Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 1313

Emergency MOTION to Strike THE SUPPLEMENTAL ERRATA SHEET OF ERIC BINA by Eolas Technologies Incorporated, The Regents of the University of California. (Attachments: # 1 Appendix A, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Text of Proposed Order)(McKool, Mike) (Additional attachment(s) added on 2/6/2012: # 7 Text of Proposed Order Corrected) (mjc, ).

EXHIBIT B

Supplemental Expert Report on Invalidity
ADOBE et al v. EOLAS
Richard L. Phillips
October 27, 2011

THIS REPORT CITES TO AND QUOTES FROM DEPOSITION TRANSCRIPTS AND
EXHIBITS THAT HAVE BEEN DESIGNATED UNDER THE PROTECTIVE ORDER.
BECAUSE NOT ALL OF THOSE TRANSCRIPTS HAVE BEEN DE-DESIGNATED,
THIS REPORT IS MARKED
HIGHLY-CONFIDENTIAL-ATTORNEYS’ EYES ONLY

Table of contents
Table of contents ............................................................................................................... 1 
Appendices ........................................................................................................................ 7 
I.  Appendix A: CV ................................................................................................. 7 
II. 

Appendix B: Claim chart exhibits ................................................................ 7 

III. 

Appendix C: Video Exhibits ....................................................................... 12 

IV. 

Appendix D: Declaration of Dan Sadowski ............................................. 13 

Expert report by Richard L. Phillips on Invalidity .................................................... 14 
I.  Introduction ...................................................................................................... 14 
1. 

EXPERT QUALIFICATIONS .................................................................. 14 

2. 

GENERAL TECHNICAL EXPERIENCE............................................... 14 

3. 

SOFTWARE DEVELOPMENT EXPERIENCE ..................................... 16 

II. 

Information Considered In Forming My Opinions ................................. 18 

1. 

PATENTS IN SUIT AND DECLARATIONS........................................ 18 

2. 

USPTO PROSECUTION HISTORIES .................................................... 18 

3. 

PUBLICATIONS AND OTHER REFERENCES ................................... 19 

4. 

SOFTWARE ............................................................................................... 25 

5. 

COMPUTERS ............................................................................................ 27 

6. 

WWW-TALK PUBLICATIONS AND OTHER EMAILS .................... 28 

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Claim Chart Exhibit 8: "Mosaic"

Based on "NCSA Mosaic for X 2.0 available", WWW-Talk, Oct-Dec, 1993 [PA00292659] [Andreessen93a]; NCSA Mosaic Technical Summary [PA-00292824]
[Andreessen 93b]; NCSA Collage for the Macintosh version 1.0, October 1992 [PA00292677] [Collage92]; Mosaic software including the codebases found at [PA-NAT00000044] – [PA-NAT-00000046]; Bina Tr. and Exs. 4 and 7; McRae Tr. and Ex. 37
(messages from April-June 1993); Martin Tr. including 425:13-426:7 and 532:10-22; my
personal experience with the Mosaic browser. This is prior art under 35 U.S.C. § 103.
My opinions about Mosaic are further informed by the full body of Mosaic-related
prior art and testimony regarding the same, and I reserve the right to opine on
Mosaic based on other Mosaic prior art.


Claim Chart Exhibit 9: "Mosaic, HTML+, and disclosure and testimony
of Bill Janssen"

"NCSA Mosaic for X 2.0 available", WWW-Talk, Oct-Dec, 1993 [PA-00292659]
[Andreessen93a]; NCSA Mosaic Technical Summary [PA-00292824] [Andreessen
93b]; NCSA Collage for the Macintosh version 1.0, October 1992 [PA-00292677]
[Collage92]; Mosaic software including the codebases found at [PA-NAT-00000044] –
[PA-NAT-00000046]; My personal experience with the Mosaic browser; Video: The
National Center for Supercomputing Applications Software Development Group
presents NCSA Mosaic [Hardin 93]; "HTML+ (Hypertext markup language),
Hewlett-Packard, 1993 [Raggett93a] [PA-00321233]; Deposition of William Janssen
(May 11, 2011) [Janssen Dep.]; Exhibits to [Janssen Dep.], including Exhibit 6
[PH_001_0000598210], Exhibit 8 [PH_001_0000598248], Exhibit 9 [PA-00306624],
Exhibit 10 [PH_001_0000588858], and Exhibit 11 [PA-00333547]. This is prior art
under 35 U.S.C. § 103.
My opinions about Mosaic are further informed by the full body of Mosaic-related
prior art and testimony regarding the same, and I reserve the right to opine on
Mosaic based on other Mosaic prior art.


