`EXHIBIT 2014
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`EXHIBIT 2014
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`EXHIBIT 2014
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`EXHIBIT 2014
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`MEMORANDUM OPINION AND ORDER
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`This memorandum opinion resolves the parties’ claim construction disputes.
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`I.
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`Introduction
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`Plaintiff Ameranth, Inc. (“Ameranth”) asserts United States Patent Nos. 6,384,850 (“the
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`‘850 patent”), 6,871,325 (“the ‘325 patent”), and 6,982,733 (“the ‘733 patent”) against
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`Defendants Menusoft Systems Corp. (“Menusoft”) and Cash Register Sales & Service of
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`Houston, Inc. (“CRS”) (collectively, “Defendants”). The ‘325 and ‘733 patents are continuations
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`of the ‘850 patent, all of which have a priority date of September 21, 1999. The ‘850 patent
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`issued May 7, 2002. The ‘325 patent issued March 22, 2005, and the ‘733 patent issued January
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`3, 2006. All three patents share nearly identical specifications. The claims that remain asserted
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`are ‘850 patent Claims 1–4, 6, 11; ‘325 patent Claims 1–3, 5–10; and ‘733 patent, Claims 1–3.
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`The independent claims are ‘850 patent claim 1; ‘325 patent claims 1, 7, 8, 9; and ‘733 patent
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`claim 1.
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`II.
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`Background of the Technology
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`The asserted patents are entitled “Information Management and Synchronous
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`Communications System with Menu Generation.” The patents teach synchronous menu
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`1
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`CIVIL ACTION NO. 2-07-CV-271
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`AMERANTH, INC.
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`Plaintiff,
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`v.
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`MENUSOFT SYSTEMS CORP., et al.,
`Defendants.
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 2 of 29
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`generation from a central computer to wireless handheld devices or the Internet, for use primarily
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`in the restaurant industry. The menus are interactive and serve two important functions:
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`displaying an up-to-date menu and entering an order. The invention solves a number of
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`problems with the prior art. First, the menus can be automatically adapted to display properly on
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`hand-held devices, personal computers connected to the Internet, or restaurant order stations.
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`Second, the invention provides fast synchronization between a central database and multiple
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`hand-held devices.
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`III. Legal Principles Relevant to Claim Construction
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`“A claim in a patent provides the metes and bounds of the right which the patent confers
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`on the patentee to exclude others from making, using or selling the protected invention.” Burke,
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`Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Claim construction
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`is an issue of law for the court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967,
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`970-71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).
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`To ascertain the meaning of claims, the court looks to three primary sources: the claims,
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`the specification, and the prosecution history. Markman, 52 F.3d at 979. Under the patent law,
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`the specification must contain a written description of the invention that enables one of ordinary
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`skill in the art to make and use the invention. A patent’s claims must be read in view of the
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`specification, of which they are a part. Id. For claim construction purposes, the description may
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`act as a sort of dictionary, which explains the invention and may define terms used in the claims.
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`Id. “One purpose for examining the specification is to determine if the patentee has limited the
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`scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
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`Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
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`the patentee’s claims. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 3 of 29
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`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
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`lexicographer, but any special definition given to a word must be clearly set forth in the
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`specification. Intellicall, Inc. v. Phonometrics, 952 F.2d 1384, 1388 (Fed. Cir. 1992). And,
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`although the specification may indicate that certain embodiments are preferred, particular
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`embodiments appearing in the specification will not be read into the claims when the claim
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`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
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`34 F.3d 1048, 1054 (Fed. Cir. 1994).
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`This court’s claim construction decision must be informed by the Federal Circuit’s
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`decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
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`the court set forth several guideposts that courts should follow when construing claims. In
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`particular, the court reiterated that “the claims of a patent define the invention to which the
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`patentee is entitled the right to exclude.” 415 F.3d at 1312 (emphasis added) (quoting
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`Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir.
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`2004)). To that end, the words used in a claim are generally given their ordinary and customary
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`meaning. Id. The ordinary and customary meaning of a claim term “is the meaning that the term
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`would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as
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`of the effective filing date of the patent application.” Id. at 1313. This principle of patent law
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`flows naturally from the recognition that inventors are usually persons who are skilled in the
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`field of the invention. The patent is addressed to and intended to be read by others skilled in the
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`particular art. Id.
