Interval Licensing LLC v. AOL, Inc. et al

Filing 240

STATEMENT re Joint Claim Construction and Prehearing Statement by Plaintiff Interval Licensing LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit A-1, #6 Exhibit B-1, #7 Exhibit C-1, #8 Exhibit D-1, #9 Exhibit 1, #10 Exhibit 2, #11 Exhibit 3, #12 Exhibit 4, #13 Exhibit 5, #14 Exhibit 6)(Berry, Matthew)

Exhibit 2

Parties’ Joint Claim Chart for U.S. Patent No. 6,757,682

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I.

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Claim Language

Plaintiff’s and Defendants’ Agreed-Upon Construction

intensity rank

intensity rank

AGREED-UPON TERMS

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Found in claims1: Agreed-upon construction:
5, 6
A value associated with an item that represents the level of current interest in that particular item
relative to other items
from a source
other than

from a source other than
Agreed-upon construction:

Found in claims:
1, 2, and 3

From a user other than

[receive / receiving] in real time
[receive /
receiving] in real
Agreed-upon construction:
time
Found in claims:
1, 2, and 3

II.

[receive/receiving] immediately or almost immediately after the indication.

TERMS IN DISPUTE

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Claim Language
(Disputed Terms
in Bold)

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

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’682 patent

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1

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Throughout this claim chart, reference to an independent claim includes by reference any claims depending from
that independent claim.

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2

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In addition to the intrinsic and extrinsic evidence cited herein, Interval identifies (1) all claims in which any term
appears as support for its constructions and (2) all intrinsic and extrinsic evidence for each claim term cited by
Defendants.
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Defendants provide herein preliminary claim constructions and identification of purported “structure” disclosed in
the specification of the ’682 patent for certain claim terms. By providing these constructions for any claim term or
identifying a purported structure for any means-plus-function term, Defendants do not concede that any such claim
or claim term satisfies the definiteness requirements of 35 U.S.C. § 112 and expressly reserve the right to challenge
any claim on that basis.
4
Defendants identify herein evidence that may support its proposed constructions. By identifying portions of the
specification in this document, defendants do not concede that any claim satisfies the enablement or written
description requirements of 35 U.S.C. § 112 and expressly reserve the right to challenge any claim on those bases.
By identifying portions of the provisional application to which the ’682 patent purports to claim priority, defendants
do not concede that said provisional application provides written description or other support for any claim. In
addition to the intrinsic and extrinsic evidence cited herein, defendants identify (1) all claims in which any term
appears as support for its constructions and (2) all intrinsic and extrinsic evidence for each claim term cited by
Plaintiff.

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Claim Language
(Disputed Terms
in Bold)

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Term 1
“an indication
that [an/the]
item … is of
current
interest”

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

an indication that [an/the] item … is of
current interest

an indication that [an/the] item … is of
current interest

Proposed Construction:

Proposed Construction:

an indication that [an/the] item … is of
interest at that time

An alert that activity of interest is happening
now in a dynamically changing electronic
resource.

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Found in claims:
1, 2, and 3

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Intrinsic Evidence:

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Intrinsic Evidence:
’682 Patent Title, 1:1-2 (“ALERTING USERS
TO ITEMS OF CURRENT INTEREST”)

Figs. 1, 2B, 5, 7, 11

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’682 Patent 1:22-27 (“FIELD OF THE
INVENTION: The present invention relates
generally to communications and computer
“The level of current interest of a particular
file or other electronic resources is determined networks. More specifically, alerting users to
dynamic content accessible via a
based on indications received from alerting
communications or computer network that is of
users.” 2:31-33.
interest at the time of the alert is disclosed.”)
“However, this proliferation of content, such
’682 Patent 1:43-53 (“First, the shear volume of
as audio, image, and video content, presents
content available makes it difficult for users to
certain challenges from the perspective of
users seeking content of current interest. First, find the content in which they are most
the shear volume of content available makes it interested in accessing at any given time . . .
difficult for users to find the content in which much of the content of potentially greatest
interest, at least to many users, is dynamic. At
they are most interested in accessing at any
given time. Apart from having to sort through certain times, a file or other electronic resource
may be of great interest while at other times, or
the enormous volume of content available,
perhaps even most of the time, it is not of great
much of the content of potentially greatest
interest, at least to many users, is dynamic. At interest or not interesting at all.”)
certain times, a file or other electronic
’682 Patent 1:58-2:6 (“A webcam might be
resource may be of great interest while at
other times, or perhaps even most of the time, used, for example, to provide images of a
watering hole in Africa. Typically, users would
it is not of great interest or not interesting at
access a website associated with the webcam to
all.” 1:41-52.
view activity at the watering hole. However,
“There is also a need to ensure that interested there would be many periods during which
nothing of particular interest (e.g., no animals,
users receive alerts with respect to web
etc.) would be happening at the watering hole.
content or other electronic resources that are
Conversely, there would be occasional periods
of interest only to a relatively small
community of users, or that are of interest on when activity of great interest would be
occurring, such as the presence of a rare or
only relatively rare or infrequent occasions.
endangered animal at the watering hole. Users
There is a risk, otherwise, that indications of
current interest regarding such files and other would have no way of knowing when such
activity would be occurring, and might miss the
electronic resources would be masked by
most interesting images if they did not happen
more voluminous or frequent activity with
to check the website at the right time. The same
respect to more widely popular or pervasive
problems arise with respect to files or other
resources or types of resources (such as
pornography sites on the World Wide Web).” electronic resources other than webcam content
provided via the World Wide Web, including
2:18-27.
other media such as audio.”)

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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“Accordingly, alerting users of items of
current interest is disclosed. The level of
current interest of a particular file or other
electronic resource is determined based on
indications received from alerting users. One
or more users receive an alert that the item is
of current interest.” 2:30-34.

’682 Patent 2:7-14 (“As a result there is a need
for a way to alert users to web content or other
electronic resources available via a
communications or computer network that are
of interest at a particular time. To meet this
latter need, there is a need to provide a way to
become aware that dynamic web content or an
“Disseminating to a participant an indication electronic resource other than web content is of
that an item accessible by the participant via a interest at a given time, and to quantify the
network is of current interest is disclosed . . .” degree or level of current interest.”)
2:47-65.
’682 Patent 2:30-34 (“Accordingly, alerting
“As indicated in FIG. 1, an alert sent by an
users of items of current interest is disclosed.
alerting user includes, in one embodiment, at The level of current interest of a particular file
least the URL of the web content considered
or other electronic resource is determined based
by the alerting user to be of current interest. . . on indications received from alerting users. One
. the alerting user may provide text indicating or more users receive an alert that the item is of
what the alerting user believes to be of current current interest.”)
interest in the web content.” 5:4-12.
’682 Patent 2:47-65 (“. . . Disseminating to a
‘682 File History, April 9, 2003 Office
participant an indication that an item accessible
Action, at 3 (noting that documents viewed in by the participant via a network is of current
Eichstaedt were of current interest); see also
interest is disclosed . . . .”)
September 16, 2003 Office Action, at 3
(same).
’682 Patent 3:9-12 (“to alert users to dynamic
content of interest at the time of the alert (also
Provisional Application to the ‘682 Patent
referred to herein as an ‘item of current
(No. 60/178627), at 3 (“In one embodiment, a interest’)”).
‘Hot Now’ virtual pushbutton is present on a
user’s web display. When the user sees
’682 Patent 4:11-14 (“alert users to dynamic
something they feel is of interest, they press
content of interest at the time of the alert (also
the button. Pressing the Hot Now button sends referred to herein as an ‘item of current
an alert message to everyone using the
interest’).”)
infrastructure who has indicated that such
alerts are of interest to them (based upon
’682 Patent 4:11-19 (“. . . The system 100
factors described below). Along with the alert includes at least one alerting user 102 who
message a link to the website of interest is
accesses dynamic content associated with a
provided, and alerted users can chose [sic] to uniform resource locator (URL), determines the
go there. If they also believe the site is
content is of current interest, and sends an alert
currently interesting, they can press their Hot indicating that the URL is of current interest, as
Now button and further propagate the alert.”); described more fully below.”).
see also 9 (“For example, the system may be
used to provide and alert when someone finds ’682 Patent 4:20-24 (“In one embodiment,
anything on the Web that is timely and worthy participant 104 provides an indication of the
of alerting others who have expressed interest, participant's interests and receives a list of
such as auctions.”).
URLs providing the location of dynamic
content, such as web content on the World Wide
Extrinsic evidence:
Web, that may be of interest to the participant at
Webster’s New World College Dictionary, 4th the time of the alert.”)
ed. at 355 (defining “current” as “at the
’682 Patent 5:4-12 (“As indicated in FIG. 1, an
present time; contemporary”)

