Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`824 F.Supp.2d 602
`United States District Court,
`E.D. Pennsylvania.
`
`FRONTLINE PLACEMENT
`TECHNOLOGIES, INC., Plaintiff,
`v.
`CRS, INC., Defendant.
`
`Civil Action No. 07–2457.
`
` | Feb. 8, 2011.
`
`Synopsis
`
`Background: In patent infringement action, parties sought
`construction of claim terms of patents describing a labor
`database wherein customers access a website to post worker
`absences for which substitutes are needed.
`
`[Holding:] The District Court, Eduardo C. Robreno, J., held
`that no constructions were necessary for terms of patent
`claims which used common language that was clear and
`unambiguous, and thus, those terms would be used for their
`ordinary meanings.
`
`Claims construed.
`
`West Headnotes (3)
`
`[1]
`
`Patents
`Construction of language of claims in
`general
`
`3
`
`Patents
`Original utility
`
`6,675,151, 7,430,519. Construed.
`
`Attorneys and Law Firms
`
`*602 John E. McGlynn, Woodcock Washburn LLP,
`Philadelphia, PA, R. Scott Tewes, Tewes Law Group LLC,
`Duluth, GA, for Plaintiff.
`
`Darrel C. Karl, E. Robert Yoches, Finnegan Henderson
`Farabow Garrett Dunner LLP, Washington, DC, Charles
`S. Marion, Noah S. Robbins, Pepper Hamilton LLP,
`Philadelphia, PA, for Defendant.
`
`Opinion
`
`MEMORANDUM
`
`EDUARDO C. ROBRENO, District Judge.
`
`I. INTRODUCTION
`
`Plaintiff Frontline Placement Technologies, Inc. (“Frontline”
`or “Plaintiff”) filed this patent infringement and breach
`of contract suit against Defendant CRS, Inc. (“CRS” or
`“Defendant”), involving a service/technology that facilitates
`the replacing of absent workers with substitute workers. 1
`
`No constructions were necessary for terms of
`patent claims which used common language that
`was clear and unambiguous, and thus, those terms
`would be used for their ordinary meanings.
`
`Before the Court are both parties' briefing on claim
`construction with proffered definitions for the disputed claim
`terms. For the reasons set forth below, the Court defines the
`claim terms as set out in the conclusion.
`
`1 Cases that cite this headnote
`
`II. BACKGROUND
`
`[2]
`
`Patents
`Rejection and Amendment of Claims
`
`Under the doctrine of prosecution disclaimer, a
`patentee may limit the meaning of a claim term
`by making a clear and unmistakable disavowal
`of scope during prosecution; limitation of the
`meaning may occur when the patentee explicitly
`characterizes an aspect of his invention in a
`specific manner to overcome prior art.
`
`June 18, 2006, Plaintiff Frontline Placement
`On
`Technologies, Inc. filed this patent infringement and breach
`of contract suit against Defendant CRS, Inc., involving a
`service/technology that facilitates the replacing of absent
`workers with substitute workers. Therein, Plaintiff alleged
`patent infringement of the product called “Aesop” (the #151
`Patent), which is described as a labor database wherein
`customers access a website to post worker absences for which
`substitutes are needed. Substitute workers then access Aesop
`to *603 search for posted worker absences and to commit
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`1
`
`CRS EXHIBIT 1004
`
`

`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`to filling vacancies. Users access Aesop via the internet using
`a web interface or via a telephone interactive voice response
`(IVR) system. (See Am. Compl. ¶ 9.)
`
`to state a claim, unclean hands, patent invalidity, estoppel,
`laches, and “most favored nation treatment” failure of a
`condition precedent.
`
`this
`Frontline's predecessor, Frontline Data, patented
`technology in January 2004. In February 2004, Frontline Data
`filed a patent infringement suit against CRS and a settlement
`agreement was reached in November 2004 whereby Frontline
`Data would license its technology to CRS in return for
`royalties.
`
`On August 8, 2007, the Patent Trade Office (“PTO”)
`granted an ex parte reexamination of claims 3 through
`13 of Frontline's #151 Patent. Thus, the Court placed the
`action in suspense on November 19, 2007. During the PTO
`reexamination claims 14 through 55 were added to the #151
`Patent and claims 3, 6, 9, and 14–55 claims were listed in the
`reexam certificate as patentable. (See Am. Compl. ¶ 32, Ex.
