Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 1 of 25 PageID #: 7677
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`EXPRESS MOBILE, INC.,
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`Plaintiff,
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`v.
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`GODADDY.COM, LLC,
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`Defendant.
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`Civil Action No. 19-1937-RGA
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`MEMORANDUM OPINION
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`Timothy Devlin, DEVLIN LAW FIRM LLC, Wilmington, DE; James R. Nuttall, Michael
`Dockterman, Robert F. Kappers, Tron Fu, Katherine H. Johnson, STEPTOE & JOHNSON LLP,
`Chicago, IL; Christopher A. Suarez, STEPTOE & JOHNSON LLP, Washington, DC, Attorneys
`for Plaintiff.
`
`Beth Moskow-Schnoll, Brittany Giusini, Brian S.S. Auerbach, BALLARD SPAHR LLP,
`Wilmington, DE; Brian W. LaCorte, Jonathan A. Talcott, BALLARD SPAHR LLP, Phoenix,
`AZ, Attorneys for Defendant.
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`June 1, 2021
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`1
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 2 of 25 PageID #: 7678
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`/s/ Richard G. Andrews
`ANDREWS, UNITED STATES DISTRICT JUDGE:
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`
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`Before me is the issue of claim construction of multiple terms in U.S. Patent Nos.
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`6,546,397 (the ’397 Patent), 7,594,168 (the ’168 Patent), 9,063,755 (the ’755 Patent), 9,471,287
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`(the ’287 Patent), and 9,928,044 (the ’044 Patent). I have considered the Parties’ Joint Claim
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`Construction Brief. (D.I. 64). I held remote oral argument on April 8, 2021. (D.I. 77). The parties
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`argued ten terms there. I asked for supplemental briefing on two of them, which is underway.
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`(D.I. 80). I now decide the other eight terms.
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`I.
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`LEGAL STANDARD
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`“It is a bedrock principle of patent law that the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (internal quotation marks omitted). “‘[T]here is no magic formula or
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`catechism for conducting claim construction.’ Instead, the court is free to attach the appropriate
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`weight to appropriate sources ‘in light of the statutes and policies that inform patent law.’”
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`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
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`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
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`literal language of the claim, the patent specification, and the prosecution history. Markman v.
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`Westview Instruments, Inc., 52 F.3d 967, 977–80 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
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`(1996). Of these sources, “the specification is always highly relevant to the claim construction
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`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.”
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`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
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`“[T]he words of a claim are generally given their ordinary and customary meaning. . . .
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`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
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`question at the time of the invention, i.e., as of the effective filing date of the patent application.”
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 3 of 25 PageID #: 7679
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`Id. at 1312–13 (citations and internal quotation marks omitted). “[T]he ordinary meaning of a
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`claim term is its meaning to [an] ordinary artisan after reading the entire patent.” Id. at 1321
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`(internal quotation marks omitted). “In some cases, the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted
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`meaning of commonly understood words.” Id. at 1314.
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`When a court relies solely upon the intrinsic evidence—the patent claims, the
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`specification, and the prosecution history—the court’s construction is a determination of law.
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`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331 (2015). The court may also make
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`factual findings based upon consideration of extrinsic evidence, which “consists of all evidence
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`external to the patent and prosecution history, including expert and inventor testimony,
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`dictionaries, and learned treatises.” Phillips, 415 F.3d at 1317–19 (internal quotation marks
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`omitted). Extrinsic evidence may assist the court in understanding the underlying technology,
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`the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic
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`evidence, however, is less reliable and less useful in claim construction than the patent and its
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`prosecution history. Id.
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`“A claim construction is persuasive, not because it follows a certain rule, but because it
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`defines terms in the context of the whole patent.” Renishaw PLC v. Marposs Societa’ per
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`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that “a claim interpretation that would
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`exclude the inventor’s device is rarely the correct interpretation.” Osram GMBH v. Int’l Trade
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`Comm’n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation and internal quotation marks omitted).
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 4 of 25 PageID #: 7680
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`II.
