CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Filing 139

MOTION for Summary Judgment FB Motin for SJ of Invalidity filed by FACEBOOK, INC., THEFACEBOOK, LLC.Motion. (Attachments: # 1 Text of Proposed Order)(KEEFE, HEIDI)

CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Doc. 139

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CROSS ATLANTIC CAPITAL PARTNERS, INC. Plaintiff, v. FACEBOOK, INC. and THEFACEBOOK, LLC, Defendants. CIVIL ACTION NO. 07-CV-02768-JP ORAL ARGUMENT REQUESTED FACEBOOK MOTION NO. 3

FACEBOOK'S MOTION FOR SUMMARY JUDGMENT OF INVALIDITY

PALOALTO 89194 (2K)

Dockets.Justia.com

TABLE OF CONTENTS I. II. INTRODUCTION .................................................................................................................. 1 THE '629 PATENT ................................................................................................................ 2 A. The Claims of the '629 Patent ............................................................................................ 2 B. The '629 Patent's Priority Date Is No Earlier Than February 25, 2000. ............................ 3 III. DISCUSSION ..................................................................................................................... 5 A. Patent Is Invalid If Someone Else Invented First................................................................ 5 B. The '629 Patent is Anticipated by U.S. Patent No. 6,223,177............................................ 6 1. The '177 Patent Anticipates Claim 1 .............................................................................. 7 2. The '177 Patent Anticipates Claim 2 ............................................................................ 12 3. The '177 Patent Anticipates Claim 3 ............................................................................ 13 4. The '177 Patent Anticipates Claim 4 ............................................................................ 13 5. The '177 Patent Anticipates Claim 5 ............................................................................ 13 6. The '177 Patent Anticipates Claim 6 ............................................................................ 14 7. The '177 Patent Anticipates Claim 7 ............................................................................ 15 8. The '177 Patent Anticipates Claims 9-15 ..................................................................... 15 9. The '177 Patent Anticipates Claims 17-23 ................................................................... 16 10. The '177 Patent Anticipates Claims 25-31 ............................................................... 18 C. The '629 Patent is Anticipated by U.S. Patent No. 6,750,881.......................................... 19 1. The '881 patent Anticipates Claim 1 ............................................................................ 20 2. The '881 patent Anticipates Claim 2 ............................................................................ 24 3. The '881 patent Anticipates Claim 3 ............................................................................ 24 4. The '881 patent Anticipates Claim 4 ............................................................................ 25 5. The '881 patent Anticipates Claim 5 ............................................................................ 25 6. The '881 patent Anticipates Claim 6 ............................................................................ 25 7. The '881 patent Anticipates Claim 7 ............................................................................ 26 8. The '881 patent Anticipates Claims 9-15 ..................................................................... 26 9. The '881 patent Anticipates Claims 17-23 ................................................................... 26 10. The '881 patent Anticipates Claims 25-31 ............................................................... 27 D. The '629 Patent is Anticipated by U.S. Patent No. 6,608,636.......................................... 27 1. The '636 Patent Anticipates Claim 1 ............................................................................ 28 2. The '636 Patent Anticipates Claim 2 ............................................................................ 31 3. The '636 Patent Anticipates Claim 3 ............................................................................ 31 4. The '636 Patent Anticipates Claim 4 ............................................................................ 31 5. The '636 Patent Anticipates Claim 5 ............................................................................ 32 6. The '636 patent Anticipates Claim 6 ............................................................................ 33 7. The '636 patent Anticipates Claim 7 ............................................................................ 33 8. The '636 patent Anticipates Claims 9-15 ..................................................................... 33 9. The '636 patent Anticipates Claims 17-23 ................................................................... 34 10. The '636 patent Anticipates Claims 25-31 ............................................................... 34 E. The '629 Patent Is Invalid For Obviousness..................................................................... 35 IV. CONCLUSION................................................................................................................. 39

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i

TABLE OF AUTHORITIES FEDERAL CASES Agrizap, Inc. v. Woodstream Corp., 520 F.3d 1337 (Fed. Cir. 2008) .............................................................................35, 38 Augustine Medical, Inc. v. Gaymar Industries, Inc., 181 F.3d 1291 (Fed. Cir. 1999)......................................................................................4 Brown v. 3M, 265 F.3d 1349 (Fed. Cir. 2001)......................................................................................5 In re Chu, 66 F.3d 292 (Fed. Cir. 1995)..........................................................................................4 In re GPAC Inc., 57 F.3d 1573 (Fed. Cir. 1995)......................................................................................35 Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966).........................................................................................................35 KSR Intern. Co. v. Teleflex Inc., ___ U.S. ____, 127 S.Ct. 1727 (2007).........................................................5, 35, 36, 38 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).......................................................................................................5 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).......................................................................................................6 Peters v. Active Manufacturing Co., 129 U.S. 530 (1889).......................................................................................................5 PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299 (Fed. Cir. 2008)..................................................................................4, 5 Schering Corp. v. Geneva Pharmaceuticals, Inc., 339 F.3d 1373 (Fed. Cir. 2003)......................................................................................5 Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316 (Fed. Cir. 2001)......................................................................................6 In re Winslow, 365 F.2d 1017 (C.C.P.A. 1966) ...................................................................................35 FEDERAL STATUTES 35 U.S.C. § 102.......................................................................................................... passim 35 U.S.C. § 103........................................................................................................5, 35, 38

I.

