Free Declaration - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

GIRAFA.COM, INC.,

) ) Plaintiff, ) ) v. ) ) ) AMAZON WEB SERVICES LLC,) AMAZON.COM, INC., ALEXA) INTERNET, INC., IAC SEARCH &) MEDIA, INC., SNAP TECHNOLOGIES,) INC., YAHOO!, INC., EXALEAD S.A., and) EXALEAD, INC., ) ) Defendants. ) )

CASE NO. 07-787 (SLR)

DECLARATION OF GABRIEL ROBINS, Ph.D.

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Table of Contents 1 2 3 4 5 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 5.10 6 6.1 Overview of this Declaration................................................................................................ 7 My Professional Qualifications............................................................................................ 7 Legal Standard Used in this Declaration ............................................................................ 9 Sources Searched and References Cited ........................................................................... 11 Claim Construction for the `904 Patent............................................................................ 12 Definition of "Person of Ordinary Skill in the Art".......................................................... 13 Construction of "Thumbnail Visual Image" ..................................................................... 13 Construction of "Home Page" .......................................................................................... 13 Construction of "Hovering Over"..................................................................................... 13 Construction of "Visualization Functionality" ................................................................. 14 Construction of "Image Server"........................................................................................ 14 Construction of "Annotated Web Page" ........................................................................... 14 Construction of "Partially Concurrently" ......................................................................... 15 Construction of "Within the Visual Image"...................................................................... 15 Construction of "Providing" ............................................................................................. 15 Elaboration of Definitions and Additional Issues ............................................................ 16 The Meaning of "at Least Partially Concurrently Providing" .......................................... 16 6.1.1 Verifying the Lack of "Partially Concurrently" in Snap Classic.................................. 18 6.1.2 Verifying the Lack of "Partially Concurrently" in Snap Browser Add-On.................. 21 6.1.3 The Snap Shots Publisher / Blogger Service ............................................................... 24 6.1.4 Summary of the "Partially Concurrently" Analysis...................................................... 26 6.2 6.3 6.4 6.5 6.6 7 7.1 7.2 7.3 7.4 7.5 The Meaning of "Within the Visual Image"..................................................................... 26 The Meaning of "Splitting" and "Trimming" of URLs .................................................... 28 The Meaning of "Annotated Web Page" .......................................................................... 30 Means-Plus-Function Claims............................................................................................ 31 The Snap Technologies Inc. Web Servers ........................................................................ 34 Fundamental Differences Between Previews and Thumbnails ...................................... 37 Previews are Larger than Thumbnails .............................................................................. 37 Previews Can be Full-Fledged Web Pages ....................................................................... 41 Previews Can Contain Live Streaming Videos................................................................. 43 Previews Can Contain a Variety of Other Rich Content .................................................. 46 Previews Can Contain Other Previews ............................................................................. 50

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7.6 7.7 7.8 8 8.1

Multiple Previews Can be Manipulated Independently.................................................... 52 Previews Can Dynamically Vary in Size.......................................................................... 54 Summary of Differences Between Previews and Thumbnails ......................................... 57 Detailed Claim Infringement Analysis.............................................................................. 58 Claim 1 of the `904 Patent ................................................................................................ 61 Claim 1 / Snap Classic .................................................................................................. 61 Claim 1 / Snap Enhanced.............................................................................................. 61 Claim 4 / Snap Classic .................................................................................................. 62 Claim 4 / Snap Enhanced.............................................................................................. 62 Claim 5 / Snap Classic .................................................................................................. 63 Claim 7 / Snap Classic .................................................................................................. 63 Claim 7 / Snap Enhanced.............................................................................................. 63 Claim 12 / Snap Classic ................................................................................................ 64 Claim 12 / Snap Enhanced............................................................................................ 64 Claim 15 / Snap Classic ................................................................................................ 64 Claim 18 / Snap Classic ................................................................................................ 65 Claim 18 / Snap Enhanced............................................................................................ 65 Claim 21 / Snap Classic ................................................................................................ 66 Claim 21 / Snap Enhanced............................................................................................ 66 Claim 22 / Snap Classic ................................................................................................ 67 Claim 24 / Snap Classic ............................................................................................ 67 Claim 24 / Snap Enhanced........................................................................................ 67 Claim 29 / Snap Classic ............................................................................................ 68 Claim 29 / Snap Enhanced........................................................................................ 68

8.1.1 8.1.2 8.2 8.2.1 8.2.2 8.3 8.4 8.3.1 8.4.1 8.4.2 8.5 8.5.1 8.5.2 8.6 8.7 8.6.1 8.7.1 8.7.2 8.8 8.8.1 8.8.2 8.9 8.10 8.9.1 8.10.1 8.10.2 8.11 8.11.1 8.11.2 8.12

Claim 4 of the `904 Patent ................................................................................................ 62

Claim 5 of the `904 Patent ................................................................................................ 62 Claim 7 of the `904 Patent ................................................................................................ 63

Claim 12 of the `904 Patent .............................................................................................. 63

Claim 15 of the `904 Patent .............................................................................................. 64 Claim 18 of the `904 Patent .............................................................................................. 64

Claim 21 of the `904 Patent .............................................................................................. 65

Claim 22 of the `904 Patent .............................................................................................. 66 Claim 24 of the `904 Patent .............................................................................................. 67

Claim 29 of the `904 Patent .............................................................................................. 67

Claim 32 of the `904 Patent .............................................................................................. 68

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8.12.1 8.13 8.13.1 8.13.2 8.13.3 8.13.4 8.14 8.14.1 8.14.2 8.14.3 8.14.4 8.15 8.15.1 8.15.2 8.15.3 8.16 8.16.1 8.16.2 8.16.3 8.16.4 8.17 8.17.1 8.17.2 8.18 8.18.1 8.18.2 8.18.3 8.19 8.19.1 8.19.2 8.19.3 8.19.4 8.20 8.20.1 8.20.2 8.20.3 8.20.4 8.21 8.21.1