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`BACKGROUND
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`The specifications of the ’397 and ’168 patents are “substantively identical” (D.I. 71 at
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`6), as are, separately, the specifications of the ’755, ’287, and ’044 patents (id. at 14). The two
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`common specifications are different from each other; for claim construction purposes, the two
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`sets of patents are unrelated and therefore extrinsic evidence to each other. The inventions
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`display an in-work webpage in real time so a web developer can view the webpage during
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`editing as it would appear to an end user viewing the webpage through a browser. The following
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`claims are the most relevant for the purposes of this Markman:
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`Claim 1 of the ’397 Patent
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`1. A method to allow users to produce Internet websites on and for computers having a
`browser and a virtual machine capable of generating displays, said method comprising:
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`(a) presenting a viewable menu having a user selectable panel of settings describing
`elements on a website, said panel of settings being presented through a browser on a
`computer adapted to accept one or more of said selectable settings in said panel as
`inputs therefrom, and where at least one of said user selectable settings in said panel
`corresponds to commands to said virtual machine;
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`(b) generating a display in accordance with one or more user selected settings
`substantially contemporaneously with the selection thereof;
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`(c) storing information representative of said one or more user selected settings in a
`database;
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`(d) generating a website at least in part by retrieving said information representative of
`said one or more user selected settings stored in said database; and
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`(e) building one or more web pages to generate said website from at least a portion of
`said database and at least one run time file, where said at least one run time file
`utilizes information stored in said database to generate virtual machine commands for
`the display of at least a portion of said one or more web pages.
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`(D.I. 1-1, Ex. A (“the ’397 patent”), claim 1) (emphasis added).
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`Claim 2 of the ’397 Patent
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`2. An apparatus for producing Internet websites on and for computers having a browser
`and a virtual machine capable of generating displays, said apparatus comprising:
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`(a) an interface to present a viewable menu of a user selectable panel of settings to
`describe elements on a website, said panel of settings being presented through a
`browser on a computer adapted to accept one or more of said selectable settings in
`said panel as inputs therefrom, and where at least one of said user selectable settings
`in said panel corresponds to commands to said virtual machine;
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`(b) a browser to generate a display in accordance with one or more user selected settings
`substantially contemporaneously with the selection thereof;
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`(c) a database for storing information representative of said one or more user selected
`settings; and
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`(d) a build tool having at least one run time file for generating one or more web pages,
`said run time file operating to utilize information stored in said database to generate
`commands to said virtual machine for generating the display of at least a portion of
`said one or more web pages.
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`(Id., claim 2).
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`Claim 9 of the ’397 Patent
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`9. The apparatus of claim 2, wherein said elements include a button or an images (sic),
`wherein said selectable settings includes the selection of an element style, and wherein
`said build engine includes means for storing information representative of selected style
`in said database.
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`(Id., claim 9) (emphasis added).
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`Claim 1 of the ’168 Patent
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`1. A system for assembling a web site comprising:
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` a
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` server comprising a build engine configured to:
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`accept user input to create a web site, the web site comprising a plurality of web
`pages, each web page comprising a plurality of objects.
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`accept user input to associate a style with objects of the plurality of web pages,
`wherein each web page comprises at least one button object or at least one image
`object, and wherein the at least one button object or at least one image object is
`associated with a style that includes values defining transformations and time
`lines for the at least one button object or at least one image object; and wherein
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`each web page is defined entirely by each of the plurality of objects comprising
`the web page and the style associated with the object,
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`produce a database with a multidimensional array comprising the objects that
`comprise the web site including data defining, for each object, the object style, an
`object number, and an indication of the web page that each object is part of, and
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`provide the database to a server accessible to web browser;
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`
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`wherein the database is produced such that a web browser with access to a runtime
`engine is configured to generate the web-site from the objects and style data extracted
`from the provided database.
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`(D.I. 1-2, Ex. B. (“the ’168 patent”), claim 1) (emphasis added).
