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Justia Dockets & Filings Fourth Circuit Virginia Eastern District I/P Engine, Inc. v. AOL, Inc. et al Filing 769
I/P Engine, Inc. v. AOL, Inc. et al
Opposition to Plaintiff's (Oral) Motion for Judgment as a Matter of Law on Anticipation and Obviousness filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION I/P ENGINE, INC. Plaintiff, Civil Action No. 2:11-cv-512 v. AOL INC., et al., Defendants. DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW ON ANTICIPATION AND OBVIOUSNESS I. INTRODUCTION On October 30, 2012, Plaintiff I/P Engine, Inc. ("Plaintiff") made an oral Motion for Judgment as a Matter of Law on Defendants' anticipation and obviousness defenses. (See Trial Tr. at 1771:12-1773:17). Contrary to Plaintiff's arguments, there is copious record evidence that the asserted claims are anticipated by the Culliss and Bowman references and rendered obvious by the prior art. Plaintiff's Motion for Judgment as a Matter of Law should be denied. II. LEGAL STANDARD Judgment as a matter of law is appropriate where a party has been fully heard on an issue and "there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue." Fed. R. Civ. P. 50(a); In re Outsidewall Tire Litig., No. 1:09cv-1217, 2010 WL 2929626, at *4 (E.D. Va. July 21, 2010). "A patent is invalid for anticipation if a single prior art reference discloses each and every limitation of the claimed invention." Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1377 (Fed. Cir. 2003). A patent is invalid as obvious "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." 35 U.S.C. § 103. III. CULLISS ANTICIPATES EACH ASSERTED CLAIM OF THE '420 AND '664 PATENTS As a threshold matter, Plaintiff argued in its Motion that the Culliss reference (DX-058) was before the PTO during prosecution of the Asserted Patents. (Trial Tr. at 1772:14-15). However, prior art references which were before the PTO during prosecution can still be used to invalidate. See, e.g., Scanner Techs. Corp. v. ICOS Vision Sys. Corp. N.V., 528 F.3d 1365, 138082 (Fed. Cir. 2008) (affirming invalidation of representative claim on obviousness based on prior 1 art considered by the PTO during prosecution); IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1381 (Fed Cir. 2005) ("[A] patent may be found to be anticipated on the basis of a reference that had properly been before the patent examiner in the [PTO] at the time of issuance."). Thus, the fact that Culliss was before the PTO during prosecution of the Asserted Patents does not show as a matter of law that the Asserted Patents are valid over Culliss. Plaintiff also argues that "Dr. Ungar admitted that under his view, Culliss does not invalidate the asserted claims." (Trial Tr. at 1772:15-17). But as Dr. Ungar made clear, he applied the claims and the Court's constructions for invalidity purposes in the same way that Dr. Frieder did for infringement, which is fair and proper as a patent may not be interpreted inconsistently to capture infringement but avoid the prior art. (See Trial Tr. at 1513:1514:8; Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) ("A patent may not, like a 'nose of wax,' be twisted one way to avoid anticipation and another to find infringement.")). Finally, Plaintiff concludes that Culliss does not disclose the content, combining, or filtering limitations of the asserted claims. (Trial Tr. at 1772:12-14). As explained below, however, Culliss does disclose all these limitations, and all other limitations required by the asserted claims. A. Overview of Culliss Culliss is directed to a search engine system that ranks and filters search results based on a combination of the content of the search results and feedback from prior users who had entered the same query and viewed these search results. In Culliss, Internet articles are associated with key terms they contain. (DX-058 at 3:60-64.) For example, two articles about museum-viewing vacations in Paris ("Article 1" and "Article 2") might be associated with the key terms "Paris," "museum," and "vacations" if they both contained those three words. (Trial Tr. at 1344:8-11). 2 These articles are given a "key term score" for each of the key terms that they contain. (Id. at 3:65-66.) Culliss discloses that each key term score might initially be set at 1. (Id. at 3:10-4:9.) Thus, in the above example, Article 1 would have a key term score of 1 for each of "Paris," "museum," and "vacations," and so would Article 2. Alternatively, Culliss discloses that the key term scores might be set to reflect how many times each of the key terms appeared in the document's content. (See id. at 14:34-36.) Culliss discloses that the articles are presented to the user in the order dictated by their combined key term scores. (Id. at 5:7-17.) For example, if Article 1 had a key term score of 5 for "Paris," 3 for "museum," and 2 for "vacations," its aggregate score for the query "Paris museum vacations" would be 10 (5 + 3 +2). If Article 2 had a key term score of 4 for "Paris," 2 for museum," and 3 for "vacations," its aggregate score for the query "Paris museum vacations" would be 9 (4 + 2 +3). (Trial Tr. at 1344:17-22). Thus, Article 1 would be presented above Article 2 because it had a higher aggregate score. (Id. at 1344:24-1345:1). When a user selects an article whose squib is presented to him, the key term scores for that article which correspond to the terms in the user's query are increased. (Id. at 4:37-49.) This is because the user, by selecting the article in response to his query, has implicitly indicated that these key terms from the query are appropriately matched to the article. (See id.) For example, if a hypothetical first user who queried "Paris museum vacations" selected Article 2, then Article 2's key term scores for "Paris," "museum," and "vacations" might each rise by +1. (See id. at 4:43-45, Trial Tr. at 1345:15-21). The next user who enters the same query would thus see a different rank of articles, based on the new key term scores that reflect the input of the prior user. (See id. at 4:66-5:1.) Sticking with the same example, Article 2 would have a new aggregate score of 12 (instead of 9) after the first user selected it, because its 3 key term scores for "Paris," "museum," and "vacations" each increased by +1 when the first user selected it. Thus, a later user who queries "Paris museum vacations" would see Article 2 (which has a new aggregate score of 12) presented above Article 1 (which still has its old aggregate score of 10). (Trial Tr. at 1345:25-1346:4). In short, the article ranking in Culliss is based on a combination of the articles' content and feedback from previous users who entered the same query. This is because both factors (article content and user feedback) are used to calculate the key term scores that determine the article ranking. B. '420 Claim 10 is Anticipated by Culliss 1. Culliss discloses a "search engine system" (claim 10 preamble). The preamble to claim 10 of the '420 patent describes a "search engine system." Culliss discloses a "search engine system" because Culliss accepts a user's search query and returns a set of search results. (See DX-058 at 4:10-26.) Culliss also discloses that its content- and feedback-based methods may be used to rank and order the search results of traditional search engines like Excite and Lycos. (See id. at 13:35-45.) Based on these plain disclosures in Culliss, Dr. Ungar opined that Culliss discloses a "search engine system" (Trial Tr. at 1346:10-22), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or at oral argument over its Motion. 2. Culliss discloses "a system for scanning a network to make a demand search for informons relevant to a query from an individual user" (claim 10[a]). Claim 10[a] recites "a system for scanning a network to make a demand search for informons relevant to a query from an individual user." The Court construed "scanning a network" as "looking for or examining items in a network" and construed "demand search" as "a single search engine query performed upon a user request." (Dkt. 171 at 23.) 4 Culliss meets this element. Specifically, Culliss looks for search results (which it calls "articles") in response to a single search engine query entered by a user. (See DX-058 at 4:1025.) These articles are stored on the Internet, which is "an extensive network of computer systems." (Id. at 3:45-55). Based on these disclosures, Dr. Ungar opined that Culliss discloses this element (Trial Tr. at 1346:23-1347:8), and Plaintiff did not dispute this point in its crossexamination of Dr. Ungar or at oral argument over its Motion. 3. Culliss discloses "a content-based filter system for receiving informons from the scanning system and for filtering the informons on the basis of applicable content profile data for relevance to the query" (claim 10[b]). Claim 10[b] recites "a content-based filter system for receiving the informons from the scanning system and for filtering the informons on the basis of applicable content profile data for relevance to the query." Culliss meets this element by: (a) giving scores to articles based partly on content analysis, and (b) using these scores to filter these articles. (a) Culliss discloses content-based analysis Culliss discloses content-based analysis because an article's key term score can be initially set in Culliss by counting how often terms from the user's query appear in the article. (DX-058 at 14:34-36; see also Trial Tr. at 1347:14-19 (opining that Culliss uses content-based analysis)). Nor did Plaintiff dispute this point in its cross-examination of Dr. Ungar. (b) Culliss discloses filtering Culliss also discloses "filtering" in the specific embodiment where its articles' key terms include "rating" key terms like X-rated, G-rated, etc. (See DX-058 at 11:8-12:41.) Like the other key term scores, the rating key term scores can be initially set by content analysis (Id. at 14:23-25) and then altered based on user feedback. (Id. at 11:47-51.) And these rating key term scores can be used to filter the articles – for example, articles with an X-rated key term score 5 above a certain threshold will be filtered out and not displayed to G-rated searchers. (Id. at 12:15.) As Dr. Ungar explained, excluding articles based on their X-rated scores is "filtering." (Trial Tr. at 1347:20-1348:6). Plaintiff did not dispute this point in its cross-examination of Dr. Ungar. Culliss also states that this specific rating embodiment can be integrated with the more traditional Culliss embodiments, so that Culliss's articles would receive a variety of key terms, one of which is the rating key term used for filtering. (See DX-058 at 11:39-41 ("The invention, operating separately or in addition to the manner described above, would permit or require the user to enter a rating key term in the search query.") (emphasis added).) 4. Culliss discloses "a feedback system for receiving collaborative feedback data from system users relative to informons considered by such users" (claim 10[c]). Claim 10[c] recites "a feedback system for receiving collaborative feedback data from system users relative to informons considered by such users." The Court construed "collaborative feedback data" as data from system users with similar interests or needs regarding what informons such users found to be relevant. (D.I. 212 at 23.) Culliss discloses this element by recording which articles were selected by users who entered a given query and raising the key term scores for terms in the selected articles that match terms in the query. (See DX-058 at 4:37-49). Plaintiff takes the position that users have "similar interests or needs" if they entered the same query. (Trial Tr. 428:8-15). Thus, by receiving the selection choices of users whose queries contained the same terms, Culliss receives "collaborative feedback data" under Plaintiff's own application of the construed claim, as Dr. Ungar opined. (Trial Tr. at 1351:5-19; Amazon.com, 239 F.3d at 1351.) 