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`
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`Christopher S. Marchese (SBN 170239)
`marchese@fr.com
`Seth M. Sproul (SBN 217711)
`sproul@fr.com
`Ryan P. O’Connor (SBN 253596)
`oconnor@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Suite 400
`San Diego, CA 92130
`Tel: (858) 678-5070
`Fax: (858) 678-5099
`
`Joy B. Kete (pro hac vice)
`kete@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park
`Boston, MA 02210
`Tel: 617-542-5070 / Fax: 617-542-8906
`
`Attorneys for Defendant Apple Inc.
`
`Additional Counsel Listed on Signature
`Page
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`
`IN THE UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
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`
`
`TACTION TECHNOLOGY, INC.,
` Plaintiff,
`
`v.
`
`
`APPLE INC.
`
`
`
`
`
` Defendant.
`
`Case No. 3:21-cv-00812-TWR-JLB
`
`DEFENDANT APPLE INC.’S
`RESPONSIVE CLAIM
`CONSTRUCTION BRIEF
`
`District Judge: Hon. Todd W. Robinson
`Magistrate Judge: Jill L. Burkhardt
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3361 Page 2 of 27
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`TABLE OF CONTENTS
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`PAGE
`INTRODUCTION ............................................................................................. 1
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`CLAIM TERM ANALYSIS ............................................................................. 1
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`I.
`
`II.
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` Term 1: “wherein the ferrofluid reduces at least a mechanical resonance
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`within the frequency range of 40-200 Hz” and variants (’885 Patent,
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`Claims 1, 17; ’117 Patent, Claims 1, 9, 16) ............................................... 1
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`1.
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`2.
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`3.
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`The Court must construe Term 1 ..................................................... 2
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`The Taction patents disavow claim scope ....................................... 3
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`Apple’s construction does not import limitations from the
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`specification, exclude a disclosed embodiment, or provide
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`definitions for individual words ...................................................... 7
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`4.
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`Apple’s IPR petitions do not support Taction’s construction ......... 8
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` Term 2: “wherein the ferrofluid reduces [a/the] Q-Factor of [a/the]
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`response of the apparatus over at least a portion of [a/the] frequency
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`range of 40-200 Hz” (’885 Patent, Claim 20; ’117 Patent, Claim 17) ...... 8
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` Term 3: “magnet” (’885 Patent, Claims 1, 14, 17, 20; ’117 Patent,
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`Claims 1, 7, 9, 16) .................................................................................... 10
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`1.
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`2.
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`The plain meaning of “magnet” refers to a single body ................ 11
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`The claimed “magnet” is ferromagnetic ........................................ 14
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`3. Magnetic fields are not dipolar ...................................................... 14
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` Term 4: “wherein each of said flexures is thinner along a motion axis of
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`the moving portion than it is in directions orthogonal to the motion axis
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`of the moving portion” (’885 Patent, Claim 10) ...................................... 15
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` Term 5: “generally cuboid” (’885 Patent, Claim 2; ’117 Patent,
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`Claims 1, 9) .............................................................................................. 18
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` Term 6: “wherein each of said plurality of flexures is relatively stiff in
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`resistance to motion transverse to a plane of the moving portion, but
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`relatively less resistant to linear motion in the plane of the moving
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`portion” (’117 Patent, Claim 9) ............................................................... 20
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` Term 7: “plurality of flexures that are generally flat and generally
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`rectangular” (’117 Patent, Claim 16) ....................................................... 22
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` Term 8: “plurality of protrusions that HE within a same plane as adjacent
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`portions of the plurality of flexures” (’117 Patent, Claim 16) ................ 22
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`III. CONCLUSION ............................................................................................... 22
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3363 Page 4 of 27
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`
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`
`Advanced Aerospace Techs., Inc. v. United States,
`124 Fed. Cl. 282 (2015) ...................................................................................... 19
`
`Cybersettle, Inc. v. Nat’l Arbitration Forum, Inc.,
