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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICROSOFT CORPORATION, Plaintiff, v. ALCATEL-LUCENT ENTERPRISE and GENESYS TELECOMMUNICATIONS LABORATORIES, INC., Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-090 (SLR) REDACTED ­ PUBLIC VERSION

DECLARATON OF HENRY HYDE-THOMSON IN SUPPORT OF DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT AND INVALIDITY OF ALL ASSERTED CLAIMS OF UNITED STATES PATENT NOS. 6,263,064, 6,728,357, AND 6,241,439 MORRIS, NICHOLS, ARSHT & TUNNELL LLP Jack B. Blumenfeld (#1014) Maryellen Noreika (#3208) 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected] [email protected] Attorneys for Defendants Alcatel-Lucent Enterprise and Genesys Telecommunications Laboratories, Inc. OF COUNSEL: Steven C. Cherny LATHAM & WATKINS LLP 885 Third Avenue, Suite 1000 New York, NY 10022-4834 (212) 906-1200 David A. Nelson LATHAM & WATKINS LLP 233 South Wacker Drive Suite 5800 Chicago, IL 60606 (312) 876-7700 Original Filing Date: May 9, 2008 Redacted Filing Date: May 16, 2008

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I, HENRY HYDE-THOMSON, declare as follows: 1. I am the Founder and Chairman of Anglo Scientific Ltd., a private equity firm

specializing in start-up companies. As part of my responsibilities at Anglo Scientific, I serve as Chairman of 21Net Ltd. and of Phasor Solutions Ltd. and Director of L3 Technology Ltd., Photon Solutions Ltd. and MMIC Solutions Ltd. I have been retained as an expert witness on behalf of defendants Alcatel Lucent Enterprise ("ALE") and Genesys Telecommunications Laboratories, Inc. ("Genesys"). Based on my investigation of the facts of this case, including review of the patents in issue and prior art, investigation of the accused products, review of the expert reports and analyses of plaintiff Microsoft's experts and participation in the ITC proceedings, I have personal knowledge of the matters set forth below and if called to testify, could and would competently testify thereto under oath. 2. The patents-at-issue are: U.S. Patent No. 6,236,064 ("the '064 Patent") and U.S.

Patent No. 6,728,357 ("the '357 Patent") (collectively, "the O'Neal Patents") and U.S. Patent No. 6,430,289 ("the '289 Patent") and U.S. Patent No. 6,421,439 ("the '439 Patent") (collectively, "the Liffick Patents"). 3. This declaration summarizes relevant portions of the expert reports which I have

submitted on behalf of Defendants ALE and Genesys. 4. Attached hereto as Exhibit 1 is a true and correct copy of relevant excerpts from

my Opening Report dated April 1, 2008, which contains my expert opinion on the invalidity of the patents-at-issue (Expert Report of Mr. Henry Hyde-Thomson Regarding Invalidity and Materiality (Corrected), hereinafter referred to as "Hyde-Thomson Opening Report"). 5. Attached hereto as Exhibit 2 is a true and correct copy of relevant excerpts from

my Rebuttal Report dated April 18, 2008, which contains my expert opinion on the non-

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infringement of the patents-at-issue (Expert Report of Henry Hyde-Thomson Regarding Alcatel Lucent Enterprise's Non-Infringement of U.S. Patent Nos. 6,263,064, 6,728,357, 6,430,289 and 6,421,439 in Rebuttal to the Expert Report of Dr. William H Beckmann, hereinafter referred to as "Hyde-Thomson Rebuttal Report"). 6. Attached hereto as Exhibit 3 is a true and correct copy of relevant excerpts from