Claim 32 / Snap Classic ............................................................................................ 68 Claim 35 / Snap Classic ............................................................................................ 69 Claim 35 / Snap Enhanced........................................................................................ 70 Claim 35 / Snap Browser Add-On ............................................................................ 70 Claim 35 / Snap Publishers/Bloggers ....................................................................... 71 Claim 38 / Snap Classic ............................................................................................ 72 Claim 38 / Snap Enhanced........................................................................................ 72 Claim 38 / Snap Browser Add-On ............................................................................ 72 Claim 38 / Snap Publishers/Bloggers ....................................................................... 73 Claim 39 / Snap Classic ............................................................................................ 74 Claim 39 / Snap Browser Add-On ............................................................................ 74 Claim 39 / Snap Publishers/Bloggers ....................................................................... 74 Claim 41 / Snap Classic ............................................................................................ 75 Claim 41 / Snap Enhanced........................................................................................ 75 Claim 41 / Snap Browser Add-On ............................................................................ 75 Claim 41 / Snap Publishers/Bloggers ....................................................................... 75 Claim 44 / Snap Classic ............................................................................................ 76 Claim 44 / Snap Enhanced........................................................................................ 77 Claim 45 / Snap Classic ............................................................................................ 78 Claim 45 / Snap Browser Add-On ............................................................................ 78 Claim 45 / Snap Publishers/Bloggers ....................................................................... 79 Claim 46 / Snap Classic ............................................................................................ 80 Claim 46 / Snap Enhanced........................................................................................ 80 Claim 46 / Snap Browser Add-On ............................................................................ 80 Claim 46 / Snap Publishers/Bloggers ....................................................................... 81 Claim 49 / Snap Classic ............................................................................................ 82 Claim 49 / Snap Enhanced........................................................................................ 82 Claim 49 / Snap Browser Add-On ............................................................................ 83 Claim 49 / Snap Publishers/Bloggers ....................................................................... 83 Claim 50 / Snap Classic ............................................................................................ 84 4

Claim 35 of the `904 Patent .............................................................................................. 69

Claim 38 of the `904 Patent .............................................................................................. 71

Claim 39 of the `904 Patent .............................................................................................. 73

Claim 41 of the `904 Patent .............................................................................................. 74

Claim 44 of the `904 Patent .............................................................................................. 76

Claim 45 of the `904 Patent .............................................................................................. 78

Claim 46 of the `904 Patent .............................................................................................. 79

Claim 49 of the `904 Patent .............................................................................................. 81

Claim 50 of the `904 Patent .............................................................................................. 83

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8.21.2 8.21.3 8.22 8.22.1 8.22.2 8.22.3 8.22.4 8.23 8.23.1 8.23.2 8.24 8.24.1 8.24.2 8.24.3 8.25

Claim 50 / Browser Add-On ..................................................................................... 84 Claim 50 / Snap Publishers/Bloggers ....................................................................... 84 Claim 52 / Snap Classic ............................................................................................ 85 Claim 52 / Snap Enhanced........................................................................................ 85 Claim 52 / Snap Browser Add-On ............................................................................ 86 Claim 52 / Snap Publishers/Bloggers ....................................................................... 86 Claim 55 / Snap Classic ............................................................................................ 87 Claim 55 / Snap Enhanced........................................................................................ 87 Claim 56 / Snap Classic ............................................................................................ 89 Claim 56 / Snap Browser Add-On ............................................................................ 89 Claim 56 / Snap Publishers/Bloggers ....................................................................... 89

Claim 52 of the `904 Patent .............................................................................................. 85

Claim 55 of the `904 Patent .............................................................................................. 86

Claim 56 of the `904 Patent .............................................................................................. 88

Summary of Detailed Claim Infringement Analysis ........................................................ 89

Exhibit 1: Vitae of Professor Gabriel Robins, Ph.D. ............................................................... 91 Exhibit 2: References Cited in This Declaration.................................................................... 129 Exhibit 3: Additional References Examined by Dr. Robins ................................................. 130 Exhibit 4: The Girafa.com Patent 6,864,904 at issue in this litigation................................. 138 Exhibit 5: Claim dependency relationships for Patent 6,864,904......................................... 159 Exhibit 6: Example of a Snap Classic search results window............................................... 161 Exhibit 7: Example of a Snap Classic search window with provided preview.................... 163 Exhibit 8: Example of a HTML code produced by Snap Classic search............................. 165 Exhibit 9: Example of a Web page with the Snap Browser Add-On tool enabled ............. 191 Exhibit 10: Example of a Web page with preview provided by Snap Browser Add-On ... 193 Exhibit 11: Example of a HTML code produced by Snap Browser Add-On tool .............. 195 Exhibit 12: Javascript code served by the "shots.snap.com" server.................................... 227 Exhibit 13: The Snap Technologies Inc. home page .............................................................. 232 Exhibit 14: Example Google search with Snap Browser Add-On tool ................................ 233 Exhibit 15: Example of a live web page preview from the Snap Add-On tool.................... 234 Exhibit 16: Example of a live video preview from the Snap Add-On tool........................... 235 Exhibit 17: Example of a live video playing inside a Snap preview window....................... 236 Exhibit 18: Example of a live video playing inside a Snap preview (larger size)................ 237 Exhibit 19: Snap Shots for Publishers / Bloggers service...................................................... 243 Exhibit 20: Variable-size Snap previews (760x487 pixels).................................................... 244 5

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Exhibit 21: Variable-size Snap previews (640x410 pixels).................................................... 245 Exhibit 22: Variable-size Snap previews (400x256)............................................................... 246 Exhibit 23: The variety of rich-content Snap previews......................................................... 247 Exhibit 24: Previews Can Contain Interactive Maps (1 of 2) ............................................... 250 Exhibit 25: Previews Can Contain Interactive Maps (2 of 2) ............................................... 251 Exhibit 26: Previews can contain other previews .................................................................. 252 Exhibit 27: Screenshot of an MS Word document with "thumbnails" view enabled ........ 253 Exhibit 28: Screenshot of Snap Enhanced tool showing a medium-sized preview ............. 254 Exhibit 29: Comparing MS Word & Girafa thumbnails to Snap Enhanced preview ....... 255 Exhibit 30: Multiple Previews Can be Manipulated Independently like windows............. 256

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1

Overview of this Declaration 1. I, Professor Gabriel Robins, have been retained as a technical expert by Cislo &

Thomas LLP, legal counsel to Snap Technologies, Inc., to analyze and respond to Girafa.com's Motion for Preliminary Injunction dated March 13, 2008, the Declaration of Dr. Myers dated March 12, 2008, the Declaration of Shirli Ran dated March 7, 2008, the Deposition of Dr. Myers dated April 19, 2008, and related documents in the Girafa.com v. Amazon et al. litigation regarding United States Patent 6,864,904 (the `904 Patent). Unless otherwise noted, the facts set forth in this declaration are of my own personal knowledge, and if called to testify I could and would competently testify thereto.