`243 F. App’x 603 (Fed. Cir. 2007) ..................................................................... 11
`
`Energy Absorption Sys., Inc. v. Roadway Safety Servs., Inc.,
`No. 96-1264, 1997 WL 368379 (Fed. Cir. July 3, 1997) ................................... 19
`
`Eon Corp. v. Silver Spring Networks, Inc.,
`815 F.3d 1314 (Fed. Cir. 2016) ............................................................................ 2
`
`Neodron, Ltd. v. Lenovo Grp., Ltd.,
`No. 19-cv-05644-SI, 2020 WL 3962002 (N.D. Cal. July 13, 2020) .................. 19
`
`Poly-America, L.P. v. API Indus., Inc.,
`839 F.3d 1131 (Fed. Cir. 2016) .................................................................... 4, 5, 7
`
`Samsung Elecs. Co., Ltd. v. Cellect, LLC,
`IPR2020-00476, Paper 14 (P.T.A.B. July 31, 2020) ............................................ 8
`
`Straight Path IP Group, Inc. v. Sipnet EU S.R.O.,
`806 F.3d 1356 (Fed. Cir. 2015) ............................................................................ 3
`
`Target Corp. v. Proxicom Wireless, LLC,
`IPR2020-00904, Paper 11 (P.T.A.B. Nov. 10, 2020) ..................................... 8, 10
`
`Teva Pharm. USA, Inc. v. Sandoz, Inc.,
`135 S. Ct. 831 (2015) ........................................................................................ 2, 3
`
`Wireless Agents, L.L.C. v. Sony Ericsson Mobile Commc’ns AB,
`No. 3:05-cv-0289-D, 2007 WL 273568 (N.D. Tex. Jan. 31, 2007) ................... 19
`
`Statutes
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`35 U.S.C. § 311(b) ................................................................................................... 10
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3364 Page 5 of 27
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`I.
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`INTRODUCTION
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`Taction’s patents are directed to audio headphones with tactile transducers that
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`produce bass frequency vibrations to provide the sensation of low audio frequencies.
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`Under the guise of plain meaning, Taction has proposed broad constructions that
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`ignore the specification and the file history. As explained in Apple’s opening brief,
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`the headphone context from which Taction’s patents grew directly informs the scope
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`and meaning of the claims, as Taction’s patents consistently and repeatedly describe
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`the invention and its effect in terms of its impact on audio quality and disclaim
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`actuators like those accused of infringement in this case. Under well-established
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`principles of claim construction, Taction cannot capture what it disclaimed.
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`Nonetheless, Taction’s
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`infringement case depends on overly broad
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`constructions that are not supported by the claim language, the disclosure in the
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`specification, or the commonly understood meaning of the claim terms. Accordingly,
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`Taction has proposed that the Court not provide constructions and instead apply the
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`“plain and ordinary meaning.” However, adopting Taction’s constructions would be
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`reversible error because there are fundamental disputes regarding the proper scope of
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`the claims that are not resolved by the purported “plain and ordinary meaning” of the
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`asserted claims.
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`For the reasons set forth in Apple’s opening brief and below, Apple’s
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`constructions should be adopted.
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`II. CLAIM TERM ANALYSIS
`
` Term 1: “wherein the ferrofluid reduces at least a mechanical
`resonance within the frequency range of 40-200 Hz” and variants
`(’885 Patent, Claims 1, 17; ’117 Patent, Claims 1, 9, 16)
`
`Defendant Construction
`“wherein the ferrofluid produces a
`substantially uniform, non-peaked
`response over the frequency range of
`40-200 Hz”
`
`Plaintiff Construction
`Plain and ordinary meaning
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`The dispute here centers on the clear and unambiguous disclaimer of claim
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`scope found both in the specification and file history of the Taction patents. Taction’s
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`proposal ignores this evidence and should be rejected for this reason alone. Taction’s
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`proposal, which urges “plain and ordinary meaning,” should also be rejected because
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`it invites legal error by leaving the question of claim scope unanswered. Eon Corp. v.
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`Silver Spring Networks, Inc., 815 F.3d 1314, 1319 (Fed. Cir. 2016) (“By determining
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`only that the terms should be given their plain and ordinary meaning, the court left
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`this question of claim scope unanswered, leaving it for the jury to decide. This was
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`legal error.”), cert. denied, 137 S. Ct. 640 (2017). Because the parties fundamentally
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`dispute the scope of Term 1 and Taction’s purported “plain and ordinary meaning”
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`construction does not resolve that dispute, the Court must construe Term 1 and should
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`adopt Apple’s proposed construction. Taction has not proved otherwise.
