I/P Engine, Inc. v. AOL, Inc. et al

Filing 100

Memorandum in Support re 99 MOTION to Compel Plaintiff IP Engine, Inc.'s Motion to Compel Defendants' Compliance with this Court's Scheduling Order, or Alternatively, Motion for Protective Order filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Proposed Order)(Sherwood, Jeffrey)

Exhibit 6 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE, INC.’S
PRELIMINARY PROPOSED CLAIM TERMS
AND PROPOSED CONSTRUCTIONS
Plaintiff I/P Engine, Inc. (“I/P Engine”) serves Defendants the following preliminary
constructions of claim terms or concepts, along with supporting intrinsic and extrinsic evidence.
Defendants have refused to narrow the list of claim terms to be construed, instead insisting that
the parties exchange constructions and supporting evidence for virtually every term in every
asserted claim, even though the Court has ordered that it will construe no more than ten claim
terms. Because I/P Engine believes that Defendants have failed to comply with paragraph 13(c)
of the Court’s Scheduling Order requiring that the parties collectively agree on the list of claim
terms prior to the exchange of actual constructions, simultaneous with the service of this
Preliminary Proposed Claim Terms and Proposed Constructions, I/P Engine is filing a Motion to
Compel Defendants’ Compliance with the Court’s Scheduling Order, or Alternatively, Motion
for Protective Order. That Motion requests that the Court compel Defendants to comply with
paragraph 13(c) of the Scheduling Order by identifying the top ten claim terms to be construed,
or alternatively, excuse Plaintiff from Defendants’ unreasonable demands that Plaintiff disclose

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proposed constructions and supporting intrinsic and extrinsic evidence for virtually every
limitation in the asserted claims.
Subject to that Motion, or further agreements between the parties, I/P Engine
preliminarily identifies and provides constructions for the following claim terms:
Terms proposed by both parties:
Informon
Network1
Relevance
Query
Scanning
Key Terms or Issues from Defendants’ List:
Demand Search
User
Collaborative Feedback Data
Combining
Whether the asserted claims require one step to precede another based on the claim language
Whether identical claim terms have the same meaning based on antecedent basis
Whether the claimed scanning system, content-based filter system, and feedback system of claim
1 of the ‘664 patent, or the claimed system for scanning, content-based filter system, and
feedback system of claim 10 of the ‘420 patent, are required by the claim language to be
different systems, or whether they can be the same system
I/P Engine reserves the right to modify, amend, or supplement its preliminary proposed
constructions and extrinsic evidence for any reason, including the proposed constructions and
extrinsic evidence of Defendants, any developments that arise during the meet and confer
1

The term “scanning a network” was originally proposed by Plaintiffs, and has been divided
into the separate terms “scanning” and “network” to correspond with Defendants’ proposals.
2
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process, or any additional information obtained through discovery or other means. I/P Engine
specifically reserves the right to rely on expert testimony to respond to or rebut Defendants’
claim constructions and evidence.
I/P Engine preliminarily identifies the following extrinsic evidence that it may rely on in
support of its preliminary claim constructions. Citations to specific portions of the following
extrinsic evidence are exemplary and are not intended to exclude other portions of this extrinsic
evidence. I/P Engine reserves the right to rely on the cited extrinsic evidence for any of its claim
constructions. I/P Engine further reserves the right to rely on any of the extrinsic evidence cited
to and disclosed by Defendants.

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U.S. Patent Nos. 6,314,420 and 6,775,664

Claim Term/Phrase

Proposed Construction

informon

information entities of
potential or actual
interest to a user

relevance

how well an informon
satisfies the user’s
information need

query

request for search results

Support
As used herein, the term “informon” comprehends an information entity of
potential or actual interest to a particular user. In general, informons can be
heterogeneous in nature and can be all or part of a textual, a visual, or an audio
entity. Also, informons can be composed of a combination of the aforementioned
entities, thereby being a multimedia entity. Furthermore, an informon can be an
entity of patterned data, such as a data file containing a digital representation of
signals and can be a combination of any of the previously-mentioned entities.
Although some of the data in a data stream, including informons, may be
included in an informon, not all data is relevant to a user, and is not within the
definition of an informon. ‘664, col. 3, ll. 38-50; ‘420, col. 3, ll. 31-43.
The “relevance” of a particular informon broadly describes how well it satisfies
the user’s information need. ‘664, col. 4, ll. 12-13; ‘420, col. 4, ll. 5-6.
relevance – 1: a: relation to the matter at hand; . . . 2: the ability (as of an
information retrieval system) to retrieve material that satisfies the needs of the
user. Webster’s, 10th ed., 1998.
See Xerox v. Google et al., Case No. 10-cv-136 (D. Del. 2010) by J. Stark
(construction rendered on August 1, 2010): a “query” is a “request for search
results”
A user typically connects to a portal or other web site having a search capability,
and thereafter enters a particular query, i.e., a request for informons relevant to a
topic, a field of interest, etc. Thereafter, the search site typically employs a
“spider” scanning system and a content-based filter in a search engine to search
the internet and find informons which match the query. This process is basically
a pre-search process in which matching informons are found, at the time of
initiating a search for the user’s query, by comparing informons in an “informon
data base” to the user’s query. In essence, the pre-search process is a short term
search for quickly finding and quickly identifying information entities which are