2

My Professional Qualifications 2. My curriculum vitae is attached as Exhibit 1, and a brief summary of my

professional qualifications and background follows. I received my Ph.D. degree in 1992 from the UCLA Computer Science Department. I joined the Department of Computer Science at the University of Virginia in 1992 as Assistant Professor of Computer Science. In 1994, I received the National Science Foundation Young Investigator Award from the U.S. National Science Foundation. In 1995, I received a Lilly Foundation Teaching Fellowship, as well as the Packard Foundation Fellowship (a $500,000 research grant awarded to a total of only 27 computer scientists in the last twenty years).

3.

In 1996, I received an All-University Outstanding Teaching Award, and was In 1997, I received the Walter N. Munster

promoted to Associate Professor with tenure.

Endowed Chair. In 1998, I was invited to join the Army Science Board, the top technical

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advisory board to the U.S. Army on science, technology, and engineering. On numerous occasions I also advised the U.S. Government and the Department of Defense on matters of defense and national security. In 2002, I was promoted to full Professor with tenure, and in 2007, I received the Society for Industrial and Applied Mathematics (SIAM) Outstanding Paper Award.

4.

I have published almost 100 refereed research papers and journal articles, as well

as a book and several book chapters, and about four dozen technical reports published by USC, UCLA, and UVa. I served on the technical program committees of several leading conferences, and on the Editorial Board of the Institute for Electrical and Electronics Engineers (IEEE) Book Series. I served as Associate Editor of IEEE Transactions on VLSI Systems, and the journal Research Letters in Electronics. I also regularly referee and review scientific papers for a number of leading journals, conferences, and book publishers, and I serve as a grant proposal reviewer for federal research funding agencies as well as private foundations. I have taught numerous computer science courses, and I have performed and directed computer science research continuously for the last twenty-five years. I am a member of leading professional societies such as the Association of Computing Machinery (ACM) and the Institute for Electrical and Electronics Engineers (IEEE).

5.

I am being compensated for my time consulting in this matter at the rate of $375

per hour. My salary is not dependent on the outcome of the case, and I have no personal interest or financial stake in this litigation or its outcome.

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3

Legal Standard Used in this Declaration 6. I am not an attorney. For the purposes of this declaration, I have been informed

about certain aspects of the law that are relevant to my analysis and opinion. In formulating my opinions, I have taken into account the following principles of the law regarding patent infringement, which I understand to be accurate statements of the law.

7.

I understand that infringement involves a two-step analysis and that the first step is

determining the proper construction of the asserted claims.

8.

I have been instructed that ultimately claims are construed by the judge in light of

how one of ordinary skill in the art would understand the claims. It is my understanding that what is to be considered includes the language of the claims, the patent specification, the drawings, and the prosecution history, including any prior art listed by the Examiner or the applicant. It is my understanding that information external to the patent, including expert and inventor testimony and unlisted prior art, are to be considered in construing the claims only if ambiguities remain. However, expert testimony may be useful in helping to explain the

technology. I further understand that technical dictionaries, encyclopedias, and treatises may also be used in claim construction, as long as these definitions do not contradict any definition found in or ascertained by a reading of the patent documents.

9.

I understand that in arriving at the proper construction of the language of the claims

of a patent, it is generally improper to bring requirements or limitations recited in the specification or drawings into the meaning of the claim terms. However, I understand that there

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are certain situations where a patent may define a claim term in the specification and/or reference a particular aspect of the invention as being important or critical to the invention, and in such cases, it may be proper to construe a claim term in a more limited manner than its plain, ordinary meaning in the claim itself. I further understand that a patent file history may contain references that specifically limit the scope of a term used in the claims.

10.

I understand that patent claims may be written in a format known as "means plus

function" language where particular claim language may be described in functional terms, such as a means for accomplishing a task, and that under this particular claiming format, the structure(s) that accomplishes the recited means or function would typically be recited elsewhere in the claims or in the patent specification.

11.

I understand that the second step of the infringement analysis is determining

whether the accused products contain all of the elements of the asserted claims. A product is covered by and, thus, infringes a patent claim if the product meets or embodies each and every limitation of the patent claim, either literally or under the doctrine of equivalents. A method claim is infringed when each of the recited steps are performed.

12.

I understand that an accused product literally infringes a patent claim if it contains

every limitation of the claim. I further understand that the failure to meet a single limitation is sufficient to negate literal infringement of a claim.

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13.

I understand that an accused product that does not literally infringe a claim may

nonetheless infringe the claim under the doctrine of equivalents. It is my understanding that, to establish infringement under the doctrine of equivalents, the accused product must be shown to include an equivalent for each claim limitation that is literally absent.

14.

It is my understanding that infringement under the doctrine of equivalents may be

established by showing that the elements of the accused product perform substantially the same function, in substantially the same way, to achieve substantially the same result as the corresponding elements of the patented invention. I further understand that Girafa is not

asserting infringement under the doctrine of equivalents at this time.