Claim Chart Exhibit 10: "Mosaic and Chris McRae's June 26, 1993
posting to www-talk, "Re: Xmosaic and Xv"

Based on "NCSA Mosaic for X 2.0 available", WWW-Talk, Oct-Dec, 1993 [PA00292659] [Andreessen93a]; NCSA Mosaic Technical Summary [PA-00292824]
[Andreessen 93b]; NCSA Collage for the Macintosh version 1.0, October 1992 [PA00292677] [Collage92]; Mosaic software including the codebases found at [PA-NAT00000044] – [PA-NAT-00000046]; My personal experience with the Mosaic browser,
and Chris McRae's June 26, 1993 posting entitled "Re: Xmosaic and Xv" [www-talk00293020]; McRae Exhibit 27 and Bina Exhibits 4 and 7. This is prior art under 35
U.S.C. § 103.
My opinions about Mosaic are further informed by the full body of Mosaic-related
prior art and testimony regarding the same, and I reserve the right to opine on
Mosaic based on other Mosaic prior art.
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55. Exemplary prior art references that described X windows include
[Quercia91] and [Nye93], see also Bina Tr. at 132:21-143:15 (discussing X-Windows
and related tools and functionality).
56. X-Windows and its programming techniques and capabilities were tools,
known and routinely used in the ordinary course by persons of skill in the art during
the early 1990s and used by the prior art systems I describe below. For example,
Mosaic and Viola both operated in the X environment.

4. Motif
a. Background

57. In general, Motif referred both to the Motif Window Manager (MWM) and
the Motif toolkit, where MWM was an X window manager based on the Motif
toolkit. See Figure 26. (Mr. Bina also testified about Motif and widgets too, see, e.g.,
Bina Tr. at 40:8-21, 120:14-124:9, 133:15-137:8.)

6

See also, e.g., [Heller91] at Figures 1-1 and 3-20.

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and data could be transported to and from the remote process. Moreover, one could
perform most of these operations not only on one machine, but on any machine that
was participating in a collaborative session with NCSA Collage.
211.

Consequently, collaborators using Mosaic clients and involved a

Collage session could, for example, open and view an HDF (Hierarchical Data
Format) file that was produced by a supercomputer computation. Members of the
session could also annotate the displayed image to point out significant features.
b. www-talk
i.

212.

Suggestions on Inline Viewing

As part of my review of prior art, I read postings on the www-talk

forum, which I understand was indexed, archived, and publicly accessible in 1993.
Matthey Grey's post, dated August 19, 1993, and available at
http://ksi.cpsc.ucalgary.ca/archives/WWW-TALK/www-talk1993q3.messages/736.html.)
213.

While Mosaic supported a wide range of helper applications, the www-

talk community was pushing for a more convenient and generalized solution. These
discussions took place on the publically available and published www-talk message
board.
214.

The idea of moving the display of an object from a helper application to

a display embedded in the hypermedia document was well-known. As Mr. Bina
testified, Mosaic was one of the first web browsers to do so. Bina Tr. at 56:11-57:10;
100:20-101:23, and Exhibits 4 (1/31/93 “Addition of outlet to Ghostview for
PostScript documents”) and 7 (3/4/93 “Some multimedia support. Yew asked for it
… audio…MPEG, PostScript automatically recognized…Inlined MIME/multimedia
support will be coming down the road, so this is all just a temporary hack”); McRae
Tr. at 108:1-11 (discussing the EMBED tag); 124:16-125:20, 132:9-135:19, 136:3-137:10,
138:18-143:1, 144:6-145:8; 146:20-149:12 (discussing embedding applications,
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including xv and video functionality) and Exhibits 37, 38, and 39. Mr. Bina testified
that he embedded video into a webpage around the time of the alleged invention too.
See, e.g., Bina Tr. at 33:8-35:22; 106:22-107:8; 191:14-20. Mr. Bina also saw Viola
demonstrated. See, e.g., Bina Tr. 108:17-111:4; 153:9-154:10; 183:10-19.
215.