the March 28, 2008 Expert Report of Dr. William H Beckmann, Ph.D., hereinafter referred to as "Beckmann Report". 7. Attached hereto as Exhibit 4 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,445,694 (`the Swartz patent') v. '064 patent" which is Exhibit M to my Opening Report, hereinafter referred to as "Swartz-'064 Chart." 8. Attached hereto as Exhibit 5 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,636,587 (Nagai) v. '064 patent" which is Exhibit N to my Opening Report, hereinafter referred to as "Nagai-'064 Chart." 9. Attached hereto as Exhibit 6 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,445,694 (`the Swartz patent') v. '357 patent" which is Exhibit R to my Opening Report, hereinafter referred to as "Swartz-'357 Chart." 10. Attached hereto as Exhibit 7 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,636,587 (Nagai) v. '357 patent" which is Exhibit S to my Opening Report, hereinafter referred to as "Nagai-'357 Chart." 11. Attached hereto as Exhibit 8 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,041,114 (`the Chestnut patent') v. '289 patent" which is Exhibit H to my Opening Report, hereinafter referred to as "Chestnut-'289 Chart."

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12.

Attached hereto as Exhibit 9 is a true and correct copy of a claim chart entitled

"U.S. Patent No. 6,041,114 (`Chestnut') v. '439 Patent" which is Exhibit E to my Opening Report, hereinafter referred to as "Chestnut-'439 Chart." 13. Attached hereto as Exhibit 10 is a true and correct copy of a series of screenshots

that I took during my analysis of the ALE OXE System, which is Exhibit B to my Rebuttal Report, hereinafter referred to as "OXE Screenshots." 14. Attached hereto as Exhibit 11 are true and correct excerpts of testimony I gave in

the related ITC proceeding entitled In the Matter of Certain Unified Communication Systems, Products Used With Such Systems, And Components Thereof, Inv. No. 337-TA-598 (2007), hereinafter referred to as "Hyde-Thomson ITC Hrg Tr." 15. Attached hereto as Exhibit 12 is a true and correct copy of my curriculum vitae,

which is Exhibit A to my Opening Report. I. QUALIFICATIONS 16. My qualifications are set forth fully in my Opening Expert Report. (Ex. 1 (Hyde-

Thomson Opening Report) at ¶¶ 1-5, Ex. A) A copy of my curriculum vitae is attached as Exhibit 12 to this Declaration. 17. I have significant experience in developing, designing and commercializing

unified messaging systems. I was awarded U.S. Patent No. 5,557,659 titled "Electronic Mail System Having Integrated Voice Messages," filed December 21, 1994, for the concept of integrating voicemail into an e-mail system. From 1989 to 1991, I served as an Honorary Research Fellow at the Department of Computing at Imperial College, where I focused my research on computer telephony, speech synthesis and speech recognition. In 1992, I founded Vmail Ltd., which focused on developing a unified messaging system. (Id. at ¶ 2.)

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18.

I was qualified as an expert in the areas for computer telephony and unified

messaging in In the Matter of Certain Unified Communication Systems, Products Used With Such Systems, And Components Thereof, Inv. No. 337-TA-598 (2007). (Id. at ¶ 5.) II. BACKGROUND OF THE TECHNOLOGY 19. My description of the background of the technology is fully set forth in my

Opening and Rebuttal Reports. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶¶ 12-35, Ex. 2 (Hyde-Thomson Rebuttal Report) at ¶¶ 7-16.) Some key points: A. 20. The O'Neal Patents The relevant technology is unified messaging. (See Ex. 1 (Hyde-Thomson

Opening Report) at ¶¶ 26-30.) Unified messaging systems provide solutions for integrating various communication services, such as phone, fax, email, and other communication services. Unified messaging systems were well known prior to Microsoft's priority filing dates of the O'Neal Patents. (Id.) 21. Graphical User Interfaces (GUIs) were also well-known and widely used by the

mid-1990s. (Id. at ¶ 32.) In the area of unified messaging, it was recognized in the industry by May 1996 that: "Although most GUI users have to switch between one set of tools for their voice mail and fax messages and another set of tools for their e-mail messages, products are now under development that will allow all three types of messages to be managed from one list and with the same set of tools." (Ex. 1 (Hyde-Thomson Opening Report) at ¶ 35 (citing Unified Messaging is a Key Productivity Aid in the Information Age (May 1996)).) B. 22. The Liffick Patents The relevant technology is computer telephony. (See Ex. 1 (Hyde-Thomson