5. Culliss discloses "the filter system combining pertaining feedback data from the feedback system with the content profile data in filtering each informon for relevance to the query" (claim 10[d]). 6 Claim 10[d] recites "the filter system combining pertaining feedback data from the feedback system with the content profile data in filtering each informon for relevance to the query." Culliss meets this element. As discussed above, Culliss ranks articles for relevance to a query by calculating the articles' aggregate key term scores for the terms in that query (See DX058 at 5:2-10), and each key term score is based on a combination of feedback data and content data. (See id. at 4:37-49; 14:35-36.) Based on these disclosures, Dr. Ungar opined that Culliss meets this element. (Trial Tr. at 1351:23-1352:8). C. '420 Claims 14 and 15 are Anticipated by Culliss Claim 14 depends from claim 10 and further requires "wherein the collaborative feedback data comprises passive feedback data." Claim 15 adds the further requirement that "the passive feedback data is obtained by passively monitoring the actual response to a proposed informon." Culliss meets these limitations because Culliss's feedback data is derived from passively monitoring users' actual response to articles – namely, monitoring how frequently users who had entered the same query selected each of those articles. (DX-058 at 4:32-34). Based on these disclosures, Dr. Ungar opined that Culliss anticipates claims 14 and 15. (Trial Tr. at 1361:51362:3). D. '420 Claims 25, 27, and 28 are Anticipated by Culliss Claims 25, 27, and 28 contain the same substance as claims 10, 14, and 15, respectively, but are simply recast as method rather than system claims. Thus, as Dr. Ungar explained, Culliss anticipates claims 25, 27, and 28 for the same reasons that it anticipates claims 10, 14, and 15. (Trial Tr. at 1362:6-22). E. '664 Claim 1 is Anticipated by Culliss 1. Culliss discloses "a search system" (claim 1 preamble). 7 Culliss describes "a search system" as recited by the preamble to claim 1 because Culliss accepts a search query from a user and returns a set of search results. (See DX-058 at 4:10-26.) Additionally, Culliss's content- and feedback-based methods may be used to rank and order the search results of traditional search engines like Excite and Lycos. (See id. at 13:35-45.) Based on these discloses, Dr. Ungar opined that Culliss meets the claim 1 preamble (Trial Tr. at 1363:3-13), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or at oral argument over its Motion. 2. Culliss discloses "a scanning system for searching for information relevant to a query associated with a first user in a plurality of users" (claim 1[a]). Claim 1[a] recites "a scanning system for searching for information relevant to a query associated with a first user in a plurality of users." The Court construed "a scanning system" as "a system used to search for information." (Dkt. 171 at 23.) Culliss meets this element because it searches for articles relevant to a query associated with a first user among a plurality of users. (See DX-058 at 4:10-26). As noted above, Culliss also states that its content- and feedback-based methods may be applied to traditional search systems like Excite and Lycos to rank their search results. (Id. at 13:35-45.) Based on these disclosures, Dr. Ungar opined that Culliss meets claim 1[a] (Trial Tr. at 1363:14-1364:4), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or at oral argument over its Motion. 3. Culliss discloses "a feedback system for receiving information found to be relevant to the query by other users" (claim 1[b]). Claim 1[b] recites "a feedback system for receiving information found to be relevant to the query by other users." In its infringement case, Plaintiff asserted that this element is met by 8 receiving click-through data about information items (e.g., ads) that users view. (Trial Tr. at 610:2-14). Culliss meets this element under Plaintiff's own infringement theory because Culliss receives feedback about which articles were selected by other users, and uses this feedback to adjust the articles' key term scores. (See DX-058 at 4:37-49). For purposes of invalidity, Plaintiff must be held to the same interpretation of the claims that it advanced for infringement. See Amazon.com, 239 F.3d at 1351. Thus, as Dr. Ungar opined, Culliss meets this element under Plaintiff's own theory of what this element requires. (See Trial Tr. at 1364:5-1365:7). 4. Culliss discloses "a content-based filter system for combining the information from the feedback system with the information from the scanning system and for filtering the combined information for relevance to at least one of the query and the first user" (claim 1[c]). Claim 1[c] recites "a content-based filter system for combining the information from the feedback system with the information from the scanning system and for filtering the combined information for relevance to at least one of the query and the first user." Culliss meets this element by giving articles key term scores that reflect both content and feedback data. (See DX058 at 4:37-49; 14:34-36.) These scores are then used to filter the articles by, e.g., excluding articles whose X-rated scores exceed a given threshold. (See id. at 12:1-5). Combining search results with ranking scores that reflect content and feedback data – as disclosed by Culliss – is precisely how Plaintiff alleges that Defendants meet this claim element. (Trial Tr. at 610:15611:21). Thus, Culliss meets this element under Plaintiff's own infringement theory, as Dr. Ungar opined. (See Trial Tr. at 1365:8-1367:25; Amazon.com, 239 F.3d at 1351.) F. '664 Claim 5 is Anticipated by Culliss Claim 5 depends from claim 1 and further requires the filtered information to be an advertisement. Culliss meets this element, because Culliss explicitly states that the articles 9 which are filtered may be advertisements. (See DX-058 at 9:56-62). Based on these disclosures, Dr. Ungar opined that Culliss anticipates claim 5. (Trial Tr. at 1368:5-9). G. '664 Claim 6 is Anticipated by Culliss Claim 6 depends from claim 1 and further requires "an information delivery system for delivering the filtered information to the first user." Culliss discloses this element, as it recites that the search engine displays squibs of the articles to the user. (See DX-058 at 4:25-31). Based on these disclosures, Dr. Ungar opined that Culliss anticipates claim 6. (Trial Tr. at 1368:10-17). H. '664 Claim 21 and 22 are Anticipated by Culliss Claim 21 depends from claim 1 and further recites "wherein the content-based filter system filters by extracting features from the information." Culliss discloses the additional element of claim 21 because Culliss extracts words from the content of each article in order to determine how often the words from the query appear in these articles. (See DX-058 at 14:3436). Claim 22 depends from claim 21 and further recites "wherein the extracted features comprise content data indicative of the relevance to the at least one of the query and the user." Culliss discloses this element, because the words that Culliss extracts from an article's content indicate how relevant the article is to the query. (See id.). Based on these disclosures, Dr. Ungar opined that Culliss anticipates claims 21 and 22. (Trial Tr. at 1368:18-1369:10). I. '664 Claim 26 and 28 are Anticipated by Culliss Claim 26 contains essentially the same elements as claim 1, but is recast as a method rather than system claim. Thus, as Dr. Ungar opined, Culliss anticipates claim 26 for the same reasons that it anticipates claim 1. (Trial Tr. at 1369:11-19). Claim 28 depends from claim 26 and further recites "the step of delivering the filtered information to the first user." As discussed 10 with respect to claim 6, supra, Culliss discloses this element as well. (Trial Tr. at 1369:201370:2). J. '664 Claim 38 is Anticipated by Culliss Claim 38 depends from claim 26 and further recites "wherein the searching step comprises scanning a network in response to a demand search for the information relevant to the query associated with the first user." As noted above, "scanning a network" has been construed as looking for or examining items in a network, and "demand search" has been construed as a single search engine query performed upon a user request. (Dkt. 171 at 23.) Culliss meets this element because Culliss searches for articles in response to a single user search query, and these articles are searched for on the vast network of the Internet. (See DX-058 at 3:45-55; 4:10-26). Based on these disclosures, Dr. Ungar found that Culliss anticipates claim 38. (Trial Tr. at 1370:3-13). IV. BOWMAN ANTICIPATES EACH ASSERTED CLAIM OF THE '420 AND '664 PATENTS As with Culliss, Plaintiff argues that the Bowman reference (DX-059) does not disclose the content-based, combining, or filtering limitations of the asserted claims. As explained below, however, Bowman does disclose those limitations, as well as every other limitation required by the asserted claims. A. Overview of Bowman The Bowman reference functions similarly to a traditional search engine in that it accepts a query from a user and generates a body of results in response. (DX-059 at 5:31-32; claim 28[preamble-b]). Bowman then filters those results based on collaborative feedback and content analysis. 11 For example, if a user enters the search query "ghost stories for kids," Bowman would generate a body of search result items that contain the words "ghost," "stories," or "kids." (Id. at claim 28[preamble-b], Trial Tr. at 1322:22-1323:2). Bowman would then give each of these items a ranking score based on how often they were selected by other users who had entered the query "ghost stories for kids." (Id. at claim 28[c], Trial Tr. at 1323:2-6). Alternatively, rather than utilizing feedback from all users who entered the same query, Bowman may cluster users into discrete groups (such as age, income, or behavioral groups) and use feedback from users within the same group who entered the same query. (See id. at 3:28-33.) In this way, items returned in response to a given query may have different ranking scores for users in different groups. Some Bowman embodiments further adjust the score of each item according to its content, by analyzing how many of the terms in the query appear in the item. (See id. at claim 29.) Items that contain all the terms in the query get higher ranking scores, while items that contain fewer of the query terms get progressively lower ranking scores. (See id.) Thus, if a user entered the query "ghost stories for kids," Bowman would give items that contain the terms "ghost," "stories," and "kids" higher adjustments to their ranking score, while giving items with only two of these terms a lower adjustment (and giving even lower adjustments to items that contain only one of these terms). (Trial Tr. at 1325:9-1326:5). The items are finally presented to the user in ranked order. (Id. at Abstract.) Additionally, the system may present only a subset of the items whose ranking scores exceed a certain threshold. (See id. at 9:58-62.) 