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`1.
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`The Court must construe Term 1
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`As explained by the Federal Circuit in O2 Micro Int’l, Ltd. v. Beyond
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`Innovation Tech. Co., “[w]hen the parties present a fundamental dispute regarding the
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`scope of a claim term, it is the court’s duty to resolve it.” 521 F.3d 1351, 1362 (Fed.
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`Cir. 2008). This duty resides with the court because “the ultimate question of
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`construction [is] a legal question.” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
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`831, 842 (2015); see also O2 Micro, 521 F.3d at 1360 (“[T]he court, not the jury, must
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`resolve that dispute.”) (citing Markman v. Westview Instruments, Inc., 52 F.3d 967,
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`979 (Fed. Cir. 1995) (en banc), aff’d 517 U.S. 370 (1996)). Thus, “[a] determination
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`that a claim term ‘needs no construction’ or has the ‘plain and ordinary meaning’ may
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`be inadequate … when reliance on a term’s ‘ordinary’ meaning does not resolve the
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`parties’ dispute.” O2 Micro, 521 F.3d at 1361.
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`In this case, the parties dispute the scope of Term 1 and Taction’s purported
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`“plain and ordinary meaning” construction does not resolve that dispute. Term 1 is
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`not simple, easy to understand, or straightforward even to a POSITA and certainly
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`will not be viewed as such by a lay jury. Ex. EE (Visell Decl.) at ¶¶34-36. Indeed,
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3366 Page 7 of 27
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`Term 1 includes words like “ferrofluid,” “mechanical resonance,” and “frequency
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`range of 40-200 Hz.” However, ferrofluids are complex materials with unique
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`properties that vary depending on the presence or absence of a magnetic field and
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`other variables such as heat. Id., ¶36. And determining whether a ferrofluid reduces
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`the mechanical resonance within the frequency range of 40-200 Hz in an actuator is
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`complicated for the reasons explained below and in Apple’s opening brief (at 7-13).
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`Thus, Taction’s arguments that it “use[d] ordinary, easy to understand words
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`when it drafted the claims” and that it “would be error to substitute those terms with
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`words that have a significantly different meaning” are incorrect. Taction Br. at 5
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`(citing Straight Path IP Group, Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1361-63
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`(Fed. Cir. 2015)); see also id. at 4 (arguing that the disputed phrases are “simple and
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`straightforward”), 6 (arguing that Apple’s proffered construction “rewrites ‘reduce a
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`resonance’ as ‘produce a uniform, non-peaked response’ and conflates ‘reduce’ with
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`‘eliminate’”). Furthermore, Taction’s reliance on Sipnet is misplaced. In that case, the
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`parties disputed the meaning of the term “is,” which the court found “has a meaning
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`that can only be called plain.” Sipnet, 806 F.3d at 1360. And, unlike here, there was
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`no disavowal of claim scope. In contrast, the disputed term here is “wherein the
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`ferrofluid reduces at least a mechanical resonance within the frequency range of 40-
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`200 Hz,” which is objectively and comparatively complex, uncertain in meaning, and,
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`as explained in Apple’s opening brief, is not entitled to its plain meaning in view of
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`the express disclaimers in the specification and file history of the Taction patents. See
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`id. at 1361 (acknowledging plain meaning does not apply when there is a disclaimer).
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`Taction’s proposed “plain and ordinary meaning” construction is unsupported
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`and cannot be adopted.
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`2.
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`The Taction patents disavow claim scope
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`As explained in Apple’s opening brief (at 7-13), the specification and file
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`history of Taction’s patents clearly and unequivocally disavow any claim scope other
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`than a substantially uniform, non-peaked response over the range of 40-200 Hz.
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`Tellingly, however, Taction’s opening brief (at 9) devotes only a single paragraph to
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`these disavowals. And that paragraph contains no analysis of the evidence cited in
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`Apple’s portion of the joint claim construction chart for this term.
