Weisner v. Google LLC

• Court: District Court, S.D. New York
• Decided: April 4, 2023
• Docket: 1:20-cv-02862
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------- x SHOLEM WEISNER, : : Plaintiff, : ORDER : -against- : 20 Civ. 2862 (AKH) : : GOOGLE LLC and SHMUEL NEMANOV. : : Defendant and Involuntary Party. : : --------------------------------------------------------------- x ALVIN K. HELLERSTEIN, U.S.D.J.: Pursuant to Markman v. Westview Instr., Inc. 517 U.S. 370 (1998), the Court has reviewed the parties’ respective positions regarding ambiguities in the claim language of U.S. Patent Nos. 10,394,905 and 10,642,911. After consideration of the proposed constructions submitted by the parties, the Court adopts the constructions set out in Column Four of the attached chart. SO ORDERED. Dated: April _4__, 2023 _/s_/_ A__lv_i_n_ H__e_ll_e_rs_t_e_in_______ New York, New York ALVIN K. HELLERSTEIN United States District Judge Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 2 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction ‘905 Specifications 4:30-55: Methods and systems of Id. 17: 10-65 enhancing searches for a Id. 18: 1-65 business by use of records of Id. 19:1-65 humans' physical encounters. Id. 20:1-65 Preamble is limiting; The Id. 21: 1-10 claimed method/system Id 4:3-55 adjusts search result rankings ’905 Patent, Claims 1, 11 and 14, by consulting records of Preamble The method of enhancing humans’ physical encounters computerized internet to identify physical location searches for history entries members have “method/system of combining for a target business in common. enhanced [computerized] by implementing utilization searching for a target business of human (individual member with use of humans as physical carrying a mobile device) See, e.g., FH-000439, FH- encounter links” physical encounters with 000447-49, FH-000451, FH- business locations as ranking 00627, FH-00689-90, ’905 parameters to improve, patent at 4:35-55, 17:53-18:35, custom tailor, and personalize FIG. 9; see also FH-000219- web search results. 220, FH-000264-266. 1 Disclaimer: listing a claim phrase in this table on January 12, 2023 does not prevent a party from taking a position at a later date that the claim phrase requires no construction or that a listed claim phrase should either be broken into shorter phrases or combined with other phrases to form a longer listed claim phrase. -1- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 3 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction 905 Specification; 4: 45 No construction necessary. Id. 14:30 Processing system that utilizes manipulation and control of information (data) within the computer No construction necessary; ’905 Patent, Claims 1, 11 and 14 system that houses the plain and ordinary meaning. database. ’911 Patent, Claims 1 and 12 See, e.g., ’905 patent at FIGs. 1-6, 9, 2:33-41, 3:30-32, 4:36- “processing system” 55, 21:34. 2 For listed phrases that are partially bolded, Google proposes to construe those parts of the claims that are bolded (having originally used ellipses in place of intervening words in the claim for which it was not requesting a construction). The non-bolded parts comprise additional language appearing in the claims that neither party proposes to construe; Plaintiff asked that the ellipses should be filled in the Patent Claim language so the phrase would reflect the Patent Claim. Bracketed words are provided where largely the same phrase is included in multiple claims with the differences shown by the bracketed words. 3 Plaintiff Weisner reserves his ability to cite to other Claim Specifications in the 905 and 911 Patents as supported herein and is not bound by the Claim specification(s) cited herein. -2- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 4 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction No construction necessary. Id. 3:20-30 Id. 4:25-30 Id. 8:30-45 Software installed on a device that allows a user to interact No construction necessary; ’905 Patent, Claims 1 and 14 with their account at system plain and ordinary meaning. network database. See, e.g., ’905 patent at 3:23- “providing an application” 29, 4:24-31, 8:31-47, 9:30-31, 9:37-46, 14:27-34, 15:21-30.