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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The American Heritage Dictionary of the
English Language, 4th ed. (2000) at 446
(defining “current” as “belonging to the
present time” or “prevalent, especially at the
present time”)

alert sent by an alerting user includes, in one
embodiment, at least the URL of the web
content considered by the alerting user to be of
current interest. . . .”)
’682 Patent 5:13-19 (“FIG. 2A is a series of
three screen shots showing three different states
of an alert submission display . . .”)

Webster’s Ninth New Collegiate Dictionary
(1985) at 316 (defining “current” as
“occurring in or existing at the present time”). ’682 Patent Figures 2A, 3, 11

Declaration of William Mangione-Smith, ¶¶ 5, ’682 Patent 5:58-60 (“The process begins in
7 (opining that claims should not be limited to step 302 in which an alert indicating that an
item is of current interest is received.”)
a preferred embodiment)

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Provisional Application 60/178,627
(“Provisional App.”) (referenced by the ’682
patent as a related U.S. Application)

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Provisional App., Title: “Alerting Users to Web
Sites of Current Interest . . . ”

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Provisional App. at Summary (“While dozens of
web cam portals and directories exist, none are
capable of propagating an alert that ‘something
interesting is happening now,’ to the right
people. To solve this problem, a real time metadata happening infrastructure allowing people
who see interesting occurrences to alert other
interested parties is disclosed. The system is
referred to as ‘Hot Now.’”)

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Provisional App. at Sec. 1.3 ("Today, dozens of
such webcam directories exist, some including
more than 10,000 entries. Such services are
valuable in a limited way. They can help users
find the African watering hole, but cannot help
users determine when an animal is present.”)

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Provisional App. at Sec. 1.4 (“Most webcam
and web video directories have some method of
ranking. These methods range from editorial
choices made by the directory operators to
voting on the part of the viewers. It's common
to see "top ten" lists, often with voting numbers
available, and to see such honors as "webcam of
the day." From our perspective, such
determinations are relatively static and cannot
help anyone interested in short time based
events. Sites which list a webcam of the minute

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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do exist, but there is no special time-based
relevance in a selected webcam.”)

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Provisional App. at 2.1 (“Pressing the Hot Now
button sends an alert message to everyone using
the infrastructure who has indicated that such
alerts are of interest to them (based upon factors
described below). Along with the alert message
a link to the website of interest is provided, and
alerted users can chose to go there. If they also
believe the site is currently interesting, they can
press their Hot Now button and further
propagate the alert.”)

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Extrinsic evidence:
Interval.com web site, circa February 2002
(“Kundi.com is a spin-off venture from Paul
Allen's Interval Research Corporation. It began
in 1999 as a fast-track research project to
explore interesting commercial opportunities
relating to webcams, whose usage had begun to
explode. We found that webcams and streaming
media had a search problem unique for
the Web: time. Search engines are not equipped
to find events as they happen. Kundi developed
an alert infrastructure, whereby people can alert
other people in real time to encourage
propagation.

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Interval spin-off Kundi’s web site, before
Feb. 19 2001 (“Kundi.com is a unique timecritical network mining tool. Its purpose is to
find interesting events on the Web as they
happen. We first became aware of the need
while researching web cameras and other forms
of spontaneous streaming media. Existing
search engines can easily find an animal cam in
Africa, but none can tell you when an animal is
present.

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Our solution relies on humans alerting other
humans. We've created a unique alert
infrastructure that allows people to press our
“HotNow Button” when they see something that
interests them. They can also add a brief
comment if they desire. This information enters
our “HotNowList” displayed as a pop-up
window, which updates every 10 (that's TEN)
seconds. . . . This information enables

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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interesting live events to propagate up, or down,
the list: ‘people's choice’ in real time.

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Interval spin-off Kundi.com home page, circa
April 2002 (“HotNow is a unique tool that lets
you find and share the most interesting events
on the Web – right when they’re happening. . .
. Updated every ten seconds, the HotNow List
reveals the 50 web sites that HotNow users (like
you!) find most interesting right now.”)
(emphasis in original).

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’682 patent co-applicant Michael Naimark’s
Web-site naimark.net (“In 1999, anticipating
the explosion of live streaming video and other
media, an effort launched at Interval Research
Corporation proposed a solution to finding live,
unscheduled events as they happen. This
solution enabled people to alert other people in
real time to encourage propagation, and resulted
in an Interval spinoff venture called Kundi.com.
Kundi was up and running until 2001. Three
patents were allowed in 2003 and 2004.”)

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’682 patent co-applicant Michael Naimark,
email to colleagues dated 03/21/2001
Kundi.com, the post-Interval webcam venture
you've heard me mention, has launched a beta
version. It addresses a unique problem shared by
webcams and other live media: finding
interesting events as they happen. Our solution
is based on people alerting other people.

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We've developed a ‘HotNow Button,’ that
people press when they see something
interesting, and a ‘HotNow List,’ that links to
the top ranked HotNow sites. Pressing the
HotNow Button counts as a big vote, linking to
a site from the HotNow List counts as a small
vote, and time decays all values. The rest is
math. Our system updates every ten seconds, so
things quickly propagate up or fall off.

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Terveen expert report5, ¶¶ 23:
23. The system disclosed in the ’682
application deals with ‘dynamic’ electronic
content available for transmission over the

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Expert Report and Declaration of Professor Loren Terveen Regarding U.S. Patent No. 6,757,682, signed and dated
April 4, 2011.

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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network that may be of great interest at one
moment, but of no interest shortly thereafter.
. . The type of dynamic content that is the
object of the invention (e.g., ’682 patent at
1:53-2:47 (“the presence of a rare or
endangered animal at the watering hole”
which is being monitored by a webcam))
will be of interest only for short periods of
time. . . .

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Interval Research “Project Narrative,” on or
about 08/06/1999 [INT00004442-43, Marked
“Confidential”]

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The American Heritage Dictionary of the
English Language. 4th ed. 2000.
 Current: “1b. Being in progress now:
current negotiations.”
 Indication: “1. The act of indicating.
2. Something that serves to indicate; a
sign
 Indicate: “1. To show the way to or the
direction of; point out:”

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Oxford English Dictionary, second edition
(1989)
 Current: “3. a. Running in time; in
course of passing; in progress.”
 Indication: “1. a. The action of
indicating, pointing out, or making
known; that in which this is embodied;
a hint, suggestion, or piece of
information from which more may be
inferred.”
 Indicate: “1. To point out, point to,
make known, show (more or less
distinctly).”