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`Instead, Taction argues that the claims, specification, and file history do not
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`state verbatim that “the invention requires producing ‘a substantially uniform, non-
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`peaked response’ and that any other type of response, including a reduction of
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`resonance would not be covered by the scope of the invention.”1 Taction Br. at 9
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`(emphasis original). The law, however, requires no such statement. “While disavowal
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`must be clear and unequivocal, it need not be explicit.” Poly-America, L.P. v. API
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`Indus., Inc., 839 F.3d 1131, 1136 (Fed. Cir. 2016). “For example, an inventor may
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`disavow claims lacking a particular feature when the specification describes ‘the
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`present invention’ as having that feature.” Id.
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`Here, the specification states that “the present invention [is] related to tactile
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`transducers that produce bass frequency vibrations for perception by touch.” ’885
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`patent at 1:20-21. A POSITA would have understood that bass frequency vibrations
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`are the 40-200 Hz range. Ex. EE (Visell Decl.) at ¶40; Ex. FF (“40-200 Hz: Bass
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`frequencies, the foundation.”); Ex. GG (“bass frequencies (40-200 Hz)”). And the
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`Abstract of the Taction patents states: “Damped, planar, electromagnetically-actuated
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`vibration modules of the moving magnet type are presented in theory and reduced to
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`practice, and shown to provide a substantially uniform frequency response over the
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`range 40-200 Hz with a minimum of unwanted audio.” Thus, Taction disclaimed
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`claim scope by describing the invention as having this feature.
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`1 Taction also argues that a “POSITA would not understand the exemplary
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`embodiments rise to the level of a clear disavowal of claim scope.” Taction
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`misunderstands Apple’s argument. Apple does not contend that Taction disavowed
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`claim scope by including exemplary embodiments in its patents.
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3368 Page 9 of 27
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`“Similarly, an inventor may disavow claims lacking a particular feature when
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`the specification distinguishes or disparages prior art based on the absence of that
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`feature.” Poly-America, 839 F.3d at 1136. As explained in Apple’s opening brief (at
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`9-11), that is exactly what the applicant did in the specification and file history of the
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`Taction patents. The specification, for example, states that the peaked response of
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`prior art LRAs is “useless” for achieving high fidelity reproduction of low frequency
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`tactile effects and explains that the substantially uniform, non-peaked response of the
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`claimed actuator within the frequency range of 40-200 Hz achieves that desired
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`feature. ’885 patent at 2:25-36; see also 2:1-10 (confirming that a system with an
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`“uneven frequency response” is undesirable because it “degrad[es] audio fidelity”).
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`Likewise, the file history distinguishes the claimed invention from prior art linear
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`actuators, noting that prior art linear actuators are “highly resonant,” and arguing “in
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`contrast” that (1) the claimed invention “is directed to transducers with highly damped
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`output,” and (2) “[Taction’s] invention specifically teaches [a]way from linear
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`resonant actuators.” Ex. D (File History) at 64-65 (“Motion of the movable member
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`can be damped so that the steady-state sinusoidal voltages applied to the module at
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`different frequencies produce an acceleration response of the movable member that
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`is substantially uniform over the range of 40-200 Hz.”). Thus, Taction disclaimed
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`prior art linear resonant actuators with resonant frequency peaks based on the
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`assertion that the claimed invention produced a “substantially uniform” response over
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`the range of 40-200 Hz. Such a disclaimer limits the scope of the claims.
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`Taction next argues that the specification does not reflect a disavowal of claim
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`scope. Yet Taction does not address any of the evidence cited in the Joint Claim
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`Construction Chart as support for Apple proposed construction. Instead, Taction
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`argues that the “specification shows that reducing or damping a mechanical resonance
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`between the frequency range of 40-200 Hz means that the frequency distortion around
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`a resonant frequency in the 40-200 Hz range is reduced, but not necessarily
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`eliminated.” Taction Br. at 6. As support for this argument, Taction cites the ’885
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`Case 3:21-cv-00812-TWR-JLB Document 110 Filed 07/21/22 PageID.3369 Page 10 of 27
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`patent at 9:36-39, which states: “The viscosity and volume of the damping fluid (e.g.