12 In sum, the final score for each item in Bowman is generated through a combination of collaborative feedback data and content data. This score is then used to filter which items are presented to the user. B. '420 Claim 10 is Anticipated by Bowman 1. Bowman discloses a "search engine system" (claim 10 preamble). The preamble to claim 10 of the '420 patent describes a "search engine system." Bowman discloses a "search engine system" because it ranks items in a search result by receiving a query and generating a plurality of items satisfying the query. (See DX-059 at claim 28 [preamble-b]). This is exactly how a search engine operates, and Dr. Ungar accordingly opined that Bowman meets the claim 10 preamble. (Trial Tr. at 1326:21-1327:4). Nor did Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or at oral argument over its Motion. 2. Bowman discloses "a system for scanning a network to make a demand search for informons relevant to a query from an individual user" (claim 10[a]). Claim 10[a] recites "a system for scanning a network to make a demand search for informons relevant to a query from an individual user." Bowman meets this element, as Dr. Ungar explained. (Trial Tr. at 1327:5-25). Specifically, Bowman discloses the steps of: "receiving a query specifying one or more terms; generating a query result identifying a plurality of items satisfying the query." (DX-059 at claim 28 [a-b].) This query is submitted by a user, and thus the resulting search is "performed upon a user request." (See id. at 7:43-46.) Further, Bowman operates on a networked system of computers. (See id. at 5:29-30.) In its crossexamination of Dr. Ungar, Plaintiff did not dispute that Bowman meets this element either, nor did Plaintiff dispute this element in oral argument over its Motion. 13 3. Bowman discloses "a content-based filter system for receiving informons from the scanning system and for filtering the informons on the basis of applicable content profile data for relevance to the query" (claim 10[b]). Claim 10[b] recites "a content-based filter system for receiving the informons from the scanning system and for filtering the informons on the basis of applicable content profile data for relevance to the query." As with Culliss, Bowman meets this element by giving items scores based partly on content analysis and using these scores to filter the items. (a) Bowman uses content analysis Bowman discloses content analysis in claim 29, which requires adjusting an item's score based on how many query terms are "matched" by the item. (DX-059 at claim 29). Bowman makes clear that "matching" involves content analysis – i.e., determining how many query terms appear in an item's content. Indeed, when discussing "matching" in connection with the prior art, Bowman explicitly states that a query term is "matched" to a search result if it appears in that search result's content. For example, if the search results are books, Bowman states that a list of books will be "matching the terms of the query" if their "titles contain some or all of the query terms." (See DX-059 at 1:30-38). In that same paragraph, Bowman states that the list of books "may be ordered based on the extent to which each identified item matches the terms of the query." (Id. at 1:43-44 (emphasis added).) In other words, the list of books can be ordered based on how many of the query terms are matched to (i.e., contained within) the title of each book. In nearly verbatim language, claim 29 of Bowman describes this technique of ranking search results based on how many query terms they "match." A simple comparison of claim 29 to the "matching" prior art discussion makes this clear. (Compare claim 29 ("adjusting the ranking value produced for each item indentified in the query result to reflect the number of terms specified by the query that are matched by the item") with 1:43-44 ("the list may be 14 ordered based on the extent to which each identified item matches the terms of the query.").) Given the identity of language, the only logical interpretation is that claim 29's "matching" technique also involves content analysis, as Dr. Ungar explained at trial. (Trial Tr. at 1328:314). (b) Bowman discloses filtering Bowman also filters items based on their scores, by retaining items that score above a predetermined threshold while excluding the rest. (DX-059 at 9:58-62, claim 15). As Dr. Ungar explained, this process of retaining some items and excluding others is "filtering." (Trial Tr. at 1321:15-22, 1331:8-20). Plaintiff argues that Bowman does not disclose filtering because Bowman does not actually recite the word "filtering." (Trial Tr. at 1772:8-10). But it is well-settled that an anticipatory reference need not use the same words as the claim as long as it fairly teaches the claimed concept. See Whitserve, LLC v. Comp. Packages, Inc., 694 F.3d 10, 21 (Fed. Cir. 2012). Because Bowman's method of retaining items above a threshold and discarding items below the threshold is a filtering process, it is irrelevant that Bowman does not use the word "filtering." 4. Bowman discloses "a feedback system for receiving collaborative feedback data from system users relative to informons considered by such users" (claim 10[c]). Claim 10[c] recites "a feedback system for receiving collaborative feedback data from system users relative to informons considered by such users." The Court construed "collaborative feedback data" as data from system users with similar interests or needs regarding what informons such users found to be relevant. (D.I. 212 at 23.) Bowman meets this element. First, Bowman records how often users who entered the same search query selected various items. (See, e.g., DX-059 at claim 28[c]). Second, rather than recording feedback from all users who entered the same query, Bowman may cluster users 15 into groups (such as age, income or behavioral groups) and use feedback from users within the same group who entered the same query. (See DX-059 at 3:28-33.) Based on these disclosures, Dr. Ungar opined that Bowman meets element 10[c]. (Trial Tr. at 1331:21-1332:21). Plaintiff did not dispute this point in its cross-examination of Dr. Ungar. 5. Bowman discloses "the filter system combining pertaining feedback data from the feedback system with the content profile data in filtering each informon for relevance to the query" (claim 10[d]). Claim 10[d] recites "the filter system combining pertaining feedback data from the feedback system with the content profile data in filtering each informon for relevance to the query." As Dr. Ungar explained, Bowman meets this element because Bowman combines data regarding the content of informons with collaborative feedback data from other users to determine the most relevant informons to a query. (Trial Tr. at 1332:22-1333:12). Specifically, Bowman determines each search result item's score by combining collaborative feedback data (showing how often the item was selected by users from the same group who entered the same query) with content profile data (showing how many of the query terms appear in the item's content). (See DX-059 at claim 28[c] and claim 29). The final score is used to determine the item's relevance to the query. (See id. at 2:23-24.) Bowman then filters out items whose scores fall below a certain threshold. (Id. at 9:58-62.) C. '420 Claims 14 and 15 are Anticipated by Bowman Claim 14 depends from claim 10 and further requires "wherein the collaborative feedback data comprises passive feedback data." Claim 15 adds the requirement that "the passive feedback data is obtained by passively monitoring the actual response to a proposed informon." Bowman meets both these elements, because Bowman's feedback data is derived from passively monitoring users' actual responses to search result items – namely, monitoring how often users 16 selected each of those items. (Id. at 2:31-35). Based on these disclosures, Dr. Ungar opined that Bowman anticipates claims 14 and 15. (Trial Tr. at 1334:9-24). D. '420 Claims 25, 27, and 28 are Anticipated by Bowman Claims 25, 27, and 28 contain the same substance as claims 10, 14, and 15, respectively, but are simply recast as method rather than system claims. Thus, as Dr. Ungar explained, Bowman anticipates claims 25, 27, and 28 for the same reasons that it anticipates claims 10, 14, and 15. (Trial Tr. at 1335:2-14). E. '664 Claim 1 is Anticipated by Bowman 1. Bowman discloses "a search system" (claim 1 [preamble]). Bowman describes "a search system" as recited by the preamble to claim 1. Specifically, Bowman accepts a search query from a user and returns a set of search results. (DX-059 at 5:3132 (stating that Bowman includes "a query server for generating query results from queries").) Based on these disclosures, Dr. Ungar explained that Bowman meets the claim 1 preamble (Trial Tr. 1335:20-1336:6), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or in oral argument over its Motion. 2. Bowman discloses "a scanning system for searching for information relevant to a query associated with a first user in a plurality of users" (claim 1[a]). Claim 1[a] recites "a scanning system for searching for information relevant to a query associated with a first user in a plurality of users." The Court construed "a scanning system" as "a system used to search for information." (Dkt. 171 at 23.) Bowman meets this limitation because it searches for information relevant to a query associated with a first user. As recited in Claim 28 of Bowman, Bowman discloses "[a] computer-readable medium whose contents cause a computer system to rank items in a search result by: receiving a query specifying one or more terms; generating a query result identifying a plurality of items satisfying the query." (DX-059 17 at claim 28[preamble-b]) (emphasis added). Based on these disclosures, Dr. Ungar testified that Bowman meets claim 1[a] (Trial Tr. 1336:7-16), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or in oral argument over its Motion. 3. Bowman discloses "a feedback system for receiving information found to be relevant to the query by other users" (claim 1[b]). Claim 1[b] recites "a feedback system for receiving information found to be relevant to the query by other users." Again, Plaintiff asserts that this element is met by receiving clickthrough data about information items (e.g., ads) that users view. (Trial Tr. at 610:2-14). Bowman meets this element under Plaintiff's own infringement theory because Bowman receives feedback about information found to be relevant to the query by other users – i.e., it receives feedback about which items were selected most often by other users who entered the same query. (See DX-059 claim 28[c].) Based on these disclosures, Dr. Ungar explained that Bowman meets claim 1[b] (Trial Tr. 1336:17-1337:4), and Plaintiff did not dispute this point in its cross-examination of Dr. Ungar or in oral argument over its Motion. 4. Bowman discloses "a content-based filter system for combining the information from the feedback system with the information from the scanning system and for filtering the combined information for relevance to at least one of the query and the first user" (claim 1[c]). Claim 1[c] recites "a content-based filter system for combining the information from the feedback system with the information from the scanning system and for filtering the combined information for relevance to at least one of the query and the first user." Bowman meets this element. As described above, Bowman gives items scores that reflect both content data and feedback data. (See DX-059 at claims 28-29.) These scores are used to filter the items for relevance to the query. (See id. at Abstract; 2:23-24, 9:58-62.) Combining search results with scores that reflect content and feedback data – as disclosed by Bowman – is precisely how Plaintiff alleges that Defendants meet this claim element. 