`C.)
`
`On September 30, 2008, during the #151 reexamination
`period, U.S. Patent No. 7,430,519 (the #519 Patent), titled
`“Substitute Fulfillment System” and a continuation-in-part of
`the #151 Patent, was legally issued by the PTO in the names
`of Roland R. Thompson, Michael S. Blackstone, and Ralph
`Julius. (Id. at ¶ 33–34.) Frontline is assignee and owner of the
`#519 Patent.
`
`On January 14, 2010, Frontline filed its Amended Complaint,
`alleging that CRS has infringed or continued to infringe the
`reexamined #151 Patent associated with CRS's SubFinder.
`CRS's SubFinder is a program that facilitates the replacement
`of absent teachers with substitute teachers. Frontline also
`alleges that CRS has infringed or continues to infringe the
`#519 Patent with CRS's SubFinder. Therein, Frontline alleges
`both (1) patent infringement and (2) breach of contract claims
`and is seeking damages.
`
`On February 3, 2010, CRS filed its Amended Answer and
`raised various affirmative defenses and counterclaims, stating
`that Frontline has breached the limited license agreement for
`the #151 Patent and denying all claims for the #519 Patent
`infringement. 2 CRS requests declaratory judgment on the
`grounds that: (1) there was no breach of contract on the part
`of CRS; (2) there was no patent infringement for either the
`#151 or #519 Patents on the part of CRS; and (3) Frontline
`maintained an invalid patent.
`
`On February 23, 2010, Frontline filed an amended
`reply denying CRS's counterclaims and asserting various
`affirmative defenses including, but not limited to failure
`
`On March 19, 2010, the parties filed a joint Rule 26(f) report.
`(Doc. no. 32). Therein, the parties propose a discovery plan,
`with the idea of bifurcating discovery into 2 phases. Phase
`One would include patents-in-suit discovery; specifically
`focusing on: whether CRS's modified system infringes the
`patents-in-suit. Phase Two, would take place to the extent
`further *604 discovery on particular issues was necessary.
`
`III. DISCUSSION
`
`Before the Court are both parties' briefing on claim
`construction with proffered definitions for disputed claim
`terms. Frontline asserts that CRS infringed the following
`claims:
`
`— #151 Patent: Claims 3, 6, 7, 16, 24, and 33
`
`— #519 Patent: Claims 10, 13, 24, 25, and 30
`
`The Claims can also be broken down by types:
`
`— Method Claims: For Patent #151 (Claims 3, 16, 24, and
`33) and for Patent #519 (Claim 10)
`
`— Claims to a System: For Patent #151 (Claims 6 and 7)
`and for Patent #519 (Claims 24 and 25)
`
`— Claims to a Computer–Readable Medium: For Patent
`#519 (Claims 13 and 30)
`
`The Court will first address the relevant law and then apply
`the law to each set of related claim terms that are disputed.
`
`A. Legal Principles of Claim Construction
`
`A court's analysis of patent infringement is comprised of
`a well-established two-step process: (1) the meaning of
`disputed claims are construed; and (2) the allegedly infringing
`device is compared to the claims as construed. Markman v.
`Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995),
`aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996);
`Wavetronix LLC v. EIS Electronic Integrated Sys., 573 F.3d
`1343, 1354 (Fed.Cir.2009). With respect to the first step,
`“[t]he purpose of claim construction is to determine the
`meaning and scope of the patent claims that the plaintiff
`alleges have been infringed.” Every Penny Counts, Inc. v.
`American Express Co., 563 F.3d 1378, 1382 (Fed.Cir.2009)
`(citing O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351, 1360 (Fed.Cir.2008)).
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
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`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`It is axiomatic that the claims define the scope of the patent.
`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.Cir.2005)
`(en banc) (internal citations omitted); see also, Innova/Pure
`Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
`1111, 1115 (Fed.Cir.2004); Vitronics Corp. v. Conceptronic,
`Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). Therefore, the Court
`must first look to the words of the claims themselves in order
`to ascertain their meaning. Vitronics Corp., 90 F.3d at 1582;
`see also Renishaw PLC v. Marposs Societa' per Azioni, 158
`F.3d 1243, 1248 (Fed.Cir.1998) (“[T]he claims define the
`scope of the right to exclude; the claim construction inquiry,
`therefore, begins and ends in all cases with the actual words
`of the claim”).