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`viscous ferrofluid 410 of FIG. 4B) in vibration module 500 were adjusted to damp
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`resonance that would be evident at 30-50 Hz….” Id. at 6-7. Remarkably, Taction
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`omits with ellipses the remainder of that sentence and paragraph, which further states:
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`“to achieve the relatively uniform, non-peaked, response evident in FIG. 5G
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`between 40 and 200 Hz in range 503. The absence of resonant peak [sic] in the
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`response makes it possible to reproduce the tactile component of a musical
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`experience with previously unattainable high fidelity.” ’885 patent at 9:39-44. Thus,
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`contrary to Taction’s assertions, the Taction patents expressly confirm that the
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`production of a substantially uniform, non-peaked response over the range of 40-200
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`Hz—not any unspecified reduction of mechanical resonance—overcomes the
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`drawbacks of the prior art.
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`Similarly, Taction argues that the file history reflects no disavowal of claim
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`scope. Once again, however, Taction does not address any of the evidence cited in the
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`Joint Claim Construction Chart as support for Apple proposed construction. Instead,
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`Taction points to a January 31, 2020 rejection of pending claims during prosecution
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`of the ’885 patent and argues the Examiner determined that the prior art did not
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`disclose or render obvious a reduction in resonance, including in the 40-200 Hz
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`frequency range, without any mention of the ferrofluid producing a substantially
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`uniform, non-peaked response over the frequency range of 40-200 Hz. Taction Br. at
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`7. This argument is both irrelevant and wrong. It is irrelevant because the applicant
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`(not the examiner) disavows claim scope and here, the disavowal of claim scope in
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`the file history occurred during prosecution of the ’885 patent’s parent application.
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`Thus, the examiner’s characterization of prior art during prosecution of the ’885
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`patent says nothing about whether Taction disavowed claim scope in the file history
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`generally and certainly does not address the specific disavowal of claim scope during
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`prosecution of Taction’s earlier patent.
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`Taction’s argument is also wrong because the Examiner expressly determined
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`the prior art discloses that ferrofluid will reduce resonance. Ex. 6 at 8-9. Specifically,
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`the Examiner found that “the addition of the ferrofluid of King in an actuator of
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`Houston et al. and Isono et al. would lead to the reduction of a resonance.” Id. What
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`the prior art failed to disclose, according to the Examiner, was reduction of resonance
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`in the range of 40-200 Hz. Id. (“It is not obvious that [the reduction of resonance]
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`would occur in the range of 40-200 Hz.”). Thus, if anything, this examiner’s finding
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`supports Apple’s construction because it confirms that every claim must include the
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`range of 40-200 Hz.
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`3.
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`Apple’s construction does not import limitations from the
`specification, exclude a disclosed embodiment, or provide
`definitions for individual words
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`Every embodiment in the specification that describes the frequency response
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`has a substantially uniform, non-peaked response over the frequency range of 40-200
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`Hz and indicates the importance of that response. “These two facts provide together
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`a proper reason to limit the claims in this way.” Poly-America, 839 F.3d at 1137.
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`“Moreover, even if these indications were not themselves sufficient, they, when taken
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`together with the statements from [the Taction] patent’s specification and prosecution
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`history identified above, provide clear and unequivocal evidence that the inventor
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`intended to disavow any claim scope” other than a substantially uniform, non-peaked
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`response over the range of 40-200 Hz. Id. Thus, Taction’s argument that Apple’s
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`construction should be rejected because it imports limitations from embodiments
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`described in the specification is incorrect.
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`Furthermore, Apple’s proposed construction tracks the only embodiments in
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`the patent. Thus, contrary to Taction’s arguments, Apple’s proposed construction
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`does not exclude any disclosed embodiments. Not surprisingly, Taction failed to
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`identify a single embodiment that is excluded by Apple’s proposed construction.
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`Instead, Taction argues that “several embodiments discuss reducing or damping the
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`resonance generally without requiring a ‘substantially uniform response.’” Taction
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`Br. at 8-9. As support for this assertion, Taction notes that “the specification describes
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`damping resonance to ‘add[] tactile sensations to audio’ and ‘lower[] the user’s
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`preferred acoustic listening level.’” Id. However, neither of these “effects” are
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`precluded by Apple’s construction. Ex. EE (Visell Decl.) at ¶37.