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Oxford World Dictionary
 Current: “belonging to the present
time; happening or being used or done
now: keep abreast of current events; I
started my current job in 2001”

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Webster’s New World College Dictionary, 4th
ed.
 Current: “2 a) now going on; now in
progress [the current month, his current
job] b) at the present time;
contemporary [current fashions] c) of

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

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most recent date [the current edition]”

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Term 2

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[determine /
determining] . . . Proposed Construction:
an intensity
“intensity weight value” =
weight value
A value associated with an item to which an
Found in claims: indication pertains that represents the level of
1, 2, and 3
interest in that item

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[determine/determining] . . . an intensity
weight value

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Intrinsic Evidence:

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“intensity weight value”
“The alert object also includes an
LAST_RANK field 518 used to store a
numerical ranking retrieved from the database
that indicates the overall level or degree of
current interest of an item as indicated by all
of the alerts that have been submitted with
respect to a URL during the current period of
activity with respect to the URL through the
most recent prior alert. The alert object also
includes a LAST_WEIGHT field 520 used to
store data retrieved from a database table, as
described below, that represents the number of
prior alerts received for the URL in the
interest category indicated by the current alert,
as described more fully below. The alert
object also includes a
LAST_INTENSITY_SUM field 522 in which
the sum of the intensities of all prior alerts for
the URL during the current period of activity
with respect to the URL, which sum is
retrieved from a database table described more
fully below, is stored.” 6:31-47.

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[determine/determining] . . . an intensity
weight value
Proposed Construction:
This claim language is insolubly ambiguous and
not amenable to any reasonable construction
Intrinsic Evidence:
Application that lead to the ’682 patent,
including original claims of that application.

“Next, in step 606, the intensity sum for the
URL, which is the sum of the intensity values
for all of the alerts with respect to the URL, is
updated.” 7:28-30.
“In step 610, the interest weight value, which
represents the number of alerts for a particular
URL in which a particular category of interest
was indicated, is updated.” 7:32-34.
“As noted above, in one embodiment, the

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Original claims of purportedly incorporated
U.S. Pat. Appl. No. 09/656,518 (“’518
application”)
Original claims of purportedly incorporated
U.S. Pat. Appl. No. 09/658,346 (“’346
application”)
’682 Patent Prosecution History
April 9, 2003 Office Action at 3 (“As to
claim 2, Eichstaedt et al. teaches a method,
wherein processing the indication comprises
determining an intensity value (i.e.
numerical value) for the indication based on
at least one attribute of the indication (see
column 3, lines 29-38), the intensity value
(i.e. numerical value) representing the
weight that will be given to the indication
(see column 3, lines 49-54).”)
September 16, 2003 Office Action (same)
Nov. 28, 2003 Amendment and Remarks
(adding new language, “determining an
intensity value to be associated with the
indication and an intensity weight value, and
adjusting the intensity value based on a
characteristic for the item provided by the
source” and arguing that: “The rejection is
respectfully traversed. As amended, claim 1
recites “...determining an intensity value to
be associated with the indication and an
intensity weight value, and adjusting the
intensity value based on a characteristic for

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Claim Language
(Disputed Terms
in Bold)

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4

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

weight is the total number of alerts received
within a given interest category for a URL.”
7:49-51.

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“Finally, the database table 700 includes a
NORMALIZE table 712 used to store the sum
of the intensities of the alerts submitted for a
URL (INTENSITY_SUM) and a time stamp
indicating when the last normalization was
performed.” 7:67-8:3.

the item provided by the source....”
Eichstaedt et al. discloses ranking categories
and generating profiles, but based on
feedback from the user following interaction
with an item. (Col. 3, lines 28-67). The
weight of a category is based on the number
of user clicks on a document or actions
expressed by the user. (Col..3, lines 52-54).
Eichstaedt et al. does not disclose an
intensity value adjusted based on a
characteristic for an item provided by a
source, as in the claimed invention. Thus,
claim 1 is allowable for the reasons stated
above.”)

“FIG. 8A is a flowchart illustrating a process
used in one embodiment to update the
intensity sum for a URL, as in step 606 of
FIG. 6. The process begins with step 802 in
which the current intensity sum is retrieved
from the database, as in step 604 of FIG. 6. If
there is no existing record for the URL in the Extrinsic evidence:
NORMALIZE table (i.e., the alert being
processed is the first alert for the URL), a
Terveen Report, ¶ 30, 33.
URL_ID is assigned for the URL, a record for
30. In a November 24, 2003 amendment,
the URL is created in the NORMALIZE table,
the applicants added the following clause to
and the retrieved current intensity sum is set to
all independent claims:
zero. Next, in step 804, the intensity sum is
[determining/determine] an intensity
incremented by the amount of the intensity of
value to be associated with the
the current alert. For example, if the previous
indication and an intensity weight
intensity sum was 4.7 and the intensity for the
value, and adjusting the intensity value
current alert was 0.5, the intensity sum would
based on a characteristic for the item
be incremented to the value of 4.7+0.5=5.2.
provided by the source
Finally, in step 806, the intensity sum time
E.g., issued ’682 patent at claim 1.
stamp stored in NORMALIZE table 712
shown in FIG. 7 (which is the same as the
33. A PHOSITA in 2000 could not
LAST_NORMAL_TIME stored in field 524
determine a meaning for the term “intensity
of FIG. 5) is updated to the time stamp of the
weight value,” even with the aid of the
current alert. In one embodiment, the intensity
application and prosecution history. In this
sum is updated, and a normalization is
regard, I note the following:
performed as described more fully below,
a.
A PHOSITA in 2000 would
each time a new alert is received for a URL. In
not have understood this term to have
such an embodiment, the time stamp stored in
an accepted meaning in the art.
the NORMALIZE table 712 of FIG. 7 will be
b.
Grammatically, the claim
the same as the time stamp stored in the
language fails to inform how the term
RANK table 708 of FIG. 7, as both the rank
“intensity weight value” relates to
and the intensity sum are updated each time an
other terms in the claim—a PHOSITA
alert is received.” 8:4-28.
would not know whether the claim
required “determining [1] an intensity
With respect to the “interest weight value”:
value to be associated with the
“The process then proceeds to step 850 in
indication and [2] an intensity weight
which the weight value is incremented for the
value;” or “determining an intensity
URL with respect to the interests category by
value to be associated with [1] the
increasing the value from zero to one for the
indication and [2] an intensity weight
new record.” 10:12-15; see also 10:19-23.
value.”
c.
The amended claims do not

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Claim Language
(Disputed Terms
in Bold)

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Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

“As to claim 3, Eichstaedt et al. teaches a
method, wherein processing the indication
further comprises calculating an intensity rank
for the item based at least in part on the
intensity value (i.e., numerical value) of the
indication (see column 3, lines 28-64), the
intensity rank indicating the level of current
interest of the item relative to other items (see
column 3, lines 49-53; where ‘intensity rank’
is ready on ‘weight.’).” ‘682 Prosecution
History, Office Action, April 9, 2003, at 3.
Extrinsic Evidence
Declaration of William Mangione-Smith:
“Furthermore, I do find support for the
meaning of ‘intensity weight value’ in the
filed application. The specification itself
aligns precisely with the language of claim 1.
Claim 1 requires determining (1) an intensity
value and (2) an intensity weight value. As
described in the ’682 specification at Figure 6
and 6:51-7:35, an intensity value is
calculated at step 602 (‘the intensity of the
alert is determined’). At step 604, data values
are retrieved from the database. At step 606,
the intensity sum is updated for the URL,
‘which is the sum of the intensity values for
all of the alerts with respect to the URL.’
Intensity sum is an intensity weight value for
the URL in the same manner as the ‘interest
weight value’ is for a particular category of
interest for a particular URL. „682 patent at
7:32-34 (‘[I]nterest weight value . . .
represents the number of alerts for a particular
URL in which a particular category of interest
was indicated . . . .’); see also 7:50-51 (‘As
noted above, in one embodiment, the weight is
the total number of alerts received within a
given interest category for a URL.’). At step
608, the intensity rank for the URL is updated.
See’682 patent at 8:29-10:57 (describing the
various ways in which the intensity rank can
be calculated). The intensity rank is a
weighted sum of intensity values and thus is
also an intensity weight value. Finally, at step
610, the interest weight value is updated,
‘which represents the number of alerts for a
particular URL in which a particular category
of interest was indicated.’ ‘682 patent at 7:3234. The interest weight value is not an