`
`1. Plain and Ordinary Meaning
`
`Claim terms must be initially interpreted according to
`their ordinary and customary meaning. Genzyme Corp.
`v. Transkaryotic Therapies, Inc., 346 F.3d 1094, 1106
`(Fed.Cir.2003). Undefined claims terms are to be given an
`ordinary and customary meaning “as understood by a person
`of ordinary skill in the art at the time of the invention.”
`Gemtron Corp. v. Saint–Gobain Corp., 572 F.3d 1371, 1378
`(Fed.Cir.2009). As explained by the Federal Circuit:
`
`Because the meaning of a claim term as understood
`by persons of skill in the art is often not immediately
`apparent, and because patentees frequently use terms
`idiosyncratically, the court looks to ‘those sources
`available to the public that show what a person of skill
`in the art would have understood disputed claim language
`to mean,’ including ‘the words of the claims themselves,
`the remainder of the specification,’ the prosecution
`history, and extrinsic evidence *605 concerning relevant
`scientific principles, the meaning of technical terms, and
`the state of the art.
`
`Phillips, 415 F.3d at 1314 (quoting Innova, 381 F.3d at 1116).
`
`2. Intrinsic Evidence
`
`Where a court cannot properly construe a claim based on
`the plain meaning, it is necessary to examine the intrinsic
`record of the claims, which includes the specification and
`the prosecution history. Masco Corp. v. United States, 303
`F.3d 1316, 1324 (Fed.Cir.2002) (citing Vitronics Corp., 90
`F.3d at 1582) (holding such intrinsic evidence to be “the
`most significant source of the legally operative meaning
`of disputed claim language”). The specification contains a
`
`written description of the invention which must be clear
`and complete enough to enable the specification provides
`necessary context for understanding the claims, and “is
`always highly relevant to the claim construction analysis.”
`Phillips, 415 F.3d at 1315 (quoting Vitronics Corp., 90
`F.3d at 1582). Therefore, a patentee can act as his own
`lexicographer in the patent specification by defining a term
`with particularity that already has an ordinary meaning to
`a person of skill in the art. Merck & Co., Inc. v. Teva
`Pharma. USA, Inc., 395 F.3d 1364, 1370 (Fed.Cir.2005)
`(internal citation omitted); Phillips, 415 F.3d at 1321 (“[T]he
`specification ‘acts as a dictionary when it expressly defines
`terms used in the claims ....’ ”) (internal quotation omitted).
`
`On the other hand, “[w]hen consulting the specification
`to clarify the meaning of claim terms, courts must take
`care not to import limitations into the claims from the
`specification.” Abbott Labs. v. Sandoz, Inc., 566 F.3d
`1282, 1288 (Fed.Cir.2009). Limitations contained in the
`specification should be applied judiciously and courts should
`refrain from restricting broader claim language to a single
`embodiment described in the specification, “unless the
`patentee has demonstrated a clear intention to limit the claim
`scope using ‘words or expressions of manifest exclusion or
`restriction.’ ” Id. (quoting Liebel–Flarsheim Co. v. Medrad,
`Inc., 358 F.3d 898, 906 (Fed.Cir.2004)); see also Bell At.
`Network Servs., Inc. v. Covad Commc'ns. Group, Inc., 262
`F.3d 1258, 1271 (Fed.Cir.2001) (“[W]hen a patentee uses a
`claim term throughout the entire patent specification, in a
`manner consistent with only a single meaning, he has defined
`that term ‘by implication.’ ”) (internal quotation omitted).
`
`Along with the specification, the prosecution history is
`“intrinsic evidence” of the meaning of the claims, because
`it “provides evidence of how the [United States Patent &
`Trademark Office (“PTO”) ] and the inventor understood the
`patent.” Phillips, 415 F.3d at 1317. The prosecution history
`is comprised of the original application, communications
`between the patent applicant and the patent examiner, changes
`to the patent application, prior art cited during the patent
`examination, and other pertinent documents. See Rheox,
`Inc. v. Entact, Inc., 276 F.3d 1319, 1326 (Fed.Cir.2002)
`(noting that the totality of the prosecution history includes
`“amendments to claims and arguments made to overcome or
`distinguish references.”) (citing Elkay Mfg. Co. v. Ebco Mfg.