-3- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 5 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Id. 7:45-55 When an individual who is Id. 11:10-40 a member of the network Id. 15:45-60 enters the physical business ’905 Patent, Claims 1, 11 and 14 When an individual member location of a stationary Upon a Physical Encounter enters a stationary vendor vendor which is also part of “upon a physical encounter m phe ya sn icin ag ll yth ea nt t ea r m edo b ai le user m loe cm atib oe nr ’ ts h p ath y cs ai uca sel sb u ansi ness the network, that causes an between the individual member stationary member business application on the individual application on the and a stationary vendor member premises (Stationary vendor member’s device to, at that individual member’s device of a plurality of stationary vendor means any business/ vendor time, automatically transmit to to automatically transmit to members of the member network who sells goods, or services at a the processing system the the processing system the [at a physical premises of the location) that is part of a “key data” of the stationary individual member’s “key stationary vendor member], to plurality of stationary vendor member and of the transmit key data of the vendor members. data” and “key data” received individual member. stationary vendor member and of Key data (meaning URLs, or from the stationary vendor the individual member to the information attached to members' member. processing system automatically accounts and system network URLs such as location data, type of See, e.g., ’905 patent at as a result of the physical business, date/time data, contact Abstract, 1:6-10, 2:33-41, encounter” information, physical encounters, 3:18-29, 15:15-23, 11:9- etc.) from both the business 29; see also ’905 patent at and store visitor are FIG. 3, 7:45-55, 8:31-43, 9:5- automatically transmitted to 8, 11:29-39, 15:45-60, FH- the processing system to be 00311-312, FH-000439. implemented in improving web search results. -4- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 6 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Id 13:30-35 The individual member The individual member Id 15:45-50 entering and exchanging “key entering and exchanging ’905 Patent, Claims 1, 11 and 14 data” with the stationary “key data” with the The application software vendor member triggers the stationary vendor member “[upon] a location of each determines instances of physical positioning system to automatically causes the individual member’s [device] visits to business locations by determine the location of the positioning system to determined by the positioning making use of a positioning individual member [device]. determine the location of the system” system such as GPS or any individual member [device]. other type of positioning See, e.g., ’905 patent at 13:54- system. 67, 13:31-34. A business at a physical location that is a member of Id 15:15-20 the member network. No construction necessary; 905 Patent, Claims 1, 11 and 14 plain and ordinary meaning. ’911 Patent, Claims 1 and 12 Any business/vendor that is a member of the network who See, e.g.,’905 patent at 7:46- “a stationary vendor member” sells goods, or services at a 52. location. Data, including a URL or The information which a Id 9:10-25 other information, that the member has selected to member previously designated receive from or transmit to the ’905 Patent, Claims 1, 11 and 14 for transmission to other network database or other Key Data includes a URL itself, members during “physical members. “key data” or data describing the nature of encounters.” business type and information or advertisements associated with a See, e.g., ’905 patent at 3:37- URL that a business chooses to 40, 7:37-40, 9:5-16, 21:32-33; -5- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 7 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction have that is updatable by vendor see also ’905 patent at member. Abstract, 4:6-9, 11:20-29, 17:20-34, FIGs. 1 and 9. Histories of physical interactions over time that include “key data” of the Logs with entries that capture interacting members. members’ physical interactions and include “key data” of the interacting members. Physical Location Histories ’905 Patent, Claims 1, 11 and 14 See, e.g., ’905 patent at 21:27- meaning the totality of the 33, Abstract (lines 1-12), 1:4- captured physical interactions “physical location histories” 10, 2:33-41, 8:22-26, 10:39- between individual mobile 48; see also ’905 patent at members and stationary vendor 1:33-37, 2:63-3:22, 3:37-40, members over time. 7:61-64, FIG. 5, 8:31-42, 11:20-39, FH-000264-266, FH-000307, FH-000311, FH- 000312. -6- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 8 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Improves the search result ranking of the first stationary vendor member based on a physical location relationship Id 17:50-67 Id 18:1-15 wherein: Id 20:1-65 The system implements Improves the position of the physical location histories to first stationary vendor member improve web search in search result order based on algorithms that provide the ’905 Patent, Claims 1, 11 and 14 the physical location pieces of content that will best answer a searcher's query, relationship further described “increases the ranking of a first which means that results are in (a) and (b) below. stationary vendor member based on ordered by most relevant to the physical location relationship least relevant. This is See, e.g., ’905 patent at 4:42- wherein the relationship is as accomplished by comparing a 55, 17:53-18:15, FIG. 9; see follows” plurality of physical location also ’905 patent at 17:8-19, histories of individual 17:43-52, Abstract (lines 1-8, members where they had in- 16-17), 18:16-36, 19:27-44, common visits to certain 19:45-20:1. businesses or class of businesses or services. physical location relationship meaning as explained below; -7- U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) □ 1,2 Claim Phrase Construction? Proposed Construction Court's Construction (a) key data from the first Hot °° stationary vendor member is included in a reference individual member's physical When a searching person has location history, and (b) key physically visited a business A reference member's data from a second stationary that a reference individual (who ” y sical location nstory has: vendor member is included in Patent, Claims 1, 11 and 14 they may have never met, from (1) Key ata hy the he d both the searching person's a plurality of reference Oy hand ofr or mem ane’ | physical location history and “(a) the reference individual individuals) has also visited, C ey data dg a oe he the reference individual member’s physical location history | other businesses visited by the hich, he uta fromthe member's location history. includes key data of the first reference individual that are d ber j stationary vendor member; and (b) | relevant to the search are voi the scmchine , the searching person’s physical increased in ranking for search location hitow “TS location history and the reference results:* Pay "y- individual member’s physical , location history each include key Increase ranking nce LD. sie. ie data of a second stationary vendor , swdhennn Fiststationary | 9: see also 17:8-1 9,17: 43- 52, member _Nendormember_ | Abstract (lines 1-8, 16-17), 18:16-36, 19:27-44, 19:45- 20:1.