- 10 -

specify how the “intensity weight
value” is used, if at all, and are,
therefore, silent concerning the role
this concept should play in the rest of
the claimed method, system or product.
d.
The term “intensity weight
value” is not used anywhere in the
application or its purportedly
incorporated applications and, thus,
there is no guidance that would allow
one of skill in the art to determine its
meaning.
e.
In amending the claims to add
this previously-unused language, the
applicants provided no explanation for
how it related to the alleged invention
described in the original ’682
application.
f.
The constituent words of this
term are used loosely in the ’682
application, including sometimes
interchangeably. As just one example,
the ’682 application states that “[t]he
term intensity as used herein refers to
the weight or value to be assigned to a
particular alert regarding an item.”
(’682 patent at 6:54-56).
g.
The ’682 application
describes two values that are updated
after the “intensity value” for a
particular alert has been determined:
an “intensity sum” and an “interest
weight value.” These two values are
described as being separately updated
and each value carries different
information. (See ’682 patent at 7:2830 (“Next, in step 606, the intensity
sum for the URL, which is the sum of
the intensity values for all of the alerts
with respect to the URL, is updated.”)
(emphasis added); 7:32-35 (“In step
610, the interest weight value, which
represents the number of alerts for a
particular URL in which a particular
category of interest was indicated, is
updated.”) (emphasis added)). A
PHOSITA could not determine
whether the “intensity weight value” in
the claims corresponds to the “intensity
sum” or the “interest weight value”
described in the specification – or even
if it relates to either of these values.

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

‘intensity weight value’ because it is not based
on intensity values. Instead, it is based purely
on a summation of a specific class of alerts
and is unaffected by the intensity value of any
alert. I believe that one of ordinary skill in the
art on or about the time of the filing of the
application that issued as the ‘682 patent
would understand that both the intensity sum
and the intensity rank are ‘intensity weight
values’ as that term is used in claim 1 of the
‘682 patent.” ¶ 19; see also ¶ 20 (discussing
use of “weight” in the procession history) and
¶ 21.

4
5
6
7
8
9

One of ordinary skill in the art would
be left guessing as to which of the
various values described in the
specification, if any, corresponds to the
“intensity weight value” recited in the
amended claims.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Term 3
[determine /
determining] an
intensity value to
be associated
with the
indication

Found in claims:
1, 2, and 3

[determine/determining] an intensity value
to be associated with the indication

[determine/determining] an intensity value to
be associated with the indication

Proposed Construction:

Proposed Construction:

[determine/determining] a value to be
associated with the indication that represents
the strength of the indication

Calculate and assign to “the indication” a
numerical value representing the reliability of
the particular indication based on its source or
content.

Intrinsic Evidence:

Intrinsic Evidence:
’682 Patent, Dependent claim 18 (“The method
of claim 3, further comprising determining the
weight to be given to the indication.”)

“ALERT INTENSITY field 514 is used to
store a number indicating the intensity or
weight to be afforded to the incoming alert.
The ALERT INTENSITY is determined as
described below.” 6:23-26.

’682 Patent, 2:10-17 (“To meet this latter need
there is a need to provide a way to become
aware that dynamic web content or an electronic
“The term intensity as used herein refers to the resource other than web content is of interest at
weight or value to be assigned to a particular a given time, and to quantify the degree or level
alert regarding an item. In one embodiment,
of current interest.”)
the value assigned for the intensity is higher if
the alerting user selects an interest category
’682 Patent, 6:23-26 (“ALERT INTENSITY
for the alert than it would have been if the
field 514 is used to store a number indicating
same alerting party had not selected an interest the intensity or weight to be afforded the
category. In one embodiment, the intensity
incoming alert. The ALERT INTENSITY is
value is higher if the alerting party provides a determined as described below.”)
caption for the alert than it would have been if
the alerting party had not provided a caption. ’682 Patent, 6:51-7:24 (“FIG. 6 is a flowchart
In one embodiment, the intensity of an alert is illustrating a process used in one embodiment to
increased if it is determined that the alerting
process as alerts as in step 304 of FIG. 3. The
party is a party that has provided particularly process begins with step 602 in which the
relevant or helpful alerts in the past, or is
intensity of the alert is determined. The term
trusted for some other reason, such as
intensity as used herein refers to the weight or
expertise, academic credentials, or reputation value to be assigned to a particular alert
within a particular community of interest. In
regarding an item. In one embodiment, the
one embodiment, the intensity of an alert is
intensity is a value between 0 and 1. In one

- 11 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

decreased if it is determined that the alerting
party has provided unhelpful or erroneous
alerts in the past, or if it is determined that the
alerting party cannot be trusted as much as
other alerting parties for other reasons, such as
reputation in the relevant community. In one
embodiment, it is possible to provide both an
active alert by selecting an alert button and to
provide a passive alert by merely accessing a
URL with respect to which an alerting party
previously submitted an active alert. In one
embodiment, an active alert is assigned a
higher intensity value than a passive alert.”
6:54-7:12.

17

embodiment, the value assigned for the intensity
is higher if the alerting user selects an interest
category for the alert than it would have been if
the same alerting party had not selected an
interest category. In one embodiment, the
intensity value is higher if the alerting party
provides a caption for the alert than it would
have been if the alerting party had not provided
a caption. In one embodiment, the intensity of
an alert is increased if it is determined that the
alerting party is a party that has provided
particularly relevant or helpful alerts in the past,
or is trusted for some other reason, such as
expertise, academic credentials, or reputation
within a particular community of interest. In one
“For example, a passive alert may be
embodiment, the intensity of an alert is
arbitrarily assigned a baseline intensity value decreased if it is determined that the alerting
of 0.3 and an active alert a baseline intensity
party has provided unhelpful or erroneous alerts
value of 0.5. For an active alert, 0.1 could be in the past, or if it is determined that the alerting
added for each of the following conditions that party cannot be trusted as much as other alerting
is satisfied by the alert: an interest category
parties for other reasons, such as reputation in
selection was included in the alert; a caption
the relevant community. In one embodiment, it
was included in the alert; and/or the source of is possible to provide both an active alert by
the alert is particularly trusted. Conversely,
selecting an alert button and to provide a passive
0.1 could be subtracted from the intensity of
alert by merely accessing a URL with respect to
an alert from a source known to be unreliable. which an alerting party previously submitted an
Alternatively, alerts from sources known to be active alert. In one embodiment, an active alert
unreliable may be blocked and not assigned
is assigned a higher intensity value than a
any intensity value.” 7:13-23.
passive alert.

18

No extrinsic evidence identified.

4
5
6
7
8
9
10
11
12
13
14
15
16

For example, a passive alert may be arbitrarily
assigned a baseline intensity value of 0.3 and an
active alert a baseline intensity value of 0.5. For
an active alert, 0.1 could be added for each of
the following conditions that is satisfied by the
alert: an interest category selection was included
in the alert; a caption was included in the alert;
and/or the source of the alert is particularly
trusted. Conversely, 0.1 could be subtracted
from the intensity of an alert from a source
known to be unreliable. Alternatively, alerts
from sources known to be unreliable may be
blocked and not assigned any intensity value.