4

Sources Searched and References Cited 15. As part of this work, I conducted literature searches with respect to methodologies

and techniques identified in the Myers Declaration, Myers Deposition, the `904 Patent, and related documents. The `904 Patent is reproduced in Exhibit 4 of this Declaration. Girafa's Motion for Preliminary Injunction (and associated brief), the Myers Declaration, the Myers Deposition, the Ran Declaration, and the `904 Patent prosecution history are hereby incorporated by reference. The libraries, archives, and repositories that I searched during my analyses include the IEEE Xplore digital library, the ACM Portal Digital Library, the SpringerLink Online Archive, and the U.S. Patent and Trademark Office (USPTO) patent database. As a result of

these searches, I retrieved and examined journal articles, conference papers, books, manuals, and patents, spanning the last two decades.

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16.

All references cited in this declaration were published in the open literature either

in conference proceedings, in professional journals of wide distribution, and/or on the Web. I also reference various Web sites, all of which are freely accessible to anyone through the Internet, as well as patents issued by the U.S. Patent and Trademark Office, all of which are part of the public record and accessible by anyone (e.g., via the Web). All the references cited in this Declaration are listed in Exhibit 2, and Exhibit 3 lists additional references that I examined during the preparation of this Declaration (including the papers and patents referenced by the `904 Patent, and its File Wrapper and prosecution history). I also spent time analyzing and utilizing Snap's various services on its website that are at issue in Girafa's Motion for Preliminary Injunction.

5

Claim Construction for the `904 Patent 17. As discussed above, infringement analysis involves a two-step process, the first of

which is determining the proper construction of the asserted claims, in light of how one of ordinary skill in the art would understand the claims and their plain, ordinary meaning.

18.

For the purposes of this Declaration and the analysis contained therein, I will

assume and adopt Dr. Myers' definitions and/or constructions of the terms "person of ordinary skill in the art", "thumbnail visual image", "home page", "hovering over", and "visualization functionality", as detailed below. However, after additional research and discovery, revisions to Dr. Myers' constructions may be warranted, and I reserve the right to do so in future reports.

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5.1

Definition of "Person of Ordinary Skill in the Art" 19. Dr. Myers defines in his Declaration a "person of ordinary skill in the art" as one

who "would have a bachelor's degree in computer science or related degree or equivalent experience, and at least 2 years of experience in Internet technologies or user interface design" [Myers Declaration, Page 7, Paragraph 36]. For the purpose of this Declaration, I will use this construction of "person of ordinary skill in the art" as proposed by Dr. Myers.

5.2

Construction of "Thumbnail Visual Image" 20. Dr. Myers construes in his Declaration a "thumbnail visual image" as "an image

that is a smaller version of a larger image" [Myers Declaration, page 11, paragraph 47]. For the purpose of this Declaration, I will use this construction of "thumbnail visual image" as proposed by Dr. Myers.

5.3

Construction of "Home Page" 21. Dr. Myers construes in his Declaration a "home page" as "the main or front page of

a web site" [Myers Declaration, page 11, paragraph 49]. For the purpose of this Declaration, I will use this construction of "home page" as proposed by Dr. Myers.

5.4

Construction of "Hovering Over" 22. Dr. Myers construes in his Declaration "hovering over" as "displayed so that it

looks like it is in a layer in front of the other content" [Myers Declaration, page 12, paragraph 51]. For the purpose of this Declaration, I will use this construction of "hovering over" as proposed by Dr. Myers.

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5.5

Construction of "Visualization Functionality" 23. Dr. Myers construes in his Declaration "visualization functionality" as "software or

hardware that provides one or more images to the user" [Myers Declaration, page 12, paragraph 52]. For the purpose of this Declaration, I will use this construction of "visualization

functionality" as proposed by Dr. Myers.

5.6

Construction of "Image Server" 24. Dr. Myers construes in his Declaration an "image server" as "a type of server that

stores and delivers images" [Myers Declaration, page 11, paragraph 48]. He then contends, I believe erroneously, that an image server must be separated from a web server in the `904 Patent. For the purpose of this Declaration, I will use this construction of "image server" as proposed by Dr. Myers in the first sentence of paragraph 48 of his Declaration, but I do not believe the embellishment on the separate server is appropriately included in the construction of "image server" because the `904 Patent in, for instance, claim 1, does not require the image server and web server to be separate. It appears that Dr. Myers is attempting to import a limitation from the specification, which I understand to be improper.

5.7

Construction of "Annotated Web Page" 25. The term "annotated web page" is construed to mean "a web page modified to

include thumbnail visual images". Support for this construction comes from the way a person of ordinary skill in the art would read the plain and ordinary meaning of Claims 14, 31, 42, and 53 of the `904 Patent, which state that "said annotated web page includes the web page having within it thumbnail visual images of homepages of web sites referenced by hyperlinks contained in the web page" [`904 Patent, Claims 14, 31, 42, and 53].

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5.8

Construction of "Partially Concurrently" 26. The term "at least partially concurrently" is construed to mean "to some extent

occurring at the same time". Support for this construction comes from the plain and ordinary definitions of these terms known to any person of ordinary skill in the art. For example, the Merriam-Webster Dictionary (http://www.merriam-webster.com/) defines "partially" as "to some extent", and defines "concurrently" as "operating or occurring at the same time". "Overlapping in time" would also be an appropriate construction for "partially concurrently".

5.9

Construction of "Within the Visual Image" 27. The term "within the visual image" is construed to mean "an element of the

rendered web page". Support for this construction comes from the way a person of ordinary skill in the art would know a Web browser to operate, in that a browser renders a Web page to produce a visual image of it, and then displays it to the user.

5.10 Construction of "Providing" 28. The term "providing" is construed to mean "transmitting and displaying". Support

for this construction comes from the `904 Patent "Summary of the Invention", where it discusses a "system for displaying information received over the Internet" [`904 Patent, Column 1, Lines 39-41], and where "receiving" implies that transmitting must occur as well. Additional support for this construction comes from, e.g., Claims 1, 18, 35, and 46 which discuss the `904 Patent's functionality of "providing a thumbnail visual image" to a user, where the thumbnail is stored on a remote "image server" and is provided to a user across the Web, thus requiring the step of transmitting that thumbnail from the server to the user.

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29.

