Case 1:17-cv-02097-RBJ Document 134 Filed 11/05/18 USDC Colorado Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`
`
`Case No. 1:17-cv-02097-RBJ
`
`
`
`
`Plaintiff,
`
`REALTIME ADAPTIVE STREAMING
`LLC,
`
`
`
`v.
`
`
`SLING TV L.L.C., et al.,
`
`
`
`Defendants.
`
`
`
`
`PLAINTIFF REALTIME’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`Realtime and Defendants offer not just competing proposals but different
`approaches to claim construction. Where terms have a plain and ordinary meaning, it
`almost always controls. But Defendants ask this Court to burden clear terms with
`extraneous baggage but cannot point to any requisite disclaimer. This invites reversible
`error. The Court should reject Defendant’s proposals and adopt Realtime’s proposals.
`A.
`“access profile”
`Claim construction is “not an obligatory exercise in redundancy.” U.S. Surgical
`Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Where a term is used as
`its plain meaning, the court should not recharacterize it using different language. Mentor
`H/S, Inc. v. Med. Device Alliance, Inc., 244 F.3d 1365, 1380 (Fed. Cir. 2001). This is
`precisely the situation here—as four of the five Defendants (Sling TV, Sling Media, Dish
`Techs., and Dish Net.) agree that the term should not be recharacterized. Br. at 2, n. 2.
`Arris, the sole Defendant seeking a construction, proposes one narrower than the
`ordinary meaning. But it points to no clear lexicography or disavowal that would justify
`such a departure. See Thorner v. Sony, 669 F.3d 1362, 1367–68 (Fed. Cir. 2012).
`Arris’s proposal is inconsistent with the patent’s express teaching that an access profile
`can “comprise information that enables the controller to select a suitable compression
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`that provides a desired balance between execution speed (rate of
`algorithm
`compression) and efficiency (compression ratio).” ‘535 patent, 8:8-13; Zeger Decl. ¶14.
`Arris does not even attempt to construe “profile” in “access profile.” Indeed, its
`improperly narrow construction subsumes that claim term within it. Instead, it seeks to
`import twelve words in place of the clear phrase “access”: “a profile containing
`information about the number or frequency of reads and writes.” Br. at 2. In support,
`Arris points to only one embodiment described in the specification, which it contends
`shows “information about the number or frequency of reads and writes.” Id.
`Arris’s proposal invites two legal errors. First, importing “information about the
`number or frequency of reads and writes” into the claim itself would violate established
`Federal Circuit precedent, which forbid importing limitations from the specifications into
`the claims, absent clear disclaimer. Thorner, 669 F.3d at 1365-67. Second, Arris’s
`proposal actually excludes disclosed embodiments. Such constructions are “rarely, if
`ever, correct.” SanDisk Corp. v. Memorex Prod., Inc., 415 F.3d 1278, 1285 (Fed. Cir.
`2005). Here, Arris’s proposal would exclude the patent’s express teaching that the
`access profile may comprise data type information alone. ‘535 patent, 11:35-38
`(“profiles may comprise a map that associates different data types (based on, e.g., a file
`extension) with preferred one(s) of the compression algorithms 13.”); Zeger Decl. ¶14.
`B.
`“throughput of a communication channel”
`The term “throughput” is an ordinary word that simply means data rate or usage.
`
`Zeger Decl. ¶15. The claims and specifications use the term in its ordinary sense. E.g.,
`‘535 patent, Abstract (“increase the throughput and eliminate the bottleneck”); 7:51-55
`(“system … based on the actual or expected throughput (bandwidth) of a system …
`and a technique of optimizing based upon planned, expected, predicted, or actual
`usage.”); 12:28-35 (“an overall faster (higher throughput) … system performance”);
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`13:62-65 (“If the throughput of the system is not meeting the desired threshold (e.g., the
`compression system cannot maintain the required or requested data rates)”).
`
`Defendants do not contend that “communication channel” requires construction,
`as they include it verbatim in their proposal. But Defendants try to rewrite “throughput”
`with their proposal “number of pending transmission requests.” But that is not the plain
`and ordinary meaning of “throughput.” Zeger Decl. ¶16. The patentee did not clearly re-
`define “throughput,” nor is there a clear and unmistakable disclaimer limiting
`“throughput” to Defendants’ proposal. See Thorner, 669 F.3d at 1365-67.
