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EXHIBIT 5
Case 2:04-cv—OO400—PGR Document 139 Filed O7/24/2006 Page1 0f4

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION
SUBJECT TO PROTECTIVE ORDER —
UNITED STATES INTERNATIONAL TRADE COMMISSION
WASHINGTON, DC
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Before the Honorable Robert L. Barton, Jr.
Administrative Law Judge
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In the Matter of
: Inv. No. 337-TA-524
E Certain Point of Sale Terminals and :
_ Components Thereof :
E : ,
S DECLARATION OF CHRISTOPHER S. WALTON, ESQ.
‘ IN RESPONSE TO ORDER NO. 40 ORDERING COMPLAINANT
l TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED
° l. My name is Christopher S. Walton, Esq. and I am an attorney with the law firm of Simon
Galasso & Franz, P.L.C. in Austin, Texas, counsel for Complainant Verve, LLC in the above-
captioned Investigation. I submit this Declaration in response to the Order to Show Cause
entered by the Administrative Law Judge in this Investigation. I am over 18 years of age, and
E am otherwise competent to testify as to the matters set forth herein. I make the following
statements based on my own personal knowledge, unless expressly stated otherwise.
I 2. The Simon Galasso {inn was counsel to Verve at the time that it conducted its pre—suit
infringement investigation in this case. Prior to tiling the Complaint, and in my capacity as an
attorney for the Simon Galasso firm, I reviewed and analyzed the ‘077 Patent, and construed at
L least claims I and 2 of the ‘Q77 Patent to verify the reasonablenessmof Verve’s infrigement
position. The analysis performed by the Simon Galasso firm was conducted independently of
any claim construction or iniiingement review undertaken by Verve.
Confidential Business Information L U
I Subject to Protective Order
Case 2:04-cv—OO400—PGR Document 139 Filed O7/24/2006 Page 2 of 4

3. In doing so, I specifically reviewed the language of the claims themselves, the
specification of the ‘077 Patent, its prosecution file history, and the technical references cited in
the ‘077 Patent.
4. Although I did not prepare a detailed set of "claims cha1ts" reflecting my analysis, I
followed my normal practice of reading at least claims I and 2 word by word and line by line,
and carefully reviewing the specification. During the course of conducting this pre—suit analysis,
I paid attention not only to the words and description of the invention in the patent, but also to
% any reference in the USPTO file that could have affected the interpretation of the patent.
5. In addition, I also construed the claims in the context of my own corrnnon knowledge,
experience and understanding, as well as my knowledge of what is commonly known in this
l industry through my consultations with Verve's principals, Raymond Galasso and Kevin Imes. I

; · also reviewed the prior art references cited in the ‘O77 patent, including the Savar and Hale
references cited by the Examiner, to get a sense of the level of ordinary skill for point-of-sale
terminal technology at the time of the invention, as well as the scope of the claims. Again, such
l an analysis is part of my standard pre-filing claim interpretation and investigation, which I
·_ followed with respect to the ‘O77 Patent.
6. After construing at least claims l and 2 of the ‘O77 patent, I next conducted an
infringement analysis independent from the analysis and testing conducted by Verve. To
conduct this analysis I reviewed product specification literature for each of the accused products.
U I reviewed these materials prior to initiating the ITC action. This product literature generally
. describes the features, functionality and operational capabilities and limitations of the accused
products. I compared my interpretation of claims l and 2 with the product specification
Confidential Business Information l
Subject to Protective Order
l Case 2:04-cv—OO400—PGR Document 139 Filed O7/24/2006 Page 3 of 4

literature of the accused products. As noted above, I conducted my iniiingement analysis in the
context of my own common knowledge, experience and understanding, and that of my cl1ent’s,
i as well as what is commonly known in the industry.
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7. Based on the above, the Simon Galasso firm drafted claim charts showing the accused
products, and the language of the claims ofthe ‘077 Patent, with general indications of how the
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accused products met the limitations of the claim. These charts were provided to the ITC as an
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& exhibit to the Complaint.
.g.
i I declare on penalty of perjury under the laws ofthe United States that the matters set forth
i herein are true and correct to the best of my knowledge.
I @z,ui,@»/C,
i Date of Execution: May 20, 2005 V
I ' Zhristopher S. Walton, Esq.
A Confidential Business Information
Subject to Protective Order
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Case 2:04-cv-00400-PGR

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