Second stationary } Reference }

| vendor member | individual member |

* Google Diagram from Weisner v. Google LLC, 51 F.4th 1073, 1086 (October 13, 2022)(“Even Google recognizes the specificity in this process with the following diagram from its appeal brief [Appellee's Br.12] illustrat[ing the relationships”). -8-

Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 10 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Methods and systems of enhancing searches by use 911 Patent Specification of URLs of stationary vendor members found in a Id.15: 1-20 Preamble is limiting; claimed log of entries that captured Id.17:30-35 method/system adjusts search information about physical Id. 20:60-65 result ranking by considering interactions between ’911 Patent, Claims 1 and 12, Id. 21:1-10 URLs of businesses found in a individual members and Preamble log of entries that captured stationary vendor members. The system enhances digital information about physical “method/system of enhancing search results [for a business in interactions between digital search results for a business a target geographic area] by individual members and in a target geographic area using utilizing URLs of location stationary vendor members. URLs of location histories” histories that record details of physical interactions such as See, e.g., FH-000451, FH- frequency of interactions, 001266-67, FH-001309, geographic area, time and type FH0001314; ’911 patent at of business that were previously 4:43-62, 17:12-23, FIG. 9, visited by individual members. 15:25-39, 17:47-56, 18:39-52, 20:62-67. -9- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 11 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Each individual member and stationary vendor member has an account, and each of these accounts has a unique URL associated with it. Id 15:15-25 Individual mobile user members Each of the individual member of the network and business account and stationary vendor ’911 Patent, Claims 1 and 12 vendor members of the network member account has a unique are both registered with accounts URL associated with it. “an account to (i) an individual to access and enable the features member and (ii) a stationary vendor of the system network. Each See, e.g., ’911 patent at 3:37- member, of a member network, the individual account and its key 49, 9:1-9, 11:31-36. account associated with a URL” data are connected to an individualized URL thereby making the data internet searchable and improving web algorithm search results. -10- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 12 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Id 5:45-60 Id 13:55-65 The device is configured to Id 14:1-5 *See ‘911 figure 7 allow the user to set the individual member's device to make successive entries ’911 Patent, Claims 1 and 12 automatically to an The individual member has the The device is programmed to individual member’s log that ability to set a cue on his automatically make successive include key data of a “accumulate a location history on account to automatically entries to an individual business, and time, place, a database maintained by the at least accumulate physical location member’s log that include the and URL, when an one processing system from history URLs that have contact time, place and URL of a individual member physical encounters by the data or advertisements or other business when an individual physically interacts with a individual member at multiple data of the stationary vendor member physically interacts business and at the stationary vendor members upon member which the system with a business and at the business’s physical location. the mobile communication device automatically stores in the business’s physical location. being set to enter instances of a individual members account physical encounter between the [on a database maintained by See, e.g., ’911 patent at 13:58- individual member carrying the at least one processing system] 64, 21:14-16, 21:42-44, 21-47- mobile communication device and upon an individual member 51, Abstract (lines 1-12), 1:6- the stationary vendor member at visiting a stationary vendor 12, 3:25-29, 4:14-17, 7:53-62, a physical premises of the member business premises. FIG. 3, 11:16-39; see also ’911 patent at 5:1-7, 6:14-26. stationary vendor member” -11- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 13 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction ’911 Patent, Claims 1 and 12 Upon a physical encounter between the individual Id 15:45-55 The individual member member and the stationary entering and exchanging key vendor member and when “[upon] determining a location of data with the stationary vendor key data is received or the individual member” member triggers determining transmitted, the positioning The system makes use of a the location of the individual system determines the positioning system (such as member [device]. location of the individual GPS or any other type of member [device]. positioning systems) which See, e.g., ’911 patent at 13:58- determines the location of an 14:4, 13:35-40. individual member when they enter a business vendor location. -12- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 14 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction Id 4:45-50 Id 15:5-20 Id 20:55-65 The search engine searches a Id 21:1-10 The search engine searches a database containing the The system assigns a URL to database containing the searching individual member’s ’911 Patent, Claims 1 and 12 e va ec nh d oin r d miv ei mdu ba el r a tn hd at s it sa sti ao vn ea dr y in