18 Specifically, Plaintiff alleges that Defendants meet this element by calculating a "Quality Score" for ads using what Plaintiff alleges is based on feedback data and content data. (Trial Tr. at 610:15-611:21). Thus, Bowman meets this element under Plaintiff's own infringement theory, as Dr. Ungar explained. (Trial Tr. 1337:5-1338:12). F. '664 Claim 5 is Anticipated by Bowman Claim 5 depends from claim 1 and further requires the filtered information to be an advertisement. Bowman meets this element. Specifically, Bowman discloses that system users can purchase the products represented by the search results, such as by adding these products to their virtual shopping carts. (DX-059 at 5:4; 9:2-3; claim 7). Thus, the search results constitute advertisements for the purchasable products that they represent. Based on these disclosures, Dr. Ungar testified that Bowman anticipates claim 5. (Trial Tr. at 1339:3-15). G. '664 Claim 6 is Anticipated by Bowman Claim 6 depends from claim 1 and further requires "an information delivery system for delivering the filtered information to the first user." Bowman discloses this element, as it recites that the software facility displays the filtered search results to the user. (DX-059 at 9:56-58). Based on these disclosures, Dr. Ungar testified that Bowman anticipates claim 6. (Trial Tr. at 1339:16-1340:1). H. '664 Claim 21 and 22 are Anticipated by Bowman Claim 21 depends from claim 1 and further recites "wherein the content-based filter system filters by extracting features from the information." Bowman discloses this element because Bowman extracts words from the content of each item in order to determine how many words from the query are found in the item. (DX-059 at claim 29). Claim 22 depends from claim 21 and further recites "wherein the extracted features comprise content data indicative of the relevance to the at least one of the query and the user." 19 Bowman discloses this element, because the words that Bowman extracts from an item's content indicate how relevant the item is to the query. (See id., Trial Tr. at 1340:14-21). Based on these disclosures, Dr. Ungar testified that Bowman anticipates claims 21 and 22. (Trial Tr. at 1340:224). I. '664 Claim 26 and 28 are Anticipated by Bowman Claim 26 contains essentially the same elements as claim 1, but is recast as a method rather than system claim. Thus, as Dr. Ungar explained, Bowman anticipates claim 26 for the same reasons that it anticipates claim 1. (Trial Tr. at 1341:6-13). Claim 28 depends from claim 26 and further recites "the step of delivering the filtered information to the first user." As discussed with respect to claim 6, supra, Bowman discloses this element as well. (Trial Tr. at 1341:14-23). J. '664 Claim 38 is Anticipated by Bowman Claim 38 depends from claim 26 and further recites "wherein the searching step comprises scanning a network in response to a demand search for the information relevant to the query associated with the first user." Bowman meets this element because Bowman looks for or examines items in response to a single search engine query. (See DX-059 at claim 28[a-b] (disclosing the steps of "receiving a query specifying one or more terms; generating a query result identifying a plurality of items satisfying the query").) Furthermore, Bowman operates on a computer network. (See id. at 5:29-30.) Based of these disclosures, Dr. Ungar opined that Bowman anticipates claim 38. (Trial Tr. at 1341:24-1342:12). V. THE ASSERTED CLAIMS ARE INVALID FOR OBVIOUSNESS Obviousness is a question of law, though based on underlying facts. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). To determine obviousness, a court must consider: "(1) the scope and content of the prior art; (2) the differences between the prior art and the claims at 20 issue; (3) the level of ordinary skill in the art; and (4) any relevant secondary considerations, such as commercial success, long felt but unsolved needs, and the failure of others." Western Union Co. v. MoneyGram Payment Sys., Inc., 626 F.3d 1361, 1369 (Fed. Cir. 2010) (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966)). Under these so-called "Graham factors," all asserted claims are obvious. Certainly, Plaintiff cannot show that the claims are non-obvious as a matter of law. Thus, Plaintiff's Motion must be denied. A. All Elements of the Asserted Claims Were Found in the Prior Art Plaintiff has repeatedly characterized the asserted independent claims as a combination of four color-coded elements for purposes of showing infringement: (1) yellow searching for information relevant to a query, (2) blue content-based analysis, (3) green collaborative analysis, and (4) purple combining the content and collaborative analysis to filter the information. (See Trial Tr. 425:4-18; 521:16-24). If these four elements are all that is required to show infringement, then these four elements are all that is required to show invalidity. As noted above, a patentee may not interpret a claim one way for purposes of infringement and another way for purposes of invalidity. See Amazon.com, 239 F.3d at 1351. As explained above, the combination of these four elements is found in the Culliss and Bowman references. However, this combination is also found in two other prior art references raised at trial – the WebHound thesis (DX-049) and the Rose patent (DX-034). The inventors themselves admitted that the elements of the patents existed in the prior art. (See Trial Tr. at 272:11-13; 336:10-14 (search); 238:15-16; 336:7-9 (content-based filtering); 238:17-18; 336:3-6 (collaborative filtering)). The Fab article (DX-050) is titled "Fab: Content-Based, Collaborative Recommendation." (Id. at 66). The sub-title goes on to state: "By combining both collaborative and content-based filtering systems, Fab may eliminate many of the weaknesses found in each 21 approach." (Id.) Thus, the Fab article discloses three of the four elements that Plaintiff alleges is required in the independent claims: content-based filtering, collaborative filtering, and combining content-based and collaborative filtering. All four of the elements cited in Plaintiff's infringement case are found in the WebHound thesis. As shown in the Abstract of this reference, the WebHound thesis discloses a combination of content-based and collaborative filtering: "This thesis claims that content-based filtering and automated collaborative filtering are complementary techniques, and the combination of ACF with some easily extractable features of documents is a powerful information filtering technique." (DX-049 at Abstract). Thus, the WebHound Abstract alone discloses three of the four elements that Plaintiff contends are required by the independent claims: content-based analysis, collaborative analysis, and combining content and collaborative analysis for filtering. 22 The WebHound thesis also discloses the fourth element cited in Plaintiff's infringement case – searching for information relevant to a query. Specifically, the WebHound thesis discloses that its content-based/collaborative filtering can be used to filter search results obtained by a search engine. (DX-049 at 78) ("a WEBHOUND like front-end to a popular search engine such as Lycos, could enable users to filter the results of their searches on the extensive databases complied by these search engines in a personalized fashion.") The four elements from Plaintiff's infringement case are also found in the Rose patent (DX-034). As with the WebHound thesis, the Abstract of the Rose patent discloses content analysis, collaborative analysis, and combining the content and collaborative analysis. Specifically, the Rose Abstract explains that "the prediction of relevance [for information items] is carried out by combining data pertaining to the content of each item of information with other data regarding correlations of interests between users." (DX-034 at Abstract). The Rose Abstract further explains that "[t]he user correlation data is obtained from feedback information provided by users when they retrieve items of information." (Id.) Thus, Rose combines content data with feedback data (from users with correlated interests)1 to score items. Rose further explains that "[t]he relevance predicting technique of the present invention . . . can be used to filter messages provided to a user in an electronic mail system and search results obtained through an on-line text retrieval service. (DX-034 at 2:51-55) (emphasis added). In other words, Rose discloses that its content/collaborative scoring method can be used to "filter . . . search results." 1 Because the user feedback data in Rose comes from users with correlated interests, it is "collaborative feedback data" under the Court's construction. See D.I. 212 at 4 (construing "collaborative feedback data" as "data from system users with similar interests or needs regarding what informons such users found to be relevant.") 23 5. The elements from the dependent claims are found in the prior art Moving from the independent claims to the dependent claims, the elements from the dependent claims are also found in the prior art references discussed above. (a) '420 claims 14, 15, 27, and 28 '420 claims 14, 15, 27, and 28 add the requirements that the feedback data be passive data reflecting a user's actual response to an informon. This element is disclosed by, e.g., Culliss, which passively monitors whether users select articles and adjusts the articles' scores based on the user selections. (DX-058 at 4:37-45). Furthermore, given that user feedback can comprise only two basic types – active or passive – it would be obvious to modify any "active feedback" reference to disclose passive feedback instead. See KSR, 550 U.S. at 421 (where 24 "there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.") (b) '664 claims 21 and 22 '664 claims 21 and 22 add the elements of extracting features from the information that indicate the information's relevance to the query or the user. This element is disclosed by, e.g., the WebHound thesis, which relies on "easily extractable features of documents" and analyzes "the importance of [a given] feature relative to the other features for a particular user." (DX-049 at Abstract, 38). (c) '664 claims 6 and 28 '664 claims 6 and 28 require delivering the filtered information to the user. Numerous prior art references disclose this element. For example, the WebHound thesis discloses returning the top-rated web pages to the user. (DX-049 at 78) ("the resulting matches could be filtered through WEBHOUND and only the top ranked ones (in terms of predicted rating) need be returned.") (d) '664 claim 5 '664 claim 5 requires that the filtered information be an advertisement. This element is disclosed by, e.g., Culliss. (See DX-058 at 9:61). Furthermore, since advertisements are just one type of information that can be scored and filtered like any other, it would be obvious that the other prior art references disclosed herein could filter advertisements. (e) '664 claim 38 '664 claim 38 requires scanning a network in response to a demand search. This element is met by, e.g., WebHound, which discloses a search engine that scans the Internet for articles in response to a single search engine query entered by a user. (See DX-049 at 78). 