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`Claim 1 of the ’755 Patent
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`1. A system for generating code to provide content on a display of a device, said system
`comprising:
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`computer memory storing a registry of:
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`(a) symbolic names required for evoking one or more web components each
`related to a set of inputs and outputs of a web service obtainable over a
`network, where the symbolic names are character strings that do not contain
`either a persistent address or pointer to an output value accessible to the web
`service, and
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`(b) the address of the web service;
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`an authoring tool configured to:
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`define a user interface (UI) object for presentation on the display, where said UI object
`corresponds to the web component included in said registry selected from the group
`consisting of an input of the web service and an output of the web service,
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`access said computer memory to select the symbolic name corresponding to the web
`component of the defined UI object,
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`associate the selected symbolic name with the defined UI object,
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`produce an Application including the selected symbolic name of the defined UI object,
`where said Application is a device-independent code, and
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`produce a Player, where said Player is a device-dependent code;
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`such that, when the Application and Player are provided to the device and executed on the
`device, and when a user of the device provides one or more input values associated with
`an input symbolic name to an input of the defined UI object,
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`1) the device provides the user provided one or more input values and corresponding
`input symbolic name to the web service,
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`2) the web service utilizes the input symbolic name and the user provided one or more
`input values for generating one or more output values having an associated output
`symbolic name,
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`3) said Player receives the output symbolic name and corresponding one or more output
`values and provides instructions for a display of the device to present an output value
`in the defined UI object.
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`(D.I. 1-3, Ex. C (“the ’755 patent”), claim 1) (emphasis added).
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`Claim 1 of the ’287 Patent
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`1. A system for generating code to provide content on a display of a device, said system
`comprising:
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`computer memory storing a registry of:
`
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`(c) symbolic names required for evoking one or more web components each
`related to a set of inputs and outputs of a web service obtainable over a
`network, where the symbolic names are character strings that do not contain
`either a persistent address or pointer to an output value accessible to the web
`service, where each symbolic name has an associated data format class type
`corresponding to a subclass of User Interface (UI) objects that support the data
`format type of the symbolic name, and has a preferred UI object, and
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`(d) an address of the web service;
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`an authoring tool configured to:
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`define a (UI) object for presentation on the display, where said defined UI object
`corresponds to a web component included in said registry selected from a group
`consisting of an input of the web service and an output of the web service, where each
`defined UI object is either: 1) selected by a user of the authoring tool; or 2) automatically
`selected by the system as the preferred UI object corresponding to the symbolic name of
`the web component selected by the user of the authoring tool,
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`access said computer memory to select the symbolic name corresponding to the web
`component of the defined UI object,
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`associate the selected symbolic name with the defined UI object, where the selected
`symbolic name is only available to UI objects that support the defined data format
`associated with that symbolic name, and
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`produce an Application including the selected symbolic name of the defined UI object,
`where said Application is a device-independent code; and
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` a
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` Player, where said Player is a device-dependent code, wherein, when the Application
`and Player are provided to the device and executed on the device, and when the user of
`the device provides one or more input values associated with an input symbolic name to
`an input of the defined UI object,
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`1) the device provides the user provided one or more input values and corresponding
`input symbolic name to the web service,
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`2) the web service utilizes the input symbolic name and the user provided one or more
`input values for generating one or more output values having an associated output
`symbolic name,
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`3) said Player receives the output symbolic name and corresponding one or more output
`values and provides instructions for the display of the device to present an output
`value in the defined UI object.
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`(D.I. 1-4, Ex. D (“the ’287 patent”), claim 1) (emphasis added).
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`Claim 1 of the ’044 Patent
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`1. A system for generating code to provide content on a display of a device, said system
`comprising:
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`computer memory storing:
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`(e) symbolic names required for evoking one or more web components each
`related to a set of inputs and outputs of a web service obtainable over a
`network, where the symbolic names are character strings that do not contain
`either a persistent address or pointer to an output value accessible to the web
`service, where each symbolic name has an associated data format class type
`corresponding to a subclass of User Interface (UI) objects that support the data
`format type of the symbolic name, and where each symbolic name has a
`preferred UI object, and
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`(f) an address of the web service;
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`an authoring tool configured to:
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`define a (UI) object for presentation on the display,
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 9 of 25 PageID #: 7685
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`where said defined UI object corresponds to a web component included in said computer
`memory selected from a group consisting of an input of the web service and an output of
`the web service, where each defined UI object is either:
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`1) selected by a user of the authoring tool; or
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`2) automatically selected by the system as the preferred UI object corresponding
`to the symbolic name of the web component selected by the user of the authoring
`tool,
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`access said computer memory to select the symbolic name corresponding to the web
`component of the defined UI object,
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`associate the selected symbolic name with the defined UI object, where the selected
`symbolic name is only available to UI objects that support the defined data format
`associated with that symbolic name,
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`store information representative of said defined UI object and related settings in a
`database;
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`retrieve said information representative of said one or more said UI object settings stored
`in said database; and
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`build an application consisting of one or more web page views from at least a portion of
`said database utilizing at least one player, where said player utilizes information stored in
`said database to generate for the display of at least a portion of said one or more web
`pages,
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`wherein when the application and player are provided to the device and executed on the
`device, and
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`when the user of the device provides one or more input values associated with an input
`symbolic name to an input of the defined UI object, the device provides the user provided
`one or more input values and corresponding input symbolic name to the web service, the
`web service utilizes the input symbolic name and the user provided one or more input
`values for generating one or more output values having an associated output symbolic
`name,
`and the player receives the output symbolic name and corresponding one or more output
`values and provides instructions for the display of the device to present an output value in
`the defined UI object.