Moreover, transmitting thumbnails without displaying them would not suffice to

achieve the overall functionality of the `904 Patent, since without the display of a thumbnail the user will not be able to see it. Thus, the term "providing" should also include a displaying step. A person of ordinary skill in the art would understand that "providing" (of a thumbnail) must include a transmission step (between the image server and the user/browser), as well as a "displaying" step (making the thumbnail visible to the user). "sending and displaying" or "delivering and displaying". "Providing" can also mean

6

Elaboration of Definitions and Additional Issues 30. This section elaborates on the definitions, meanings and implications of several

terms and phrases used in the `904 Patent.

6.1

The Meaning of "at Least Partially Concurrently Providing" 31. As explained above in section 5.8, the phrase "at least partially concurrently" is

construed to mean "to some extent occurring at the same time", while the term "providing" is construed to mean "transmitting and displaying" (see Section 5.10). Therefore, the phrase "providing X and at least partially concurrently providing Y" means that "the transmitting and displaying of X to some extent occurs at the same time as the transmitting and displaying of Y".

32.

In particular, consider the following excerpts from Claims 1, 18, 35, and 46 of the

`904 Patent (underline emphasis added):

"... providing to a user a visual image of a web page containing at least one hyperlink; and at least partially concurrently providing a thumbnail visual image of the home page of at least one web site which is represented by said at least one hyperlink..." [`904 Patent, Claim 1]

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"... providing to a user a visual image of a web page containing at least one hyperlink; and second functionality operative at least partially concurrently with said first functionality for providing a thumbnail visual image of the home page of at least one web site which is represented by said at least one hyperlink" [`904 Patent, Claim 18] "... providing to a user a visual image of a web page containing at least one hyperlink; and at least partially concurrently providing a thumbnail visual image of another web page of at least one web site which is represented by said at least one hyperlink..." [`904 Patent, Claim 35] "... providing to a user a visual image of a web page containing at least one hyperlink; and second functionality operative at least partially concurrently with said first functionality for providing thumbnail visual image of another web page of at least one web site which is represented by said at least one hyperlink..." [`904 Patent, Claim 46]

33.

Thus, in all four of the Claims (1, 18, 35, and 46) above, the `904 Patent describes

a method for "providing" (i.e., "transmitting and displaying") "a web page" and "at least partially concurrently" (i.e., "to some extent occurring at the same time") "providing" (i.e., "transmitting and displaying") a "thumbnail visual image". That is, the system described by the `904 Patent performs the transmitting and displaying of "a web page" to some extent at the same time as the transmitting and displaying of a "thumbnail visual image".

34.

On the other hand, the analyses detailed below reveal that the Snap Classic and

Snap Browser Add-On tools do not perform the transmitting and displaying of "a web page" to some extent at the same time as the transmitting and displaying of a "thumbnail visual image". In other words, the Snap Classic and Snap Browser Add-On tools do not perform these two operations "at least partially concurrently".

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6.1.1 35.

Verifying the Lack of "Partially Concurrently" in Snap Classic To verify that the Snap Classic tool does not perform the two said operations of

providing a Web page and providing a preview (or thumbnail visual image) "at least partially concurrently", I performed the following experiment. I first initiated a Snap Classic search using the search phrase "Randy Pausch", at 3:38pm (EST) on Saturday May 10. The corresponding resulting screenshot of this Snap Classic search was as follows (also reproduced in Exhibit 6):

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36.

Note that in the above screenshot the Web page finished downloading, and no

thumbnails or previews are visible anywhere in the browser window. In other words, the Web page has been provided, but no thumbnails or previews have been provided (i.e., transmitted or displayed) by the server to the user. I also checked the HTML source code of that search results Web page (listed verbatim in Exhibit 8) to make sure that no thumbnails or previews are "hidden" there, perhaps already transmitted by the server but not yet visible to the user. Indeed, an inspection of the HTML source code for that Web page (Exhibit 8) confirmed that no thumbnails or previews were contained there. (The HTML source code of any Web page can be obtained through the browser by, e.g., clicking on the "Page Source" option on the "View" menu in the Mozilla Firefox browser, and similarly using the "View Source" menu command in Microsoft's Internet Explorer browser.)

37.

I then left this browser window with the Snap Classic search results open on my

computer, and over three hours later, at 7:05pm (EST) on Saturday May 10, I moved the mouse over the first search results entry (namely, "Randy Pausch ­ Wikipedia"). Snap Classic then provided (i.e., transmitted and displayed) the preview of this search entry, as shown in the following screenshot (also reproduced in larger size in Exhibit 7):

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38.

Another independent confirmation that the Snap Classic tool provides the preview

only when the user moves the mouse over one of the search results, and not at the time the search results Web page is provided, is as follows. Whenever the browser (Mozilla Firefox version 2.0.0.14 in the case of this experiment) transmits and receives information, a "send/receive icon" becomes animated near the top right corner of the browser window. When no information is transmitted, that icon remains inactive and grayed-out. Whenever the mouse is moved over a search result item in the Snap Classic window, that send/receive icon momentarily (i.e., for a second or two) becomes animated, indicating that information is being sent/received between the server and the browser. This again corroborates that previews are provided later in time (rather than at the same time) with respect to the Web page containing the search results.

39.

Similarly, the "download progress indicator bar" near the lower right corner of the

browser window becomes momentarily animated when information is being sent/received between the server and the browser, and it disappears when no information is being transmitted. Whenever the mouse is moved over a search result item in the Snap Classic window, the "download progress indicator bar" momentarily (i.e., for a second or two) becomes animated, indicating that information is being sent and received between the browser and the server. This again corroborates that in the Snap Classic tool previews are provided later in time (rather than at the same time) with respect to the Web page containing the search results.

6.1.2

Verifying the Lack of "Partially Concurrently" in Snap Browser Add-On 40. The Snap Browser Add-On tool behaves very similarly to the Snap Classic tool

with respect to displaying search results and providing corresponding previews. Repeating the

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above experiment with the Snap Browser Add-On tool yields the same results, namely that the Snap Browser Add-On tool previews are provided later in time (rather than at the same time) with respect to the Web page containing the search results.

41.