19
20
21
22
23
24

The process illustrated in FIG. 6 continues with
step 604 . . . ”)

25
26

Original claims of purportedly incorporated
’518 application

27

Original claims of purportedly incorporated
’346 application

- 12 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

4

9

’682 Patent Prosecution History
April 9, 2003 Office Action at 3 (“As to
claim 2, Eichstaedt et al. teaches a method,
wherein processing the indication comprises
determining an intensity value (i.e.
numerical value) for the indication based on
at least one attribute of the indication (see
column 3, lines 29-38), the intensity value
(i.e. numerical value) representing the
weight that will be given to the indication
(see column 3, lines 49-54).”)

10

September 16, 2003 Office Action (same)

11

Nov. 28, 2003 Amendment and Remarks at
8: (“The rejection is respectfully traversed.
As amended, claim 1 recites “...determining
an intensity value to be associated with the
indication and an intensity weight value, and
adjusting the intensity value based on a
characteristic for the item provided by the
source....” Eichstaedt et al. discloses ranking
categories and generating profiles, but based
on feedback from the user following
interaction with an item. (Col. 3, lines 2867). The weight of a category is based on the
number of user clicks on a document or
actions expressed by the user. (Col..3, lines
52-54). Eichstaedt et al. does not disclose
an intensity value adjusted based on a
characteristic for an item provided by a
source, as in the claimed invention. Thus,
claim 1 is allowable for the reasons stated
above.”)

5
6
7
8

12
13
14
15
16
17
18
19
20

Extrinsic evidence:
Webster’s Ninth New Collegiate Dictionary ©
1985
 determine:
o “1a. to fix conclusively or
authoritatively.”
o “4a. to find out or come to a
decision about by
investigation, reasoning, or
calculation <~ the answer to
the problem> <~ a position at
sea>”

21
22
23
24
25
26
27

The American Heritage Dictionary of the
English Language. 4th ed. 2000.

- 13 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1



4
5
6
7
8
9
10

determine:
o “1a. To decide or settle (a
dispute, for example)
conclusively and
authoritatively.”
o “2. To establish or ascertain
definitely, as after
consideration, investigation,
or calculation.”
o “7. Mathematics To fix or
define the position, form, or
configuration of.”

Oxford English Dictionary, second edition
(1989)
determine: “11. trans. To ascertain definitely
by observation, examination, calculation, etc. (a
point previously unknown or uncertain); to fix
as known.”

11
12
13

Webster’s New World College Dictionary, 4th
ed. at 355
 determine: “to find out exactly;
calculate precisely; ascertain [to
determine a ship’s position]”

14
15
16

Term 4

17

adjusting the
intensity value
based on a
characteristic
for the item
provided by the
source

18
19
20
21
22
23
24
25
26
27

Found in claims:
1, 2, and 3

adjusting the intensity value based on a
characteristic for the item provided by the
source

adjusting the intensity value based on a
characteristic for the item provided by the
source

Proposed Construction:

Proposed Construction:

modifying the intensity value based on the
source’s activities pertaining to the item

Modifying the determined intensity value based
upon a distinguishing trait, quality or property
of the “item” identified by the source.

Intrinsic Evidence:

Intrinsic Evidence:

“ALERT INTENSITY field 514 is used to
store a number indicating the intensity or
weight to be afforded to the incoming alert.
The ALERT INTENSITY is determined as
described below.” 6:23-26.

’682 Patent, 6:51-7:24 (“FIG. 6 is a flowchart
illustrating a process used in one embodiment to
process as alerts as in step 304 of FIG. 3. The
process begins with step 602 in which the
intensity of the alert is determined. The term
intensity as used herein refers to the weight or
“In one embodiment, the value assigned for
value to be assigned to a particular alert
the intensity is higher if the alerting user
regarding an item. In one embodiment, the
selects an interest category for the alert than it intensity is a value between 0 and 1. In one
would have been if the same alerting party had embodiment, the value assigned for the intensity
not selected an interest category. In one
is higher if the alerting user selects an interest
embodiment, the intensity value is higher if
category for the alert than it would have been if
the alerting party provides a caption for the
the same alerting party had not selected an

- 14 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

alert than it would have been if the alerting
party had not provided a caption. In one
embodiment, the intensity of an alert is
increased if it is determined that the alerting
party is a party that has provided particularly
relevant or helpful alerts in the past, or is
trusted for some other reason, such as
expertise, academic credentials, or reputation
within a particular community of interest. In
one embodiment, the intensity of an alert is
decreased if it is determined that the alerting
party has provided unhelpful or erroneous
alerts in the past, or if it is determined that the
alerting party cannot be trusted as much as
other alerting parties for other reasons, such as
reputation in the relevant community. In one
embodiment, it is possible to provide both an
active alert by selecting an alert button and to
provide a passive alert by merely accessing a
URL with respect to which an alerting party
previously submitted an active alert. In one
embodiment, an active alert is assigned a
higher intensity value than a passive alert.”
6:57-7:12.

interest category. In one embodiment, the
intensity value is higher if the alerting party
provides a caption for the alert than it would
have been if the alerting party had not provided
a caption. In one embodiment, the intensity of
an alert is increased if it is determined that the
alerting party is a party that has provided
particularly relevant or helpful alerts in the past,
or is trusted for some other reason, such as
expertise, academic credentials, or reputation
within a particular community of interest. In one
embodiment, the intensity of an alert is
decreased if it is determined that the alerting
party has provided unhelpful or erroneous alerts
in the past, or if it is determined that the alerting
party cannot be trusted as much as other alerting
parties for other reasons, such as reputation in
the relevant community. In one embodiment, it
is possible to provide both an active alert by
selecting an alert button and to provide a passive
alert by merely accessing a URL with respect to
which an alerting party previously submitted an
active alert. In one embodiment, an active alert
is assigned a higher intensity value than a
passive alert.

“For example, a passive alert may be
arbitrarily assigned a baseline intensity value
of 0.3 and an active alert a baseline intensity
value of 0.5. For an active alert, 0.1 could be
added for each of the following conditions that
is satisfied by the alert: an interest category
selection was included in the alert; a caption
was included in the alert; and/or the source of
the alert is particularly trusted. Conversely,
0.1 could be subtracted from the intensity of
an alert from a source known to be unreliable.
Alternatively, alerts from sources known to be
unreliable may be blocked and not assigned
any intensity value.” 7:13-23.

For example, a passive alert may be arbitrarily
assigned a baseline intensity value of 0.3 and an
active alert a baseline intensity value of 0.5. For
an active alert, 0.1 could be added for each of
the following conditions that is satisfied by the
alert: an interest category selection was included
in the alert; a caption was included in the alert;
and/or the source of the alert is particularly
trusted. Conversely, 0.1 could be subtracted
from the intensity of an alert from a source
known to be unreliable. Alternatively, alerts
from sources known to be unreliable may be
blocked and not assigned any intensity value.

No extrinsic evidence identified.

The process illustrated in FIG. 6 continues with
step 604 . . . ”)

’682 patent

1

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

Original claims of purportedly incorporated
’518 application

25

Original claims of purportedly incorporated
’346 application

26
27

’682 Patent Prosecution History
April 9, 2003 Office Action

- 15 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

July 7, 2003 Amendments and Remarks
(“Therefore, claim 1 requires that the
indication that the item is of current interest
come from a source other than the
participant who is informed that the item is
of current interest, whereas Eichstaedt
teaches learning from a user's own past
actions what is of interest to that user. See,
e.g., and without limitation, Application at
p. 9, line 13 — p. 11, line 15;p. 13, lines 15; p. 24, lines 1-9; and Figure 1 (noting in
particular the distinction between the
alerting user 102 and the participant 104).”)

4
5
6
7
8
9
10

September 16, 2003 Office Action at 9 (“In
response, Examiner maintains that
Eichstaedt discloses such wherein analyzer
and profile generator generates a profile
used to provide customized information is
deemed to be from the profile as the source
not directly from the participant in one
embodiment; See 3:8-25.”)