Opening Report) at ¶¶ 21-25, Ex. 2 (Hyde-Thomson Rebuttal Report) at ¶ 11.) Computer Telephony Integration (CTI) has been in existence since around 1990. (Ex. 2 (Hyde-Thomson 4

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Rebuttal Report) at ¶ 11.) Generally, CTI provides the ability for the telephone networks and computer networks to interact with each other. (Ex. 1 (Hyde-Thomson Opening Report) at ¶ 21.) At the time of the application of the Microsoft patents, CTI systems were well known for many applications. (Id.) 23. A related technology that also developed during the same time frame as CTI was

Voice over IP (VoIP). (Ex. 2 (Hyde-Thomson Rebuttal Report) at ¶¶ 11-16.) VoIP generally related to transmission of voice communications over packet networks, such as the Internet. (Id. at ¶ 13.) By 1999, a number of VoIP standards were available in the industry, including a standard for VoIP technology known as "supplementary services call diversion" where a VoIP call is re-routed from an intended call recipient to a second recipient when the intended recipient is already engaged in a VoIP call. (Id. at ¶ 15-16.) III. PATENTS-AT-ISSUE A. Person of Ordinary Skill in the Art

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IV.

OPERATION OF THE ACCUSED ALE OXE AND OXO SYSTEMS A. Overview of the Accused ALE Systems

B.

The O'Neal Patents 1. The Graphical User Menu In The Accused ALE OXE System

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2.

The Telephony User Interface In The Accused ALE OXE System

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3. 39.

The Accused ALE OXE System Is Not A Unified Messaging System under Microsoft's Proposed Construction

All of the asserted claims of the O'Neal Patents require a "unified messaging

system." Claims 1, 3, 8, 9, 11, and 20 of the '064 patent and claims 1 and 6 of the '357 patent require a "computer-implemented method for permitting a subscriber of a plurality of communication services of a unified messaging system to customize communication options pertaining to said plurality of communication services." Claim 17 of the '357 patent requires a "data structure for permitting a subscriber of a plurality of communication services of a unified

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messaging system to customize communication options pertaining to said plurality of communication services."

C.

The '289 Patent 1. VoIP Soft Phones Transmit Telephony Information

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2.

The Accused Systems Do Receive An Indication Of The Desire By A First Party To Set Up A Call With A Second Party

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3.

The Accused Systems Do Not Monitor Activity Of A User Computer And Do Not Route Calls Based On The Monitored Activity Of A User Computer

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4.

The Accused Products Do Not "Determine When The Second Party Is Available To Take The Call Originated By The First Party"

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5.

The Accused Systems Do Not Process Information At The Computer Network To Facilitate Connecting The Call

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D.

The '439 Patent 1. Microsoft's Infringement Theory Is Based On Forwarding An Incoming Call When The User Is On A Soft Phone Call

2.

A User On A Soft Phone Call Does Not Reflect "Current Activity Of The User On The Computer Network" Under Either Party's Construction

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V.

PRIOR ART REFERENCES A. The Swartz Patent 1. 72. The Swartz Patent Anticipates All of the Asserted Claims of the '064 Patent

It is my opinion that U.S. Patent No. 6,445,694 ("the Swartz patent"), filed on

March 7, 1997, anticipates claims 1, 3, 8, 9, 11, and 20 of the '064 Patent under Microsoft's constructions. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 634 and Ex. 4 (Swartz-'064