`
`As to the specification, Defendants point only to the ‘535 patent at 8:22-27, which
`states “[t]he system throughput tracked by the controller comprises a number of pending
`transmission requests over the communication channel.” This is neither lexicography
`nor clear and unmistakable disclaimer. Indeed, it merely describes an aspect of a
`particular embodiment. Courts “do not import limitations into claims from examples or
`embodiments appearing only in a patent’s written description, even when a specification
`describes very specific embodiments of the invention or even describes only a single
`embodiment.” JVW Enters. v. Interact Acc., Inc., 424 F.3d 1324, 1335 (Fed. Cir. 2005).
`
`Further, the specification also makes clear that tracking the number of pending
`requests is just one “example” to track throughput. E.g., ‘535 patent, 13:57-62 (“For
`example, the controller may track the number of pending disk accesses (access
`requests) to determine whether a bottleneck is occurring.”). The number of pending
`requests in a system may indicate data rate or usage of the system, but there are other
`measures of data rate or usage. Zeger Decl. ¶16. There is no clear disclaimer.1
`Defendants also point to prosecution history. But like a statement in the
`
`
`1 Defendants’ reliance on Nystrom (Br. at 5) is misplaced. There, the parties agreed on
`the ordinary meaning and the plaintiff sought to broaden the term. Here, Realtime is not
`seeking to broaden the term but to maintain the plain meaning used in the specification.
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`specification, a claim term cannot be narrowed absent an act that is “both clear and
`unmistakable.” TecSec v. Int’l Bus. Machines, 731 F.3d 1336, 1346 (Fed. Cir. 2013)
`(“our precedent requires that the alleged disavowing actions or statements made during
`prosecution be both clear and unmistakable.”). Defendants do not identify any such
`statement. Indeed, the prosecution history they identify does not even mention
`Defendants’ language “number of pending transmission requests.” See Def.’s Ex. D.
`
`Defendants also argue that “‘throughput’ cannot include ‘bandwidth.’” Defendants
`do not explain how this relates to their proposal. Regardless, Defendants’ argument
`also fails on the merits, as there was no unmistakable disavowal of “bandwidth.” First,
`the patentee clearly stated that the claim was being amended “for the purpose of
`advancing prosecution of this Application” and was not “acquiescing to the merits” of the
`examiner’s written description argument. See Def.’s Ex. D (5/27/14 Amd.) at 15.
`Second, the amendment during prosecution was not a simple replacement of
`“bandwidth” with “throughput,” as Defendants contend, but rather replacing “bandwidth
`of a transmission line or” with “throughput.” And third, the patentee cited numerous
`portions of the specification that indicate that “throughput” and “bandwidth” are similar
`concepts. See Def.’s Ex. D (5/27/14 Amd.) at 16-17 (quoting specification re:
`“throughput (bandwidth)”); Zeger Decl. ¶18. There is no unmistakable disclaimer.2
`
`Defendants’ argument regarding “bandwidth” also directly contradicts what they
`have represented to the PTAB in their petition for inter partes review of the ‘610 patent:
`“It was well-known … that the bandwidth of a communication channel is a
`throughput of the channel. DISH1003-¶¶97-102. Indeed, the ’610 Patent itself
`equates the throughput of a system with the bandwidth of the system.”
`
`
`2 Defendants reliance on Sterisil (Br. at 5) is misplaced. There, the patentee added a
`limitation to overcome the prior art. Here, the patentee never stated that “throughput”
`excluded “bandwidth.” To the contrary, the patentee indicated that the two were
`similar/related concepts by citing portions of the specification that indicated as much.
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`Ex. 1 (Sling/DISH’s IPR Petition at 32). Indeed, Defendants’ expert analyzed the file
`histories of the ‘610 patent and opined that “bandwidth of a communication channel is a
`throughput of the channel.” Ex. 2 (Sling/DISH’s IPR Expert Decl. at ¶¶ 28, 102).
`C.
`“asymmetric [compressor(s)/compression]”
`Realtime’s Proposed Construction
`Defendants’ Proposed Construction
`“a compression algorithm in which the
`Not indefinite.
