member and when
key data is received or
transmitted, the positioning
system determines the
location of the individual
member [device].

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 14 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3
Id 4:45-50
Id 15:5-20
Id 20:55-65
Id 21:1-10

’911 Patent, Claims 1 and 12
“searching, [by the search engine,]
the database for URLs of stationary
vendor members in the location
history”

’911 Patent, Claims 1 and 12
“assigning a priority, by the at least
one processing system, in a search
result ranking based on an
appearance of one of the stationary
vendor member”

The system assigns a URL to
each individual and stationary
vendor member that is saved in
the database. A mobile user
member’s location history of
visits to businesses is
implemented to improve and
enhance web search engines
though making this data internet
searchable by virtue of the
chronological list of those
business URLs saved to their
account’s location history.

Defendant’s (Google)
Proposed Construction

The search engine searches a
database containing the
searching individual member’s
accumulated “physical
location histories” entries for
URLs of stationary members

The search engine searches a
database containing the
searching individual member’s
accumulated
“physical location history”
entries for URLs of stationary
members.

See, e.g., ’911 patent at 21:2635, 21:14-16, 21:44-46, 4:4362, 15:25-39, 17:12-23, FIG.
9.

Providing a weighting factor
for search result ranking that
improves the position for a
particular stationary vendor
The system improves web search member’s URL that appears in
rankings for member businesses the searching individual
based on data points such as member’s location history.
frequency, geographic location
and time of their appearance in See, e.g., ’911 patent at 21:14mobile users’ physical location 16, 21:42-46, 21:50-53, 17:12histories.
23, 18:12-18, 19:61-20:1, FHId 4:45-50
Id 7:30-40
Id 17:45-55

000448, FH-001266-67, FH-

-13-

Court’s Construction

The Court adopts Defendant's
proposed construction.

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 15 of 15
Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH
U.S. Patent Nos. 10,394,905 and 10,642,911
Claim Phrase 1,2

Plaintiff Weisner’s Proposed
Construction 3

-14-

Defendant’s (Google)
Proposed Construction
001309, FH0001314; see also
’911 patent at 17:47-56, 18:1938, 19:28-44.

Court’s Construction