INTRODUCTION U.S. Patent No. 6,519,629 (the '629 patent") is invalid. The patent purports to cover a

technique for creating customized on-line communities over a computer network, where a user provides: (1) identification information, such as a name, and (2) a selection of at least one application object for the community, such as chat or bulletin board applications. The alleged invention then uses these two pieces of information to create a community that can be made available to other users via some form of invitation. But by 1998, this was old. A patent is only valid if the invention is novel. Nothing claimed in the '629 patent was novel. To the contrary, there were numerous prior patents, patent applications, publications, products and systems that described systems for creating on-line communities using the exact same method claimed in the '629 patent long before the patent's application was filed. None of that prior art was brought to the attention of the Patent Office during prosecution of the '629 patent. This motion focuses on three of those prior art references: U.S. Patent No. 6,223,177, entitled "Network Based Groupware System," which discloses a system that allows a user to create a community (in the form of a dedicated website) with a name and selected applications such as chat or bulletin board to which the user can invite others through e-mail; U.S. Patent No. 6,750,881, which describes a community creation system used by America Online ("AOL") which allows a user to create a customized community with a chat application, to which others can be invited; and U.S. Patent No. 6,608,636 B1, which discloses a system for creating a community (in the form of a virtual "conference room") with applications, like whiteboards, in which invited members can interact. This case can and should be disposed of based on the invalidity of the '629 patent. There is no dispute as to what the prior art discloses or how it applies to the claims of the '629 patent. Each piece of prior art is straightforward and understandable and each reference invalidates the '629 patent claims so clearly that no third party or expert testimony is required. Summary judgment should be granted for the reasons expressed below.

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1

II.

THE '629 PATENT A. The Claims of the '629 Patent

The '629 patent includes thirty-two (32) claims, all of which are being asserted by Cross Atlantic Capital Partners, Inc. ("XACP"). Claims 1, 9, 17 and 25 are independent claims, and each is followed by seven substantially identical dependent claims. The claims can thus be divided into four groups based on the independent claims (1-8, 9-16, 17-24, and 25-32). Each group of claims recites either a method or system for creating a community in which users with common interests can interact. Claims 1 through 8 provide:
1. A method for creating a community for users with common interests to interact in, the method comprising the steps of: receiving a creation transmission from a registered user, the creation transmission indicating that the registered user desires to create a community; receiving community identification information from the registered user; receiving a selection of at least one application object from the registered user; creating a community based on the community identification information and the at least one application object; receiving at least one communications address designated by the registered user, the at least one communications address corresponding to a user to receive a created community; and transmitting the created community based in part on the at least one communications address. 2. The method according to claim 1, wherein the step of transmitting the created community further comprises transmitting the created community and a user interface. The method according to claim 1, wherein the at least one communications address is an e-mail address. The method according to claim 1, wherein the selected at least one application object comprises at least one of: a) chat application object; b) an instant message application object; c) a white board application object; d) a shopping cart application object; e) an invitation application object; f) a creation application object; g) a photo album application object; h) a store application object; i) a calendar application object; j) a video conferencing application object; k) a voice chat application object; l) an email list application object; m) a bulletin board application object; and n) a pals application object.

3.

4.

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5.

The method according to claim 1, further comprising the step of receiving a selection to subscribe to at least one subscription object, wherein the at least one subscription object is accessed through one of the at least one application object. The method according to claim 5, wherein the at least one subscription object is published by at least one of: a) at least one other community; b) at least one other user; and c) at least one vendor. The method according to claim 5, wherein accessing the at least one subscription object through the one of the at least one application object maintains all of the original features of the subscription object. The method according to claim 1, wherein community information further comprises community fields, whereby the community presents to a user at least (sic) at least one of: a) at least one other user having user fields; b) at least one other community having community fields; and c) at least one vendor product having vendor fields; wherein the presentation is based in part on a comparison of user fields, community fields and vendor fields.

6.

7.

8.

The other three groups of claims are substantially similar to claims 1-8. Claims 9-16 recite a "system" for creating a community with elements that generally track those recited in claims 1-8. Claims 17-24 are method claims that recite essentially the "flip side" of the community creation method in claims 1-8. In particular, while the steps of claim 1 recite "receiving" certain information, claim 17 recites a method involving "transmitting" that same information. Claims 25-32 recite a system for creating a community with elements that are similar to those of 17-32, but include the additional element of a "display module," which requires a computer monitor or other display device or hardware. For purposes of the invalidity analysis presented in this motion, there is no material difference between claims 1-8 and the other three groups of claims. Accordingly, in the interests of brevity, this motion focuses its analysis on claims 1-8 and discusses the other claims only to the extent required. B. The '629 Patent's Priority Date Is No Earlier Than February 25, 2000.

The application for the '629 patent was filed on October 2, 2001 as a "divisional" of an earlier application filed on February 25, 2000. Both applications shared the same written description but had different claims. As explained below, the earliest priority date the '629

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patent can claim is February 25, 2000, so any references that predate that date qualify as potentially invalidating prior art. The February 25, 2000 application was a "continuation-in-part" of an earlier application filed on September 15, 1998. See Weinstein Decl., Ex. A ('629 patent), front cover, item 60. A continuation-in-part ("CIP") is a patent application that contains subject matter from a prior application and additional matter not disclosed in the prior application. See Augustine Medical, Inc. v. Gaymar Industries, Inc., 181 F.3d 1291, 1302 (Fed. Cir. 1999). "Subject matter that arises for the first time in the CIP application does not receive the benefit of the filing date of the parent application." Id.; see also, In re Chu, 66 F.3d 292, 297 (Fed. Cir. 1995) ("It is elementary patent law that a patent application is entitled to the benefit of the filing date of an earlier filed application only if the disclosure of the earlier application provides support for the claims of the later application, as required by 35 U.S.C. § 112."). The Federal Circuit has held that a patent issuing from a continuation-in-part application is presumptively not entitled to the earlier application's priority date. See PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1305-06 (Fed. Cir. 2008). Instead, a patent holder seeking to rely on an earlier application bears the burden of establishing that the earlier application disclosed each element of the claimed invention. See id. XACP cannot meet any such burden because the entire description of the community creation system was added in the February 25, 2000 application. Figure 2 of the '629 patent and the text following the section entitled "Creating a Community" (beginning on Col. 7, line 25) describe the essential steps for creating a community that are required by all of the independent claims.1 The earlier 1998 application did not contain any of these disclosures, and in fact, the word "community" does not appear even once in that application. See Weinstein Decl., Exs. H
1

For example, that section of the patent describes the receipt of community identification information (Col. 7, ln. 61-col. 8, ln. 65), selection of application objects for the community (beginning at Col. 9, ln. 13) and inviting other users to join the community (beginning at Col. 12, ln. 55). These disclosures are not present in the earlier application. The disclosures of the '629 patent relating to subscription objects (beginning at Col. 19, ln. 25), and the matching of user, community and vendor fields (beginning at Col. 22, ln. 1) were also not present in the earlier application. See generally Weinstein Decl., Ex. H.

