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

Filing 438

Declaration re 433 Opposition, 432 Opposition, 434 Opposition, of Margaret P. Kammerud in Support of Defendants' Opposition to Plaintiff's Motions in Limine by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Noona, Stephen)

EXHIBIT K

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
I/P ENGINE, INC.,

)

)

Plaintiff,

)
)
v.
)
)
AOL, INC., GOOGLE INC., IAC SEARCH & )
MEDIA, INC., TARGET CORP., and
)
GANNETT CO., INC.
)
)
Defendants.

C.A. No. 2:11-cv-512-RAJ
JURY TRIAL DEMANDED

REPORT OF DEFENDANTS' EXPERT
LYLE H. UNGAR, PH.D., CONCERNING
NONINFRINGEMENT

CONFIDENTIAL — OUTSIDE COUNSEL ONLY

UNGAR EXPERT REPORT ON NON-INFRINGEMENT
CONFIDENTIAL OUTSIDE COUNSEL ONLY

CASE C.A. No . 2: 1 1 -cv-5 1 2-RAJ

XI.

COMPARABLY LICENSED TECHNOLOGY, OTHER PATENTS

323. In this section, I review some of the patents licensed by Google for similarity with
the claims and disclosures of the '420 and '664 Patent.
324. The patents and patent applications licensed by Google under the October 2008
license

have a clear connection with the '420 and '664

Patents as asserted against Google AdWords.
These patents and applications relate

generally to the quality of search advertising. This is the same field of use as the '420 and '664
patents, as mistakenly asserted against Google AdWords.
325. Broadly speaking,

describe ways to optimize ad placement

across web pages through tracking the performance of the ads. For example,
describes a method and system to optimize advertisements placed
on various
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C.A. No. 2:11-cv-512-RAJ

describes tracking the performance of various
advertisements across multiple zones, where the performance indicators include the number of
impressions delivered and the number of clickthroughs available for each ad at each zone.
The claimed invention of the

In short, the

then

describes running different ads for the same search

query, tracking the performance of those ads for that query, and selecting the better-performing
ads for use with future search results.
326. Dr. Frieder asserts that "Defendants' systems infringe the asserted claims whenever
they filter advertisements in response to a search query from a user using pCTR." (Frieder
Report, p. 25 (Noting that "pCTR is sometimes referred to as Quality Score.").) Dr. Becker
asserts that it is this use of pCTR/Quality Score in improving the quality of ads (i.e., relevance of
ads) that increases Google's revenues, by improving both end-user experience and making the
AdWords system more attractive to advertisers. (See generally Becker Report, pp. 31-37.) As
discussed above, the

discloses a method for determining the quality of ads, and

selecting the better ads for use. The quality of the advertisements shown is improved through the
use of the claimed invention of the

, the end-users' experience is improved, and both

the advertisers and the search advertising system have improved revenues.
327. I further note that
—share a specification with and claim priority to the
Similarly,

shares a specification with and claims priority to
I accordingly conclude that the patents licensed under the October

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C.A. No. 2:11-cv-512-RAJ

2008 license

are comparable to the asserted patents, as interpreted by Plaintiff

and its experts.
328. I conclude that U.S. Patent No. 6,269,361 ("the '361 patent") is not comparable to
the asserted patents. In paragraph 80 of his Infringement Report, Dr. Frieder asserts that the
asserted patents and the '361 patent "generally relate to similar subject matter" because
AdWords uses both of them to allegedly "rank and filter advertisements." This is analogous to
saying that a stethoscope is "similar subject matter" to an MRI because doctors use both of them
to check for heart defects. In point of fact, the '361 patent has little to do with the alleged
inventions of the asserted patents other than that they both involve queries. The '361 patent
discloses an advertising system where rank position is determined through an auction by bid and
only by bid, and where advertisers are charged their bid amount for each click on the ad. In
comparison, the asserted patents barely mention advertisements 52 and never mention bidding,
auctions, prices, or charging advertisers on a per-click basis. Rather, the '420 patent filters
informons on the basis of applicable content profile data and on the basis of a combination of
collaborative feedback data and content profile data, while the '664 patent filters combined
information for relevance to either the query or the user. In other words, the '361 patent
discloses an entirely different means of filtering information than the traditional means disclosed
in the asserted patents.
329. Moreover, as discussed above, under Dr. Frieder's infringement assertions, the
'420 and '664 patents relate to the quality of search advertising. Indeed, Dr. Becker asserts that
the value of the claimed invention is the use of quality/relevance in search advertising. (See
generally Becker Report, pp. 31-37.) But in the system disclosed by the '361 patent, ad rank is

determined solely by bid amount, with no consideration of the quality of search results. Because
The sole citations are at 10:63-67, which does not describe the "search engine" embodiments of the claims, and
at dependent claim 5 of the '664 Patent.
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