As another example, over just a two day period in January, 1994 there

were several forum messages in a thread titled "Inlined image format" that were
urging browser developers to facilitate the display of media content directly in the
browser window. From one of the first messages, from Chris McRae [www-talk00028138], states "There used to be a patch for Xmosaic which allowed for inlining
TIFF images. The work was done by Cheong Ang at UCSF. I think you should be able
to get it via ftp to ftp.library.ucsf.edu." The next day that was followed by a post from
Ellson, [www-talk-00028157], stating, "Beyond TIFFs, what I'd really like to see is an
inline window that external viewers can use for their display so that we can have
inline movies, inline shells, inline audio control panels… all without hard-coded
extensions to the browser." Next, also from Ellson [www-talk-00028167], came the
sentiment, "As an author, I should be able to assume that the browser can handle any
format as an inline component. (text, image, sound, movie, executable tSipp for local
3D rendering .... ). The browser should either handle it directly, or hand it off to an
external viewer. Isn't that an issue that each browser and/or each user can deal with
independently under the control of .mailcap or similar mechanism?" Finally, from
named inventor David Martin, [www-talk-00028162], seconding Ellson's first post,
comes, "I agree with John Ellson that the browsers should be capable of acting as
MIME compliant applications and be able to make use of external viewers; in
addition, I agree that Mosaic should generalize the ability of an external application
displaying w/in the boundaries of Mosaic." All these messages clearly point to a well
understood desire and motivation for inline media display.

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ii.

216.

IMG Tag

In the www-talk forum frequented by WWW developers, there was a

lengthy thread about the need for a new HTML tag for inlining or embedding an
arbitrary image into a browser document. This was referred to as the IMG tag. After
much back-and-forth, Andreessen states that in an upcoming release of Mosaic, "So,
we're probably going to go with <IMG SRC="url"> (not ICON, since not all inlined
images can be meaningfully called icons). For the time being, inlined images won't be
explicitly content-type'd; down the road, we plan to support that (along with the
general adaptation of MIME). Actually, the image reading routines we're currently
using, figure out the image format on the fly, so the filename extension won't even be
significant." [www-talk-00293002]. Thus, the IMG tag points to the url of any kind of
image located anywhere in the Internet.
217.

The IMG tag is one example of an "embed" tag. For example, Tim

Berners Lee proposed (as an alternative to IMG) a tag that would represent figures
as:
218.

<a name=fig1 href ="fghjkdfghj" REL="EMBED, PRESENT">Figure

</a>. [www-talk-00292991].
219.

Other alternatives that were proposed in place of the IMG tag included

tags with MIME-compliant typing mechanisms to enable embedding media clips.
[www-talk-00292995].
220.

Furthermore, Eric Bina testified that, during the time of claimed

invention of the patents-in-suit, it was known in the art that, in order to embed either
images or maps into a webpage, one could use coded information, such as a tag, to
make a compound document. Such a compound document is a hypermedia
document that is a mix of textual information and multimedia. See, e.g., Bina Tr.
56:11-57:10, 98:24-101:23; 120:14-124:9 (describing images, maps, and forms including
how a user could interact with content embedded inline in the webpage).
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iii.

221.

Inline xv

In early-to-mid 1993 there was a great deal of interest expressed by

members of the WWW-Talk forum about the desirability of incorporating inline
image manipulation into an HTML document. See, e.g., Bina Tr. Exhibits 4 and 7.
That is, instead of using a helper application that opens a separate window, the
sentiment was to embed a window within the document window where the results
of image manipulation would be directly displayed. See, e.g., McRae Tr. 115:20118:17 and Exhibit 37 at 25-26.
222.

Some comments from that forum were, "Building viewers so that they

can also operate on some pre-existing window, instead of just creating their own, is
an excellent idea. I'm always surprised when otherwise-wonderful viewers, such as
Ghostscript or xv, don't do this from the start." [www-talk-00293014]. And, another
observation was, "The justification for using xv to display inlined images is listed
right in your reply: xv displays *many* different image types. We are using mosaic to
display a database of medical journals we have; however, since the page images are
in TIFF format, I have to convert to GIF them all to GIF." [www-talk-00293020].
Further, "There is no way of knowing, a priori, what document formats we might
encounter and we would like a client with general image display capabilities. Xv fills
this role nicely". [www-talk-00293020].
223.

One commentator described the methodology for achieving inline XV:

passing a window ID to XV so that it appears as a sub-window within the X window
of the browser. Bill Janssen replied that he in fact had a modified version of XV that
supported the functionality of receiving a window ID, and indicated he would send
around that modified version. [www-talk-00293011].
224.

In the videos that I am submitting along with my expert report, I

demonstrate the concept that Bill Janssen was describing: specifically, I pass a

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