In particular, the following is a screenshot of a Web page with the Snap Browser

Add-On tool enabled; this particular Web page (http://www.imdb.com/title/tt0068646/) is from the Internet Movie Database (IMDB) Web site, and describes the movie "The Godfather" (see Exhibit 9 for a larger copy of this screenshot, taken at 9:23pm (EST) Saturday May 10, 2008):

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42.

At 11:32pm (EST) Saturday May 10, 2008, more than two hours after the above

Web page was downloaded, I moved the mouse in this window over the name of the actor "Marlon Brando". The Snap Browser Add-On tool then provided (i.e., transmitted and

displayed) the preview of this entry, corresponding to the biography and other information about the actor Marlon Brando, as shown in the following screenshot (see Exhibit 10 for a larger copy of this screenshot, taken at 11:32pm (EST) Saturday May 10, 2008):

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43.

Note that in the previous screenshot (i.e., Exhibit 10) the "send/receive icon" icon

(upper right) is animated and the "download progress indicator bar" (lower right) is active, indicating that the preview is being provided at that very moment; i.e., this screenshot was taken right at the moment when the preview was being downloaded from the Snap server, which was more than two hours after the Web page itself finished downloading. In contrast, in the

screenshot prior to that (i.e., Exhibit 9), the word "Done" appears at the bottom left-hand side of the browser window and the "send/receive icon" at the upper right-hand side of the browser window is inactive (i.e., grayed-out), indicating that the Web page has long since finished downloading. Therefore, it is clear that these two events, namely the providing of a Web page and the providing of a thumbnail visual image, occur far separated in time.

6.1.3

The Snap Shots Publisher / Blogger Service 44. The Myers Declaration [Myers Declaration, Page 23, Paragraphs 72-73] and

Girafa's Opening Memorandum of Law in Support of its Motion for Preliminary Injunction [Girafa Opening Memorandum, Page 29-39] allude to the Snap Shots for publishers / bloggers service. This service, described at the Snap Technologies Web site

http://www.snap.com/snapshots.php, enables Web sites to provide a user with previews, as if the Snap Browser Add-On tool was installed on the user's browser (even though it may not be).

45.

To test the functionality of the Snap Shots for Publishers/Bloggers service, I

followed the installation instructions given at http://www.snap.com/snapshots.php and proceeded to install it on one of my Web pages, namely the Web page that lists selected computer science articles and readings for my students, located on the Web at: http://www.cs.virginia.edu/~robins/CS_readings.html 24

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46.

Once the Snap Shots for Publishers/Bloggers service was installed on this Web

page, (using an embedded Javascript code provided by Snap during the installation process), I then confirmed that browsing this Web page resulted in the generation of previews, with a behavior identical to the Snap Browser Add-On tool. A screenshot of the above Web page with the Snap Shots for Publishers/Bloggers service installed, showing several previews open, can be seen as follows (also reproduced in Exhibit 19):

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47.

Because the Snap Shots tool for publishers/bloggers service behaves identically to

the Snap Browser Add-On tool, the infringement analyses for the Snap Browser Add-On tool also hold true for the Snap Shots for publishers/bloggers service.

48.

It is my understanding that Girafa may be asserting that the Snap Shots for

publishers/bloggers service directly infringes claims of the `904 Patent. Nevertheless, I note that since the functionality of the Snap Shots for publishers/bloggers service is identical to that of the Snap Browser Add-On tool, any non-infringement conclusions that apply to the latter likewise also apply to the former.

6.1.4

Summary of the "Partially Concurrently" Analysis 49. In summary, neither the Snap Classic, the Snap Browser Add-On tool, or Snap

Shots for Publishers/Bloggers perform the transmitting and displaying of "a web page" "at least partially concurrently" (i.e., "to some extent at the same time") with the transmitting and displaying of a "thumbnail visual image". Rather, the thumbnail visual image is provided arbitrarily later in time than the Web page itself, and requires overt user intervention before it can even begin to occur (i.e., the user must move the mouse over a search result).

6.2

The Meaning of "Within the Visual Image" 50. Recall from Section 5.9 that the term "within the visual image" is construed to

mean "an element of the rendered web page". Web content displayed in a separate window, or that is otherwise not contained in the HTML code representing the rendered Web page and its visual image, is therefore not "within the visual image". In particular, the previews created by the Snap Classic and the Snap Browser Add-On tools are not part of the HTML code

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representing the Web page and its visual image, and are therefore not "within the visual image" of the Web page.

51.

For example, the Web page of the Snap Classic search example discussed above in

Section 6.1.1 (and shown as the screenshot of Exhibit 6) has the same HTML source code (Exhibit 8) as after the Snap Classic tool provided a preview for one of the Web links on that page (as shown as the screenshot of Exhibit 7). Similarly, the Web page of the Snap Browser Add-On tool example discussed above in Section 6.1.2 (and shown as the screenshot of Exhibit 9) has the same HTML code (Exhibit 11) as after the Snap Browser Add-On tool provided a preview for one of the Web links on that page (shown as the screenshot of Exhibit 10).

52.

As discussed above (and illustrated in Exhibit 19), the functionality of the Snap

Shots for Publishers/Bloggers service is identical to that of the Snap Browser Add-On tool. Performing the same analysis as above for the Snap Shots for Publishers/Bloggers service shows that the previews created by the the Snap Shots for Publishers/Bloggers service are not part of the HTML code representing the Web page and its visual image, and are therefore not "within the visual image" of the Web page.

53.

In summary, the previews provided by the Snap Classic, the Snap Browser Add-

On, and the Snap Shots for Publishers/Bloggers services are not part of the HTML source code for the corresponding Web pages, and are thus not "an element of the rendered web page". It follows that the said previews are not "within the visual image" of these Web pages.