`execution time for compression and
`
`If this Court did construe the term: “a
`decompression differ significantly,”
`compression algorithm in which the
`which renders the claims indefinite under
`execution times for compression and
`Halliburton Energy Servs., Inc. v. M-I
`decompression differ significantly.”
`LLC, 514 F.3d 1244 (Fed. Cir. 2008)
`The patent provides the definition of the term “asymmetric”
`1.
`compression algorithm, and confirms that a POSITA would
`understand certain algorithms are always asymmetric or symmetric.
`As Defendants acknowledge, the patent defines this term: “a compression
`algorithm in which the execution time for compression and decompression routines
`differ significantly.” ‘535 patent, 9:63-66. This comports with how a POSITA would
`understand the term—and defines it precisely. Zeger Decl. ¶19. Applying the definition,
`a POSITA would understand with reasonable certainty the bounds of the claims. Id. But
`the patent specification teaches more, and provides further guidance. It explains that
`compression algorithms are inherently either symmetric or asymmetric. ‘535 patent,
`9:63-10:9; Zeger Decl. ¶20. It even states, as an example, that Lempel-Ziv is inherently
`asymmetric. ‘535 patent, 10:2-4. On the other hand, Huffman is inherently symmetric.
`Id. at 10:8-9. The term “asymmetric” relates to examining the relative difference in the
`time it takes to perform the steps, which is a fundamental property of the algorithm that
`does not significantly depend on external factors, such as hardware that is used. Zeger
`Decl. ¶20. This is one reason why certain algorithms are asymmetric, and other
`symmetric, regardless of the specific hardware or software used. Zeger Decl. ¶20.
`Defendants cannot meet their burden of showing that the claims are
`2.
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`clear and convincingly indefinite in view of the facts here.
`As an initial matter, Defendants rely on pure attorney argument, which is
`insufficient to meet their burden that the patented inventions are indefinite by clear and
`convincing evidence. BASF Corp. v. Johnson Matthey, Inc., 875 F.3d 1360, 1365 (Fed.
`Cir. 2017). More to the point, Defendants’ argument is also based on a false premise,
`that the claimed “comparison” requires “a separate infringement determination for every
`possible use or corresponding implementation of a device.” Br. at 6-7. With zero
`evidence, Defendants take this one step further in the wrong direction and contend that
`this determination “would result in different infringement outcomes for the same
`product.” Id. This is demonstrably false. Per the patent specification, algorithms are
`either symmetric or asymmetric. ‘535 patent, 9:63-10:9; Zeger Decl. ¶20. Thus, no
`matter what hardware or firmware is used in a decoder, the accused asymmetric
`algorithms are always asymmetric, leaving no reasonable uncertainty. Id.
`Defendants’ attorney argument also contradicts their recent representations to
`the PTAB. In IPRs, Defendants and their expert had no problem knowing precisely how
`and when the term asymmetric is present. Defendants and their expert explained that
`certain algorithms are inherently and always asymmetric. Ex. 1 (Sling/DISH’s IPR
`Petition) at 15-16; Ex. 2 (Sling/DISH’s IPR Expert Decl.) at ¶¶ 55, 68 (“compression
`techniques utilized in the MPEG standards … are inherently asymmetric.”), 103-108
`(“a POSITA reviewing Vishwanath would have understood that these compression
`algorithms are asymmetric.”), 116. And contradicting what they now tell this Court, this
`does not depend on the specific implementation or hardware used. Id.
`Defendants’ assertion that the facts here are just like those in Halliburton Energy
`Servs., Inc. v. M-I LLC, 514 F.3d 1244 (Fed. Cir. 2008) is wrong. In Halliburton, the
`Federal Circuit held that “fragile gel”—the only alleged limitation separating the claim
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`from the prior art—was indefinite. But this was because a POSITA would need the
`“formation geology, wellbore size, depth, angle” and other well characteristics, which
`vary from one well to the next, to determine whether the drilling fluid was sufficiently
`“fragile” to infringe and yet maintain its claimed distinction over the prior art. Id. at 1254-
`56. Because the patent provided no examples or meaningful guidance for a POSITA to
`make this determination, a POSITA would not “know from one [accused] well to the next
`whether a certain drilling fluid was within the scope of the claims[.]” Id. Even a cursory
`review of the facts confirms that Defendants’ reliance on Halliburton is misplaced. First,
`unlike the “fragile gel” term in Halliburton, whether an algorithm is “asymmetric” does
`not depend on unknown factors. Zeger Decl. ¶20. Rather, a POSITA would understand
`that certain algorithms are either asymmetric or not, under any scenario or setting. Id.;
`‘535 patent, 9:63-10:9. Second, the asserted patents further explain the boundaries of
`the known term by providing examples of algorithms that are asymmetric (e.g., “Lempel-
`Ziv”) and those that are not (e.g., “Huffman”). And third, there is no actual record
`evidence that different, normal applications would require “an artisan make a separate
`infringement determination for every set of circumstances” or that “such determinations
`are likely to result in differing outcomes… .” Halliburton, 514 F.3d at 1254-55.