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`Finally, Taction’s argument that Apple somehow attempted to provide
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`definitions for individual words and sub-phrases in Term 1 should be rejected. Taction
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`Br. at 5-6. Apple’s proffered construction does not rewrite “reduce a resonance” as
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`“produce a uniform, non-peaked response” or conflate “reduce” with “eliminate.”
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`Instead, Apple’s construction captures the actual scope of Term 1 in view of the clear
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`and unambiguous disavowal of claim scope in the specification and file history of
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`Taction’s patents.
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`4.
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`Apple’s IPR petitions do not support Taction’s construction
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`In the IPR petitions, Apple, like Taction here, proposed giving the claims their
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`plain meaning, which is the proper approach when, as in the IPRs, there is no need
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`for claim construction. In this case, however, claim construction is required because
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`the parties dispute the scope of Term 1. O2 Micro, 521 F.3d at 1361-62; see also
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`Target Corp. v. Proxicom Wireless, LLC, IPR2020-00904, Paper 11, at 12 (Nov. 10,
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`2020) (“alternative pleading before a district court is common practice….”); see also
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`Samsung Elecs. Co., Ltd. v. Cellect, LLC, IPR2020-00476, 2020, Paper 14 (July 31,
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`2020) (“[T]he proposed constructions in district court litigation need not be adopted
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`in the Petition for Petitioner to be in compliance with the rules.”).
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`Accordingly, the Court should adopt Apple’s construction of Term 1.
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`
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`Term 2: “wherein the ferrofluid reduces [a/the] Q-Factor of [a/the]
`response of the apparatus over at least a portion of [a/the] frequency
`range of 40-200 Hz” (’885 Patent, Claim 20; ’117 Patent, Claim 17)
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`Defendant Construction
`Indefinite. To the extent the Court finds
`the term to be not indefinite this phrase
`should be construed consistent with the
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`Plaintiff Construction
`Not indefinite. Plain and ordinary
`meaning.
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`phrase above: “wherein the ferrofluid
`produces a substantially uniform, non-
`peaked response over the frequency
`range of 40-200 Hz.”
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`Term 2, which describes the reduction of a Q-factor in a response (something
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`that does not have a Q-factor) is indefinite because it is nonsensical. Apple Br. at 13-
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`14. Notably, Taction does not dispute that: (1) a Q-factor is a dimensionless quantity
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`that describes how underdamped an oscillator or resonator is; and (2) the response of
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`the oscillator or resonator does not have a Q-factor. In fact, Taction’s own expert, Dr.
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`Oliver, expressly acknowledges that the Q-factor “describes the extent to which an
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`apparatus [not a response] is underdamped” and refers to a “low Q-factor system”
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`(not a low Q-factor response). Ex. 1 (Oliver Decl.) at ¶51; see also id. at ¶51 (arguing
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`that that the Q-factor is a “[s]ymbol of merit for an energy-storing device, resonant
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`system or turned circuit”). These admissions confirm that Term 2 is indefinite.
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`Nonetheless, Dr. Oliver and Taction argue that it somehow makes sense to
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`describe a reduction of the Q-Factor of a response because “the ‘response’ is referring
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`to the ‘movement of the moving portion’ in reaction to the ‘signals applied to the
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`coil.’” Id. at ¶53; Taction Br. at 12. This argument does not cure the defect in Term
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`2. Ex. EE (Visell Decl.) at ¶¶41-42. Like the claimed “response,” the “movement of
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`the moving portion” does not have a Q-factor. Id. Thus, it is equally nonsensical to
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`describe a reduction of a Q-factor of the “movement of the moving portion.” Id.
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`Nor does it help for Taction to argue that a POSITA would understand that “the
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`apparatus is the energy storing system in which the ferrofluid acts to reduce the
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`resonant frequency of such system.” Taction Br. at 12. The import of this argument is
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`unclear because it does not address the indefiniteness issue. Furthermore, a POSITA
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`would not have understood that the ferrofluid in Taction’s patents acts to merely
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`reduce the resonant frequency of a system. As previously explained, the claimed
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`invention uses ferrofluid to eliminate the resonance peak and thus produce a
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`substantially uniform, non-peaked response over the range of 40-200 Hz.