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Chart) (providing a claim chart mapping the Swartz Patent onto the asserted claims of the '064 Patent).) 73. Swartz discloses an "Internet controlled telephony system employing a host

services processor connected to a subscriber via the Internet and further connected to the public switched telephone system (PSTN)." (Ex. 1 (Hyde-Thomson Opening Report) at ¶ 629 (quoting the Swartz Patent at Abstract).) The disclosed system is a unified messaging system because it "provides the facilities needed for controlling a variety of communications services, including telephone, email, fax and paging services provided by a host services computer operating under the control of either or both (1) a World Wide Web interface and (2) a telephone interface." (Id. (quoting the Swartz Patent at 2:2-7).) 74. Swartz teaches that a subscriber can use a web interface to control various

messaging options associated with different communication services: [T]he subscriber may also use the web interface to specify whether call waiting is to be activated, to screen or reroute calls from designated numbers, for recording voice mail messages in designated voice mailboxes, for selectively playing back voice mail messages via the web interface or for forwarding voice mail as an email attachment, for handling incoming fax transmissions using character recognition and email attachment functions, and for automatically paging the subscriber when incoming voice mail, fax or email messages are received, all in accordance with the preference data supplied by the subscriber using the web interface. (Id. at ¶ 630 (quoting the Swartz Patent at Abstract).) Swartz discloses that a subscriber can use a telephone interface to access all the same options available through the web interface: "all of the control functions discussed in detail above using the HTML/CGI interface may be replicated using voice controls via the telephone line, permitting the host services computer to be controlled using either the website or the voice interface." (Id. (quoting the Swartz Patent at 13:54-61).)

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75.

Swartz states that "it is the principal function of the host services computer 41 to

receive and respond to data and commands received from the subscriber location 30, either in the form of HTML form submissions or in the form of voice and/or dial tone commands, and to perform requested functions in response to those commands." (Id. at ¶ 631 (quoting the Swartz Patent at 3:31-37).) Swartz further discloses that the host processor computer can forward, receive, retrieve, and store messages from different communication services, such as voicemail, fax, and email: To effect email handling, the host services computer operates as a POP mailbox and SMTP server for receiving and sending email respectively. In order to coordinate email, voicemail and fax transmission, the host services computer may advantageously employ a set of conventional format conversion functions including: voice to text speech recognition for converting voice mail into text form suitable for transmission via email as well as by voice file MIME attachments to email; optical character recognition for translating fax transmissions into text form for email transmission as well as by MIME fax file attachments to email. (Id. (quoting the Swartz Patent at 12:20-31).) 76. Figure 8 of Swartz, reproduced below, shows a "single graphical menu," as that

limitation is applied by Microsoft through which a subscriber can control different options for various communication services.

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(Id. at ¶ 632 (Swartz Patent at FIG. 8).) 77. Swartz states that "[t]he subscriber may control the manner in which Email,

voicemail and fax transmissions are handled using the form seen in FIG. 8," (Id. at ¶ 633 (quoting the Swartz Patent at 12:18-22).) and that the single graphical menu depicted in Figure 8 "allows email, fax and voice mail messages to be forwarded, stored, and redirected in a variety of ways in response to option selections made by the subscriber as shown." (Id. (quoting the Swartz Patent at 12:18-35).) 2. 78. The Swartz Patent Anticipates All of the Asserted Claims of the '357 Patent

It is my opinion that the Swartz patent anticipates claims 1, 6, and 17 of the '357

Patent under Microsoft's constructions. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 1063 and Ex. 5 (Swartz-'357 Chart) (providing a claim chart mapping the Swartz Patent onto the asserted claims of the '357 Patent).) 21

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B.

The Nagai Patent 1. The Nagai Patent Anticipates All of the Asserted Claims of the '064 Patent

79.