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6.3

The Meaning of "Splitting" and "Trimming" of URLs 54. Claims 44 and 55 of the `904 Patent discuss the "splitting" of URLs and the

"trimming" of their path components, "based on the consideration of finding the most representative image of a given web page" [`904 Patent, Column 15, Lines 12-22, and Column 16, Lines 33-44]. This process of "splitting" and "trimming" is further illustrated and detailed in Figures 4 and 5 of the Patent [`904 Patent, FIG.4 and FIG 5., Sheets 4 and 5]. The exact definition of "consideration of finding the most representative image of a given web page" is left vague in the `904 Patent. In fact, this notion of "most representative" is indeterminate and not well defined in general.

55.

In any case, none of the Snap services perform any "splitting" and "trimming" of

URLs. The Snap Classic and Snap Enhanced tools receive their search result from a third party search result provider. For each search result, Snap receives information from the third party provider including 1) a Site Host URL and 2) an encrypted search result URL. The Site Host is the host and domain portion of the encrypted search result URL. The encrypted search result URL is secured by the third party such that Snap cannot determine the actual URL that will be visited when clicked. For example, instead of plain text that reads as

http://en.wikipedia.org/wiki/Randy_Pausch Snap receives URLs such as: http://rc12.overture.com/d/sr/?xargs=15KPjg1mNSt5auwuf0L%5FiXEbqUkwwB lp%2D89c1oeuJ7atUr9HdpJ%5FYuPa7By%5FVIUe as the search result URL.

56.

Snap uses the Site Host as the web address displayed in the search results, as the

title above the associated previews and for purposes of retrieving and displaying of the 28

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webpage preview. For the sake of clarity, the reason that Snap uses the Site Host URL for the web page preview, is that it does not know the actual URL. To form the link target for 1) the web address displayed in the search results, 2) the title above the associated previews and 3) the actual preview, Snap encrypts the already encrypted search result URL to form a link target. When clicked, the link target will send the user to the actual search result page. As such, Snap does not perform any modification of that Site Host URL.

57.

This encrypted URL, which appears to be garbled text, is not decipherable by

anyone (or any software) that is not in possession of the decryption key. Since the Snap tools (and indeed anyone at Snap Technologies Inc.) are not in possession of the decryption key to these URLs (as confirmed by Snap's CTO), Snap cannot decipher these encrypted URL's, much less alter them in any way. In particular, the Snap Classic and Snap Enhanced tools do not perform any "splitting" and "trimming" of these URLs, and moreover the Snap tools could not perform any "splitting", "trimming", nor any other modifying operations on these URLs, even if they tried. Indeed, this is the very objective of encryption, namely to make information

inaccessible (and therefore not modifiable) by anyone except the decryption-key holder.

58.

The reason that the third party search result provider encrypts its search results

before sending them to their customers (e.g., Snap Technologies Inc.), is that this gives the third party search result provider more control and tracking ability over their information, its usage, and the resulting revenue streams. In particular, the encryption of URLs forces the customer (Snap Technologies, Inc. here) to always inform the third party search result provider whenever one of its own users (i.e., a remotely located person sitting in front of a browser) clicks on a link

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produced by a Snap search. This is because the link is encrypted and the third party search result provider is the only party who can decrypt the link and perform the correct Web address redirect after the user clicks on that encrypted link.

59.

The Snap Browser Add-On tool does not employ encrypted links, but rather

provides direct previews of exact Web pages, not of home pages, nor of Web page URLs that have undergone any kind of "splitting" or "trimming". This can be verified by inspecting several of the examples in this Declaration (e.g., Exhibit 10, Exhibits 15 through 18, and Exhibits 24 through 29), where the previews of the Snap Browser Add-On tool can be seen to be those of exact URLs that directly refer to their target Web pages.

60.

As discussed above (and illustrated in Exhibit 19), the functionality of the Snap

Shots for Publishers/Bloggers service appears identical to that of the Snap Browser Add-On tool. In particular, the Snap Shots for Publishers/Bloggers service provides direct previews of exact Web pages rather than of home pages, without perfoming any kind of "splitting" or "trimming" of URLs.

61.

In summary, none of the Snap services (Snap Classic, Snap Enhanced, the Snap

Browser Add-On, and Snap Shots for Publishers/Bloggers) perform any kind of "splitting" or "trimming" of URLs.

6.4

The Meaning of "Annotated Web Page" 62. As explained above in section 5.7, the phrase "annotated web page" is construed to

mean "a web page modified to include thumbnail visual images". As can be seen from the 30

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screenshot of Exhibit 6, the Snap Classic tool returns a search results Web page that does not include previews or thumbnails, and therefore does not provide "an annotated Web page".

63.

Similarly, Exhibit 9 and Exhibit 14 show a screenshot of a Web page provided

while the Snap Browser Add-On tool was enabled. Again, these web pages do not include Snap previews or thumbnails, and therefore none of these Web pages are "an annotated Web page".

64.

As discussed above, the functionality of the Snap Shots for Publishers/Bloggers

service is identical to that of the Snap Browser Add-On tool. In particular, the Snap Shots for Publishers/Bloggers service does not provide "an annotated Web page".

65.

In summary, Snap Classic, Snap Browser Add-On, and Snap Shots for

Publishers/Bloggers do not provide "an annotated Web page".

6.5

Means-Plus-Function Claims 66. Claims 18 and 46 of the `904 Patent contain "means-plus-function" claim

language, which consists of functional language in the absence of any specific structures for accomplishing the recited function, as elaborated below. Claim 18 of the `904 Patent reads as follows: " 18. A system for presenting Internet information to a user comprising: first functionality providing to a user a visual image of a web page containing at least one hyperlink; and second functionality operative at least partially concurrently with said first functionality for providing a thumbnail visual image of the home page of at least one web site which is represented by said at least one hyperlink via the Internet by employing an image 31

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server that stores and provides said thumbnail visual image."

67.

For the first functionality, the `904 Patent specification includes the following

structures corresponding to the language of Claim 18: a Web browser 100 and 200 connected to a web server 102 and 202, respectively, by the Internet. The first functionality of Claim 18 is "providing" (see Section 5.10 for the construction and meaning of "providing") a user with a visual image of a web page containing at least one hyperlink.

68.