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and I.) The claims of the '629 patent are therefore entitled to a priority date of no earlier than February 25, 2000. III. DISCUSSION A. Patent Is Invalid If Someone Else Invented First.

The patent system was established to foster and reward new inventions. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479 (1974). To be patentable, an invention must be novel. See 35 U.S.C. § 102. Pursuant to 35 U.S.C. § 102, a patent is invalid for lack of novelty if it can be shown that a single document or prior art reference expressly or inherently discloses each element of the claimed invention. See, e.g., Schering Corp. v. Geneva Pharmaceuticals, Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). In simplest terms, a single piece of prior art that contains each element of a patent claim is said to "anticipate" that claim, rendering it invalid. Id. at 1377. Anticipation is determined through a simple comparison between the claim language and the prior art reference, using an analysis similar to the one used to determine whether the claim is infringed. "The principle of law is concisely embodied in the truism that: `That which infringes if later anticipates if earlier.'" Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2000) (quoting from Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889)). Moreover, a patent claim can be invalid even if each element of the claim is not found in a single prior art reference. If the differences between patented subject matter and the prior art are such that the subject matter as a whole would have been "obvious" to a person having ordinary skill in the art, the claim is invalid. See 35 U.S.C. § 103; KSR Intern. Co. v. Teleflex Inc., ___ U.S. ____, 127 S.Ct. 1727, 1734 (2007). A party challenging the validity of a patent bears the burden of showing invalidity by clear and convincing evidence. See PowerOasis, Inc., 522 F.3d at 1305. Once the challenger meets this burden, the patent holder is obliged to demonstrate why its patent is valid. See id. Summary judgment is appropriate when the moving party demonstrates that there is "no genuine issue as to any material fact and that the movant is entitled to a judgment as matter of law." Fed. R. Civ. P. 56(c). There is no genuine dispute of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita -5PALOALTO 89194 (2K)

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment of invalidity is proper when, as here, no reasonable jury could find the patent valid over the prior art. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1327 (Fed. Cir. 2001). B. The '629 Patent is Anticipated by U.S. Patent No. 6,223,177

Like the '629 patent, U.S. Patent No. 6,223,177 ("'177 patent"), entitled "Network Based Groupware System" and assigned to Involv International Corporation, discloses a technique for creating a community in which users with common interests can interact. See Weinstein Decl. Ex. B ('177 patent) at Col. 1, ll. 11-18.2 The '177 patent qualifies as prior art under 35 U.S.C. § 102(e) because its application was filed on November 19, 1998, more than a year before the application that resulted in the '629 patent was filed. As shown in Fig. 1 of the '177 patent (below), a registered user (known as a "primary user") can create a dedicated website community customized for a particular project or goal (e.g., site #4). As explained in more detail below, the community of the '177 patent is created based upon a name and applications selected by the primary user. The primary user can then invite other users (known as "secondary users") to join that community. Creation of and access to a community created using the technique described in the '177 patent takes place through a conventional Internet web browser.

2

The '177 patent also claims priority to Canadian Patent No. 2 221 790, which contains an identical disclosure and was filed on November 19, 1997. See Weinstein Decl. Ex. C. For purposes of clarity and consistency, all citations in the text refer to the '177 (U.S.) patent.

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See also accompanying text at '177 patent Col. 3, ll. 24-38 and Col. 4, ll. 1-4, 11-12 and 14-18. The '177 patent discloses each and every limitation of claims 1-7, 9-15, 17-23 and 25-31 of the '629 patent, as explained below. 1. The '177 Patent Anticipates Claim 1

"receiving a creation transmission from a registered user, the creation transmission indicating that the registered user desires to create a community" The Court has construed "creation transmission" to be "an electronic transmission through a private or public communications network indicating a request to create a community." February 29, 2008 Order at 2. The process of creating a community disclosed in the '177 patent begins when a registered user (known as the "primary user") requests that a new community, i.e. dedicated website, be created. "Server 10 has a unique resource locator (URL) address and comprises a means to create a dedicated intranet3 site 25 (e.g. Site#4) on the server in response to an initiate request received from a primary user 30." ('177 patent, Col. 3, ll. 29-33 (emphasis added).) The request to create a new community is made by the primary user connecting to the server via a
3

The patent makes clear that it can be used either with an "intranet" (private) or the more common "internet" (public). ('177 patent, Col. 4, ll. 1-4, 11-12 and 14-18).

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web browser using a public or private network: In order to create a private office suite, a primary user uses his/her web browser 110 to contact the intranet connected server. The server confirms the identity 120 of the primary user and directs the primary user to the system homepage 130. From the system homepage, the primary user can access his/her personal workspace 140. Among other options which will be discussed below, the primary user has the option to enter an existing workgroup with a pre-defined dedicated site or to create a new workgroup with a new, unique dedicated site (150). *** If the primary user wishes to create a new workgroup, he/she is provided with a workgroup creation template (170) which permits the primary user to define parameters of the workgroup, such as the name of the workgroup and the site to be created, the scope of the project being undertaken, the number of team members, etc. (Col. 4, ll. 43-48, 55-60.) The primary user described above is a "registered user" under the Court's definition. The Court has construed "registered user" to mean "a user who has provided, at least once, requested registration information (e.g., name, address, personal information, etc.) and forwarded the information to a controller." February 29, 2008 Order (Doc. No. 81) at 3. The primary user is a registered user because, as noted in the quoted text above, the server confirms the primary user's identity before the primary user is given access to the system. ('177 patent, Col. 4, ll. 44-46; Fig. 2A (step 120).) Obviously, in order for the server to be able to confirm the identity of the primary user, its identity must have been provided to the server. "receiving community identification information from the registered user;" The registered user also provides community identification information by entering the name of the community to be created. This is accomplished by the '177 patent when the primary user enters a unique name for the dedicated website that he or she desires to create. ('177 patent, Col. 4, ll. 55-50 ("If the primary user wishes to create a new workgroup, he/she is provided with a workgroup creation template (170) which permits the primary user to define parameters of the