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`Finally, the fact that Apple proposed a construction of Term 2 “in order to
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`facilitate IPR challenges on grounds of … obviousness is not a concession that a
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`skilled artisan would arrive at those constructions with ‘reasonable certainty.’”
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`Intellectual Ventures, 2016 WL 4363485, at *9; Avenue Innovations, 310 F.Supp.3d
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`at 466. The PTAB does not consider whether a claim is indefinite. See 35 U.S.C. §
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`311(b). Thus, “alternative pleading before a district court is common practice,
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`especially where it concerns issues [like indefiniteness] outside the scope of inter
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`partes review.” Target, IPR2020-00904, Paper 11 at 12. Furthermore, as written,
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`Term 2 is indefinite. But Apple is within its right to propose an “alternative
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`construction” of Term 2, which it does only if the Court finds Term 2 not indefinite.
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`Under that scenario, Taction’s arguments are incorrect for the reasons
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`explained above in the context of Term 1. In addition, although Apple’s alternative
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`construction includes the phrase “over the frequency range of 40-200 Hz” instead of
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`“over at least a portion of the frequency range of 40-200 Hz” as recited in the claim,
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`that is the proper approach because it tracks the actual scope of the purported
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`invention confirmed by the applicants in the specification, file history, and extrinsic
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`evidence. Taction’s argument that this “injects another limitation” is wrong. Apple’s
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`construction is consistent with a POSITA’s understanding that Term 2 is merely
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`another way of claiming the concept recited in Term 1. It should thus have the same
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`scope as Term 1.
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` Term 3: “magnet” (’885 Patent, Claims 1, 14, 17, 20; ’117 Patent,
`Claims 1, 7, 9, 16)
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`Defendant Construction
`No construction required as the plain
`meaning controls. To the extent that a
`construction is required, “a
`ferromagnetic body that produces a
`magnetic field”
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`Plaintiff Construction
`“material that produces a dipolar
`magnetic field”
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`This term entails multiple disputes. The first is whether the term “magnet”
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`requires construction. It does not. It is well-established that the plain meaning of
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`“plurality of” is “two or more,” “more than one,” or “at least two.” Cybersettle, Inc.
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`v. Nat’l Arbitration Forum, Inc., 243 F. App’x 603, 606 (Fed. Cir. 2007). Taction
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`suggests the term is “potentially ambiguous in the context of the larger phrase
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`‘plurality of magnets that contains it[,]” but concedes that the plain meaning of
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`“plurality of” applies. Taction Br. at 14 (“a ‘plurality of magnets’ consists of two or
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`more magnets…”). The concession swallows the alleged ambiguity, and thus no
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`construction is required.
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`To the extent the Court deems a construction necessary, Apple’s proposed
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`construction should be adopted. As explained in Apple’s opening brief (at 15-16),
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`Apple’s construction is consistent with the plain meaning of “magnet” and the
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`intrinsic evidence. Not surprisingly, Apple’s proposed construction is reinforced by
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`the intrinsic and extrinsic evidence that Taction cites in its opening brief, which makes
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`clear that the claimed “magnet” is a dipolar ferromagnetic body that produces a
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`magnetic field. See ’885 at 3:5-6, 4:39-5:30, 7:32-33, 8:16-17, 10:62-65, cl. 14; ’117
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`at cl 7; Ex. 20 at 644 (“a magnet is polarized; that is, it has two distinct and opposite
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`ends.”); Ex. 21 at 644 (“All magnets are dipoles, which means that they have two
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`‘poles,’ or ends.”).
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`Nonetheless, the parties dispute (1) whether “magnet” refers to a single,
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`physical body, or a material (or portion of a body), (2) whether the claimed “magnet”
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`is ferromagnetic, and (3) whether Taction’s reference to a “dipolar magnetic field” is
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`accurate. As shown below, the plain meaning of magnet refers to a single body (not a
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`portion of a body), the claimed magnet is ferromagnetic, and the phrase “dipolar
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`magnetic field” is inaccurate and confusing. Apple’s construction should be adopted.
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`1.
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`The plain meaning of “magnet” refers to a single body
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`The most important p