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`The primacy of claim terms notwithstanding, Phillips made clear that “the person of
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`ordinary skill in the art is deemed to read the claim term not only in the context of the particular
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`claim in which the disputed term appears, but in the context of the entire patent, including the
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 4 of 29
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`specification.” Id. Although the claims themselves may provide guidance as to the meaning of
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`particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315
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`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as
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`being the primary basis for construing the claims. Id. at 1314-17. As the Supreme Court stated
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`long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
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`portions of the specification to aid in solving the doubt or in ascertaining the true intent and
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`meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In
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`addressing the role of the specification, the Phillips court quoted with approval its earlier
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`observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
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`1998):
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`
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`Ultimately, the interpretation to be given a term can only be determined
`and confirmed with a full understanding of what the inventors actually
`invented and intended to envelop with the claim. The construction that
`stays true to the claim language and most naturally aligns with the patent’s
`description of the invention will be, in the end, the correct construction.
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`Consequently, Phillips emphasized the important role the specification plays in the claim
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`construction process.
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`The prosecution history also continues to play an important role in claim interpretation.
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`The prosecution history helps to demonstrate how the inventor and the PTO understood the
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`patent. Phillips, 415 F.3d at 1317. Because the file history, however, “represents an ongoing
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`negotiation between the PTO and the applicant,” it may lack the clarity of the specification and
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`thus be less useful in claim construction proceedings. Id. Nevertheless, the prosecution history
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`is intrinsic evidence. That evidence is relevant to the determination of how the inventor
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`understood the invention and whether the inventor limited the invention during prosecution by
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`narrowing the scope of the claims.
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 5 of 29
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`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
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`favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
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`condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
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`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
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`dictionaries or otherwise) before resorting to the specification for certain limited purposes. Id. at
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`1319-24. The approach suggested by Texas Digital–the assignment of a limited role to the
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`specification–was rejected as inconsistent with decisions holding the specification to be the best
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`guide to the meaning of a disputed term. Id. at 1320-21. According to Phillips, reliance on
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`dictionary definitions at the expense of the specification had the effect of “focus[ing] the inquiry
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`on the abstract meaning of words rather than on the meaning of the claim terms within the
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`context of the patent.” Id. at 1321. Phillips emphasized that the patent system is based on the
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`proposition that the claims cover only the invented subject matter. Id. What is described in the
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`claims flows from the statutory requirement imposed on the patentee to describe and particularly
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`claim what he or she has invented. Id. The definitions found in dictionaries, however, often
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`flow from the editors’ objective of assembling all of the possible definitions for a word. Id. at
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`1321-22.
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`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
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`Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
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`court emphasized that claim construction issues are not resolved by any magic formula. The
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`court did not impose any particular sequence of steps for a court to follow when it considers
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`disputed claim language. Id. at 1323-25. Rather, Phillips held that a court must attach the
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`appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
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`bearing in mind the general rule that the claims measure the scope of the patent grant.
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 6 of 29
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`IV. Agreed Terms
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`The parties have agreed that “[t]he preambles of the Asserted Claims are limitations.”
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`Joint Claim Construction and Prehearing Statement at 2. [Dkt. No. 67]
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`V.
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`Disputed Terms
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`A. “information management and synchronous communications system”
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`Term
`information management and
`synchronous communications
`system
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`Ameranth’s Definition
`a computerized hospitality
`system for maintaining the
`operational consistency of
`hospitality data or information
`between a central computer
`and other system components
`and devices involved in the
`real time transmission,
`display, sharing or exchanging
`of the data or information
`“Information management and synchronous communications system” is the claimed
`
`Defendants’ Definition
`a system consisting of
`multiple devices each having
`a local database in which a
`change made to any database
`is immediately reflected in all
`databases, so as to maintain
`consistency among all copies
`of stored data
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`apparatus and appears in the preamble of every asserted independent claim: “An information
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`management and synchronous communications system for generating and transmitting menus
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`comprising . . . .” Ameranth contends that the clients may be devices or Web pages, and the
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`clients are not required to have local databases. In constrast, the defendants argue that the point
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`of sale clients must be hardware devices and each client must contain a local database.