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workgroup, such as the name of the workgroup and the site to be created, the scope of the project being undertaken, the number of team members, etc.") (emphasis added); see also Col. 4, ll. 6165; Col. 2, ll. 26-29 (specifying that the dedicated site has a "unique name" based on the information received from the primary user).) "receiving a selection of at least one application object from the registered user" The registered user also provides a selection of at least one application object that will be included in the community, i.e. dedicated website. The Court has construed the term "application object" as "[a] computer program or module that functions to direct a user to specific information and/or enables a user to do something useful, and may be for, among other things, JAVA, chat, instant messaging, navigation, searching, addresses, a news group, announcements, a white board, a calendar, video conferencing, video chat, and/or a bulletin board." February 29, 2008 Order at 3-4. The system disclosed in the '177 patent allows the primary user to customize a community by specifying the specific application objects that will be included with his dedicated website. As explained in the patent: "[t]he dedicated site created in response to the initiate request can be thought of as being a private office suite within the semi-public intranet." ('177 patent, Col. 4, ll. 19-21.) The patent further explains: The private office suite comes complete with all the application software required to permit group activity within the office. The primary user can construct a private office suite to include the specific applications desired. Thus, an advantage of the present system is that the user is provided with a customizable, secure office suite in which the user and his/her team members can access applications software without the need for each team member to have individual copies of each applications software. ('177 patent, Col. 4, ll. 25-33 (emphasis added).) The primary user selects the desired applications for his dedicated site by using the same web-based user interface used to provide the other information: "[d]uring completion of the template, the primary user is prompted to identify the number and contact addresses of the group members, the types of user applications which are to be utilized during the project and to provide -9PALOALTO 89194 (2K)

a name for the dedicated site to be created." ('177 patent, Col. 4, ll. 61-65 (emphasis added); see also Col. 7, ll. 42-45 ("Fig 3d shows an application menu (Tab 320d) which can be utilized by a user to create dedicated sites and add users to a workgroup.").) The patent identifies these user applications as follows: Preferred workgroup activity applications of the present system include bulletin board, chat room, calendar, contact database, change control, event planner, group discussion, issue management, project collaboration, presentation library, decision survey in a box, NGS proposal development, document manager, and You[r] Own Custom Application. ('177 patent, Col. 6, ll. 14-19.) The patent goes on to describe these (and other) applications in detail. (Col. 6, ln. 21-col. 7, ln. 12.) These applications clearly meet the definition of an "application object" because each is a "computer program or module that functions to direct a user to specific information and/or enables a user to do something useful." In fact, at least three of the applications identified in the '177 patent (e.g. chat, bulletin board, calendar) are specifically identified in the Court's construction as exemplary application objects. "creating a community based on the community identification information and the at least one application object" The '177 patent states that the dedicated website is created after the user completes the creation template. This template, as noted above, prompted the primary user to provide identification information (e.g., name) and a selection of applications to be used with the dedicated site. ('177 patent, Col. 4, ll. 61-65.) The patent discloses that: "[o]nce this template has been completed, the server creates a dedicated site (180) having the name chosen by primary user." ('177 patent, Col. 4, ln. 66-col. 5, ln. 1.) The Court has construed the term "community" as "information and at least one function relating to a specific transaction, interaction, and/or expression of interest that may be accessed and/or interacted with by a plurality of users with common interests through a private or public communications network, such as web pages or an Internet site." February 28, 2008 Order (Doc.

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No. 81) at 1.4 The dedicated site created under the '177 patent is a "community" that was created based on both the community identification information (e.g. name) and the application object(s) selected by the user (chat, bulletin board, etc.). (See, e.g., '177 patent, Col. 4, ll. 27-28 ("The primary user can construct a private office suite to include the specific applications desired."); Col. 6, ll. 13-19 ("Preferred workgroup activity applications of the present system include . . . event planner . . . project collaboration . . . document manager . . . ."); Col. 7, ll. 4446 ("Different styles of sites can be created, depending on the function of the site, e.g. Project Collaboration, Event Planning, Document Managing, etc.").) The dedicated site is accessible through a standard web browser as a web page. (Col. 3, ll. 39-49.) "receiving at least one communications address designated by the registered user, the at least one communications address corresponding to a user to receive a created community" The registered user of the '177 patent can also specify at least one communications address corresponding to a user to receive a created community. The Court has construed "communications address" as "[t]he precise location in a computer system or network where a communication may be received or sent, such as an e-mail address, IP address, URL or Internet Relay Chat address." February 29, 2008 Order at 5. The '177 patent explains that the primary user can specify the communications addresses of other users who will be invited to join the dedicated website: "[d]uring completion of the template, the primary user is prompted to identify the number and contact addresses of the group members . . ." ('177 patent, Col. 4, ll. 61-65 (emphasis added).) As explained in more detail in the next section, these communications addresses are used by the server to send messages to prospective group members (e.g., by e-mail) inviting them to join and access the dedicated site. (Col. 5, ll. 1-34.) "transmitting the created community based in part on the at least one communications
4

The '629 patent uses the term "function" and "application object" synonymously. See, e.g.,'629 patent, Col. 9, ll. 13-17 ("According to an embodiment of the invention, a configuration editor may present various standard community templates and application objects (or `functions') to build a community, and various options or customizations for a creator to create a community."). (emphasis added.)

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address." The system of the '177 patent transmits the created community, i.e. the dedicated site, based on the communications address(es) received from the primary user. The system disclosed in the '177 patent accomplishes this by communicating the existence of the dedicated website to the invited users, and then providing the website content to the users once they have joined. ('177 patent, Col. 2, ll. 21-34.) As explained in the '177 patent: The administration sub-system checks to see whether all the prospective group members identified by the primary user are listed on the existing intranet-user database (190). If a prospective group member is an existing intranet user, the server then sends details of the newly created dedicated site to that member of the group (secondary user) (200). In a presently preferred embodiment, the server automatically creates a link between each secondary user's personal workspace and the newly created dedicated site. Alternatively, the details of the web-site may be sent in the form of an E-mail message which provides each secondary user with the address of the dedicated site, an invitation to join the workgroup and, if applicable, the password required for gaining access to the site (see later). ('177 patent, Col. 5, ll. 1-26.) External users can also be notified of invitations by e-mail. (See Col. 7, ll. 49-53 and Col. 3. ll. 50-60.) When an invited user accesses the dedicated site, the contents of the site are downloaded to the user via a web-browser. (E.g., Col. 2, 32-34, col. 3, ll. 50-60.) "Once the approved secondary users have been notified of the existence of the dedicated site, the workgroup remains operational until all workgroup activities have been completed (260)." (Col. 5, ll. 34-37.) 2. The '177 Patent Anticipates Claim 2

