Weisner v. Google LLC

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-