For the second functionality, the `904 Patent specification includes the following

structures corresponding to the language of Claim 18: an image server 104 and 210 connected to an image database 106 and 212, a Web browser 100 and 200 connected to a web server 102 and 202 by the Internet, and visualization functionality 103 and 206. The second functionality of Claim 18 is "providing" (see Section 5.10 for the construction and meaning of "providing") a thumbnail visual image of the home page of the said web site via the Internet, by employing an image server that stores and provides said thumbnail visual image.

69.

Claim 46 of the `904 Patent reads as follows:

" 46. A system for presenting Internet information to a user comprising: first functionality providing to a user a visual image of a web page containing at least one hyperlink; and second functionality operative at least partially concurrently with said first functionality for providing a thumbnail visual image of another web page of at least one web site which is represented by said at least one hyperlink via the Internet by employing an image server that stores and provides said thumbnail visual image, said second functionality comprising third functionality employing a web browser which interfaces via

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the Internet with a web server, separated from said image server, including visualization functionality, said visualization functionality being operative to embed commands to the web browser to download, via said image server, thumbnail visual images of web pages which represent hyperlinks contained in the web page and to provide to a user, via the web browser, an annotated web page."

70.

For the first functionality, the `904 Patent specification includes the following

structures corresponding to the language of Claim 46: a Web browser 100 and 200 connected to a web server 102 and 202, respectively, by the Intrenet. The first functionality of Claim 18 is "providing" (see Section 5.10 for the construction and meaning of "providing") a user with a visual image of a web page containing at least one hyperlink.

71.

For the second functionality, the `904 Patent specification includes the following

structures corresponding to the language of Claim 46: an image server 104 and 210 connected to an image database 106 and 212, a Web browser 100 and 200 connected to a web server 102 and 202 by the Internet, and visualization functionality 103 and 206. The second functionality of Claim 18 is "providing" (see Section 5.10 for the construction and meaning of "providing") a thumbnail visual image of the home page of the said web site via the Internet, by employing an image server that stores and provides said thumbnail visual image.

72.

For the third functionality, the `904 Patent specification includes the following

structures corresponding to the language of Claim 46: a Web browser 100 and 200, visualization functionality 103 and 206, and an image server 104 and 210 which is searate from the web server 102 and 202. The third functionality of Claim 46 is "providing" (see Section 5.10 for the

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construction and meaning of "providing") to the user via a Web browser a Web page annotated with thumbnail visual images of Web pages, downloaded from an image server separate from the Web server.

6.6

The Snap Technologies Inc. Web Servers 73. The Snap Technologies Inc. Web servers consist of hundreds of computers, divided These machines are all configured

into groups of physically interchangeable "clusters".

identically in terms of both hardware and software, and run the same Linux operating system and Apache Web server. They also use the "Boa" lightweight server to fetch previews and images from disk.

74.

The domain name "shots.snap.com" refers to one of these clusters, and each server

in that cluster serves multiple types of data, including Javascript, HTML, and previews. To verify that the "shots.snap.com" server delivers other types of data aside from images and previews, I sent the following request to the "shots.snap.com" server using my Mozilla Firefox browser: http://shots.snap.com/ss/spakey/snap_shots.js Indeed, the "shots.snap.com" server replied to this request by returning a sizeable segment of Javascript code, shown verbatim in Exhibit 12. Thus, the Snap servers certainly serve more than just images and previews.

75.

Based on information provided by the Snap Technologies CTO, who on April 28

analyzed the traffic log of a representative Apache server running on one of Snap's server

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clusters, the typical server traffic requests for "shots.snap.com", categorized by the type of data provided by the server back to the requestor, were as follows: 43% to 47% of the data requests were for Javascript code, 10% of the data requests were for preview images, 23% of the data requests were for tracking advertising logos, 7% to 8% of the data requests were for "shot" HTML/Javascript content, 4% to 6% of the data requests were for "shot-sense" HTML, and 2% to 3% of the request traffic was for operational status text.

76.

Similarly, the typical server traffic requests for the "www.snap.com" cluster,

categorized by the type of data provided by the server back to the requestor, were as follows: 14% to 23% of the data requests were search queries returning HTML and Javascript code, 7% to 10% of the data requests were for the "about pages" returning HTML and Javascript code, 2% to 3% of the requests were for Javascript code, 3% to 4% of the data requests were for previews, images and logos, 2% to 4% of the requests returned URLs in response to user clicks on search results, 13% to 17% of the data requests were for other kinds of functions, and 16% to 24% of the request traffic was for operational status text.

77.

The domain names "www.snap.com" and "i.snap.com" are synonyms (i.e., they

both refer to the same Web site, namely Snap Technologies home page, as can be verified by typing either of these two domain names into a browser and checking that they both lead to the same Web site), a screenshot of which is as follows (and also reproduced in larger size in Exhibit 13):

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78.

In summary, the Snap Technologies' Web server clusters are ordinary general-

purpose configurations, comprised of typical commodity computers running the standard Apache Web server program (as do most Web servers in the world). Moreover, only a small fraction of the Snap server traffic (about 10% for shots.snap.com and about 4% for www.snap.com) constitute requests for previews and images, whereas the majority of the Snap server request traffic is for non-image data such as HTML, Javascript code, text, and other types of data.

7

Fundamental Differences Between Previews and Thumbnails 79. There are dramatic quantitative and qualitative differences between the previews

used by Snap Technologies and ordinary thumbnails. In this section we highlight and discuss some of these fundamental differences between previews and thumbnails.

7.1

Previews are Larger than Thumbnails 80. The previews provided by Snap Technologies are much larger than the thumbnails

provided by the Girafa.com tool, by up to a factor of twenty or more in terms of area. Moreover, the Snap Technologies' previews are also much larger (by up to a factor of ten or more) than the thumbnail sizes taught by dozens of published references and prior art (including numerous papers, books, manuals, and issued patents).

81.

The Snap Enhanced tool produces previews in three basic sizes, namely 400x257,

640x411, and 760x480. The previews produced by the Snap Enhanced tool are larger than any thumbnails that I have encountered in my experience, including the thumbnail sizes taught by dozens of published references and prior art (including papers, books, and issued patents).

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