Claim 2 recites: "The method according to claim 1, wherein the step of transmitting the created community further comprises transmitting the created community and a user interface." As explained in more detail above, the community created in accordance with the '177 patent is provided through a user interface and accessed through a standard Internet web browser. (See Col. 3, ll. 39-42 ("Both primary user 30 and secondary user 40 can communicate with server 10 by means of an HTML compliant client supporting a graphical user interface and internet browser, such as Netscape Navigator or Microsoft Explorer . . . .").) Users connect and

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communicate with the community through a web browser, and the community appears to the user as an ordinary web page. (See Col. 3, ll. 46-49 ("Information on the [dedicated] site 25 is credited as a hypertext document and is thus displayed as a web page on the GVI of the user's web browser, with a link to this hypertext document."); Col. 2, ll. 32-34 (specifying step of "downloading contents of the dedicated intranet site to the second user via a web-browser installed at the second user").) Graphical screenshots of the user interface are shown in Fig. 3. 3. The '177 Patent Anticipates Claim 3

Claim 3 states: "The method according to claim 1, wherein the at least one communications address is an e-mail address." The '177 patent makes clear that an e-mail address can readily be used to designate users to receive a created community, i.e. the dedicated website. (E.g., Col. 5, ll. 9-23 ("Alternatively, the details of the web-site may be sent in the form of an E-mail message . . . ."); Col. 8, ll. 12-14, col. 9, ll. 11-12 ("a messaging system for communicating existence of the dedicated network site to a selected ones of the list of secondary users," "wherein the messaging system comprises E-mail.").) 4. The '177 Patent Anticipates Claim 4

Claim 4 provides: "The method according to claim 1, wherein the selected at least one application object comprises at least one of," and then provides a list of fourteen (14) different types of application objects. These application objects include, by way of example, a "chat application object," an "instant message application object," "a calendar application object," "a bulletin board application object," and several others. Although claim 4 requires that only one of the 14 listed application objects be present, the '177 patent discloses at least three of them; chat application object, calendar application object and bulletin board application object. (See '177 patent, Col. 6, ll. 14-19 ("Preferred workgroup activity applications of the present system include bulletin board, chat room, calendar . . . .").) 5. The '177 Patent Anticipates Claim 5

Claim 5 recites: "The method according to claim 1, further comprising the step of

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receiving a selection to subscribe to at least one subscription object, wherein the at least one subscription object is accessed through one of the at least one application object." The '177 patent fully discloses the ability of users to subscribe to subscription objects as recited in claim 5. The Court has construed the term "subscribe" as "select to be interacted with and/or accessed in one or more communities. . ." February 29, 2008 Order (Doc. No. 81) at 5. A subscription object is simply "[a]n object that is published and to which a user may subscribe, which may comprise, but is not limited to, chat content, a publication, a product to purchase, a photograph file, web page and/or other item." Id. at 3. And the term "published" means "[m]ade available for others to interact with and/or access in one or more communities." Id. at 4. The '177 patent discloses numerous application objects that allow users to select content for access or allow other users to publish content. With respect to the bulletin board application, for example, the '177 patent discloses: "A bulletin board is a common place for team members to post anything that might be of interest to the team. Discussion, file attachments, and broadcast main are available. Additionally, a number of views may be utilized to gain access to the information, including by date, by author, by type, etc." ('177 patent, Col. 6, ll. 21-26.) Additionally, the calendar and event planner applications in the '177 patent allow users to publish calendar items for other users to retrieve and view. (Col. 6, ll. 30-34, 41-45.) There are numerous other examples of applications that have similar publish-and-subscribe capabilities, including document management, a system for creating and viewing surveys, contact databases, project collaboration tools, and others. (See generally, Col. 6, ln. 34-col. 7, ln. 8; Fig. 3D) 6. The '177 Patent Anticipates Claim 6

Claim 6 is a dependent claim that recites: "The method according to claim 5, wherein the at least one subscription object is published by at least one of: a) at least one other community; b) at least one other user; and c) at least one vendor." As explained in connection with claim 5 above, the '177 patent discloses numerous examples of subscription objects that are published by other "team members."

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7.

The '177 Patent Anticipates Claim 7

Claim 7 recites: "The method according to claim 5, wherein accessing the at least one subscription object through the one of the at least one application object maintains all of the original features of the subscription object." There is nothing in the '629 patent explaining the meaning of the phrase, "maintains all of the original features of the subscription object," or providing an example of how this is achieved. XACP has interpreted this language to simply require that the system maintain (e.g., not destroy) the content of the item. There is nothing in the '177 patent to suggest that any of the items published by users do not maintain all of their original features when accessed. To the contrary, the '177 patent contemplates that users can publish items (to which other users can subscribe) without losing any content whatsoever. The '177 patent's document management tool, for example, allows users to "check-in" and "check-out" documents that have been placed on the server. (Col. 7, ll. 6-8.) The bulletin board and calendar applications allow users to publish information (including file attachments) for other users to access. (Col. 6, ll. 21-26, 30-33, 41-44.) It is clear that the applications specified in the '177 patent would not operate properly if they failed to maintain "all of the original features of the subscription object." 8. The '177 Patent Anticipates Claims 9-15

For purposes of this motion, there is no material difference between claims 1-7 discussed above and claims 9-15 of the '629 patent. Claims 9-15 purport to claim a system for creating a community, each claim reciting substantially the same elements as claims 1-7. Claim 9 reads in its entirety as follows:
9. A system for creating a community for users with common interests to interact in comprising: a receiver module for receiving: a) a creation transmission from a registered user, the creation transmission indicating that the registered user desires to create a community; b) receiving community identification information from the registered user;

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c) receiving a selection of at least one application object from the registered user; and d) at least one communications address designated by the registered user, the at least one communications address corresponding to a user to receive a created community; a creation module for creating a community based on the community identification information and the at least one community function; and a transmitter for transmitting the created community based in part on the at least one communications address.