`Even in Halliburton, the court drew a clear distinction with other precedent, like In
`re Marosi, in which indefiniteness challenges failed because the specification provided
`“a general guideline” and “examples sufficient” for a POSITA to determine whether the
`claim limitation is present. Id. And the Court made clear that an accused infringer can
`only meet the “exacting standard” by proving, “with clear and convincing evidence that a
`skilled artisan could not discern the boundaries of the claim.“ Id. at 1250. Defendants
`come nowhere close to meeting this standard. Instead, In re Marosi and its progeny
`renders the claims definite. See In re Marosi, 710 F.2d 799, 803 (Fed. Cir. 1983) (claims
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`definite where specification provided “a general guideline and examples sufficient” to
`teach an artisan when the claim limitation was satisfied”).3 Indeed, in a recent
`decision, BASF Corp. v. Johnson Matthey, Inc., the Federal Circuit reversed the district
`court and ruled that Halliburton was inapplicable where the district court’s analysis
`ignored the patent’s “exemplary material” to meet the claim. 875 F.3d at 1366-67. This
`was so despite the presence of variables and unpredictable results in claim analysis
`there. Id. This case presents a far clearer case of definiteness than BASF.
`D.
`“compressor”
`Defendants’ Construction
`Realtime’s Construction
`Means-plus-function element to be construed in
`Not means-plus-function.
`accordance with pre-AIA 35 U.S.C. § 112, ¶6.
`No construction
`
`necessary.
`Function: compressing the at least the portion of the
`
`data block. Structure: Controller 11 in Fig. 1 or DSP or
`Alternatively, according to
`Processor 121 in Fig. 3 running any one of the following
`its plain and ordinary
`compression algorithms: arithmetic coding, dictionary
`meaning, the term should
`compression, table-based compression, Huffman
`be construed as: “data-
`coding, and run-length coding
`compression encoder.”
`Because the claims do not use the word “means,” there is a presumption that
`§112 ¶6 does not apply. Williamson v. Citrix, 792 F.3d 1339, 1349-50 (Fed. Cir. 2015).
`Defendants bear the burden of proving otherwise and must come forward with evidence
`that the claim term fails to “recite sufficiently definite structure.” Id. at 1349. That burden
`always remains with Defendants. Apex v. Raritan, 325 F.3d 1364, 1372 (Fed. Cir.
`2003). Here, the term “compressor” recites sufficient structure to one of skill in the art—
`and Defendants present no contrary evidence and, thus, cannot satisfy their burden.
`The intrinsic and extrinsic record confirm “compressor” is a class of
`1.
`digital-data encoder structures.
`A POSITA would understand the term “compressor” to correspond to a class of
`
`3 Oakley, Inc. v. Sunglass Hut Int’l, 316 F.3d 1331, 1341 (Fed. Cir. 2003) (claim term
`“vivid color appearance” not indefinite where the patent provided examples of when
`differential effect were and were not sufficient to meet the coined claim limitation).
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`known structures: data compression encoders. Zeger Decl. ¶21. Encoders themselves
`are a known class of structures in the computer and digital-data processing arts;
`specifically, a class of hardware, firmware, or software structures that encode digital
`data. Id. And “compressors” are a subset/subclass of known structures within that class
`of known encoder structures. Id. This alone renders the term sufficiently structural. Flo
`Healthcare Sol. LLC v. Rioux Vision, Inc., 697 F.3d 1367, 1374 (Fed. Cir. 2012) (“We
`will not apply §112, ¶ 6 if the limitation contains a term that ‘is used in common parlance
`or by [POSITA] to designate structure.’”). Because “compressor” conveys to a POSITA
`classes of encoder structure, it cannot be interpreted under §112, ¶6. Personalized
`Media Comm. v. ITC 161 F.3d 696 (Fed. Cir. 1998); Lighting World v. Birchwood
`Lighting, 382 F.3d 1354, 1358 (Fed. Cir. 2004) (term “connector” had a known structural
`definition and the patent further described its objectives and requirements).