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Claim Term/Phrase

Proposed Construction

Support
content matched to the user’s query. ‘664, col. 1, ll. 30-43; ‘420, col. 1, ll. 21-34.
Query – 1: question, inquiry, 2: a question in the mind. Webster’s, 10th ed.,
1998.
Query – The action of searching data for desired information. Dictionary of
Communications Technology, 2d ed., 1995.

network

two or more connected
computers

Query – 1. a program instruction that requests information from a database. 2.
any request by a user for information from a computer, such as the status of a
program, the time, or a list of active users. 3. to ask for information that meets
certain conditions, such as the last record entered or all records starting with a
certain letter. Academic Press Dictionary of Science and Technology, 1992.
In general, a data stream is conveyed through network 3, which can be a global
internetwork. A skilled artisan would recognize that apparatus 1 can be used
with other types of networks, including, for example, an enterprise-wide
network, or “intranet.” Using network 3, User #1 (5) can communicate with
other users, for example, User #2 (7) and User #3 (9), and also with distributed
network resources such as resource #1 (11) and resource #2 (13). ‘664, col. 6, ll.
48-56; ‘420, col. 6, ll. 41-49.
Network – 1) an arrangement of objects that are interconnected, 2) in
communications, the transmission channels interconnecting all client and server
stations as well as all supporting hardware and software. The Computer
Glossary, 8th ed., 1998.
Network – a set of computers connected together. Dictionary of Computer and
Internet Terms, 6th ed., 1998.
Network – 1. A series of points connected by communications channels. . . . 4.
In IBMS’s SNA, an interconnected group of nodes; a user application network in
data processing. 5. A group of computers connected together to facilitate the
transfer of information. Dictionary of Communications Technology, 2d ed.,
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Claim Term/Phrase

Proposed Construction

Support
1995.
Network – a netlike combination or pattern in which different elements are
joined; specific uses include; . . . Computer Technology. a loosely coupled group
of functional units, such as computers. The computers, called nodes of the
network, exchange messages over communications links. Academic Press
Dictionary of Science and Technology, 1992.

scanning

looking for items

Network – (1) an arrangement of objects that are interconnected. See LAN and
network database. The Computer Desktop Encyclopedia, 2d ed., 1999.
Referring to FIG. 9, spider system 46C scans a network 44C to find informons
for a demand search. ‘664, col. 25, ll. 41-42; ‘420, col. 25, ll. 39-40.
Scan – 1: to read or mark so as to show metrical structure, 2: to examine by
point-by-point observation or checking, to investigate thoroughly by checking
point by point and often repeatedly, to glance from point to point of often hastily,
casually, or in search of a particular item, 3: a: to examine esp. systematically
with a sensing device (as a photometer or a beam of radiation) usu. to obtain
information, b: to pass an electron beam over and convert (an image) into
variations of electrical properties (as voltage) that convey information
electronically, c: to pass over in the formation of an image (the electron beam).
Webster’s, 10th ed., 1998.
Scan – . . . Computer Technology. 1. to examine sequentially each item in a list,
each record in a file, each point of a display, or each input or output channel of a
communication link. Academic Press Dictionary of Science and Technology,
1992.

demand search

a one-time search
performed upon a user
request

Scan – . . . (3) to sequentially search a file. The Computer Desktop
Encyclopedia, 2d ed., 1999.
The search engine system employs a regular search engine to make one-shot or
demand searches for information entities which provide at least threshold

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Claim Term/Phrase

Proposed Construction

Support
matches to user queries. ‘664 Abstract; ‘420 Abstract.

user
collaborative
feedback data

combining

an individual in
communication with a
network
information concerning
what informons other
users with similar
interests or needs found
to be relevant