As shown above, the drafters of the '629 patent created claim 9 by surrounding the steps from claim 1 with specific structures (i.e. "receiver module," "creation module," and "transmitter"), but otherwise left the steps from claim 1 unmodified. The Court has construed receiver module as "[a] section of a computer program that provides the function of receiving data," and creation module as "[a] section of a computer program that provides the function of creating a community." February 29, 2008 Order (Doc. No. 81) at 4-5. These structures will obviously be present in any computer-based prior art reference capable of receiving and transmitting data, and creating a community. In the '177 patent, these functions are performed by the web server and the programs running on it. (E.g., '177 patent, Col. 3, ll. 24-28; Col. 2, ln. 56-col. 3, ln. 5, passim.) The remaining elements of claim 1 are fully disclosed by the '177 patent for the reasons expressed in Part III.B.1, supra. Dependent claims 10-15 are substantially identical to method claims 2-7, respectively, except that they depend from system claim 9 rather than method claim 1. Each element of those claims is fully disclosed by the '177 patent for the reasons expressed in Part III.B.2-7, supra. 9. The '177 Patent Anticipates Claims 17-23

There is also no material difference between claims 1-7 discussed above and claims 1723 of the '629 patent for purposes of this motion. Claims 17-23 present yet another variant on the same method for creating a community that is described in claims 1-7. Claim 17 reads as follows:

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17. A method for creating a community for users with common interests to interact in, the method comprising the steps of: transmitting a creation transmission, the creation transmission indicating the desire to create a community; transmitting community identification information; transmitting at least one communications address corresponding to a user to receive the created community; and selecting at least one application object for inclusion in the community, whereby the community is created based on the community identification information and the at least one application object.

The steps of claim 17 shown above also appear in claim 1, except that claim 17 recites "transmitting" instead of "receiving" specified information. This is because claim 1 was drafted from the perspective of the server computer (which receives information from the user to create a community), while claim 17 was drafted primarily from the perspective of the user computer (which transmits information to the server for its use in creating a community). Not surprisingly, the steps in claims 1 and 17 have generally reciprocal, one-to-one relationships with each other.5 Because it simply purports to claim the community creation method from the user perspective, claim 17 does not present any unique issues for this motion. The system described in the '177 patent fully describes the operation system from the perspectives of both the server and the user. The user connects to the server using a web browser and directs the server to create a community. See Part III.B.1, supra. The same information that was "received" by the server in the '177 patent to create the community was "transmitted" by the user. See id. Dependent claims 18-23 are substantially identical to method claims 2-7, respectively, except that they depend from claim 17 rather than claim 1. Each element of each of those claims is fully disclosed by the '177 patent for the reasons expressed in Part III.B.2-7, supra.

5

Two other differences, which are not significant to this motion, are that claim 17 does not require a "registered user," and claim 17 does not specifically require that the community be transmitted after it has been created.

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10.

The '177 Patent Anticipates Claims 25-31

There is also no material difference between method claims 17-24 discussed above and system claims 25-31 of the '629 patent for purposes of this motion. Claims 25-31 purport to claim essentially the same thing as method claims 17-24, but in the form of a system rather than a method. Claim 25 reads as follows:
25. A system for creating a community for users with common interests to interact in, the system comprising: a transmitter module for transmitting: a) a creation transmission, the creation transmission indicating the desire to create a community; b) community identification information;

c) at least one communications address corresponding to a user to receive the created community; and d) a selection of at least one application object for inclusion in the community, whereby the community is created based on the community identification information and the at least one application object; and a display module for displaying prompts for the community identification information, the at least one communications address, and the selection of at least one application object.

The Court has construed transmitter module from claim 25 as "[a] section of a computer program or device that provides the function of transmitting data," and has construed "display module" as "a device that displays on-screen information, such as a CRT display." February 29, 2008 Order (Doc. No. 81) at 3, 5. These structures do not add anything of significance and will obviously be present in any computer-based prior art reference capable of transmitting data and displaying information. The "transmitter module" in the '177 patent is the user's computer and/or its web browser program, which are used to transmit data to the server. ('177 patent, Col. 3, ll. 39-45 The system also has a display module (e.g. user's computer display), which displays prompts for the community identification information, the communication address(es) and the application object(s). (See '177 patent, Col. 4, ll. 61-65.)

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Dependent claims 26-31 are substantially identical to method claims 18-23, respectively, except that they depend from claim 25 rather than claim 17. Each element of each of those claims is fully disclosed by the '177 patent for the reasons expressed in Part III.B.2-7, supra. C. The '629 Patent is Anticipated by U.S. Patent No. 6,750,881

America Online, Inc. ("AOL") is a well-known on-line service provider. One of its U.S. Patents provides invalidating prior art to the '629 patent: U.S. Patent No. 6,750,881 ("'881 patent") entitled "User Definable On-Line Co-User Lists." Weinstein Decl. Ex. D ('881 patent). The '881 patent qualifies as prior art under 35 U.S.C. § 102(e). The '881 patent discloses a system known as the "Buddy List System" for allowing AOL users to keep track of the status of specified co-users, and interacting with them. Like the Involv '177 patent described earlier, the '881 patent discloses a system as in Fig. 1 in which users connect to the AOL server through the Internet or other network connection.