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`(D.I. 1-5, Ex. E (“the ’044 patent”), claim 1) (emphasis added).
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 10 of 25 PageID #: 7686
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`III. CONSTRUCTION OF AGREED-UPON TERMS
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`I adopt the following agreed-upon constructions:
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`Claim Term
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`Construction
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`multi-dimensional array(s) /
`multidimensional array(s)
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`storing information representative of said
`one or more user selected setting in a
`database
`Transformation
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`Settings
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`authoring tool / authoring tool configured
`to
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`device-dependent code
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`device-independent code
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`where said application is device-
`dependent code
`for evoking one or more web components
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`“a uniquely identifiable indexed set of
`related elements, wherein each element is
`addressed by a set of two or more indices,
`each index corresponding to a dimension
`of the array”
`“storing data in a database, which data
`pertains to one or more attributes of an
`object available for selection by a user”
`“the changing of an object from one state
`to another based on a timer control,
`subject to user settings”
`“attributes of an object available for
`selection”
`a system, with a graphical interface, for
`generating code to display content on a
`device screen
`code that is specific to the operating
`system, programming language, or
`platform of a device
`code that is not specific to the operating
`system, programming language, or
`platform of a device
`where said Application is a device-
`independent code1
`for calling up one or more web
`components
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`
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`I have construed below the terms the parties selected for oral argument. The parties may
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`choose to argue claim construction issues for other terms as necessary to any summary judgment
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`1 I am not positive the parties meant to capitalize the “a” in Application. But since they did, I do too.
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 11 of 25 PageID #: 7687
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`motions, but, especially given the sparse briefing on many of the disputed terms, I do not decide
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`them here.
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`1. “at least one run time file / one or more run time files” (’397/1, 2, 37)
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`a. Plaintiff’s proposed construction:
`i. “one or more files, including a run time engine, that are downloaded or
`created when a browser is pointed to a web page or website”
`b. Defendant’s proposed construction:
`i. “one or more files, including a run time engine, that are downloaded or
`created and executed by a browser when a browser is pointed to a web
`page or website”
`c. Court’s construction:
`i. “one or more files, including a run time engine, that are downloaded or
`created when a browser is pointed to a web page or website”
`The parties dispute whether the “run time file(s)” must be executable by a browser.
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`Plaintiff argues that though some “run time files” may be executable, other files
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`downloaded by a browser to display web page content, such as image, audio, or video files, are
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`not executable. (D.I. 64 at 31). Plaintiff further asserts that specifying “executable” is
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`unnecessary because the run time engine file is by its nature executable. (Id.).
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`Defendant agrees that the run time engine file is necessarily executable. (Id.). It argues
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`that, because the “files” can, as Plaintiff asserts, include non-executable files, it is important to
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`explicitly require that at least one file be executable. (Id. at 32).
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`I agree with Plaintiff. The construction requires a run time engine file. If a run time
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`engine file is executable, which both parties agree is the case, there is no meaningful difference
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`between the two constructions other than that Defendant’s inclusion of “executed” is redundant. I
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`therefore construe “at least one run time file / one or more run time files” as “one or more files,
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`including a run time engine, that are downloaded or created when a browser is pointed to a web
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`page or website.”