`Co., 192 F.3d 973, 979 (Fed.Cir.1999)). Though ambiguities
`during negotiations between the PTO and inventor may
`occur, “the prosecution history can often inform the meaning
`of the claim language by demonstrating how the inventor
`understood the invention and whether the inventor limited
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`3
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`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`the invention in the course of prosecution, making the
`claim scope narrower than it would otherwise be.” Abbott
`Labs., 566 F.3d at 1288 (quoting Phillips, 415 F.3d at
`1317). Statements made during prosecution can serve to
`disavow the scope of the patent, but only in situations
`where the disclaimer is unambiguous. See id.; Computer
`Docking *606 Station Corp. v. Dell, Inc., 519 F.3d 1366,
`1374 (Fed.Cir.2008) (“[A] patentee may limit the meaning
`of a claim term by making a clear and unmistakable
`disavowal of scope during prosecution.”) (quoting Purdue
`Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123, 1136
`(Fed.Cir.2006)); Southwall Tech., Inc. v. Cardinal IG Co.,
`54 F.3d 1570, 1576 (Fed.Cir.1995) (“The prosecution history
`limits the interpretation of claim terms so as to exclude
`any interpretation that was disclaimed during prosecution.”)
`(citations omitted).
`
`3. Extrinsic evidence
`
`Beyond the claim language itself and the intrinsic record, a
`court is permitted to rely on extrinsic evidence, consisting
`of “all evidence external to the patent and prosecution
`history, including expert and inventor testimony, dictionaries,
`and learned treatises.” Markman, 52 F.3d at 980. Extrinsic
`evidence is to be used to aid in a court's interpretation of
`the claim language, but “not for the purpose of varying or
`contradicting the terms of the claim.” Id. (internal citation
`omitted); see Phillips, 415 F.3d at 1317 (extrinsic evidence is
`“less significant than the intrinsic record”).
`
`B. Disputed Claim Terms
`
`Terms & Patent(s)
`(1) acceptance
`
`′151 Patent (Claims 3, 6, 7,
`16, 24, and 33)
`
`(2) accepting
`
`′519 Patent (Claims 10 and
`13)
`
`(3) accepting
`
`′519 Patent (Claims 24 and
`25)
`
`No construction necessary.
`
`[1]
` There are sixteen (16) disputed terms for the Frontline
`Patents. These terms and the parties' proposed term
`constructions for these terms are as follows:
`Plaintiff Frontline's
`Defendant CRS's Proposed
`Proposed Construction
`Construction
`No construction necessary.
`“an expression by the
`substitute worker agreeing to
`fill a
`position and resulting in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for fulfillment of the same
`position or further selection
`review”
`“the substitute worker
`expressing agreement to fill a
`position which results in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for fulfillment of the same
`position or further selection
`review”
`“the second worker
`expressing agreement to fill a
`position which results in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for the fulfillment of the same
`position or further selection
`review”
`
`No construction necessary.
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`4
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`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`(4) accepting
`
`No construction necessary.
`
`′519 Patent (Claim 30)
`
`(5) securing, in response to
`receiving the acceptance
`from the worker ... the
`securing comprising
`halting, at the one or
`more computers, further
`processing to fulfill the
`posted position with any
`other substitute worker
`
`′519 Patent (Claim 10)
`(6) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 13)
`
`No construction necessary.
`
`No construction necessary.
`
`(7) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 30)
`
`No construction necessary.
`
`(8) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 24 and 25)
`
`No construction necessary.
`
`(9) securing, in response
`to the receiving a response
`accepting step
`
`No construction necessary.