The system shown in Figure 1 "includes a plurality of user stations 12 that preferably include a processor chassis 14 having a network link." ('881 patent, Col. 3, ll. 12-14.) Additionally, "[t]he communications link 16 couples each user station 12 as a `client' to a logon system 24, which is typically a software program executing on a remote server somewhere on a network. The logon system 24 communicates with a `Buddy List System' 26, which is preferably a software program executing on a server somewhere on the network. The Buddy List System 26 maintains a database 28 for storing user information." ('881 patent, Col. 3, ll. 20-27.) - 19 PALOALTO 89194 (2K)

The Buddy List System disclosed in the '881 patent includes a feature known as "Buddy Chat," which allows a user to create customized on-line communities. A user can, for example, use the Buddy Chat feature to create a private chat room that other users can be invited to join. ('881 patent, Col. 6, ll. 19-23, 36-43; Fig. 10.) The '881 patent discloses each and every limitation of claims 1-7, 9-15, 17-23 and 25-31 of the '629 patent, as explained below. 1. The '881 patent Anticipates Claim 1

"receiving a creation transmission from a registered user, the creation transmission indicating that the registered user desires to create a community" The first step in the AOL system for creating a community is for the registered user to log on to the AOL system. (See, e.g., '881 patent, Col. 6, ll. 52-58 ("The Logon System performs normal logon procedures (e.g., requesting a user ID and/or a password) and notifies the Buddy List System about the User (i.e., passes the User's ID, address, or screen name to the Buddy List System (Step 202).").) As explained above, all interactions between the user and AOL's servers take place through a public or private communications network. ('881 patent, Col. 3, ll. 10-25.) Once the user is logged in, he or she can access the AOL Buddy List System as shown below in Fig. 3 of the '881 patent. ('881 patent Col. 6, ln. 58. col. 7, ln. 2.)

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('881 patent, Figure 3.) From this window, the user can initiate the process of creating a community by pressing the "Buddy Chat" button circled above in red, which indicates the desire to create a community. ('881 patent, Col. 6, ll. 19-23.) As explained in more detail below, the Buddy Chat feature allows the registered user to create a community and to invite other users to join. "receiving community identification information from the registered user;" After requesting to create a community, the registered user is next shown a window known as the Buddy Chat window, which allows the user to provide community identification information. This window is shown in Figure 10 of the '881 patent:

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('881 patent, Fig. 10 (red circle added); Col. 6, ll. 18-19) As shown in Figure 10 above, the user is prompted to provide a number of pieces of information about the new community that will be created. If the user wants to create a community with a Private Chat Room, it provides "community identification information" by typing a name for the community in the box shown above circled in red. (See '881 patent, Col. 6, ll. 36-40 ("To talk privately with the selected co-users, the user selects the Private Chat Room radio button and enters a "Buddy Chat Room Name" in the provided edit box.").) Alternatively, if the user wishes to create a community that directs users to other sites, he or she provides a keyword or other identifier in the same box. ('881 patent, Col. 6, ll. 44-49 ("To share those places a user likes best on the AOL system, the user selects the Keyword/Favorite Place radio button and enters a "Keyword" (i.e., a shortcut word defining an address) to a system site in the provided edit box, either manually or by using a "drag and drop" action from a list of the user's favorite places on the system.").) "receiving a selection of at least one application object from the registered user" The Buddy Chat window allows the registered user to select at least one application object. As shown in the circled portion of Figure 10 (above), the user can select either a "Private Chat Room" to talk privately (Col. 6. ll. 36-38) or a "Keyword/Favorite Place" to share places the user likes best (Col. 6. ll. 44-46) by clicking one of the radio buttons.6 Both of these options qualify as "application objects" under the Court's construction. The Court's claim construction order explicitly lists "chat" as an example of an application object. See also February 29, 2008 Order at 3-4. Beyond the enumerated examples, an "application object" also includes "[a] computer program or module that functions to direct a user to specific information." Id. This is precisely what the Keyword/Favorite Place option does ­ it directs a user to a specific site or location on the AOL system (e.g. favorite place). ('881 patent, Col. 6, ll. 44-51.)

6

The term "radio button" refers to a user interface approach in which a user is presented with a list of alternatives, one of which may be selected by the user by selecting it with a mouse button.

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"creating a community based on the community identification information and the at least one application object" When the user has completed the Buddy Chat form shown in Figure 10, he or she presses the "Send" button, which causes the server to create the community based on the information the user provided and the selection he made between "Private Chat Room" and "Keyword/Favorite Place." ('881 patent, Col. 6, ll. 36-45.) Regardless of whether the user chose to use a Private Chat Room or a Keyword/Favorite Place, either clearly satisfies the definition of a "community" because each will include "information and at least one function relating to a specific transaction, interaction, and/or expression of interest," February 29, 2008 Order (Doc. No. 81) at 1, in that it includes at least the information provided by the user (e.g., name or keywords) and a function (e.g. either chat or directing the user to a specific site within the AOL system). "receiving at least one communications address designated by the registered user, the at least one communications address corresponding to a user to receive a created community" The system receives at least one communications address from the registered user, the address corresponding to the user who will be invited to and receive a created community. In particular, the patent discloses that the user can provide the "screen names" of other users who will be invited to access the community: "The Buddy Chat window 110 [Fig. 10] is displayed, allowing the user to add additional names to the Screen Names to Invite field either manually or by selecting additional names from the Buddy List window 40 and again activating the BUDDY CHAT button." ('881 patent, Col. 6, ll. 26-30.) The term "screen name" refers to a communications address used within the AOL system to identify users within the AOL network. ('881 Patent, Col. 1, ll. 17-24 ("When a person `logs on' to a network system, they are in effect identifying themselves to the system and announcing their presence. On most systems, this presence is unique to every user who is on the system. For example, on the AOL network this presence is known as the `screen name', but on other systems it could be an Internet Protocol (IP) address or some other unique identifier."); see also Fig. 2a (showing that a screen name is - 23 PALOALTO 89194 (2K)

the same thing as an address).)7 "transmitting the created community based in part on the at least one communications address" As described above, the system transmits the community to the users who have been identified. In the case of a Private Chat Room, the users whose screen names were provided receive an invitation which, if accepted, takes the user to the private chat room. ('881 patent, Col. 6, ll. 36-43 ("Upon selecting Send, each selected co-user will receive a message inviting them to access and display a Buddy Chat Room (chat rooms are an existing feature of the AOL system).").) In the case of a Keyword/Favorite Place, each co-user is presented with a message that asks the user whether or not it wants to access and display the on-line site specified by the registered user. (Col. 6, ll. 44-51.) 2. The '881 patent Anticipates Claim 2

Claim 2 recites: "The method according to claim 1, wherein the step of transmitting the created community further comprises transmitting the created community and a user interface." The created community transmitted by AOL necessarily includes a user interface. (See '881 patent, Col. 6, ll. 40-43 ("Upon selecting Send, each selected co-user will receive a message inviting them to access and display a Buddy Chat Room (chat rooms are an existing feature of the AOL system)."); Col. 6, ll. 49-51 ("Upon selecting Send, each selected co-user will receive a message inviting them to access and display that online site.").) 3. The '881 patent Anticipates Claim 3

Claim 3 states: "The method according to claim 1, wherein the at least one communications address is an e-mail address." One of ordinary skill in the art would have clearly appreciated that within the America Online (AOL) system, a "screen name" was an email address. This is confirmed by a contemporaneous textbook describing AOL. See Weinstein Decl. Ex. E ("Whenever you're on AOL and you spot a screen name, whether it is in your Buddy
7

A contemporaneous publication describing the AOL service makes clear that the user's "screen name" also functions as his or her e-mail address. See Weinstein Decl. Ex. E.