s ae ca cr uc mhi un lg a ti en dd “iv pi hd yu sa il c am l ember’s a “c pc hu ym siu cala l t le od c ation history” “ ths ee a dr ac th ai bn ag s, e [ b foy r t Uhe R s Le sa r oc fh s e tan tg ioin ne a, r] y

t mhe e mda bt ea rb ’sa s le o. c aA ti om no hb ii sl te o u rys e or f

l Uo Rca Lti so on f h si ts at to iori ne as r” y e mnt eri mes b efo rsr e mn etr mie bs e f ro s.r URLs of stationary vendor members in the location visits to businesses is history” implemented to improve and See, e.g., ’911 patent at 21:26- enhance web search engines 35, 21:14-16, 21:44-46, 4:43- though making this data internet 62, 15:25-39, 17:12-23, FIG. searchable by virtue of the 9. chronological list of those business URLs saved to their account’s location history. Id 4:45-50 Providing a weighting factor The Court adopts Defendant's Id 7:30-40 for search result ranking that proposed construction. Id 17:45-55 improves the position for a ’911 Patent, Claims 1 and 12 particular stationary vendor The system improves web search member’s URL that appears in “assigning a priority, by the at least rankings for member businesses the searching individual one processing system, in a search based on data points such as member’s location history. result ranking based on an frequency, geographic location appearance of one of the stationary and time of their appearance in See, e.g., ’911 patent at 21:14- vendor member” mobile users’ physical location 16, 21:42-46, 21:50-53, 17:12- histories. 23, 18:12-18, 19:61-20:1, FH- 000448, FH-001266-67, FH- -13- Case 1:20-cv-02862-AKH Document 141 Filed 04/04/23 Page 15 of 15 Weisner et al. v. Google LLC, Case No.: 20-cv-02862-AKH U.S. Patent Nos. 10,394,905 and 10,642,911 Plaintiff Weisner’s Proposed Defendant’s (Google) Claim Phrase1,2 Court’s Construction Construction3 Proposed Construction 001309, FH0001314; see also ’911 patent at 17:47-56, 18:19- 38, 19:28-44.

-14-