It is my opinion that U.S. Patent No. 6,636,587 ("the Nagai patent"), filed on June

24, 1998, anticipates claims 1, 3, 8, 9, 11, and 20 of the '064 Patent under Microsoft's constructions. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 816 and Ex. 6 (Nagai-'064 Chart) (providing a claim chart mapping the Nagai Patent onto the asserted claims of the '064 Patent).) 80. Nagai discloses a unified messaging system: "In the office 200 shown in FIG. 2, a

groupware server 203 for providing a unified messaging service for unified messaging of voice, text and facsimile mail and a workflow management service of a work process..." (Ex. 1 (HydeThomson Opening Report) at ¶ 1069 (quoting the Nagai Patent at 7:61-8:6).) It is my opinion that one of ordinary skill in the art would interpret the disclosed unified messaging system of the Nagai Patent to possess the same meaning as that term is used in the O'Neal Patents. (See also Ex. 11 (Hyde-Thomson ITC Hrg Tr.) at 1321:17-1327:6 (highlighting a portion of the Nagai Patent that "ends with the phrases: Means for unified messaging for multimedia electronic mail, desirably, such as voice mail, facsimile mail and text mail" and concluding that "[i]t clearly is describing a unified messaging system.").) 2. 81. The Nagai Patent Anticipates All of the Asserted Claims of the '357 Patent

It is my opinion that the Nagai Patent anticipates claims 1, 6, and 17 of the '357

Patent under Microsoft's constructions. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 1124 and Ex. 7 (Nagai-'357 Chart) (providing a claim chart mapping the Nagai Patent onto the asserted claims of the '357 Patent).)

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C.

The Chestnut Patent (U.S. Patent No. 6,041,114). 1. The Chestnut Patent Anticipates All Of The Asserted Claims Of The '289 Patent Under Microsoft's Constructions

82.

It is my opinion that U.S. Patent No. 6,041,114 ("the Chestnut Patent"), filed on

March 27, 1997, anticipates the asserted claims of the '289 Patent under Microsoft's constructions. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 369 and Ex. 8 (Chestnut-'289 Chart) (providing a claim chart mapping the Chestnut Patent onto the asserted claims of the '289 Patent).) a. Chestnut Discloses Monitoring Activity Of A User Computer Connected To The Computer Network Under Microsoft's Construction

83.

As I testified in the ITC proceedings, the Chestnut Patent discloses, under

Microsoft's proposed construction, "monitoring activity of a user computer connected to the network and associated with the second party." Indeed, "within [Microsoft's] definition of the status of the user computer would clearly be contained the concept of from where that computer is logged in to the network, over what connection it was logged in." (See Ex. 11 (HydeThomson ITC Hrg Tr.) at 1397:7-19.) 84. Chestnut explains that a call can be processed according to whether a user is

logged on to the computer network by disclosing that before the PBX sends the call to the callee's extension, the telecommute server checks the computer network to see if the called party is logged on, in which case the telecommute server instructs the private branch exchange to forward the call to the telephone extension associated with the device the callee has used to log onto the computer network. (Ex. 1 (Hyde-Thomson Opening Report) at ¶¶ 387-88.)

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b.

Chestnut Discloses "Using The Set Of A Pre-Determined Rules ... To Determine When The Second Party Is Available To Take The Call Originated By The First Party"

85.

Chestnut discloses, under Microsoft's proposed construction, the '289 Patent's

limitation that recites "using the set of a pre-determined rules ... to determine when the second party is available to take the call originated by the first party." Chestnut explains that a call can be processed according to whether a user is logged on to the computer network. If the user is logged on, the system then forwards the call to the user's extension. (Id. at ¶¶ 399-400.) c. Chestnut Discloses "Storing A Set Of Pre-Determined Rules For Determining When A Second Party Is Available To Take A Call From The First Party"

86.

Chestnut discloses, under Microsoft's proposed construction, the '289 Patent's

limitation that recites "storing a set of pre-determined rules for determining when the second party is available to take a call from the first party." (Id. at ¶ 393.) 87. Chestnut discloses storing pre-determined rules for determining when a party is

available to take a call. (Id.) Chestnut additionally discloses routing based on such calling criteria as day of the week or time of the day. 88. In my opinion, Chestnut discloses that the Telecommute server intercepts the call

and then checks as to whether a called party is logged in. Chestnut further discloses that the telecommute server then instructs the PBX, which is part of the telephone network, to connect the call. (Id.) d. 89. Chestnut Discloses A "Computer Program Product"