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`2. “build engine” (’397/9, 14, 19, 23; ’168/1, 2)
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`a. Plaintiff’s proposed constructions:
`i. no construction necessary; or
`ii. “a software component for processing user input related to building a
`website/webpage(s) for database storage”
`b. Defendant’s proposed constructions:
`i. ’397 patent:
`1. indefinite; or
`2. same construction as for ’168 patent
`ii. ’168 patent
`1. “component that receives data or information regarding the
`creation, editing and/or display of a web page and updates one or
`more databases, including a database internal to the build engine,
`in response to that information or data”
`c. Court’s construction:
`i. not indefinite; “build engine” means “build tool” in the ‘397 patent; any
`construction of “build engine” in the ‘168 patent is deferred
`Defendant argues that “build engine” in the ‘397 patent is indefinite because it lacks
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`antecedent basis, so that a POSA would not understand what “build engine” refers to with
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`reasonable certainty. (D.I. 64 at 23–24). Although Defendant acknowledges the USPTO’s
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`Certificate of Correction (COC), issued to correct “build engine” to “build tool” in the ’397
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`patent (D.I. 65-9, Ex. 1I at 2), it presents two arguments against the use of the COC for claim
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`construction of this term. First, Defendant argues that because the COC was not issued until
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`February 13, 2018 (id.), to the extent the COC is applicable, it does not apply before its date of
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`issuance (D.I. 77 at 32). Second, Defendant argues that, in any case, the COC should be
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`disregarded because the specification, when discussing Fig. 3A, illustrates that a “build engine”
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`is a “build tool” component. (D.I. 64 at 24, 27). The two terms therefore cannot be equivalent,
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`Defendant maintains. (Id. at 27).
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`Plaintiff, on the other hand, argues that no construction is necessary because the COC
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`makes clear that the antecedent basis for “build engine” is “build tool.” (Id. at 22–23). Plaintiff
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`also argues that no construction is necessary because the specification equates the two terms
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 13 of 25 PageID #: 7689
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`when it states the phrase “build engine (i.e. build tool).” (Id. at 22) (citing ’397 patent at 2:1–4).
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`For the same reason, Plaintiff maintains, the COC properly treats “build engine” and “build tool”
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`as interchangeable terms. (Id. at 26).
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`There are therefore two issues related to the COC. First, whether the COC’s corrections
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`only apply after the COC’s date of issuance. Second, whether the COC’s correction is proper.
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`The Federal Circuit has held that “for causes arising after the PTO issues a certificate of
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`correction, the certificate of correction is to be treated as part of the original patent—i.e., as if the
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`certificate had been issued along with the original patent.” Southwest Software, Inc. v. Harlequin,
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`Inc., 226 F.3d 1280, 1295 (Fed. Cir. 2000). For causes of action that arise after the date of the
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`COC’s issuance, therefore, the COC’s corrected claim language has effect dating back to the
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`priority date of the patent because “the certificate is considered part of the original patent.” Id.
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`The COC was issued on February 13, 2018. (D.I. 65-9, Ex. 1I at 2). Plaintiff alleges
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`Defendant was made aware of its infringement as early as February 28, 2013 but does not
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`specify the date of initial infringement. (D.I. 47 at 16, 25). Relevant to the issue here, Plaintiff
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`alleges infringement before and after the date of the COC’s issuance. Because the COC’s
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`corrected language is treated as “part of the original patent,” for any alleged infringement after
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`the date of the COC’s issuance, February 13, 2018, the corrected claim language applies.
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`The corrected claim language does not apply, on the other hand, to alleged infringement
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`prior to February 13, 2018. If a COC were given effect as of the priority date of the patent for
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`infringement prior to the date of the COC’s issuance, a party could be held liable for infringing a
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`facially invalid patent. “In such a case, where the claim is invalid on its face without the
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`certificate of correction, it strikes us as an illogical result to allow the patent holder, once the
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`certificate of correction has issued, to sue an alleged infringer for activities that occurred before
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 14 of 25 PageID #: 7690
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`the issuance of the certificate of correction.” Southwest Software, 226 F.3d at 1295–96. The
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`corrected claim language therefore does not apply to any alleged infringement prior to February
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`13, 2018, the date of COC issuance.
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`The second issue relates to whether the COC’s issuance was proper.
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`Certificates of correction may be issued for “a mistake of a clerical or typographical
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`nature, or of minor character” at the discretion of the USPTO. 35 U.S.C. § 255. The Federal
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`Circuit has held that although § 255 does “allow broadening corrections of clerical or
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`typographical mistakes,” there is clear Congressional intent “to protect the public against the
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`unanticipated broadening of a claim after the grant of the patent by the PTO.” Superior Fireplace
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`Co. v. Majestic Products Co., 270 F.3d 1358, 1371 (Fed. Cir. 2001). “It would be inconsistent
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`with that objective to interpret § 255 to allow a patentee to broaden a claim due to the correction
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`of a clerical or typographical mistake that the public could not discern from the public file and
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`for which the public therefore had no effective notice.” Id. The “public file” used to determine
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`whether a correction is proper consists of “the specification, drawings, and prosecution history.”