`The intrinsic record confirms Realtime’s position. “The claim construction inquiry
`… begins and ends in all cases with the actual words of the claim. Renishaw PLC, 158
`F.3d at 1248. Here, the claims make clear that compressors are encoders. For
`example, ‘535 patent claim 14 states that “compressors” utilize “at least one slow
`compress encoder.” Defendants cannot credibly contend that data encoders do not
`convey structure to a POSITA. Under Federal Circuit precedent, this contextual claim
`language also defeats Defendants’ position. For example, in Lighting Ballast Control v.
`Philips Elec., a post-Williamson case, the court found that even the term “voltage source
`means” connoted sufficient structure because the surrounding claim language conveyed
`the class of structures of a rectifier. 790 F.3d 1329, 1339 (Fed. Cir. 2015).
`Other intrinsic evidence further confirms this point. As Defendants themselves
`point out, the asserted ’535 patent expressly incorporates by reference other Realtime
`patent specification, e.g., U.S. Pat. Nos. 6,195,024 and 6,309,424. ‘535 patent, 5:32-38.
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`The teachings in those parts of the intrinsic record make clear “compressors” are data
`compression encoders, which are hardware, firmware, or software structures configured
`for data compression. See, e.g., Ex. 3 (‘024 patent) at 3:9-13 (“The data compressor 3
`selects a data compression method from a preselected set of methods to compress the
`input data stream”); id. at Abstract, Figs. 2, 3a, 4, 5a, 6, 7a, 8, 9, 10a, 1:49-52 (referring
`to “original unencoded/uncompressed data,” indicating that encoded data means
`compressed data), 5:35-37 (“the present invention employs a plurality of encoders
`applying a plurality of compression techniques”), 5:3-6.
`A review of the extrinsic evidence leads to the same conclusion. For example,
`numerous references that were before the Patent Office during prosecution referred to
`the known “compressor” structure. Zeger Decl. ¶23. Taking just one example, the
`Hartmut reference shows its “compressor” structure, which is comprised of data
`compression encoder. These references belie Defendants’ unsupportable position that
`the term “compressor” does not connote structure to a POSITA in the relevant art.
`Defendants’ position that “compressor” is a means-plus-function
`2.
`term is contradicted by the facts and controlling law.
`Defendants contend that “the term ‘compressor’ has no structure—it is simply
`defined by its function (compressing) and would include anything that compresses.” Not
`so. A POSITA would fully understand that the term “compressor” refers to a subclass of
`data encoder structures, namely, data compression encoders, particularly in light of the
`specification. Zeger Decl. ¶¶ 21, 22. Moreover, Defendants are mistaken that the term
`“compressor” does not appear in the intrinsic record. Br. at 9. Again, the asserted ’535
`patent expressly incorporates by reference other Realtime patent specifications, which
`make clear “compressors” are data compression encoders. Zeger Decl. ¶22.
`term
`the
`Defendants are also wrong on
`the
`law. Defendants suggest
`“compressor” must be defined in functional terms because its root references “its
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`function (compressing).” Br. at 9. But that is “not sufficient to convert a claim element
`containing that term into a ‘means for performing a specified function’ within the
`meaning of section 112(6).” Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580,
`1583 (Fed. Cir. 1996). “Many devices take their names from the functions they perform,”
`such as “filter,” “brake,” “clamp,” “screwdriver,” or “lock.” Id. Indeed, if Defendants’
`unsupported contention were true, then paragraph 6 would need to be applied to terms
`like “processor” or “receiver.” But this is not the case.4 Indeed, even if “compressor”
`were defined in functional terms, that still would not overcome the presumption.