11
12
13
14

Nov. 28, 2003 Amendment and Remarks at
8 (“The rejection is respectfully traversed.
As amended, claim 1 recites "...determining
an intensity value to be associated with the
indication and an intensity weight value, and
adjustingthe intensity value based on a
characteristic for the item provided by the
source...." Eichstaedt et al. discloses ranking
categories and generating profiles, but based
on feedback from the user following
interaction with an item. (Col. 3, lines 2867). The weight of a category is based onthe
number of user clicks on a document or
actions expressed by the user. (Col..3, lines
52-54). Eichstaedt et al. does not disclose
an intensity value adjusted based on a
characteristic for an item provided by a
source, as in the claimed invention. Thus,
claim 1 is allowable for the reasons stated
above.”)

15
16
17
18
19
20
21
22
23
24

Extrinsic Evidence:

25

Webster’s Ninth New Collegiate Dictionary ©
1985
 adjust:
o 1a. to bring to a more
satisfactory state: (1):

26
27

- 16 -

2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

4
5
6



7
8

SETTLE RESOLVE (2):
RECTIFY
o 1c. to bring the parts of to a
true or more effective relative
position <~ a carburetor>
characteristic:
o 1. a distinguishing trait,
quality, or property

The American Heritage Dictionary of the
English Language. 4th ed. 2000.
 adjust:
o 1. To change so as to match or
fit; cause to correspond.
o 2. To bring into proper
relationship.
o 4. To bring the components of
into a more effective or
efficient calibration or state:
adjust the timing of a car’s
engine.
 characteristic:
o 1. A feature that helps to
identify, tell apart, or describe
recognizably; a distinguishing
mark or trait.

9
10
11
12
13
14
15
16
17

Oxford English Dictionary, second edition
(1989)
 adjust: “1. a. To arrange, compose,
settle, harmonize (things that are or
may be contradictory, differences,
discrepancies, accounts). To adjust an
average”
 characteristic: “1. A distinctive mark,
trait, or feature; a distinguishing or
essential peculiarity or quality.”

18
19
20
21
22

Terveen Report, ¶¶ 31.
31. “The later-added claim language
recites, in part: (i) “determining” an
intensity value to be associated with the
indication and (ii) then “adjusting” that
intensity value. A PHOSITA in 2000 would
not have understood “intensity value to be
associated with the indication” to have an
accepted meaning in the art and, therefore,
would also not have understood
“determining” and “adjusting” of such an
“intensity value” as having an accepted

23
24
25
26
27

- 17 -

2

Claim Language
(Disputed Terms
in Bold)

3
4
5
6
7
8

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

meaning in the art.
Term 5

[inform/informing] the participant

[inform/informing] the participant

[inform /
informing] the
participant

Proposed Construction:

Proposed Construction:

No construction of “inform/informing” is
needed.

Alert a user who has expressly requested such
alerts.

Found in claims:
1, 2, and 3

“participant” = the user who receives an
indication that the item is of current interest

9

Intrinsic Evidence:

10

Figs. 1, 2B, 5, 7, 11

11

“More specifically, [the invention relates to]
alerting users to dynamic content accessible
via a communications or computer network
that is of interest at the time of the alert is
disclosed.” 1:25-28.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

“[T]his proliferation of content, such as audio,
image, and video content, presents certain
challenges from the perspective of users
seeking content of current interest. First, the
shear volume of content available makes it
difficult for users to find the content in which
they are most interested in accessing at any
given time.” 1:41-46.

Intrinsic Evidence:
’682 Patent Title, 1:1-2 (“ALERTING USERS
TO ITEMS OF CURRENT INTEREST”)
’682 Patent 1:22-27 (“FIELD OF THE
INVENTION: The present invention relates
generally to communications and computer
networks. More specifically, alerting users to
dynamic content accessible via a
communications or computer network that is of
interest at the time of the alert is disclosed.”)
’682 Patent 1:47-53 (“much of the content of
potentially greatest interest, at least to many
users, is dynamic. At certain times, a file or
other electronic resource may be of great
interest while at other times, or perhaps even
most of the time, it is not of great interest or not
interesting at all.”)

’682 Patent 1:58-2:6 (“A webcam might be
used, for example, to provide images of a
watering hole in Africa. Typically, users would
access a website associated with the webcam to
view activity at the watering hole. However,
there would be many periods during which
nothing of particular interest (e.g., no animals,
etc.) would be happening at the watering hole.
“A detailed description of a preferred
Conversely, there would be occasional periods
embodiment of the invention is provided
when activity of great interest would be
below. While the invention is described in
conjunction with that preferred embodiment, it occurring, such as the presence of a rare or
should be understood that the invention is not endangered animal at the watering hole. Users
would have no way of knowing when such
limited to any one embodiment. On the
contrary, the scope of the invention is limited activity would be occurring, and might miss the
only by the appended claims and the invention most interesting images if they did not happen
to check the website at the right time. The same
encompasses numerous alternatives,
problems arise with respect to files or other
modifications and equivalents. For the
purpose of example, numerous specific details electronic resources other than webcam content
provided via the World Wide Web, including
are set forth in the following description in
order to provide a thorough understanding of other media such as audio.”)
the present invention. The present invention
’682 Patent 2:7-20 (“. . . there is a need to
may be practiced according to the claims
“[T]here is a need to provide a way to become
aware that dynamic web content or an
electronic resource other than web content is
of interest at a given time, and to quantify the
degree or level of current interest.” 2:10-14.

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2

Claim Language
(Disputed Terms
in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

4

without some or all of these specific details”
3:62-4:6.

5

Fig. 3. See also 5:57-63.

6

“In one embodiment, a request is sent to the
application server automatically at
predetermined intervals. The request contains
the interest categories that are in the selected
state at the time the request is sent. In one
embodiment, the display 1100 includes a
submit button (not shown in FIG. 11) that,
when selected causes a request containing the
interest categories selected by the participant
at the time to be posted to the application
server via the Internet.” 11:40-47

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

“Although the foregoing invention has been
described in some detail for purposes of
clarity of understanding, it will be apparent
that certain changes and modifications may be
practiced within the scope of the appended
claims. It should be noted that there are many
alternative ways of implementing both the
process and apparatus of the present invention.
Accordingly, the present embodiments are to
be considered as illustrative and not
restrictive, and the invention is not to be
limited to the details given herein, but may be
modified within the scope and equivalents of
the appended claims.” 14:12-21.
“Accordingly, alerting users of items of
current interest is disclosed. The level of
current interest of a particular file or other
electronic resource is determined based on
indications received from alerting users. One
or more users receive an alert that the item is
of current interest.” 2:30-34.

provide a way to become aware that dynamic
content or an electronic resource other than web
content is of interests at a given time, and to
quantify the degree or level of current interest.
In addition, there is a need to consider the
interests of a user when determining which web
content or other electronic resources likely will
be of the greatest interest to the user.
’682 Patent, 2:14-17 (“There is also a need to
insure that users receive alerts with respect to
web content or other electronic resources that
are of interest only to a relatively small
community of users, or that are of interest on
only relatively rare or infrequent occasions.”)
’682 Patent 2:30-33 (“Accordingly, alerting
users of items of current interest is disclosed.
The level of current interest of a particular file
or other electronic resource is determined based
on indications received from alerting users. One
or more users receive an alert that the item is of
current interest.”)
’682 Patent 2:48-53 (“Disseminating to a
participant an indication that an item accessible
by the participant via a network is of current
interest is disclosed. In one embodiment, an
indication that the item is of current interest is
received in real time. The indication is
processed. The participant is informed that the
item is of current interest.”)
’682 Patent 3:9-12 (“to alert users to dynamic
content of interest at the time of the alert (also
referred to herein as an ‘item of current
interest’)”)

’682 Patent, 3:50-55 (“FIG. 10 is a flowchart
illustrating a process used in one embodiment to
“Disseminating to a participant an indication disseminate an alert to a participant, as in step
that an item accessible by the participant via a 306 of FIG. 3. FIG. 11 shows an exemplary
network is of current interest is disclosed . . .” participant display 1100 used in one
embodiment to disseminate alert information to
2:47-65.
a participant.”)
“As indicated in FIG. 1, an alert sent by an
alerting user includes, in one embodiment, at ‘682 Patent, 4:20-25 (“participant 104 provides
an indication of the participant's interests and
least the URL of the web content considered
by the alerting user to be of current interest. . . receives a list of URLs providing the location of
. the alerting user may provide text indicating dynamic content”)
what the alerting user believes to be of current
’682 Patent, 4:55-56 (“In one embodiment,
interest in the web content.” 5:4-12.