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`Claim 1 of the ‘850 patent indicates that the client is “a wireless handheld computer
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`device or Web page.” According to the defendants, “Web page” is not a software client but has
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`been given a specialized definition in the specification: “an automated download procedure is
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`provided to transfer the desktop database onto a handheld device and/or Web page.” (‘850
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`patent, 9:66-10:1); see 3M Innovative Props. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1374
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`(Fed. Cir. 2003) (holding that when the patentee acts as his own lexicographer, the definition in
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 7 of 29
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`the specification controls, not the dictionary definition). The defendants assert that this language,
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`“transfer the desktop database onto,” explicitly requires the clients to have a local database. In
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`addition, the defendants allege that, because a database is transferred onto the Web page, the
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`Web page cannot be a software client. Claim 12 of the ‘850 patent also supports the defendants’
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`assertion that “Web page” is not a conventional website: “at least one Web page on which
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`hospitality applications and data are stored.” (emphasis added).
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`Elsewhere in the specification, a traditional Web client is disclosed: “The software
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`running on the user’s client computer that enables the user to view HTML documents on the
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`computer’s video monitor and enter selections using the computer’s keyboard and mouse is
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`known as a browser.” (‘850 patent, 12:29-33). Furthermore, the specification consistently
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`distinguishes “Web page” as distinct from handheld devices, e.g., “the menu can be downloaded
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`to either a handheld device or Web page.” (‘850 patent, 3:37-38) (emphasis added).
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`As discussed above, the specification does mention transferring databases onto the
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`clients. (See also ‘850 patent, 10:34-36 (“Advanced database functions are provided in the
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`preferred embodiment of the invention, including an automated download process onto handheld
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`devices and/or Web sites.”)) The specification discusses a central database, but does not talk
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`about local databases on the clients, e.g., “fast synchronization between a central database and
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`multiple handheld devices.” As used by the patentee, downloading or transferring databases to
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`clients means downloading or transferring the data from the database, but not the database itself.
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`Thus, it is not necessary that the clients have local databases.
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`The defendants’ proposed construction suggests synchronization between the clients: “a
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`change made to any database is immediately reflected in all databases.” However, throughout
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`the specification and claims, the patents contemplate changes being communicated between the
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 8 of 29
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`clients and the central server. (E.g., ‘850 patent, 6:22-25 (“configuring a menu on the desktop PC
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`and then downloading the menu configuration onto the POS interface on the handheld device”);
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`11:36-42 (“For example, a reservation made online is automatically communicated to the
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`backoffice server which then synchronizes with all the wireless handheld devices wirelessly.
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`Similarly, changes made on any of the wireless handheld devices will be reflected
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`instantaneously on the backoffice server and the other handheld devices.”)). Therefore, the term
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`simply requires synchronization between the clients and the central server, not between the
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`clients themselves.
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`For its part, Ameranth’s proposal limits the scope to a “computerized hospitality system.”
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`The defendants’ proposal does not limit the system to hospitality functions. The specification
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`makes plain that the invention is not limited to use in restaurants and the hospitality industry:
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`“While the preferred embodiment is for the generation of restaurant menus and the like, the
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`broad scope of the invention is far greater.” (‘850 patent, 13:37-39). This limitation is
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`accordingly rejected. The court construes the term to mean “a computerized system having
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`multiple devices in which a change to data made on a central server is updated on client devices
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`and vice versa.”
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`8
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 9 of 29
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`B. “generating and transmitting menus” / “generating a second menu from said first menu
`and transmitting said second menu to a wireless handheld computing device or Web
`page”
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`Term
`generating and transmitting
`menus
`
`generating a second menu
`from said first menu
`
`transmitting said second
`menu to a wireless
`handheld computing device
`or Web page
`
`Ameranth’s Definition
`creating or updating menus and
`synchronously configuring display
`versions for transmission
`creating a second menu from
`constituents of the first menu and
`other options and synchronously
`configuring a handheld device or
`Web page version for transmission
`such that the displayed second menu
`is operationally consistent
`throughout the system
`The application software is enabled
`to configure either a handheld or
`Web page version of the second
`menu for transmission, but does not
`require that the application software
`is enabled to configure both.
`The disputed term “generating and transmitting menus” is located in the preamble of each
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`Defendants’ Definition
`creating and transmitting
`[menus]
`
`creating a [second menu] from
`the [first menu] and transmitting
`the [second menu] to a wireless
`handheld computing device or
`Web page
`
`This term requires structure for
`“transmitting the second menu
`to both a wireless handheld
`computing device and a Web
`page.”