`
`“the worker expressing
`agreement to fill a position
`which results in an automatic
`securing of the position when
`the electronic acceptance
`is received without further
`processing for the fulfillment
`of the same position or further
`selection review”
`“automatically electronically
`halting further processing for
`the fulfillment of the same
`position by other substitute
`workers upon electronic
`receipt of an acceptance from
`the substitute worker and
`filling the posted position
`with said substitute worker
`without further selection
`review”
`
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`substitute workers upon
`receipt of an acceptance from
`the substitute worker and
`filling the posted position
`with said substitute worker
`without further selection
`review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`substitute workers upon
`receipt of an acceptance
`from the worker and filling
`the posted position with
`said worker without further
`selection review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`workers upon receipt of an
`acceptance from the second
`worker and filling the posted
`position with said second
`worker without further
`selection review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`workers upon receipt of an
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`5
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`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`′519 Patent (Claim 30)
`
`(10) computer readable
`medium
`
`′519 Patent (Claims 13 and
`30)
`
`Something on which
`information may be carried
`that is readable by a
`computer
`
`(11) substitute fulfillment
`
`No construction necessary
`
`′151 Patent (Claim 3, 6, 7, 16,
`24, and 33)
`
`′519 Patent (Claim 10, 13, 24,
`and 25)
`(12) performing substitute
`fulfillment
`
`′151 Patent (Claim 3, 16, 24,
`and 33)
`
`′519 Patent (Claim 10 and 13)
`(13) substitute fulfillment
`system
`
`′151 Patent (Claim 6 and 7)
`
`′519 Patent (Claims 10, 13,
`24, and 25)
`
`No construction necessary.
`
`No construction necessary.
`
`acceptance from the worker
`and filling the posted position
`with said worker without
`further selection review”
`“any medium that participates
`in providing instructions to
`a processor for execution
`including, but not
`limited to, non-volatile
`media, volatile media,
`and transmission media
`such as, for example,
`optical or magnetic discs,
`dynamic memory, coaxial
`cables, copper wire, fiber
`optics, conductors that
`comprise a bus, acoustic,
`or electromagnetic waves
`such as those generated
`during radio frequency and
`infrared data communications,
`floppy disks, flexible disks,
`hard disks, magnetic tape,
`magnetic media, CD–ROMs,
`DVDs, optical media, punch
`cards, paper tape, physical
`media with patterns of holes,
`RAMs, PROMs, EPROMs,
`FLASH–EPROMs, memory
`chips or cartridges, carrier
`waves, and other medium that
`a computer can read”
`“location of a replacement to
`fill a temporary employee
`absence in an organization”
`
`................................................
`
`“performing centralized
`substitute fulfillment”
`................................................
`
`................................................
`
`“centralized substitute
`fulfillment system”
`................................................
`
`................................................
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
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`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`(14) position fulfillment
`
`No construction necessary.
`
`No construction necessary.
`
`No construction necessary.
`
`′519 Patent (Claim 30)
`(15) performing position
`fulfillment
`
`′519 Patent (Claim 30)
`(16) providing, for one
`or more of the positions,
`information indicating
`directly or indirectly an
`organization worksite
`location for the respective
`position
`′151 Patent (Claims 3, 16, 24,
`and 33)
`
`“location of a worker to fill a
`position in an organization”
`
`“performing centralized
`position fulfillment”
`................................................
`
`“providing by one or more
`computers for one or more
`of the positions, information
`indicating directly or indirectly
`an organization worksite
`location for the respective
`position on a website”
`
`*609 C. Claim Construction by Claim Terms
`
`1. acceptance & accepting (terms 1–4)
`
`The parties arguments over the proper construction of the
`claims are in the groupings that follow:
`
`Terms & Patent(s)
`(1) acceptance
`
`Plaintiff Frontline's
`Proposed Construction
`No construction necessary.
`
`′151 Patent (Claims 3, 6, 7,
`16, 24, and 33)
`
`(2) accepting
`
`No construction necessary.
`
`′519 Patent (Claims 10 and
`13)
`
`(3) accepting
`
`No construction necessary.
`
`′519 Patent (Claims 24 and
`25)
`
`Defendant CRS's Proposed
`Construction
`“an expression by the
`substitute worker agreeing to
`fill a
`position and resulting in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for fulfillment of the same
`position or further selection
`review”
`“the substitute worker
`expressing agreement to fill a
`position which results in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for fulfillment of the same
`position or further selection
`review”
`“the second worker
`expressing agreement to fill a
`position which results in an
`automatic securing of the
`position when the electronic
`acceptance is received
`without further processing
`for the fulfillment of the same
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
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`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`(4) accepting
`
`′519 Patent (Claim 30)
`
`No construction necessary.