25 B. Any Differences Between the Claims and the Prior Art Would be Obvious to Overcome 1. To the extent WebHound and Rose do not disclose a "tight integration" of their search and filtering systems, adding this element would be obvious Plaintiff argues that Defendants' obviousness arguments are deficient because Defendants supposedly did not show how the prior art could be combined or modified to meet all elements of the asserted claims. (Trial Tr. at 1772:18-1773:9).2 This allegation is not true. For example, Plaintiff has alleged throughout this case that Rose and WebHound are not anticipatory art because they do not disclose a "tight integration" between their search and filtering systems. Yet Dr. Ungar testified how it would be obvious to modify WebHound or Rose to disclose this "tight integration," by simply having these references use their search queries in the filtering process. As Dr. Ungar stated, "If you are filtering search results, it's obvious to keep around the query and use that also for filtering . . . just think about it. If you ask a query of a search engine, you get a result, you just have the query sitting there with the result, why not use that also for filtering?" (Trial Tr. at 1317:25-1318:7). In other words, it would be obvious to modify WebHound or Rose so that they disclosed the "tight integration" between search and filtering that Plaintiff contends is required. Furthermore, both Bowman and Culliss remember the search query when scoring and filtering items, because their content scores compare words in the query to words in the items3 2 Plaintiff also argues that all of Defendants' obviousness combinations are deficient because Dr. Ungar "had not tested the asserted obvious combinations to get the same results of the patents-in-suit." (Trial Tr. at 1773:10-12). This argument is without support – there is no case holding that an obviousness combination must undergo "testing" before being used to invalidate an asserted claim. 3 See DX-059 at claim 29; DX-058 at 4:10-15, 14:34-36. 26 and their feedback scores utilize feedback from users who entered the same or a similar query.4 Thus, one of ordinary skill could draw upon these Bowman and Culliss disclosures and thereby modify Rose or WebHound to remember and use the search query for filtering. 2. To the extent Bowman does not disclose content matching, adding this element would be obvious As discussed above, claim 29 of Bowman discloses adjusting an item's score to reflect the number of terms in the query that are "matched" by the item. The only sensible reading of this "matching" technique is that it determines how many query terms appear in the content of the item. But even if this "matching" technique did not compare the query terms to the content of the item, modifying Bowman to disclose content-based matching would be obvious. This is because content-based matching indisputably appears in other sections of the same Bowman reference. For example, the Background section of Bowman discusses how a search system can order books within a search result based on how many query terms "match" or appear in the books' titles. (DX-059 at 1:37-45 ("the query result is a list of books whose titles contain some or all of the query terms . . . the list may be ordered based on the extent to which each identified item matches the terms of the query.")). It would be obvious to apply this unambiguous content-based matching to the invention disclosed in claim 29 of Bowman. Given that the content-based matching from the Bowman Background appears in the same reference as Bowman claim 29, it is self-evident that one could apply the content-based matching from the Background to claim 29. Thus, even if the "matching" of Bowman claim 29 did not already embrace content-based matching, modifying this technique to disclose content-based matching would be obvious. See Boston Sci. Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 4 See DX-059 at claim 28[c], DX-058 at 4:37-45. 27 2009) ("Combining two embodiments disclosed adjacent to each other in a prior art patent does not require a leap of inventiveness.") 3. To the extent Bowman does not disclose filtering, adding this element would be obvious As discussed above, Bowman "filters" because it retains items that score above a predetermined threshold while excluding items that score below the threshold. (DX-059 at 9:5862, claim 15). Plaintiff has argued that this is not true "filtering" because it involves ranking all the items and then retaining a subset of items which exceed the threshold, rather than passing the items one-by-one through the filter. But even if Plaintiff were correct that "filtering" requires retaining or excluding items one-by-one, modifying Bowman to disclose "one-by-one" filtering would be utterly trivial and obvious. There is no dispute that Bowman gives scores to items, nor is there any dispute that Bowman sets a threshold and excludes items that score below the threshold. So modifying Bowman to disclose the "one-by-one" filtering that Plaintiff contends is required would simply require scoring Item A, retaining or excluding Item A based on whether it passes the threshold, and then moving on to Item B – rather than scoring all the items and retaining the items that exceed the threshold in one fell swoop. Because there are only two basic ways to retain and exclude items – "one-by-one" or "all at once" – modifying Bowman to disclose the former technique rather than the latter would necessarily be obvious. As the Supreme Court held in KSR, a modification or combination is likely obvious where "there are a finite number of identified, predictable solutions" to a known problem. See KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Such is the case here – modifying Bowman to disclose "one-by-one" filtering instead of "all at once" filtering would necessarily be obvious, given the limited number of ways that one could retain and exclude items based on their scores. 28 4. To the extent Culliss does not disclose filtering, adding this element would be obvious As discussed above, Culliss discloses "filtering" in the embodiment where X-rated articles are screened out of the search results when their X-rated scores exceed a given threshold. (See DX-058 at 12:1-5). But even if one ignored this specific Culliss embodiment and focused on the other Culliss embodiments that merely rank articles, it would be obvious to modify these other Culliss embodiments so that they disclosed filtering as well as ranking. There is no dispute that all the Culliss embodiments give scores to articles and present the articles to the user in decreasing order of their scores. (Id. at 5:5-10). Modifying this "ranking" method into "filtering" would simply require setting a threshold and excluding, one-by-one, the articles that score below the threshold. As noted above, Bowman discloses setting such a threshold, and there is no inventiveness in comparing items to a threshold "one-by-one" versus "all at once." Thus, it would be obvious to set a such a threshold in Culliss and filter out the articles that score below the threshold. C. The Level of Ordinary Skill in the Art As Dr. Ungar explained at trial, a person of ordinary skill in the art for the asserted patents would have a bachelor's degree in computer science (or an equivalent degree) plus 2-3 years experience in the field of information retrieval. (Trial Tr. at 1311:15-20). Dr. Carbonell has a very similar formulation for the person of ordinary skill in the art. (Id. at 1284:8-18). Given the prior art disclosures recited above and the few (if any) differences between the asserted claims and the prior art, Dr. Ungar opined that such a person would have found the asserted claims to be obvious. (See id. at 1311:25-1312:4). The elements of the asserted claims were all found in the prior art (Id. at 1312:5-10), and these elements were not used in any unconventional or unpredictable way in the asserted claims. (Id. at 1312:11-22). Thus, there 29 would have been no barriers or difficulties to a person or ordinary skill in the art combining these elements to create the inventions in the asserted patents. (Id. at 1312:22-1313:4). Indeed, named inventor Ken Lang himself admitted that he was not aware of any technological barriers to creating the inventions in the asserted claims. (Id. at 274:12-275:1). See KSR, 550 U.S. at 421. D. No Secondary Considerations Can Rebut the Obviousness Showing A patentee may rebut an obviousness showing by pointing to "secondary considerations" of non-obviousness, such as commercial success of the patented invention, failure of others to create the patented invention, or showing that the patented invention filled a long-felt and unsolved need. See KSR, 550 U.S. at 406 (citing Graham, 383 U.S. at 17-18). In this case, however, there are no secondary considerations that might rebut the obviousness of the '420 and '664 patents. For example, there was no commercial success for these patents – in fact, the patents were never commercially used at all. (Trial Tr. at 332:7-12, 339:18-341:5, 1315:416). There also was no failure by others to devise the systems or methods claimed by these patents, nor did these patents fill any long-felt and unsolved need. (Id. at 1315:17-1316:15). To the contrary, numerous prior art references had already solved the problem of combining content-based and collaborative filtering, in order to resolve the weaknesses of each individual method on its own. (Id. at 1316:10-15). In short, there are no secondary considerations that might rebut the obviousness of the '420 and '664 patents. VI. CONCLUSION For the foregoing reasons, Defendants respectfully request judgment as a matter of law that each asserted claim of the '420 and '664 patents is anticipated by Culliss, anticipated by Bowman, and invalid for obviousness. 30 DATED: October 31, 2012 /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan.com David Bilsker David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Counsel for Google Inc., Target Corporation, IAC Search & Media, Inc., and Gannett Co., Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 W. Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 Robert L. Burns FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 Telephone: (571) 203-2700 Facsimile: (202) 408-4400 Cortney S. Alexander FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP 31 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 Telephone: (404) 653-6400 Facsimile: (415) 653-6444 Counsel for Defendant AOL Inc. 32 CERTIFICATE OF SERVICE I hereby certify that on October 31, 2012, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Jeffrey K. Sherwood Kenneth W. Brothers DICKSTEIN SHAPIRO LLP 1825 Eye Street NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 sherwoodj@dicksteinshapiro.com brothersk@dicksteinshapiro.com Donald C. Schultz W. Ryan Snow Steven Stancliff CRENSHAW, WARE & MARTIN, P.L.C. 150 West Main Street, Suite 1500 Norfolk, VA 23510 Telephone: (757) 623-3000 Facsimile: (757) 623-5735 dschultz@cwm-law.cm wrsnow@cwm-law.com sstancliff@cwm-law.com Counsel for Plaintiff, I/P Engine, Inc. /s/ Stephen E. Noona Stephen E. Noona Virginia State Bar No. 25367 KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 Telephone: (757) 624-3000 Facsimile: (757) 624-3169 senoona@kaufcan.com 12018377v1 33


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Artistically-inspired and worldly, much like the denizens it seeks to house, the Oosten Penthouse stands apart in a city of glass-clad condos.