`
`of
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`the asserted
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`independent claims: “An
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`information management and synchronous
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`communications system for generating and transmitting menus comprising . . . .” The ‘850
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`patent specification discusses the menu generation and transmission process:
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`The menu generation approach of the present invention includes a desktop
`software application that enables the rapid creation and building of a menu
`and provides a means to instantly download the menu configuration onto,
`e.g., a handheld device or Web page and to seamlessly interface with
`standard point of sale (“POS”) systems to enable automatic database
`updates and communication exchanges when a change or input occurs in
`any of the other system elements.
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`(‘850 patent, 3:16-24).
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`The plaintiff’s and defendants’ proposals are similar, except that the plaintiff requires
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`“synchronously configuring display versions for transmission.” “Synchronous” was already
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`addressed in the immediately preceding term; adding “synchronous” here would be redundant.
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`Furthermore, “menus” will be construed consistently throughout the claims and there is no
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`9
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 10 of 29
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`support for Ameranth replacing “menus” with “display versions.”
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`The term “generating a second menu from said first menu” is located in claim 1, element
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`(g) of the ‘850 patent: “application software for generating a second menu from said first menu
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`and transmitting said second menu to a wireless handheld computing device or Web
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`page.” Ameranth contends that the second menu is created “from constituents of” the first menu.
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`But this term itself contains no language indicating that the second menu is a subset of the first
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`menu. The separate limitation immediately following the claim at issue discloses that the second
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`menu is generated from the first menu by allowing selection of categories and items from the
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`first menu. As this limitation is independent and clearly stated, there is no need to import the
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`restriction into the term at issue. As such, “generating a second menu from first said menu” is
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`construed consistently with the preamble as “creating a second menu from first said menu.”
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`The term “transmitting said second menu to a wireless handheld computing device or
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`Web page” is located in claim 1, element (g) of the ‘850 patent. The limitation states:
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`“application software for generating a second menu from said first menu and transmitting said
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`second menu to a wireless handheld computing device or Web page.” (emphasis added). The
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`defendants argue that the software must be capable of both transmitting to a handheld computing
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`device and transmitting to a Web page. Ameranth responds that software does not have to be
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`capable of transmitting to both types of clients; transmitting to one or the other only is
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`sufficient. The plaintiff notes that the term reads “handheld computing device or Web page”; it
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`does not say “and.” The specification also contains this disjunctive language: “In one
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`embodiment, the present invention is a software tool for building a menu, optimizing the process
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`of how the menu can be downloaded to either a handheld device or Web page . . . .” (‘850
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`patent, 3:35-39).
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 11 of 29
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`In support of its argument, the defendants cite Cyrix Corp. v. Intel Corp., 846 F. Supp.
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`522 (E.D. Tex. 1994), aff’d, 42 F.3d 1411 (Fed. Cir. 1994). In Cyrix, the claim limitation at issue
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`stated, “address generating means connected, in the alternative, to receive either (i) said linear
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`address from said segmentation unit, or (ii) said offset part . . . from said page cache or said page
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`table entry . . . .” Id. at 542. The court held that the claimed address generating means must
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`“hav[e] the capability of” receiving both the segmentation and page cache options. Id. at 530.
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`But it was not necessary for the segmentation and page cache entries to be actually stored in the
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`memory at the same time. Id. Based upon Cyrix, the defendants contend that the software must
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`be capable of transmitting a second menu to both wireless handheld devices and Web pages.
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`The defendants’ argument is persuasive. The court construes this term “application
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`software for . . . transmitting said second menu to a wireless handheld computing device or Web
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`page” to mean “application software, which is capable of transmitting to both wireless handheld
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`computing devices and Web pages, transmitting the second menu to a wireless handheld
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`computing device or Web page.”