`
`position or further selection
`review”
`“the worker expressing
`agreement to fill a position
`which results in an automatic
`securing of the position when
`the electronic acceptance
`is received without further
`processing for the fulfillment
`of the same position or further
`selection review”
`F.3d 1123, 1136 (Fed.Cir.2006)(citing Seachange Int'l, Inc.
`v. C–COR Inc., 413 F.3d 1361, 1372–73 (Fed.Cir.2005);
`Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323–
`26 (Fed.Cir.2003)). “This may occur, for example, when the
`patentee explicitly characterizes an aspect of his invention in a
`specific manner to overcome prior art.” Purdue Pharma, 438
`F.3d at 1136 (citing Microsoft Corp. v. Multi–Tech Sys., Inc.,
`357 F.3d 1340, 1349 (Fed.Cir.2004) (interpreting “sending,”
`“transmitting,” and “receiving” limitations as requiring direct
`transmission over telephone line when patentee stated that
`invention transmits over a standard telephone line, thus
`disclaiming transmission over a packet-switched network)).
`
`Frontline argues that this term uses common language that is
`clear and unambiguous, and should be used for its ordinary
`meaning. (Pl.'s Op. Br. 12.) CRS argues that the claim
`prosecution history of Frontline's patents is important here.
`Frontline was required to add the word “acceptance” to its #
`151 patent in order to distinguish Frontline's patent from prior
`art. Also, that the Patent Examiner relied on highly detailed
`definitions of these words that Frontline submitted during the
`prosecution process. Specifically, that once an “acceptance”
`occurs, the party *610 that made the acceptance has secured
`the position. That is, unlike prior art, there is no intermediary
`step. (Def.'s Op. Br. 15–17.)
`
`Frontline responds that claim terms should be defined
`consistent with the specifications and as used in other claim
`terms within the same patent. The patents use “accept” and
`“acceptance” in other places that are consistent with the
`ordinary meaning of the word. Thus, because they are using
`it for the ordinary meaning of the word in the specifications,
`the ordinary meaning of the words should be applied to the
`claim terms as well. (Pl.'s Resp. 5.)
`
`Frontline also responds that while it distinguished its product
`from the prior art, it did not limit the meaning of its claim
`terms through a disclaimer. See Purdue Pharma, 438 F.3d at
`1136–1137; (Pl.'s Resp. 5–6.) Further, Frontline argues that
`CRS's language goes too far. While Frontline had stated that
`there is no additional process between acceptance and the
`substitute securing the position, it did not say that there is
`“no further review,” which is the language that CRS wishes
`to introduce. (Pl.'s Resp. 7–8.) Frontline further responds that
`to use CRS's proposed language would make the claim terms
`incoherent.
`
`Frontline cannot debate that it did not affirmatively assert
`that its product was different from the prior art because in
`its patent there is no process that takes place between a
`substitute accepting an open position and that position being
`filled. Indeed, Frontline was not “describing a property” of
`the patent as in Purdue but made a much stronger distinction
`between the fundamentals of its product and the prior art
`regarding the automatic securing of the position without
`further processing.
`
`However, there are a few problems with CRS's proposed
`language. While CRS's argument makes sense for the
`“acceptance” term in the #151 patent, it does not explain
`why the same is true for the terms in the #519 patent, except
`that the #519 patent comes later in time and that there were
`similar (but not as in depth) findings by the Patent Examiner.
`Additionally, CRS's language seems to go much farther than
`simply interjecting that there is no intermediary process
`between the substitute accepting the position and the position
`opening being removed. By including “automatically” in the
`definitions for “securing” below, CRS's concern is addressed
`without overly limiting the claim terms. Thus, the Court will
`not provide a definition for these terms.
`
`[2]
` “Under the doctrine of prosecution disclaimer, a patentee
`may limit the meaning of a claim term by making a clear
`and unmistakable disavowal of scope during prosecution.”
`Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., 438
`Plaintiff Frontline's
`
`2. claims involving “securing” (terms 5–9)
`
`Defendant CRS's Proposed
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`8
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`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`Terms & Patent(s)
`(5) securing, in response to
`receiving the acceptance
`from the worker ... the
`securing comprising
`halting, at the one or
`more computers, further
`processing to fulfill the
`posted position with any
`other substitute worker
`
`′519 Patent (Claim 10)
`(6) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 13)
`
`(7) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 30)
`
`(8) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 24 and 25)
`
`(9) securing, in response
`to the receiving a response
`accepting step
`
`′519 Patent (Claim 30)
`
`Proposed Construction
`No construction necessary.