Located in the heart of Williamsburg, this 5098 sq.ft. showflat brings the borough's creative spirit to life. Working with Piet Boon's design for the public spaces, effortless and generously proportioned items were selected to create a warm and inviting space. Bold blue tones complement the Brooklyn bridge in its background view, while pieces from local artists reference the borough's rich culture, bringing together an eclectic mixture of paintings, sculpture and prints from artists Kathryn Markel, Emily Church, and Jenny Holzer.


The 2019 LIBER Annual Conference (26-28 June, Dublin) is fully booked.
We are thrilled that over 400 delegates will join us at Trinity College Dublin for LIBER 2019, but understand that many people who did not manage to register will be disappointed.
There is a waiting list. To add your name, please create an account on the Registration page and enter your contact details. We'll contact you by email if a space opens up.
Thank you to the LIBER network for your interest in the Annual Conference. For those who can't be in Dublin, we aim to livestream the keynote talks (details to follow) and we look forward to seeing you in Belgrade in 2020!


The 3rd December 2017 marks the 25th anniversary of the International Day of Persons with Disabilities, a day that is promoted by the United Nations.
In this tutorial, I'll show you some of the assistive technologies promoted by Apple to help people with specific needs.
The UN's International Day of Persons with Disabilities Day is intended to promote an understanding of disability issues and support the dignity, rights and well-being of persons with disabilities.
Through this annual celebration, the UN seeks to increase awareness of the benefits to be derived from the integration of persons with disabilities in every aspect of political, social, economic and cultural life.
Apple says that it believes technology should be accessible to everyone, including Sady Paulson, who uses Switch Control on a Mac as demonstrated in this promotional Apple video.
Sady Paulson is a video editor certified in Final Cut Pro who uses Switch Control to edit films on her Mac.
Apple says, "We believe that technology should be accessible to everyone. The most powerful technology in the world is technology that everyone, including people with disabilities, can use. To work, create, communicate, stay in shape, and be entertained. So we don't design products for some people or even most people. We design them for every single person."
Some people, with disabilities, are helped in their use of computers through Assistive Technology.
Apple include Assistive Technology in their software to make it more accessible to people who have particular needs. Assistive Technology helps a blind person to create a presentation and a person with a physical disability to edit a video without a traditional mouse or trackpad input device.
For people with sight issues, Apple's VoiceOver application is a screen reader application that goes beyond simple text-to-speech. Apple has deeply integrated VoiceOver into macOS meaning that it is compatible with all of the built-in apps.
VoiceOver has been developed to tell you what is on the screen and to guide your through specific actions, for example, creating a presentation, navigating between apps and editing a video.
Apple also provides information to help developers integrate VoiceOver compatibility into their apps.
In macOS High Sierra, Apple enhanced VoiceOver to make it easier to navigate PDF documents and messages. Enhancements to VoiceOver with Safari include improved navigation of websites including automatically switching to the correct voice on visiting a website displayed in a foreign language.
As you'd expect, on a Mac it's possible to watch films with detailed audio descriptions, too. Films with audio descriptions are identified with an AD icon in the iTunes Store.
VoiceOver supports over 100 compatible refreshable braille displays and is the first screen reader to do so.
A refreshable braille display is an electro-mechanical device that displays braille characters by means of round-tipped pins raised through holes in a flat surface. Blind computer users who cannot use a computer monitor can use it to read text output.
Apple's macOS allows computer users to dictate replies to emails and instructions to navigate the internet in over 40 languages. Dictation has in excess of 50 formatting and editing commands allowing you to talk to the Mac to italicise a word or a sentence, for example. Users can take this further with dictation commands to create workflows through Automator.
Siri, first introduced on iOS devices, is available on macOS and is integrated with VoiceOver. Use it to find a file and read it out aloud.
Other options, to assist partially sighted or otherwise visually impaired people, are the magnification of the cursor. To locate the mouse pointer on a large screen, shake the mouse to magnify it.
Contrast Options lets the Mac user invert the colours, enable greyscale or change the contrast options in a number of ways so that the display can be more easily seen by someone with different needs. The changes are applied systemwide.
Over the last few years, the power of Mac software and hardware has made possible some clever user interface animations. Whilst visually appealing for many, they're not helpful to all. For those affected by the motion of screen elements, you can elect to reduce motion in areas such as Spaces, Notification Centre and the Dock.
For the deaf and hard of hearing, FaceTime means that people who use sign language can communicate more easily from their Mac to anyone else using an iOS device or Mac.
Since macOS High Sierra, Siri accepts questions and instructions in a new Type to Siri mode enabling use of the digital assistant through the keyboard.
Through iTunes, films, television programmes and podcasts that support Closed Captioning are shown with a CC icon. The font size and style of the captions can be changed by the Mac user.
For those who miss sound through one of their ears, stereo music is not appropriate for them. Rather than distinct left and right audio channels, perhaps with different audio through each, macOS helps by playing both left and right audio channels through both sides of the headphones with the ability to balance the volume between the two.
System alert sounds may easily be missed so, if attention is needed, Screen Flash can be turned on. It works with any app that uses the system beep.
Whilst many people text message each other, rather than type, iMessage is a great tool for those who find it easier to communicate through text rather than talking.
The keyboard has been the primary input device for computer for decades and the Mac is no different. But a keyboard is not suitable to everyone, though. Those with physical disabilities or motor skills problems may find it difficult without some changes.
Since macOS High Sierra, an Accessibility Keyboard is a customisable on-screen keyboard that helps mobility impaired users to undertake more advanced typing and navigation. It also supports head-tracking software meaning that macOS can be used without ever needing to click the mouse.
Again, Apple's digital assistant, Siri, helps with requests to search the Internet, locate documents, create reminders and send messages or emails.
Dictation commands, combined with Automator, is a powerful tool for automating processes for those who find it easier to talk to a Mac.
Switch Control, for people with extensive motor skills challenges, is a powerful assistive technology to navigate on screen keyboard, menus and the Dock.
A switch, joystick or a tap on the keyboard or trackpad can act as an adaptive device. This control is taken a step further with Platform Switching that lets the Mac user operate any other device synced with their iCloud account such as an iPad or iPhone.
Other features, such as Sticky Keys, Slow Keys and Mouse Keys, are built in to macOS to help those with dexterity issues. The pressing of keys can be displayed and accompanied by a sound effect for confirmation.
Or the sensitivity of the keyboard can be adjusted to introduce a delay between the key being pressed and being entered with the choice of a sound for confirmation.
The keys of a numeric keypad can be used to control the cursor as a replacement to the mouse or trackpad for those who have difficulty using such devices. This can be used to navigate the menu, app windows and the Dock.
Some people learn better when they can hear what they're reading or writing. Text to Speech can be used to read books or websites. Highlight a section of text and have it read in one of 70 voices spanning 42 different languages.
Pressing the F5 key helps vocabulary with word completion.
Pressing the F5 key helps vocabulary with word completion. macOS suggests words for the user to select.
For people with learning disabilities or cognitive issues, Simple Finder reduces the Dock to three folders and the apps that can be used can be limited. Folders and files are displayed as neatly arranged icons in a single window to help simplify the user interface.
Other apps, that many of us take for granted, such as FaceTime helps people who communicate using sign language. iMessage used in conjunction with Text to Speech lets you hear the words read aloud.
The Assistive Technologies, described above, are a part of every Mac with macOS High Sierra. Many of them are included in earlier versions of macOS and OS X.
To close the window, click Done or click anywhere outside of the window.
In this tutorial, I've shown you some of the Assistive Technology software that is built-in to macOS and OS X that is designed to make the use of computers, by people with disabilities, easier.
Accessibility is a core value at Apple, where engineers are specifically trained how to implement accessibility features across all products. Not only are accessibility features built-in at no extra cost, these assistive technologies are available to all Mac users.


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Who pulled the strings at Abu Ghraib?
Yes, this all happenned several years ago...but it's been weighing on my mind ever since. It's a VERY long blog. Please bear with me.
There really aren't a lot of things that I call myself "eminently qualified" to give an opinion on. Most of the time that doesn't stop me, though. I generally am pretty content to spout off with my relatively-informed opinions at the drop of a hat without being a qualified expert on the topic. Most of the things I talk about aren't exactly rocket surgery either. However, occasionally a topic comes up where I have special qualifications, such as a commercial driver's license, or specific experience, such as being there in Germany first-hand to see the fall of the Berlin Wall and communism. There are a lot of things that I can engage in an intelligent discourse over without looking like a complete rube, but few things I would be so bold as to call myself an expert on. But on a select few topics, yes, I am eminently qualified. This is one of those topics.
For the sake of background, I spent four years as a military policeman in the US Army. My primary specialty as an MP was Combat Support and Law Enforcement, and my secondary specialty was that of Corrections. The wartime mission for my unit in Germany, the 285th MP Company, was that of Enemy Prisoner of War (EPW) operations. In the event of an armed conflict, we were to set up and operate a prison camp as well as process and guard EPW's and CI's, or Civilian Internees. In addition to frequent classroom training on the subject, I had several excellent field training exercises specifically tailored to EPW ops to give practical application to the classroom theory. In one exercise I role-played the part of a prisoner, and in a longer 21-day event, we ran a camp whose prisoners were members of the Army's elite 10th Special Forces Group.