`EcoServices, LLC v. Certified Aviation Servs., 2017 WL 2783486, *6–7 (C.D. Cal May
`18, 2017) (“control unit” not subject to §112(6)). This is true, for example, where the
`patent or claim nevertheless sufficiently describes to a POSITA the term’s input, output
`and objectives. Broadcom Corp., v. Amazon.com, Inc., 2017 WL 5151356, *9 (C.D. Cal
`Sept. 1, 2017). And that is certainly the case here. Zeger Decl. ¶¶ 21-24.
`Defendants’ attempt to rely on Williamson is also entirely misplaced. The
`Williamson court held that the defendant met its burden of proving that §112, ¶6 should
`apply to the claim term “distributed learning control module.” 792 F.3d at 1348–52. The
`court noted that “module” is a “nonce” word, and the intrinsic and extrinsic record there
`failed to establish that the prefix “distributed learning control” connoted sufficient
`structure to those in the field of distributed classroom learning. Id. Instead, the evidence
`showed that “distributed learning control,” as described in the patent and recited in the
`claims, did not impart any class of structures or even inputs, outputs or objectives. In
`contrast, “compressor” is not a nonce word, and Defendants cannot make any
`convincing showing to the contrary. Instead, it is a structural term, referring to a class of
`
`
`4 E.g., Panoptis v. Blackberry, 2017 WL 497571, *18–19 (E.D. Tex. Feb. 7, 2017)
`(“processor” connoted sufficient structure because it “‘is not a ‘nonce’ term but rather
`connotes a class of structures.’”).
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`encoder structures. Zeger Dec. ¶21. And the claims themselves make this point clear,
`and further confirm the inputs, outputs and objectives of that structure. Id. ¶24.
`E.
`“compressing / compressed / compression”
`The asserted patents use this term in its ordinary sense, i.e., “[representation of /
`representing / represent] data with fewer bits.” For instance, the ’535 patent states that
`compression works by representing digital data “more efficiently.” See, e.g., ‘535 patent,
`2:44-46, 4:23-53. Realtime’s proposal is how a person of ordinary skill would
`understand the term “compress.” Zeger Decl. ¶25.5 Defendants are correct that
`Realtime had previously proposed to narrow a potential dispute by proposing, in the
`alternative, the Defendants’ alternative construction. But even in that case, the dispute
`was resolved in favor of Realtime’s current proposal. Regardless, none of that history
`supports Defendants’ position that no construction is necessary.
`F.
`“algorithm”
`Defendants’ Construction
`Realtime’s Construction
`“a set of rules that defines
`No construction necessary
`one or more parameters
`
`that can be varied”
`Alternatively: “a set of rules”
`
`Claim construction is “not an obligatory exercise in redundancy.” U.S. Surgical,
`103 F.3d at 1568. “Algorithm” needs no construction, as a POSITA would immediately
`understand what it means. Zeger Decl. ¶26. The intrinsic record confirms that the term
`“algorithm” is used to refer to compression algorithms, which are used to represent
`digital data with fewer bits. Id. And that record lists a few known ones throughout the
`patent as examples, including “Lempel-Ziv.” See, e.g., ‘535 patent, 2:31-55; 5:1-32.
`
`
`5 Numerous companies in other Realtime litigations have consistently agreed
`“compressing” means “representing data with fewer bits.” E.g., Realtime Data LLC v.
`Actian Corp., No. 15-463-RWS-JDL, D.I. 362 at 39 (E.D. Tex. July 28, 2016) (involving
`6 defendants) (“compressing / compressed / compression” stipulated to mean
`“[representing / represented / representation] of data with fewer bits; Realtime Data LLC
`v. Packeteer, No. 08-144-LED-JDL, D.I. 371-2 at 64 (E.D. Tex. June 22, 2009)
`(involving 13 defendants) (same).
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`To narrow the dispute, Realtime is willing to agree to “a set of rules.” This is what
`
`Defendants call the known meaning of “algorithm,” as supported by all of their evidence.
`Br. at 11. But Defendants’ additional importations are improper. Defendants import
`limitations to what they themselves acknowledge is the plain meaning, by adding the
`words “that defines one or more parameters that can be varied.” But their only support
`for this importation is a single sentence in the specification, which merely states that
`“many compression algorithms define one or more parameters that can be varied…to
`change the performance characteristics of the algorithm.” ‘535 patent, 1:30-35; Zeger
`Decl. ¶27. This plainly is a mere description of the performance of some or many
`algorithms, not a clear re-definition or disavowal that requires importing the phrase.