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View window, in a chat room, or on a message board, you are also seeing that AOL member's email address. You could send him or her email from within AOL simply by addressing the message to that screen name.").) 4. The '881 patent Anticipates Claim 4

Claim 4 provides: "The method according to claim 1, wherein the selected at least one application object comprises at least one of," and provides a list of fourteen (14) different types of application objects. One of the application objects listed in claim 4 is a "chat application object," which is clearly disclosed by the Private Chat Room in the '881 patent. (E.g., '881 patent, Col. 6, ll. 36-43.) 5. The '881 patent Anticipates Claim 5

Claim 5 recites: "The method according to claim 1, further comprising the step of receiving a selection to subscribe to at least one subscription object, wherein the at least one subscription object is accessed through one of the at least one application object." The '177 patent fully discloses the ability of users to subscribe to subscription objects as recited in claim 5. The '881 patent discloses multiple application objects that allow users to select content to interact with or access (subscribe), or allow other users to publish content. In the context of a Private Chat Room, for example, users can publish chat content for other users who can subscribe to it by accessing and viewing it. In the context of a Keyword/Favorite Place, the user can subscribe by choosing to visit an online site or favorite place on the AOL system. ('881 patent, Col. 6, ll. 44-51 ("each selected co-user will receive a message inviting them to access and display that on-line site.").) 6. The '881 patent Anticipates Claim 6

Claim 6 is a dependent claim that recites: "The method according to claim 5, wherein the at least one subscription object is published by at least one of: a) at least one other community; b) at least one other user; and c) at least one vendor." As explained in connection with claim 5 above, the '881 patent discloses subscription objects that are published by other users.

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7.

The '881 patent Anticipates Claim 7

Claim 7 recites: "The method according to claim 5, wherein accessing the at least one subscription object through the one of the at least one application object maintains all of the original features of the subscription object." There is nothing in the AOL patents to suggest that any of the items published by users do not maintain all of their original features when accessed. In fact, the patents contemplate that users can publish items (to which other users can subscribe) without losing any content whatsoever. ('881 patent, Col. 6, ll. 44-51.) 8. The '881 patent Anticipates Claims 9-15

As explained in Part III.B.8, supra, there is no material difference between claims 1-7 discussed above and claims 9-15 of the '629 patent for purposes of this motion. Claims 9-15 purport to claim a system for creating a community reciting substantially the same elements as claims 1-7, but with the addition of a "receiver module," "creation module" and "transmitter." These structures are clearly present in the '881 patent in the form of computer programs that perform the function of receiving data, creating the community and transmitting data. ('881 patent, Col. 7, ll. 13-23 ("The invention may be implemented in hardware or software, or a combination of both. However, preferably, the invention is implemented in computer programs executing on programmable computers . . . ."); Col. 3, ll. 23-25 ("The logon system 24 communicates with a "Buddy List System" 26, which is preferable a software program executing on a server somewhere on the network.").) The remaining elements of claim 9 are fully disclosed by the AOL patent for the reasons expressed in Part III.C.1, supra. Dependent claims 10-15 are substantially identical to method claims 2-7, respectively, except that they depend from system claim 9 rather than method claim 1. Each element of each of those claims is fully disclosed by the AOL patent for the reasons expressed in Part III.C.2-7, supra. 9. The '881 patent Anticipates Claims 17-23

There is also no material difference between claims 1-7 discussed above and claims 1723 of the '629 patent for purposes of this motion. As more fully explained in Part III.B.9, supra, claims 17-23 recite the same community creation method described in claims 1-7, but from the

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perspective of the user who "transmits" information to the server to create the community. The system described in the '881 patent fully describes the system's operation from the perspectives of both the server and the user, and therefore discloses these elements. (See '881 patent, Col. 3, ll. 10-17, passim.) Dependent claims 18-23 are substantially identical to method claims 2-7, respectively, except that they depend from claim 17 rather than claim 1. Each element of each of those claims is fully anticipated for the reasons expressed in Part III.B.2-7, supra. 10. The '881 patent Anticipates Claims 25-31

There is also no material difference between method claims 17-23 and system claims 2531 of the '629 patent for purposes of this motion. Claim 25 purports to claim essentially the same thing as method claim 17, but adds "transmitter module" and "display module" structures. These structures add nothing of significance and are clearly disclosed in the prior art. For example, the "transmitter module" in the AOL prior art is the user's computer and/or the computer programs used to transmit data to the server. ('881 patent, Col. 3, ll. 10-17; col. 7, ll. 13-23.) The "display module" is the display device that displays on-screen information for the user. ('881 patent, Col. 7, ll. 13-23 (output devices); Col. 3, ll. 12-19 and Figure 1 (display device 18).) Dependent claims 26-31 are substantially identical to method claims 18-23, respectively, except that they depend from claim 25 rather than claim 17. Each element of those claims is fully disclosed by the '881 patent for the reasons expressed in Part III.C.2-7, supra. D. The '629 Patent is Anticipated by U.S. Patent No. 6,608,636

U.S. Patent No. 6,608,636 B1 ("'636 patent"), entitled "Server Based Virtual Conferencing," discloses another community building system that allows users to interact and collaborate with one another through communities known as "conferences." Weinstein Decl. Ex. F ('636 patent). As explained in the Background section of the '636 patent: "The invention allows multiple persons, at different locations, to hold a conference, by providing many of the con