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3
4
5
6
7

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

‘682 File History, April 9, 2003 Office
Action, at 3 (noting that documents viewed in
Eichstaedt were of current interest); see also
September 16, 2003 Office Action, at 3
(same).

16

Provisional Application to the ‘682 Patent
(No. 60/178627), at 3 (“In one embodiment, a
‘Hot Now’ virtual pushbutton is present on a
user’s web display. When the user sees
something they feel is of interest, they press
the button. Pressing the Hot Now button sends
an alert message to everyone using the
infrastructure who has indicated that such
alerts are of interest to them (based upon
factors described below). Along with the alert
message a link to the website of interest is
provided, and alerted users can chose [sic] to
go there. If they also believe the site is
currently interesting, they can press their Hot
Now button and further propagate the alert.”);
see also 9 (“For example, the system may be
used to provide and alert when someone finds
anything on the Web that is timely and worthy
of alerting others who have expressed interest,
such as auctions.”).

17

when a request from a participant for a list of
URLs for items of current interest is received . .
.”)
’682 Patent, Fig. 10 step 1002 (“Receive request
with interest filter selections”)

Extrinsic evidence:

8
9
10
11
12
13
14
15

18
19
20
21
22
23
24
25
26
27

’682 Patent 10:58-11:3 (“FIG. 10 is a flowchart
illustrating a process used in one embodiment to
disseminate an alert to a participant, as in step
306 of FIG. 3. The process begins with step
1002 in which a request containing interest
category filter selections made by the participant
is received. . . . Next, in step 1008, a list of hot
URLs responsive to the request is built. Finally,
in step 1010, the list of hot URLs responsive to
the request is sent to the participant.”)
’682 Patent Figure 11
’682 Patent 11:4-60 (“. . . selection area 1106 in
which interest categories are listed along with a
check box for each category listed. The
participant selects the check box for each
interest category for which the participant would
like URLs of current interest to be included in
the participant's hot list. . . .”)

Provisional App
Webster’s New World College Dictionary, 4th Provisional App. at Summary (“While dozens of
ed. at 355 (defining “current” as “at the
web cam portals and directories exist, none are
present time; contemporary”)
capable of propagating an alert that ‘something
interesting is happening now,’ to the right
The American Heritage Dictionary of the
people. To solve this problem, a real time metaEnglish Language, 4th ed. (2000) at 446
data happening infrastructure allowing people
(defining “current” as “belonging to the
who see interesting occurrences to alert other
present time” or “prevalent, especially at the
interested parties is disclosed. The system is
present time”)
referred to as "Hot Now."”)
Webster’s Ninth New Collegiate Dictionary
(1985) at 316 (defining “current” as
“presenting elapsing” and “occurring in or
existing at the present time”).

Provisional App. at 2.1 (“Along with the alert
message a link to the website of interest is
provided, and alerted users can chose to go
there. If they also believe the site is currently
interesting, they can press their Hot Now button
Declaration of William Mangione-Smith, ¶¶ 5, and further propagate the alert.”)
7 (opining that claims should not be limited to
Provisional App. at Sec. 2.1 ("Hot Now is based
a preferred embodiment)
around a unique meta-data infrastructure that
allows people who are first to see an interesting
web video event to propagate an alert to others
who may find the event interesting, and to do it

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Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

as fast as the Internet will allow.”)

4

Provisional App. at Sec. 2.1 (“Pressing the Hot
Now button sends an alert message to everyone
using the infrastructure who has indicated that
such alerts are of interest to them (based upon
factors described below).”).

5
6
7

Provisional App. at Sec. 2.3.3 (“Heat Threshold
has two components: "heat sensitivity"
determines the number of alerts required to
announce an event to the user; "cooling"
determines the duration after which an event
will no longer be announced to the user.” . . .).

8
9
10

Provisional App. at Sec. 2.3.3 (“Each user
selects a series of interest groups and sets a
sensitivity threshold for each selected group.”).

11
12

15

Provisional App. at Sec. 5 (“For example, a Hot
Now button on a remote control with 4
categories to select (e.g. nudity, funny moments,
news flashes, and sports climaxes) and only 1
hierarchical level (top level is general interest)
may be implemented.”)

16

Extrinsic evidence:

17

The American Heritage Dictionary of the
English Language. 4th ed. 2000.
 participant: One that participates,
shares, or takes part in something.
 participate: To take part in something:
participated in the festivities.
 current: “1a. Belonging to the present
time: current events; current leaders.
b. Being in progress now: current
negotiations.”

13
14

18
19
20
21
22

Webster’s Ninth New Collegiate Dictionary ©
1985
 participant: one that participates
 participate:
o 2a. to take part < always tried
to ~ in class discussions>
o 2b. to have a part or share in
something
 current:
o 1b(1): presently elapsing
o 1b(2): occurring in or
existing at the present time

23
24
25
26
27

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in Bold)

3

Plaintiff’s Proposed Construction and
Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

4

Oxford World Dictionary
 current: “belonging to the present
time; happening or being used or done
now: keep abreast of current events; I
started my current job in 2001”

5
6
7

Terveen expert report, ¶¶ 23, 25, 26:
23. Timeliness Requirement. The system
disclosed in the ’682 application deals with
“dynamic” electronic content available for
transmission over the network that may be
of great interest at one moment, but of no
interest shortly thereafter. (E.g., ’682 patent
at 1:24-28, 1:46-52). It would have been
apparent to a PHOSITA in 2000 that the
system must be able to compute and
disseminate “current interest” notifications
concerning this dynamic content in a timely
manner. The type of dynamic content that is
the object of the invention (e.g., ’682 patent
at 1:53-2:47 (“the presence of a rare or
endangered animal at the watering hole”
which is being monitored by a webcam))
will be of interest only for short periods of
time. The purpose of the alleged invention
would be defeated if notifications are not
computed and disseminated during the brief
period of time before a currently interesting
item becomes uninteresting again.

8
9
10
11
12
13
14
15
16
17
18

25. A PHOSITA in 2000 would have
understood that the “invention” of the ’682
application necessarily processed new alerts
and sent new notifications as fast as the
available computing resources and the
disclosed algorithms permitted in order to
increase the chances that the event or
content that led to the current-interest alert
would still be occurring when the
notification participant accessed that
dynamic content over the network. (See,
e.g., ’682 patent at 1:64-2:1 (participants
want to know when “activity of great
interest . . . would be occurring” so they do
not “miss the most interesting images”) and
2:7-10 (“As a result there is a need for a way
to alert users to web content or other
electronic resources available via a
communications or computer network that
are of interest at a particular time.”)). The
’682 application discloses no variation in

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21
22
23
24
25
26
27

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Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

which such processing and notifications are
delayed for any reason.