`
`Construction
`“automatically electronically
`halting further processing for
`the fulfillment of the same
`position by other substitute
`workers upon electronic
`receipt of an acceptance from
`the substitute worker and
`filling the posted position
`with said substitute worker
`without further selection
`review”
`
`No construction necessary.
`
`No construction necessary.
`
`No construction necessary.
`
`No construction necessary.
`
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`substitute workers upon
`receipt of an acceptance from
`the substitute worker and
`filling the posted position
`with said substitute worker
`without further selection
`review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`substitute workers upon
`receipt of acceptance from
`the worker and filling the
`posted position with said
`worker without further
`selection review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`workers upon receipt of an
`acceptance from the second
`worker and filling the posted
`position with said second
`worker without further
`selection review”
`“automatically halting further
`processing for the fulfillment
`of the same position by other
`workers upon receipt of an
`acceptance from the worker
`and filling the posted position
`with said worker without
`further selection review”
`is similar to the argument above regarding the “accepting”
`terms. CRS argues that the “securing” terms should also
`include language in their definitions showing that once a
`substitute worker accepts a position, that position is *612
`
`*611 Frontline argues that this term uses common language
`that is clear and unambiguous, and should be used for its
`ordinary meaning. (Pl.'s Op. Br. 12.) CRS's argument here
`
` © 2012 Thomson Reuters. No claim to original U.S. Government Works.
`
`9
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`

`

`Frontline Placement Technologies, Inc. v. CRS, Inc., 824 F.Supp.2d 602 (2011)
`2011 Markman 451962
`
`“secured” in a way that stops any further processing (“i.e. the
`position is immediately secured”). CRS also argues that the
`securing step is performed electronically.
`
`3. computer readable medium
`
`The analysis of the problem is the same as the analysis for
`“acceptance” and “accepting.” Thus, the Court will define the
`terms by adding “automatically” before the securing terms.
`Plaintiff Frontline's
`Proposed Construction
`Something on which
`information may be carried
`that is readable by a
`computer
`
`Terms & Patent(s)
`(10) computer readable
`medium
`
`′519 Patent (Claims 13 and
`30)
`
`Defendant CRS's Proposed
`Construction
`“any medium that participates
`in providing instructions to
`a processor for execution
`including, but not
`limited to, non-volatile
`media, volatile media,
`and transmission media
`such as, for example,
`optical or magnetic discs,
`dynamic memory, coaxial
`cables, copper wire, fiber
`optics, conductors that
`comprise a bus, acoustic,
`or electromagnetic waves
`such as those generated
`during radio frequency and
`infrared data communications,
`floppy disks, flexible disks,
`hard disks, magnetic tape,
`magnetic media, CD–ROMs,
`DVDs, optical media, punch
`cards, paper tape, physical
`media with patterns of holes,
`RAMs, PROMs, EPROMs,
`FLASH–EPROMs, memory
`chips or cartridges, carrier
`waves, and other medium that
`a computer can read”
`to “any medium that participates in providing instructions to
`processor 52 for execution.”
`
`CRS responds that, even if only the first line is used, the
`definition would be different than the “dictionary definition”
`that Frontline proposes. It would instead be, “any medium
`that participates in providing instructions to a processor for
`execution.”
`
`Generally, patent terms are bound to the definitions given
`by the specifications *613 in the patent as patentees can be
`their own lexicographer. However, CRS's proposed definition
`is not only a convoluted mess, it includes much more than
`necessary (i.e. all the examples). Thus, the Court will adopt
`as the definition the first line of the patent specification,
`
`Frontline argues that this term uses common language
`that is clear and unambiguous, and should be used for
`its ordinary meaning. (Pl.'s Op. Br. 12.) CRS argues that
`Frontline inventors gave a specific definition for “computer-
`readable medium” in its patent specifications and that this
`definition is controlling here. See Phillips, 415 F.3d at 1316.
`CRS's proposed language is a condensed version of the
`specification.
`
`Frontline responds that in order for this definition to replace
`the common language, it would have had to propose a
`definition that is inconsistent with the common usage.
`Phillips, 415