In Kansas, I was assigned to the US Army Correctional Brigade, and as part of my duties apart from Law Enforcement, I was responsible for prisoner custody & control in a military correctional environment populated by as many as 3,000 convicted offenders. Once the First Gulf War started to ramp up, my unit helped train National Guard MP units in EPW operations prior to their deploying to the front lines.
Additionally, while in college I served an internship at the Penobscot County Jail in Bangor, Maine, working in part with prisoner intake and classification for a semester. So yeah, I guess it's safe to say I know a thing or two about jails in general and military prisons in particular. This said I felt that I had finally procrastinated long enough, and that I should make my opinions on the Abu Ghraib Prison Scandal known, in as much as I was not there first-hand to witness the events.
Personally, I think things got way out of hand, but also that things got blown way out of proportion, too. What should have been administratively handled at the unit level instead made it to the press, and the drive-by media blew it all over the place, and everybody proceeded to boo-hoo over it. There, I said it. Now start calling me a torturing war-monger.
Look, be realistic, people. Occasionally alternative interrogation methods need to be employed to get valuable intelligence from people who are doing their level best to KILL US. Yes, us. Not just American troops, but the entire country. These extremist Islamic fundamentalist terrorists and insurgents want to wipe us as a nation off the map and start over from scratch as an all-Islamic world state. How big of an idiot does someone have to be to not see that? And note that I said "extremist Islamic fundamentalists" and not "everyday Muslims". Not everyone who follows the Koran is a terrorist.
I've asked time & time again, why is it seemingly okay for insurgent scumbags to behead our people on live streaming webcasts, to mutilate the burned corpses of contractors and hang the remains from bridges, and to put IED's inside the remains of dead women and babies on the side of the road to blow up people coming to try and render aid? But when anyone wearing an American flag does something even remotely non-Hearts & Flowers it's suddenly an international war crime? Riddle me that, why don't you? That double standard is a load of crap. Don't feed me any lines about the Geneva Convention, the Hague Accords, the Code of Conduct, et cetera. Nobody follows them any more. Sure, we should try to hold ourselves up to a higher standard of ethical & moral conduct, I agree. However, war is nasty. War is dirty. War is a blurred-line gray area with murky situations, where young people are forced to make instantaneous decisions on life & death. For most of us the toughest decision we make all week is "cash or charge" or what to make for dinner.
Early in the war, LTC Allen B. West, a veteran officer working to facilitate elections, fired his pistol into the ground a foot away from the head of an Iraqi policeman who refused to give up information about a plot to assassinate West in a large-scale ambush. The Iraqi then gave up all the relevant information he had, and many lives were saved. Was it extreme? Maybe, but I'd rather see some corrupt enemy operative crap his pants in fear than see American troops come home in a flag-draped box. West was quoted as saying, ""If it's the lives of my men and their safety, I'd go through hell with a gasoline can." Colonel West was reprimanded, fined around $5,000.00, and relieved of command pending his forced retirement. His career was ruined by Army staffers looking for a convenient example to set. That's a shame, since we need more officers like him who are willing to make tough decisions and save American lives. If you're reading this, Colonel West, I'd personally carry your gas can, sir.
The MP's at Abu Ghraib prison screwed up. That much is glaringly obvious, and I'll easily give it that much. They did a bunch of stupid, juvenile grab-ass pranks at the expense of prisoners who would gladly have done worse to them had the roles been reversed. It was dumb and childish to dog pile naked prisoners and dumber still to take pictures of themselves doing it. But humiliation of that nature is not what I consider torture. It really wasn't even severe abuse. It was childish hazing but it actually served a purpose. No one was found to have bamboo splinters under their nails. No one had cinder blocks dropped on them to break their bones, and no one was being hooked up to live wires attached to their scrotums. Allegations of abuse and torture were made by the New York Times, but nothing truly substantial was able to be proven. Again, there was childish hazing that actually does in the end serve a purpose. Hazing and harassment serves to break down a prisoner's will to resist and makes them despair enough to crack and eventually talk during interrogation.
I should know; I've done it myself.
Yes, you read that right. I've done it myself to American soldiers during a training exercise.
During a multi-unit Joint Combat Readiness Exercise called Coronet Rodeo in 1989, my unit operated a mock POW camp and our prisoners were members of the 10th Special Forces Group. Under orders from the 511th Military Intelligence Battalion, we made sure the "prisoners" got no more than 2 hours of sleep at a stretch, sometimes giving them as little as 45 minutes between wakeups and roll calls. The lights were always on to ensure they never had a darkened area to sleep in. We kept them silent, and didn't allow them to bathe but every few days. (The stench in the main tent was special). At night they were stripped to their skivvies and t-shirts to sleep in. But in the case of their leader, a Special Forces Captain about to be promoted to Major whose name I will not reveal due to Operational Security concerns, he wasn't wearing any skivvies when "captured" so he got the added perceived embarrassment of standing at attention for all the roll calls with his junk in the breeze in front of his subordinates. Southern Germany is cold and wet in late October so he was quite miserable in addition to be humiliated such. After about a week, we gifted him with a pair of pink panties donated by a female trooper, again for the humiliation factor, assisting in breaking the subordinates respect for their leader and in breaking down the officer for interrogation.
The interrogations themselves were an amazing learning experience to see, even though I don't speak Russian, the primary language used during the sessions. (This added realism to the exercises). There was a lot of yelling, banging on tables, the ubiquitous single light bulb overhead, and implied threats of a very personal nature, judging from the interrogators' body language. Some of the "prisoners" were graduates of the military's SERE School, so the stuff we were told to do by the Intel staffers were a walk in the park for them. SERE (Survival, Evasion, Resistance and Escape) is a program that provides military personnel with training in the Code of Conduct, survival skills, evading capture, recovery and dealing with captivity. Please look it up for a full overview.
So, to reiterate, under the orders and supervision of intelligece personnel, I embarassed/humiliated prisoners, deprived them of sleep, and ensured that they were tired, cold, miserable, and smelly, all in a training environment.
So these guys at Abu Ghraib took a buch of pictures of naked Iraqis in a dog pile, were parading naked prisoners around female soldiers, and told a couple guys that if they moved off their chairs they'd get electrocuted. They harrassed some prisoners and did a bunch of stupid childish hazing. I do not see where they themselves tortured anybody. From what I've seen, their behavior was directed and orchestrated by civilian interrogators contracted by the CIA. I find that scenario highly plausible and believeable given my prior experience with military interrogators and the rampant use of civilian contractors by the CIA to do their dirty work. The MP's, Army Reservists who were not full-time soldiers and had not been assigned to the prison for very long, have been scape-goated by the entire Western world. If indeed there was any torture at all, look to the civilian contract interrogators, not the MP's.
Of the soldiers involved in the case, the Army removed seventeen soldiers and officers from duty, and seven soldiers were charged with dereliction of duty, maltreatment, aggravated assault, and battery.
•Colonel Thomas Pappas was relieved of command of the 205th Military Intelligence Brigade. He was in charge of military intelligence personnel at Abu Ghraib. He was fined $8000 under the provisions of Article 15 of the Uniform Code of Military Justice (nonjudicial punishment). He also received a General Officer Memorandum of Reprimand (GOMOR) which effectively ended his military career.
•Lieutenant Colonel Steven L. Jordan became the highest ranking Army officer to have court martial charges brought against him in connection with Abu Ghraib. LTC Jordan, a reserve civil affairs officer, was director of the Joint Interrogation Debriefing Center at Abu Ghraib prison.On August 28, 2007, Jordan was acquitted of all charges related to prisoner mistreatment and received a reprimand for disobeying an order not to discuss a 2004 investigation into the allegations. His career is effectively ended.
•Specialist Charles Graner was found guilty of multiple charges and was sentenced to ten years confinement, forfeiture of all pay, a dishonorable discharge and a reduction in rank to private.
•Corporal Joshua Lee Betts, of the 321st Military Intelligence Battalion, Detachment 9, pled innocent to his charges. CPL Betts was later cleared of all charges due to lack of evidence.
•Staff Sergeant Ivan "Chip" Frederick pled guilty to multiple charges and was sentenced to eight years in prison, forfeiture of all pay, a dishonorable discharge and a reduction in rank to private. He served 3 years and was paroled on October 1, 2007 .
•Sergeant Javal Davis pled guilty to multiple charges. He was sentenced to six months in prison, a reduction in rank to private, and a bad conduct discharge.
•Specialist Jeremy Sivits was sentenced by a special court-martial to the maximum one-year sentence, in addition to being discharged for bad conduct and demoted, upon his plea of guilty.
•Specialist Armin Cruz of the 325th Military Intelligence Battalion was sentenced to eight months confinement, reduction in rank to private and a bad conduct discharge in exchange for his testimony against other soldiers.
•Specialist Sabrina Harman was sentenced to six months in prison and a bad conduct discharge after being convicted on six of the seven counts she was charged with. She had faced a maximum sentence of 5 years.
•Specialist Megan Ambuhl was convicted and sentenced to reduction in rank to private and loss of a half-month's pay. She was allowed to remain in the military.
