Function Media, L.L.C. v. Google, Inc. et al

Filing 98

CLAIM CONSTRUCTION BRIEF filed by Google, Inc., Yahoo!, Inc.. (Attachments: # 1 Index, # 2 Exhibit 1 - Summary of Claim Construction Disputes, # 3 Exhibit 2 - Declaration of Wolff ISO Markman Brief, # 4 Exhibit A - 045 Re-exam Response, # 5 Exhibit B - 025 Re-exam Response, # 6 Exhibit C - 059 Re-exam Response, # 7 Exhibit D - Dean Tr.)(Brooks, Juanita)

CONFIDENTIAL Page 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ________________________________ FUNCTION MEDIA LLC, ) ) Plaintiff, ) ) NO. 2007-CV-279 vs. ) ) GOOGLE INC. AND YAHOO!, INC. ) ) Defendants. ) ________________________________)

CONFIDENTIAL Videotaped Deposition of MICHAEL DEAN, at 901 Main Street, Suite 5100, Dallas, Texas, commencing at 9:01 a.m., Thursday, April 16, 2009, before Karen L. D. Schoeve, RDR, CRR.

PAGES 1 - 330
Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 251

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.

***CONFIDENTIAL*** (BY MR. WOLFF) The '045 patent covers 04:52:14PM 04:52:19PM 04:52:20PM 04:52:21PM 04:52:21PM 04:52:22PM 04:52:25PM 04:52:27PM 04:52:29PM 04:52:32PM 04:52:40PM 04:52:43PM 04:52:47PM 04:52:51PM There are systems that control the various pitches and I'm not an expert on radio. But I'm sure if you sat down with an expert on radio, they would have a variety of standards that could be employed to enhance the, you know, that a given radio station would like to employ for one reason or another. I mean, I'm sure there's just -there's an infinite number of ways to manipulate the radio presentation based on what a media venue 04:52:53PM 04:52:54PM 04:52:58PM 04:53:00PM 04:53:04PM 04:53:09PM 04:53:12PM 04:53:14PM 04:53:16PM 04:53:20PM

any sort of media venue; is that correct? A. Q. A. Q. Yes. Including radio? Yes. And can you give an example of how you

would control the look and feel of a radio ad? A. Well, once again, the '045 was intended Some, you know, presentation

for a broad media.

standards might not be covered in every instance. That being said, the control of a radio ad is all over the board. I mean, they -- there are systems

that serve compressed ads, so the ad is actually made shorter.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 252

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

***CONFIDENTIAL*** and for radio, it would be obviously a radio station that would control those media venues, based on the standards that they wanted to employ. Q. So could they specify the standards for 04:53:27PM 04:53:31PM 04:53:34PM 04:53:39PM 04:53:42PM 04:53:44PM 04:53:45PM 04:53:47PM 04:53:50PM 04:53:54PM 04:54:00PM 04:54:03PM 04:54:06PM 04:54:08PM If they said we want to, you know, compress the highs and lows of any given radio spot so that -- or the volume so that we have our standard content being played and we want the volume to be upped every time a radio spot comes on. It would seem to me that all those are the 04:54:09PM 04:54:11PM 04:54:17PM 04:54:23PM 04:54:28PM 04:54:31PM 04:54:34PM 04:54:37PM 04:54:39PM 04:54:42PM

the look and feel? A. Q. A. Yes. How would they do that? Well, once again, I said that I'm not an

expert on radio, but if we're talking about the -we want all 30 second spots to run in 25 seconds because we have a station ID that we're going to put at the end of that, then you would be -- you would be dealing with some sort of compression system.

look and feel of radio. Now, there may be -- there may be another term that the radio professional would prefer using, but that would be up to -- you know,

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 253

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

***CONFIDENTIAL*** once again, the operator of the invention would have to be familiar with the media venues that they were going to represent and therefore be able to tailor the system to meet the needs of those media venues. The real -- the real crux of our invention is to satisfy the needs of the media venue where the media venue can control the presentations that they receive. I mean, earlier 04:54:45PM 04:54:50PM 04:54:53PM 04:54:57PM 04:55:00PM 04:55:02PM 04:55:06PM 04:55:09PM 04:55:14PM 04:55:22PM 04:55:25PM 04:55:31PM 04:55:36PM 04:55:38PM 04:55:39PM 04:55:42PM 04:55:49PM 04:55:54PM 04:55:58PM 04:56:04PM 04:56:10PM 04:56:18PM 04:56:30PM 04:56:33PM

there were questions asked about specific claims, and about what we hadn't invented. But those

questions were asked as to bits and pieces of the claim, not the full claim. When you look at the full claims of our invention, that becomes the system that delivers these specific customized ads or presentations to these various media venues. Single input. The single input allows the seller

to input data regardless of what it is, radio, Internet, print, the central processor and specifically the -- let me give you a specific here from our '045 -- the Presentation Generation Program 1710, which is on Figure 2a of Exhibit Number 51, processes that data to create a

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 254

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just -Q. A. Q. A. Q.