uniting into a single
number or expression

Demand search results can be returned if no wire exists for an input query.
Otherwise, wire search results are returned if a wire does exist, or collaborative
ranking data can be applied from the wire filter structure to improve the results
of the demand search from the regular search engine. ‘664, col. 23, ll. 56-60;
‘420, col. 23, ll. 54-58.
[A]s used herein, the term “user” is an individual in communication with the
network. ‘664, col. 3, ll. 56-57; ‘420, col. 3, ll. 49-50.
Collaborative filtering, on the other hand, is the process of filtering informons,
e.g., documents, by determining what informons other users with similar
interests or needs found to be relevant. ‘664, col. 4, ll. 33-36; ‘420, col. 4, ll. 2629. Collaborative filtering employs additional data from other users to improve
search results for an individual user for whom a search is being conducted. ‘664,
col. 24, ll. 39-63; ‘664, col. 1, ll. 50-54; ‘420, col. 24, ll. 37-39; ‘420, col. 1, ll.
41-45.
Collaborative – 1: to work jointly with others or together esp. in an intellectual
endeavor, 2: to cooperate with or willingly assist an enemy of one’s country and
esp. an occupying force, 3: to cooperate with an agency or instrumentality with
which one is not immediately connected. Webster’s, 10th ed., 1998.
Referring to FIG. 9, search return processor 48C, which includes an informon
rating system like that of FIG. 6, receives demand search informons passed
through the content-based filter structure 40C. ‘664, col. 25, ll. 55-63; ‘420, col.
25, ll. 52-61. The search return processor 48C then, via the informon rating
system, combines the content-based filtering data with the collaborative
feedback rating data to determine a complete rating predictor. Id.; see also ‘664,
col. 14, l. 43 – col. 15, l. 3; ‘664, col. 26, ll. 25-30; ‘420, col. 14, ll. 40-67; ‘420,
col. 26, ll. 24-28.
FIG. 6 illustrates an exemplary informon rating structure for combining the
content-based filtering data and the collaborative feedback rating data. The
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Claim Term/Phrase

Proposed Construction

Support
rating structure of FIG. 6 builds a profile, and its associated predictors, by
combining a series of combination functions that use content (features of the
informon) and collaboration (information from other users) data to determine the
relevance of an informon, i.e., a complete rating predictor. ‘664, col. 14, l. 43 –
col. 19, l. 38; ‘420, col. 14, l. 40 – col. 19, l. 36. In other words, in short, the
search return processor 48C receives informons relevant to the user’s query, and
filters (e.g., ranks in order of the determined complete rating predictor)
informons found to be relevant. See ‘664, col. 2, ll. 38-42; ‘420, col. 2, ll. 30-34.
Combine – 1: a: to bring into such close relationship as to obscure individual
characters: merge b: to cause to unite into a chemical compound, c. to unite into
a single number or expression, 3: to possess in combination, a. to become one, b.
to unite to form a chemical bond. Webster’s, 10th ed., 1998.
Combine – a drawing program command that merges two separate objects into
one so that the whole thing can become one object. This is similar to grouping
objects, but there is an important distinction. A group of objects can be treated
as a single object, but the individual elements retain their separate attributes. A
combined object is a single object; it has only one outline (or path) and only one
fill. Interestingly, a combined object can have holes in it that you can see
through. Dictionary of Computer and Internet Terms, 6th ed., 1998.

Order of steps

No “construction” is
necessary; the order is
dictated by the claim
language or no order is
required.

Antecedent basis

Where it is required
under the law to apply
the same claim meaning
to a claim term based on
antecedent basis, I/P
Engine agrees that the

I/P Engine agrees to work with defendants to identify instances where this
principle is applicable. Each such instance is a separate claim element, and
requires separate construction.

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Claim Term/Phrase

Different Systems

Proposed Construction
law requires the parties to
do so.
The claim language does
not require the scanning
system, content-based
filter system, and
feedback system of claim
1 of the ‘664 patent or
the claimed system for
scanning, content-based
filter system, and
feedback system of claim
10 of the ‘420 patent to
be the same or different
“systems.”

Support

An artisan would recognize that one or more of the processors 52-55 could be
combined functionally so that the actual number of processors used in the
apparatus 50 could be less than, or greater than, that illustrated in FIG. 2. For
example, in one embodiment of the present invention, first processor 52 can be
in a single microcomputer workstation, with processors 53-55 being
implemented in additional respective microcomputer systems. Suitable
microcomputer systems can include those based upon the Intel® Pentium-ProTM
microprocessor. In fact, the flexibility of design presented by the invention
allows for extensive scalability of apparatus 50, in which the number of users,
and the communities supported may be easily expanded by adding suitable
processors. As described in the context of FIG. 1, the interrelation of the several
adaptive profiles and respective filters allow trends attributable to individual
member clients, individual users, and individual communities in one domain of
system 51 to be recognized by, and influence, similar entities in other domains,
of system 51 to the extent that the respective entities in the different domains
share common attributes. ‘664, col. 10, ll. 8-28; ‘420, col. 10, ll. 3-23.
Generally, basic search engine system structures of the invention are preferably
embodied with the use of a programmed computer system. ‘664, col. 24, ll. 3638; ‘420, col. 24, ll. 34-36.

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Dated: March 21, 2012

By: /s/ Charles J. Monterio, Jr.
Jeffrey K. Sherwood
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAnna Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: (202) ‘420-2200
Facsimile: (202) ‘420-2201
Donald C. Schultz
W. Ryan Snow
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of March, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S PRELIMINARY PROPOSED CLAIM TERMS AND PROPOSED
CONSTRUCTIONS, was served via email, on the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Armands Chagnon
Senior Paralegal

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