`
`C. “menus”
`
`Term
`menus
`
`Ameranth’s Definition
`computer hospitality data
`representing collections of linked
`levels of choices or options
`intended for display in a
`graphical user interface
`The disputed term is located in the preamble of each of the asserted independent claims:
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`Defendants’ Definition
`a database and structured set of
`displays for the data
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`“An information management and synchronous communications system for generating and
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`transmitting menus comprising . . . .” The specification defines “menu” as
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`Menus are typically utilized to provide end users of applications with
`available choices or processing options . . . . [Menu] [o]ptions can have
`additional subordinate or child options associated with them. . . . Thus,
`such a menu system comprises cascading sets of menus which are
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`11
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 12 of 29
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`displayable in context to show the parent/child relationships between
`options of the context menu.
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`(‘850 patent, 5:18–31). Based in part on their requirement of local databases on the client
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`devices, the defendants contend that “menus” must include a database. In support of their
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`database requirement, the defendants cite the following language from the specification: “The
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`steps taken in building a menu are as follows: . . . 7. Download the menu database to the
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`handheld device.” (‘850 patent, 7:4–12). But, as discussed above in “information management
`
`and synchronous communications system,” the patent’s use of “database” appears to define that
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`term as “data.” Furthermore, the written description indicates that the menus’ purpose is to be
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`displayed, not to act as storage, e.g., “facilitates user-friendly and efficient generation of
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`computerized menus for . . . non-PC standard graphical formats, display sizes and/or
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`applications” (‘850 patent, 2:49–55), “displays menus in a readily comprehensible format” (‘850
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`patent, 2:63–67), and “converting paper-based menus . . . to small PDA-sized displays and Web
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`pages.” (‘850 patent, 3:32–35). Thus, the court rejects the requirement that there is a storage
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`limitation included in the construction of menus.
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`Ameranth’s proposed construction limits the menus to “computer hospitality data.”
`
`There is no support for this limitation. The court construes the term “menus” as “computer data
`
`representing collections of linked levels of choices or options intended for display in a graphical
`
`user interface.”
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 13 of 29
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`
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`D. “graphical user interface”
`
`Term
`graphical user interface
`
`Ameranth’s Definition
`presentation of graphical
`representations of data on a
`computer display screen
`which enables a user to make
`selections of the graphically
`represented data
`
`Defendants’ Definition
`Defendants do not believe that a
`construction is required for this term.
`
`If the Court concludes that a
`construction is required, the term should
`be construed as: “a type of environment
`that represents programs, files, and
`options by means of icons, menus, and
`dialog boxes on the screen”
`The disputed term is located in each of the asserted independent claims: “an operating
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`system including a graphical user interface.” The term “graphical user interface” (or GUI), as
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`used in the claims, is consistent with its meaning as understood by one of ordinary skill in the
`
`art. The parties’ proposed definitions are different in two important respects. First, the plaintiff
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`characterizes a GUI as a “presentation” whereas the defendant calls it an “environment.” A GUI
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`is interactive, as it is an “interface,” and “presentation” only addresses one side of what a GUI
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`is. On the other hand, “environment” does not connote the graphical nature of a GUI.
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`The specification explains a GUI by the manner in which it is used:
`
`Generally, a particular application program presents information to a user
`through a window of a GUI by drawing images, graphics or text within the
`window region. The user, in turn communicates with the application by
`“pointing” at graphical objects in the window with a pointer that is
`controlled by a hand-operated pointing device, such as a mouse, or by
`pressing keys on a keyboard.
`(‘850 patent, 5:10–16).
`
`The Court adopts a hybrid of the parties’ constructions. The Court construes “graphical
`
`user interface” to mean “computer environment wherein an application program presents
`
`graphical representations of data on a computer display screen and enables a user to make
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`13
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 14 of 29
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`selections of the graphically represented data.”
`
`E. “first menu” / “second menu”
`
`Term
`first menu
`
`Ameranth’s Definition
`a menu consisting of specific menu categories and
`menu items within those
`
`Defendants’ Definition
`Other than the construction of
`the term “menu,” Defendants do
`not believe that a construction is
`required for this term.
`
`If the Court concludes that a
`construction is required, the term
`should be construed as: “a first
`[menu]”
`Other than the construction of
`the term “menu,” Defendants do
`not believe that a construction is
`required for this term.