`G.
`“the determined parameter or attribute”
`Defendants seek to invalidate claim 15 by arguing that this phrase lacks
`
`antecedent basis. But the antecedent basis is explicitly present, as the claim recites
`“determining a parameter of at least a portion of a data block” before that phrase:
`15. A method, comprising: determining a parameter of at least a portion of a data
`block;
`selecting one or more asymmetric compressors from among a plurality of
`compressors based upon the determined parameter or attribute
`‘535 cl. 15. Defendants’ argument appears to be that the word “attribute” is not stated
`before the phrase at issue, but a POSITA would readily understand that the whole
`phrase “determined parameter or attribute” refers to that “of at least a portion of a data
`block,” when reading the entirety of the claim. Zeger Decl. ¶29. Even assuming that
`there is a lack of explicit antecedent basis, that does not necessitate a finding of
`invalidity. Energizer Holdings v. ITC, 435 F.3d 1366, 1370 (Fed. Cir. 2006). Indeed,
`“antecedent basis can be present by implication.” Id. at 1371. Here, a person reading
`the claim can readily ascertain that the “determined parameter or attribute” is referring
`
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`to that which was determined in the earlier limitation regarding “at least a portion of a
`data block.” Zeger Decl. ¶30. Antecedent basis exists at least implicitly.6
`H.
`“file”
`Defendants’ Proposed Construction
`Realtime’s Proposed Construction
`“collection of executable programs
`No construction necessary
`and/or various data objects that
`
`occur in a variety of lengths and that
`Alternatively, if this Court were inclined to
`are stored within a data storage
`construe the term, it should be construed as
`device”
`an “executable program and/or data object”
`
`The term “file” is an ordinary word that a POSITA is readily familiar with. Zeger
`Decl. ¶31. There is no need to replace the simple word “file” with Defendants’ 25-word
`proposal. Defendants argue that the “patentee acted as its own lexicographer,” but that
`is incorrect. “To act as its own lexicographer, … the patentee must ‘clearly express an
`intent’ to redefine the term.” Thorner, 669 F.3d at 1365. The statements identified by
`Defendants do not meet such “exacting” (id. at1366) standard. Indeed, the statements
`are merely explanation of files in the context of a description of “problem within the
`current art,” and not a re-definition of the plain word “file.” ‘535 patent, 5:56-63.
`Moreover, the statements identified by Defendants are about multiple “files” (plural).
`Defendants’ proposal imports plural description into the singular form “file.” That is
`contrary to how a POSITA would understand “file.” Zeger Decl. ¶¶ 31-32. A plain
`meaning of “file” may include executable program or a data object, but not necessarily a
`“collection” of them, or have “a variety of lengths.” Id. Indeed, such description may not
`make sense for the singular term “file.” Defendants’ proposal is incorrect.
`
`
`6 None of the cases cited by Defendants support their arguments. Halliburton Energy
`Servs., Inc. v. M-I LLC, 514 F.3d 1244 (Fed. Cir. 2008) cited by Defendants did not
`involve an issue of antecedent basis. Cellular Commc'ns Equip. LLC v. AT&T, Inc.,
`2016 WL 7364266, *8 (E.D. Tex. Dec. 19, 2016) and Illinois Computer Research LLC v.
`HarperCollins Publishers, Inc., 2012 WL 163801, at *8 (S.D.N.Y. Jan. 19, 2012)
`involved claim languages whose meaning was not reasonably ascertainable.
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`“data block”
`I.
`Realtime’s construction is consistent with the ordinary meaning and specification.
`The ordinary meaning of “data block” is a group of digital data of a fixed or variable size,
`and can be a number of digital bits, bytes, or files. Zeger Decl. ¶33. This is supported by
`the intrinsic record, which states that data blocks “may range in size from individual bits
`through complete files or collections of files.” E.g., Ex. 3 (‘024 patent at 7:9-13).7
`Defendants lodge several criticisms of Realtime’s construction; but each criticism
`is flawed. Defendants argue that “single unit of data” is unhelpful because the claim is
`already written in singular and the word “unit” adds no clarity. Not so. Realtime’s
`proposal adds clarity by specifying that if the data is two bits long or an entire file, it is a
`contiguous “single unit.” Defendants next