Polaris IP, LLC v. Google Inc. et al

Filing 444

MOTION in Limine 6 (joint) by AOL, LLC., America Online, Inc., Google Inc., Yahoo!, Inc.. (Attachments: # 1 Affidavit Declaration of M. Kammerud, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Candido, Amy)

Polaris IP, LLC v. Google Inc. et al

Doc. 444 Att. 3

Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, L.L.C. v. GOOGLE, INC., ET AL. § § § § § Civil Action No. 2:07-CV-00371-CE

JURY TRIAL DEMANDED

DECLARATION OF DR. V. THOMAS RHYNE IN SUPPORT OF BRIGHT RESPONSE, LLC'S RESPONSES TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT OF INVALIDITY (D.I. 387 AND 392)

2. 2.1 21.

The Allen Patent Does Not Anticipate Claims 26, 28, 30, 31 and 38 Allen Does Not Anticipate Claims 26 and 28 In order to anticipate claim 26, among other things, Allen would have to disclose the

interpretation of a non-interactive electronic message from a source such as a user. 22. While I agree that Allen does disclose the possibility that in some instances, a sender

does not provide any additional information after the message has been received, I note that the disclosure of Allen does not anticipate the "non-interactive electronic message" of claim 26 because, as disclosed, the Allen reference always contemplates the capability of having the sender of the message provide additional information as needed after his or her initial message has been received by that system and before the "best" case match is determined. Of emphasis here is the requirement that the user "does not provide any additional information" that is found in the Court's construction of the term "non-interactive electronic message," and Allen does not disclose a system in which a user does not make that provision. Rather, while Allen does disclose that some received messages may not require further user intervention, Allen does not disclose any way that such intervention is prevented. See the Allen specification at 9:30-37: However, it may occur that cases 105 which are matched 30 all have low match quality 315. The application 601 may collect a set of question-answer pairs 608 from the cases 105 which are matched. The application 601 may present a set of questions 609 from the question-answer pairs 608 to the customer service representative 602, who would provide a set of answers 610 to the application 601 (typically by asking the customer 604). 23. As the above citation makes clear, Allen does not disclose a system wherein the user does not provide any additional information, and there is no way that the Allen system, in operation, can ever assure that all of the received electronic messages are of sufficiently high match quality that no subsequent interaction with the sender is needed to complete processing of those messaged. Allen never suggests such a modification, as well. 24. Simply put, the Allen system is designed to operate interactively with a user. For

example, the user interface is described as "an interactive terminal" through which the Allen processor may present information or questions to the user. See the Allen patent at 3:23-28. Using that terminal, the Allen system presents a "sequence of questions to the user" and retrieves answers from the user about the problem to be resolved. See the Allen patent at 4:4-10 and 3:5965. In contrast, the '947 patent describes a method for automatically processing non-interactive 5

electronic messages wherein the sender never interacts with that method once their electronic message has been sent off for processing and before the predetermined response corresponding to the interpretation of the electronic message is provided. 25. It is my understanding that Defendants argue that Allen's disclosure of the That assertion is in direct opposition to the manner in which Defendants have

"classification" step of claim 28 is based on the processing of both "high" and "low" quality messages. previously asserted that the messages received by the Allen system are the "non-interactive" messages of claim 26. Defendants cannot have it both ways here. For "high" messages the Allen system does not seek additional information from the user, but for "low" messages it always does so. As such, the Allen system cannot be viewed as receiving "non-interactive electronic messages." 26. In addition, Defendants' assertion is incorrect because they assume that the human

operator of the (ii) part of Step 28(b1) can be the same as the source of the message being processed (the customer representative). That assumption is not consistent with the '947 patent, however. The language of Step 28(b1) clearly differentiates between "a human operator" and "the user." See, for example, Fig. 1.

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