`
`If the Court concludes that a
`construction is required, the term
`should be construed as:
`“a second [menu]”
`The disputed terms are located in each of the asserted independent claims: “a first menu
`
`second menu
`
`a menu which includes constituents of the first
`menu and may include additional options
`
`consisting of menu categories” that is “stored on said data storage device,” and the “data storage
`
`device [is] connected to said central processing unit.” The claims also require “application
`
`software for generating a second menu from said first menu and transmitting said second menu
`
`to a wireless handheld computing device or Web page.” Creation of the second menu is
`
`described in more detail below:
`
`wherein the application software facilitates the generation of the second
`menu by allowing selection of catagories [sic] and items from the first
`menu, addition of menu categories to the second menu, addition of menu
`items to the second menu and assignment of parameters to items in the
`second menu using the graphical user interface of said operating system,
`said parameters being selected from the modifier and sub-modifier menus.
`
`(‘850 patent, Claim 1).
`
`From the use of “first menu” and “second menu” in the claims, it is apparent that the first
`
`menu resides on the central server. The central server’s software creates the second menu from
`
`
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`Case 2:07-cv-00271-TJW-CE Document 106 Filed 04/21/10 Page 15 of 29
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`the first menu, then transfers the second menu to the client devices and Web pages.
`
`The use of these terms in the claims, plus the construction of the term “menu,” makes the
`
`meaning of “first menu” and “second menu” fairly clear. Therefore, the court concludes the
`
`terms need no construction.
`
`F. “menu categories”
`
`Term
`menu categories
`
`Defendants’ Definition
`Ameranth’s Definition
`the classes of items stemming
`data which enables or reflects a first
`from the root of a menu tree
`level of menu choices or options
`The disputed term is located in each of the asserted independent claims: “a first menu
`
`consisting of menu categories.” Claim 1 of the ‘850 patent describes the term “menu categories”:
`
`“a first menu consisting of menu categories, said menu categories consisting of menu
`
`items.” “Menu categories” is also disclosed in the specification: “A hierarchical tree structure []
`
`is used to show the different relationships between the menu categories [] (e.g., soups, salads,
`
`appetizers, entrees, deserts, etc.).” (‘850 patent, 6:14-17).
`
`The parties dispute the need for menu categories to be at the top level, or in other words,
`
`“stemming from the root of a menu tree.” Ameranth argues that categories can be nested within
`
`categories. To support its position, Ameranth cites the following passage from the specification:
`
`“In the above example, Menu is the root. Entrees is a menu category. Red Meat is an Entree
`
`category.” (‘850 patent, 6:66-67) (emphasis added). Thus, according to the plaintiff, “Red Meat”
`
`is a category located within the “Entrees” category. However, “Red Meat” is not explicitly
`
`described as a “menu category.” Next, in support of Ameranth’s construction, one skilled in the
`
`art would consider “Red Meat” to be a category within a category, not a menu item. But, as
`
`discussed below, the patents use the terms “menu category” and “menu item” in a way that is
`
`inconsistent with their ordinary meanings.
`
`
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`In response to the plaintiff’s argument, the defendants assert that the patent consistently
`
`uses “menu categories” as the top level class of items only–categories are not located within
`
`other categories. Figure 1 of the ‘850 patent depicts the hierarchical menu tree. The first level of
`
`items, e.g., appetizers, desserts, drinks, entrees, salads, sandwiches, and soups, are defined as
`
`“menu categories.” (‘850 patent, 6:17-18). The figure shows the very next level of items, e.g.,
`
`chicken, red meat, and seafood, as well as sub-items, are “menu items” not “menu
`
`categories.” (‘850 patent, 6:17). The specification and claims also discuss the addition of menu
`
`items to menu categories, but they do not disclose the creation of categories within
`
`categories. (E.g. ‘850 patent, 7:8 (“4. Add menu items to the categories”); 8:1 (“To add menu
`
`items to categories . . . .”); claim 1 (“a first menu consisting of menu categories, said menu
`
`categories consisting of menu items”)). Finally, the specification explicitly states that “[m]enu
`
`categories are created from the root.” (‘850 patent, 7:60).
`
`Although it is a close call, “menu categories” are restricted to the top level items.
`
`Therefore, the term “menu categories” is defined as “the class of items stemming from the root
`
`of a menu tree.”
`
`G. “menu items”
`
`Term
`menu items
`
`Ameranth’s Definition
`data which enables or reflects
`menu choices or options
`within a menu
`The disputed term is located in each of the asserted independent claims: “said menu
`
`Defendants’ Definition
`the set of items stemming
`from each menu category
`
`categories consisting of men