4
5

26. The situation of the participant. It
would have been apparent to a PHOSITA in
2000 that the disclosed “participant” is
connected to a computer network and is
interested in receiving notifications of items
of current interest that are accessible over
the network (e.g., the abstract and Claim 1
in the ’682 application), but is not already
aware that these items are of current interest.
It also would have been apparent to a
PHOSITA in 2000 that the ’682 application
discloses that, before receiving any “current
interest” notifications, the “participant” must
first indicate at least one “interest category.”
(See, e.g., ’682 patent at Figures 1 and 1011, 4:20-22, 4:55-56, 10:58-11:3, 13:6614:2).

6
7
8
9
10
11
12
13

Webster’s online dictionary:
Participant: “one that participates”

14
15
16
17
18
19
20
21
22
23

participate: (a.) “to take part”; ( b.) to have a
part or share in something.
Term 6

a computer configured to receive in real
time . . . process the indication; determine
an intensity value . .. and adjusting the
a computer
intensity value . . . and inform the
configured to
participant that the item is of current
receive in real
time . . . process interest
the indication;
Proposed Construction:
determine an
intensity value .
.. and adjusting Not governed by 112/6. No additional
construction necessary.
the intensity
value . . . and
No extrinsic evidence identified.
inform the
participant that
No intrinsic evidence identified.
the item is of
current interest

24
25

Found in claims:
1

26

a computer configured to receive in real time
. . . process the indication; determine an
intensity value . .. and adjusting the intensity
value . . . and inform the participant that the
item is of current interest
Proposed Construction:
This is a means-plus-function limitation.
Function: The entire body of claim 1 appearing
after “a computer configured to” and before “a
database . . .” is a recited function of the recited
“computer.”
Structure, Material, or Act: The specification
recites an “application server 106” configured
to perform some of the claim-recited function,
by implementing the algorithms disclosed in the
following figures and text of the patent:
Fig. 1 and 4:11-5:12, Fig. 2A, Fig. 2B and 5:4455, Fig. 3 and 5:57-63 and Fig. 4 and 5:64-6:16)
(“receive …”); 4:44-47, Fig. 6 and 6:51-7:35
(“process …”); Fig. 6 (step 602) and 6::52-7:23

27

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Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

(“determining an intensity value”); and Fig. 1,
4:55-5:3, Figs. 10-11, 10:58-11:55
(“inform…”). The specification discloses no
structure (algorithm) for the remaining portions
of the claim-recited function (e.g., “. . . intensity
weight value”) (this claim thus violates Sec.
112, ¶¶ 2, 6).

4
5
6
7

See also Fig. 1 and 4:25-32

8

Intrinsic evidence:
’682 patent, Figures 1, 2A, 2B, 3, 4, 6, 10-11

9

’682 patent, 4:11-5:12, 4:44-47, 4:55-5:3, 5:4455, 5:57-63, 5:64-6:16, 6:51-7:35, 10:58-11:55

10
11

Term 7

12

computer
instructions for
receiving in real
time . . .
processing the
indication;
determining an
intensity value .
.. and adjusting
the intensity
value . . . and
informing the
participant that
the item is of
current interest

13
14
15
16
17
18
19
20

computer instructions for receiving in real
time . . . processing the indication;
determining an intensity value . .. and
adjusting the intensity value . . . and
informing the participant that the item is
of current interest

computer instructions for receiving in real
time . . . processing the indication;
determining an intensity value . .. and
adjusting the intensity value . . . and
informing the participant that the item is
of current interest

Proposed Construction:

Proposed Construction:

Not governed by 112/6. No additional
construction necessary.

This is a means-plus-function limitation.

No extrinsic evidence identified.

Function: The entire body of claim 2 after
“computer instructions for” is a recited function
of the recited “medium.”

No intrinsic evidence identified.
Structure, Material, or Act: A computer
readable storage medium with instructions for
performing the algorithms depicted in the
following Figures of the patent and described in
the accompanying text of the patent
specification::

Found in claims:
2

21

Fig. 1 and 4:11-5:12, Fig. 2A, Fig. 2B and 5:4455, Fig. 3 and 5:57-63 and Fig. 4 and 5:64-6:16)
(“receiving …”); 4:44-47, Fig. 6 and 6:51-7:35
(“processing …”); Fig. 6 (step 602) and 6::527:23 (“determining an intensity value”); and
Fig. 1, 4:55-5:3, Figs. 10-11, 10:58-11:55
(“informing …”). The specification discloses
no structure (algorithm) for the remaining
portions of the claim-recited function (e.g., “. . .
intensity weight value”) (this claim thus violates
Sec. 112, ¶¶ 2, 6).

22
23
24
25
26
27

See also Fig. 1 and 4:25-32

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Defendants’ Proposed Construction3 and
Evidence in Support4

’682 patent

1

Intrinsic evidence:
’682 patent, Figures 1, 2A, 2B, 3, 4, 6, 10-11

4
5
6
7
8
9
10
11
12
13
14
15
16

’682 patent, 4:11-5:12, 4:44-47, 4:55-5:3, 5:4455, 5:57-63, 5:64-6:16, 6:51-7:35, 10:58-11:55
Term 8

Claims 3-9, 11-13, 16-17, 20 as a whole.

Proposed Construction:
Claims 3-9, 1113, 16-17, 20 as a
The determination of whether a claim recites
whole.
patentable subject matter is a matter of
statutory interpretation that is not properly
resolved as part of the Markman briefing
process. See In re Bilski, 545 F.3d 943, 951
(Fed. Cir. 2008) (en banc). Defendants’
“proposed construction”—which is not a
claim construction at all—does not comply
with Patent Local Rule 132 (Joint Claim Chart
must include “[e]ach party’s proposed
construction of each disputed claim term,
phrase, or clause”) or the Court’s Standing
Order for Patent Cases (Joint Claim chart must
include “each party’s proposed construction of
disputed terms”). Moreover, proposed
constructions for many of the terms and
phrases that are part of the “claims as a
whole” are separately provided herein.

17
18

No intrinsic evidence identified.

19

No extrinsic evidence identified.

20

Claims 3-9, 11-13, 16-17, 20 as a whole.
Proposed Construction:
These claims are directed to an abstract idea and
do not require a particular machine or particular
transformation of a particular article. To the
extent these claimed “methods” can be
performed, each (except claim 17) could be
performed by humans without using any
machine or device.
“[C]laim construction . . . is an important first
step in a § 101 analysis” to determine whether
“the claim as a whole” is directed to patenteligible subject matter. In re Bilski, 545 F.3d
943, 951, 959 (Fed. Cir. 2008) (en banc), aff’d
sub nom, Bilski v. Kappos, 130 S. Ct. 3218
(2010); see generally Power Mosfet
Technologies, L.L.C. v. Siemens AG, 378 F.3d
1396, 1404 (Fed. Cir. 2004) (“The terms in the
Special Master Report were construed in
isolation, and at no other time did the district
court or the Special Master construe the claims
as a whole.”); id. at 1410 (This “limited
construction left substantial ambiguity as to the
meaning of the claims as a whole….”); id. at
1412 (“[A] construction of the claims as a whole
would have been beneficial to the litigants.”).
Intrinsic evidence:

21

’682 patent

22

’682 patent 1:23-28 (“FIELD OF THE
INVENTION: The present invention relates
generally to communications and computer
networks. More specifically, alerting users to
dynamic content accessible via a
communications or computer network that is of
interest at the time of the alert is disclosed.”)

23
24
25
26

’682 patent, claims 3-9, 11-13, 16-17, 20

27

’682 patent 14:15-17 (“It should be noted that
there are many alternative ways of

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Evidence in Support2

Defendants’ Proposed Construction3 and
Evidence in Support4

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1

implementing both the process and apparatus of
the present invention.”)

4
5
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7
8
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10
11
12
13
14
15
16
17
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