•Private First Class Lynndie England was convicted of multiple charges. England faced a maximum sentence of ten years, but was sentenced to three years confinement, forfeiture of all pay and allowances, reduction in rank to Private and received a dishonorable discharge. She was paroled on 3 March, 2007, after having served 521 days. She will remain on parole through September 2008, when her three-year sentence will be complete.
•Sergeant Santos Cardona was convicted of dereliction of duty and aggravated assault and served 90 days of hard labor at Ft. Bragg, North Carolina. He was transferred to a new unit and was eventually promoted to Sergeant. He is currently with a unit selected to train Iraqi police.
•Specialist Roman Krol pled guilty to multiple charges. He was sentenced to ten months confinement, reduction in rank to private, and a bad conduct discharge.
•Specialist Israel Rivera, who was present during alleged abuse, was under investigation but was not been charged and has testified against other soldiers.
•Sergeant Michael Smith was found guilty of multiple charges and sentenced to 179 days in prison, a fine of $2,250, a demotion to private, and a bad conduct discharge.
For those unfamiliar with the Uniform Code of Military Justice, a Bad Conduct Discharge is a punitive discharge that can only be given by a court-martial as punishment to an enlisted service member. Bad conduct discharges are often preceded by a period of confinement in a military prison. The discharge itself is not executed until completion of both confinement and the appellate review process. Virtually all veterans' benefits are forfeited by a bad conduct discharge. A Dishonorable Discharge is a punitive discharge that can only be handed down to an enlisted member by a General Court-Martial. With this characterization of service, all veterans' benefits are lost, regardless of past honorable service. This type of discharge used to carry a heavy stigma as it made obtaining gainful post-service employment extremely difficult. Also, many states will prohibit ownership of firearms from those who have been discharged dishonorably, as does Federal law.
The commanding officer at the prison, Brigadier General Janis Karpinski, was reprimanded, and demoted to the rank of Colonel on May 5, 2005. Her demotion was not officially related to the abuse at Abu Ghraib prison. General Karpinski ( I refuse to acknowledge her demotion) has denied knowledge of the abuses, claiming that the interrogations were authorized by her superiors and performed by subcontractors, and that she was not even allowed entry into the interrogation rooms.
Karpinski claims the particular wing of the prison where the events took place was under the control of military intelligence "twenty-four hours a day." She claims Army intelligence officers encouraged guards to torture prisoners as an aid to interrogation, and that she was a scapegoat. A June 2004 BBC article said, "Gen Karpinski believes the soldiers had not taken the pictures of their own accord." It quotes her as saying:
"I know that the MP unit that these soldiers belonged to hadn't been in Abu Ghraib long enough to be so confident that one night or early morning they were going to take detainees out of their cells, pile them up and photograph themselves in various positions with these detainees."
In an interview with BBC Radio, Karpinski claimed that Major General Geoffrey Miller, who was sent from Camp X-Ray in Guantanamo Bay to improve interrogations at the Iraqi prison, told her to treat prisoners "like dogs" in the sense that "if you allow them to believe at any point that they are more than a dog then you've lost control of them". General Miller denies that he ever made the remarks.
In November 2006, Karpinski told a Spanish newspaper she had seen a letter apparently signed by now-former Secretary of Defense Donald Rumsfeld that allowed civilian contractors to use techniques such as sleep deprivation during interrogation. She stated, "The methods consisted of making prisoners stand for long periods, sleep deprivation ... playing music at full volume, having to sit in uncomfortably ... Rumsfeld authorised these specific techniques." According to Karpinski, Rumsfeld's handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished."
If you want to blame people, blame the CIA and Department of Defense for playing dirty. Blame Donald Rumsfeld for letting things get out of hand and for not policing his cronies. Granted, "I was just following orders" is not a reasonable defense for misconduct, but trust me when I say that intelligence personnel are very persuasive in the ways they phrase their orders to guard personnel and phrase things so that they sound perfectly legal. I can guarantee that with civilian CIA contractors in the mix, the MP's were made to feel pretty much helpless to do anything other than what they were told. A bunch of reservists pulled from jobs at pizza places and Wal Marts, and newly assigned to the prison, in my humble opinion, aren't likely to question the CIA.
Again, I don't have any real issue with harrassment and hazing in a controlled manner to break down prisoners for interrogation. Ocasionally, alternative measures have to be employed. People are not just going to cough up valuable intelligence by us asking "Pretty Please". Let's be adults here. Sleep deprivation, loud music, bread & water, yelling and shouting, naked parades, those are fine. Beatings are not okay. Breaking bones is not okay. Complete lack of sanitation is not okay. Sexual assaults are not okay. I'm not sure yet where I stand on waterboarding.
Scapegoating American soldiers so that the CIA can slide their dirt under the rug is also not okay. Do not sacrifice your soldiers for the supposed greater good of secrecy, because pretty son you'll run out of soldiers willing to serve. Nobody wants to get thrown under the bus. Lynndie England may have been photographed holding a prisoner on a leash, but who was holding her leash?
Posted by Steve: The Lightning Man at 11/05/2007 05:52:00 PM
Labels: Abu Ghraib, Charles Graner, CIA torture, Ivan Frederick, Janice Karpinski, Lynndie England, military police, prisoner abuse, Steven Jordan, Thomas Pappas, waterboarding
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https://apnews.com/article/fb2576e042c9fa1d72f4518848fad016
Zanardi's sensational pass won't happen again
MIKE HARRISSeptember 6, 1997 GMT
MONTEREY, Calif. (AP) _ The breathtaking pass that Alex Zanardi made on Bryan Herta on the final lap of his victory in the 1996 Texaco-Havoline 300K will not be repeated Sunday.
Officials of the PPG CAR World Series have ``clarified″ a rule barring the use of shortcuts or off-course excursions ``that in the opinion of the chief steward improves a driver's position during the race.″
Further, the rule states: ``During the race, any advantage or position gained during an off course excursion (four wheels off the racing surface) must be relinquished.″
Anyone violating the rule is subject to ``a black flag penalty or other penalty pursuant to Chapter 10 of the 1997 CART Rule Book.″
The rule was in the books last year when Zanardi drove through the dirt and jumped a curb to get past Herta in the corkscrew turn at Laguna Seca Raceway.
The corkscrew is a blind, downhill s turn at the back of the 2.238-mile road course.
The only penalty specified last year was a black flag, which orders the driver to pit. But you can't black flag a driver on the final lap.
CART officials said the clarification was made this week in the interest of safety for all the drivers.
``Essentially, we are trying to keep the race on the race track,″ said J. Kirk Russell, vice president of competition for CART.
Wally Dallenbach, the chief steward, who last week fined Zanardi $25,000 for rough driving in the aftermath of an incident at Vancouver with Herta, said, ``There are too many places that a driver can do this type of action and be successful. What we are trying to achieve is to eliminate the potential controversial pass.″
``So we created the rule regarding all four wheels,″ Dallenbach added. ``If we don't do this, what would stop a driver from attempting a pass in turn two by going into the gravel and coming back on?″
Russell said Zanardi's pass last year was legal.
``Zanardi passed Herta on the race track and it was his recovery that was off the track,″ Russell said.
``We determined last year that the pass (by Zanardi) was clean,″ Dallenbach said. ``Alex had all four wheels on the pavement when he made the pass. But we also determined that the risk is too high and that is not what we want in our racing.″
SITTING OUT: Patrick Carpentier withdrew Saturday from the Laguna Seca Race.
The rookie from Canada was still experiencing considerable pain from the collarbone he broke two weeks ago in a fall off his bicycle near his Indianapolis home.
Carpentier took part in two days of practice and qualified 22nd Friday in the opening round of time trials for Sunday's race.
``I am very disappointed to have to miss this race,″ said Carpentier, who also skipped last week's race in Vancouver. ``I felt I was making progress in my recovery and I felt very encouraged after taking a three-hour endurance test from Dr. Terry Trammell, who did my surgery. Unfortunately, I am in more pain than I anticipated.″
Roberto Moreno, who replaced Carpentier and finished 15th in Vancouver, also will sub for him Sunday.
DUBIOUS HONOR: Gil de Ferran, the only driver with a mathematical chance of catching Zanardi in the PPG Cup championship, has set a record this year that doesn't give the Brazilian driver great joy.
De Ferran has seven podium (top three) finishes this season without a victory. Previously, Bobby Rahal (1990) and Mario Andretti (1982) had reached the podium six times in a season without winning.
All seven of de Ferran's top-three finishes have come in the past 10 races.
De Ferran, who owns two career victories, still has Sunday's race and the season-finale Sept. 28 at Fontana, Calif., in which to reach victory circle.


» Cefoxitin Injection is a sterile solution of Cefoxitin Sodium and one or more suitable buffer substances in Water for Injection. It contains Dextrose or Sodium Chloride as a tonicity-adjusting agent. It contains the equivalent of not less than 90.0 percent and not more than 120.0 percent of the labeled amount of cefoxitin (C16H17N3O7S2).
Identification— The chromatogram of the Assay preparation obtained as directed in the Assay exhibits a major peak for cefoxitin, the retention time of which corresponds to that exhibited in the chromatogram of the Standard preparation obtained as directed in the Assay.
Assay preparation— Allow 1 container of Injection to thaw, and mix. Dilute an accurately measured volume of Injection quantitatively with Phosphate buffer to obtain a solution containing about 0.3 mg of cefoxitin per mL. Use this solution within 5 hours.
in which L is the labeled quantity, in mg, of cefoxitin (C16 H17N3O7S2) in each mL of Injection taken; D is the concentration, in mg per mL, of the Assay preparation, based on the volume of Injection taken and the extent of dilution; and the other terms are as defined therein.