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`Id. at 1372. As for a mistake of “minor character”: “A mistake that, if corrected, would broaden
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`the scope of a claim must thus be viewed as highly important and thus cannot be a mistake of
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`‘minor character.’” Id. at 1375.
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`In the ’397 patent, the relevant claim recites, “The apparatus of claim 2, wherein said
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`elements include a button or an images (sic), wherein said selectable settings includes the
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`selection of an element style, and wherein said build engine includes means for storing
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`information representative of selected style in said database.” (’397 patent at 66:48–49
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`(uncorrected claim 9)). There is no grammatical error in the use of “build engine” that suggests a
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`mistake on its face. Looking to independent claim 2, however, although dependent claim 9
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 15 of 25 PageID #: 7691
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`references “said build engine,” claim 2 recites only “a build tool,” not a “build engine.” This
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`raises the possibility of a clerical or typographical error in the use of “said build engine.”
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`The specification teaches that a “build engine” is an example of a “build tool.” (’397
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`patent at 9:1–29). Although Defendant argues that these two terms are distinguished in Fig. 3A,
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`the relevant specification language stating that a “build engine” is an example of a “build tool”
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`explicitly refers to Fig. 3A. (Id.). Looking at the claim language, claim 9 references “said build
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`engine” while claim 2 recites a “build tool.” Because the specification states that a “build
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`engine” is an example of a “build tool,” it is therefore reasonable to expect that a reader of the
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`patent could discern that “build engine” in claim 9 of the ’397 patent is meant to refer to the
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`“build tool” in claim 2.
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`I therefore find that the COC’s correction of “build engine” to “build tool” in the ’397
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`patent is a valid correction of a “clerical or typographical mistake” under § 255.
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`For the construction of “build engine” in the ‘397 patent as it applies to infringement
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`prior to the COC’s date of issuance, I analyze indefiniteness. “[A] patent is invalid for
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`indefiniteness if its claims, read in light of the specification delineating the patent, and the
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`prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the
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`scope of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014). In
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`order to prove a patent is invalid for indefiniteness, there must be clear and convincing evidence.
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`Id. at 912 n.10 (citing Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 95 (2011)).
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`I do not think Defendant has proven indefiniteness by clear and convincing evidence for
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`many of the same reasons cited in the COC analysis. The specification states that a “build
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`engine” is an example of a “build tool,” specifically in relation to Fig. 3A (’397 patent at 9:1–
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`29), which Defendant argues distinguishes the two (D.I. 64 at 27). No other argument was
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`Case 1:19-cv-01937-RGA Document 121 Filed 06/01/21 Page 16 of 25 PageID #: 7692
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`presented in the briefing or at oral argument that a POSA would not have been able to determine,
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`with reasonable certainty, that the “build engine” in claim 9 referred to the “build tool” in claim
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`2. Because the specification notes that a “build engine” is an example of a “build tool,” I think a
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`POSA would have understood with reasonable certainty that “said build engine” in claim 9
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`referred to the “build tool” in claim 2.
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`I therefore find for the ‘397 patent that “build engine” is not indefinite, and that “build
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`engine” should be construed as “build tool.” Because the parties did not present “build tool” for
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`construction at oral argument, I will not construe “build tool” here. The parties may present any
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`claim construction disputes regarding “build tool” in their summary judgment briefing.2
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`3. “run time (runtime) engine” (’168/1)
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`a. Plaintiff’s proposed constructions:
`i. “file that is executed at runtime that utilizes information from the database
`and generates commands to display a web page or website”; or
`ii. “file that is executed at runtime that reads information from the database
`and generates commands to display a web page or website”
`b. Defendant’s proposed construction:
`i. “file that is executed at runtime that reads information from the database
`and generates virtual machine commands to display a web page or
`website”
`c. Court’s construction:
`i. “file that is executed at runtime that reads information from the database
`and generates commands to display a web page or website”
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`I previously construed “runtime engine” to mean “file that is executed at runtime that
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`r