As I testified in the ITC proceedings, the Chestnut Patent discloses, under

Microsoft's proposed construction, the '289 Patent's "computer program product." In fact, as I testified, "the Chestnut patent includes the idea of a computer program product. Indeed, that's exactly what Mr. Chestnut ... was basically making was software to run on PCs for computer 24

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telephony systems such as this product, telecommute server, or voice mail systems." (See Ex. 11 (Hyde-Thomson ITC Hrg Tr. at 1398:12-1399:12.) 2. 90. The Chestnut Patent Anticipates All Of The Asserted Claims Of The '439 Patent

It is my opinion that U.S. Patent No. 6,041,114 ("the Chestnut Patent"), filed on

March 27, 1997, anticipates the asserted claims of the '439 Patent. (See Ex. 1 (Hyde-Thomson Opening Report) at ¶ 167 and Ex. 9 (Chestnut-'439 Chart) (providing a claim chart mapping the Chestnut Patent onto the asserted claims of the '439 Patent).) 91. The Chestnut Patent discloses a "telecommute server" which receives and

forwards calls using a telecommute server connected to a computer network integrated with a PBX connected to a telephone network. The computer network (LAN, WAN, etc.) is "integrated" with a private branch exchange (PBX) connected to a Public Switched Telephone Network (PSTN). (Ex. 1 (Hyde-Thomson Opening Report) at ¶ 170.) The invention disclosed in the Chestnut Patent relates to a "telecommunications management system which controls call forwarding based upon user activity on an associated computer terminal." (Ex. 9 (Chestnut-'439 Chart) at p. 5 (quoting the Chestnut Patent at 1:4-8.)) 92. The call routing system discussed in the Chestnut Patent routes incoming calls

based on user-selectable criteria. The telecommute server may either have preprogrammed call forwarding preferences or the user can enter her preferences when she logs on/off of the computer network. (Ex. 9 (Chestnut-'439 Chart) at p. 1-2, see also Ex. 1 (Hyde-Thomson Opening Report) at ¶¶ 190-199.) The telecommute server can also forward an incoming call based on criteria such as day or date, time of day, identity of the caller, or other preprogrammed rules. (Ex. 9 (Chestnut-'439 Chart) at p. 2.) Call forwarding preferences can be based on such

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criteria, as well as other factors as who else is logged onto the computer network or the telephone extensions currently in use. (Id. at p. 3.) 93. The Chestnut Patent discloses a system with such user-selectable criteria stored in

memory on a computer network. (Id. at p. 2-3.) The telecommute server determines which telephone number incoming calls should be forwarded to based upon information stored in memory. (Id.) When a user logs into the computer network, the system disclosed in the Chestnut Patent determines the telephone number associated with the logon device by comparing the identity of the logon device with a list of telephone numbers indexed by logon device stored in memory. (Id. at p. 3.) 94. When an incoming call is received by the system disclosed in the Chestnut Patent,

the system identifies the called party and then checks to see if calls are being forwarded. (Id.) If calls are being forwarded, the system checks memory to determine the list of potential forwarding numbers. (Id.) The list of potential forwarding numbers can be based on one or more preprogrammed criteria, including the identity of the called party's logon device, day of the week, date, time of day, and/or the identity of the caller. (Id.) 95. The Chestnut Patent discloses a system which routes calls based upon current user

activity on the computer network. (Id. at p. 4-5.) The system can detect when a called party has logged onto the computer network and will route the incoming call accordingly. (Id.) For example, if the called party was logged onto the computer network from his computer workstation, then the call can be directed to his office extension. (Id. at p. 4.) If the called party was logged onto the computer network from his home workstation, then the call will be directed to the user's home phone number. (Id.) Call forwarding based on the user's logon device can be further scheduled so that calls are forwarded to different telephone lines or voice messaging