***CONFIDENTIAL*** customized, completed presentation to be presented on a given media venue, based on their presentation rules that are being applied. I guess I'm far afield of radio, but I was just trying to point out that, you know, these various media venues all have various standards. Did I answer your question or 04:56:41PM 04:56:46PM 04:56:48PM 04:56:57PM 04:57:00PM 04:57:06PM 04:57:11PM 04:57:11PM 04:57:14PM No, you didn't. -- or just confuse the issues? But I'll ask another question now. I'm sorry. Is there any disclosures in any of your 04:57:17PM 04:57:18PM 04:57:21PM 04:57:21PM 04:57:21PM 04:57:25PM 04:57:32PM 04:57:36PM No, of course not. The assumption is -04:57:37PM 04:57:52PM 04:57:55PM 04:57:57PM 04:58:02PM 04:58:07PM 04:58:12PM

patents about how a radio ad would be modified to conform to the look and feel specified by a media venue? A.

it seems to me that someone coming in that wanted to set this system up would have the knowledge that they would bring with them to do the programming specific for media venues that the operator of the invention has chosen to embrace or to use as their market.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 255

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

***CONFIDENTIAL*** So if you've got an operator of an invention -- or operator of the invention -- and he brings in a programmer, if he's going to embrace radio and that would be his market, that programmer would either have to have experience in radio or he would have to bring in somebody that had experience in radio to help set up the system and do the programming so that it could handle specific media venues. Q. A. Q. A. Q. Do you have any experience in radio? No. None. 04:58:14PM 04:58:16PM 04:58:19PM 04:58:23PM 04:58:25PM 04:58:28PM 04:58:31PM 04:58:34PM 04:58:37PM 04:58:40PM 04:58:42PM 04:58:44PM 04:58:45PM 04:58:47PM 04:58:50PM 04:58:54PM 04:58:56PM 04:59:01PM 04:59:07PM 04:59:10PM 04:59:17PM 04:59:19PM 04:59:24PM 04:59:26PM

How about television? None. Who is the operator of the invention in

your previous testimony? A. Well, the operator of the invention

would be the entrepreneur or the person who -- or entity that takes the invention, takes our specification, builds all the software and then operates it going on into the future. MR. LUMISH: Are there any

mathematical algorithms disclosed in your patents? MR. BRANDON: Objection to form.

No, there are no mathematical

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 265

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A.

***CONFIDENTIAL*** next time that that condition was met, the program would be able to identify it. And once again here, we were anticipating fairly complex multipage presentations that would have lots of rules and it wouldn't be difficult to imagine that especially when you initially set the system up. Some of those rules would not be as finely tuned as they could be, so this was a process by which the operators of the invention could increase the efficiency of the underlying algorithms. Q. Do your patents describe any fairly 05:16:42PM 05:16:45PM 05:16:48PM 05:16:51PM 05:16:58PM 05:17:03PM 05:17:05PM 05:17:08PM 05:17:13PM 05:17:17PM 05:17:20PM 05:17:23PM 05:17:29PM 05:17:31PM 05:17:36PM But those -Objection to form. 05:17:37PM 05:17:41PM 05:17:45PM 05:17:46PM 05:17:51PM 05:17:56PM 05:18:00PM I mean, it's a fairly simple process for a -- you know, once a programmer knows that 05:18:01PM 05:18:03PM

complex multipage presentations in the algorithms for handling those? A. No. No.

MR. BRANDON:

Whoever was the operator of the

invention in combination with whoever was the programmer installing this would know how to handle that programming and set those rules in motion.

Veritext National Deposition & Litigation Services 866 299-5127

CONFIDENTIAL Page 266

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

***CONFIDENTIAL*** you have input from media venues and the input from the media venues control the resulting output of your Presentation Generation Program, you then work backwards from that desired results to craft your algorithms. That's fairly common. I would 05:18:08PM 05:18:12PM 05:18:16PM 05:18:21PM 05:18:27PM 05:18:32PM And at the 05:18:33PM 05:18:36PM 05:18:38PM 05:18:41PM 05:18:42PM 05:18:43PM 05:18:46PM 05:18:49PM 05:18:51PM 05:18:52PM 05:18:53PM 05:18:56PM 05:18:56PM 05:19:00PM 05:19:06PM 05:19:11PM 05:19:17PM 05:19:20PM

think that's fairly common. Q. (BY MR. WOLFF) All right.

time of the inventions -- or I should say at the time of filing at the '045 patent, could you have written that program? A. Q. Which one? The algorithms you referred to for

handling the complex presentations. A. Q. A. Q. I did. You did? Yes, I could handle that. You could handle that back at the time Yes.

your patent was filed? A. We did. At least if I understand your All of our -- I mean, the

question correctly.

whole Virtual Cities software took raw data input and then reformatted it and generated customized html presentations to go on lodgingreservations.com and it did that

Veritext National Deposition & Litigation Services 866 299-5127