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systems depending on a predefined schedule. (Id. at p. 5.) The system disclosed in the Chestnut Patent can also be set up to alter the schedule if it detects that the user has logged onto the computer network from a terminal associated with a different telephone extension than the one defined in the schedule. (Id.) 96. Caller identification information can be used by the disclosed system to provide

different callers with different levels of access to call forwarding options. (Id. at p. 4.) For example, callers may be identified through automatic caller ID, inputting an identifying code via the telephone touchpad, or other method of identification. (Id.) The system may give the option of leaving a message or having the call transferred to another party to a lower priority caller, whereas a higher a priority caller may have the option of reaching the user at the home telephone number. (Id.) 97. Chestnut discloses a "computer network access port" as required by claims 1 and

21 of the '439 patent. Chestnut discloses that the telephone network portion of the telecommute server uses "CTI" applications that "seamlessly interface the caller, the called party and information on a host computer for a variety of applications" to access the lists of user selectable criteria stored on the computer network portion of the telecommute server. (Ex. 1 (HydeThomson Opening Report) at ¶¶ 200-204.) In my opinion, the CTI applications satisfy the computer network access port limitation. (Id.) 98. Chestnut discloses a "controller" as required by claims 1 and 21 of the '439

patent. Chestnut teaches that the telecommute server receives the call when the telecommute server "intercepts" the call. (Id. at ¶¶ 205-213.) The telecommute server then determines the appropriate telephone number that the call should be routed to. (Id.) In Chestnut, the telecommute server, which is part of both the telephone and computer networks accesses the

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user-selectable criteria, which can be stored in memory on the computer network portion of the telecommute server. (Id.) 99. I understand that Microsoft is currently arguing before the International Trade

Commission that the telecommute server of Chestnut cannot be the controller because the telecommute server does not "receive the incoming call." I disagree with Microsoft. The specification of the Chestnut patent is clear that the telecommute server receives the call when the telecommute server "intercepts" the call. However, even if the telecommute server did not "receive" the call, as Microsoft is interpreting that word, it is my opinion that under Microsoft's application of this limitation, the PBX (or a combination of the PBX and telecommuter server) of Chestnut would satisfy the controller limitation because the PBX (or the combination with the telecommute server) also "receives" the call and would therefore satisfy all of the limitations of the "controller." (Id. at ¶ 214-15.) The PBX uses the CTI applications of the telecommute server to access the lists of user selectable criteria and the telecommute server provides instructions to the PBX concerning how to route the call based upon criteria stored in the lists. (Id.) 100. In addition, the system disclosed in the Chestnut Patent will block an incoming

call from reaching a user's phone in the situations described above, such as when the user has scheduled that calls should be forwarded to voicemail during certain days or times of the day. (Ex. 9 (Chestnut-'439 Chart) at p. 10-11.) 101. The Chestnut Patent discloses a system which includes a "computer program

product" as required by claims 28 and 36 of the '439 Patent. The system includes CTI applications (software) as well as the telecommute server which includes hardware and software. (Id. at p. 13-14.)

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CERTIFICATE OF SERVICE I, Maryellen Noreika, hereby certify that on May 16, 2008 I electronically filed the foregoing document, which will send notification of such filing(s) to the following: Thomas L. Halkowski, Esquire FISH & RICHARDSON P.C. I also certify that copies were caused to be served on May 16, 2008 upon the following in the manner indicated: BY ELECTRONIC MAIL and HAND DELIVERY Thomas L. Halkowski, Esquire FISH & RICHARDSON P.C.. 919 N. Market Street Suite 1100 Wilmington, DE 19801 BY ELECTRONIC MAIL Ruffin B. Cordell, Esquire Linda Liu Kordziel, Esquire FISH & RICHARDSON P.C. 1425 K. Street, N.W. 11th Floor Washington, DC 20005 John E. Gartman, Esquire FISH & RICHARDSON P.C. 12390 EL Camino Real San Diego, CA 92130

/s/ Maryellen Noreika
Maryellen Noreika (#3208)

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