Case 2:10-cv-00294-JRG-RSP Document 169 Filed 08/10/12 Page 1 of 22 PageID #: 1819
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`AMERANTH, INC.
`
`
`
`PAR TECHNOLOGY CORP., et al.
`
`v.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
`
`
`
`Case No. 2:10-CV-294-JRG-RSP
`
`On May 30, 2012, the Court held a hearing to determine the proper construction of the
`
`disputed claim terms in U.S. Patent Nos. 6,384,850 and 6,871,325. After considering the
`
`arguments made by the parties at the hearing and in the parties’ claim construction briefing (Dkt.
`
`Nos. 155, 157, 158 and 160), the Court issues this Claim Construction Memorandum and Order.
`
`APPLICABLE LAW
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
`
`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
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`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
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`by considering the intrinsic evidence. See id. at 1313. C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Communications
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`Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
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`themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
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`Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
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`understood by one of ordinary skill in the art at the time of the invention in the context of the
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`entire patent. Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361,
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`1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
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`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
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`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
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`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
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`lexicography governs. Id. The specification may also resolve the meaning of ambiguous claim
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`terms “where the ordinary and accustomed meaning of the words used in the claims lack
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`sufficient clarity to permit the scope of the claim to be ascertained from the words alone.”
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`Teleflex, Inc., 299 F.3d at 1325. But, “‘[a]lthough the specification may aid the court in
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`interpreting the meaning of disputed claim language, particular embodiments and examples
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`appearing in the specification will not generally be read into the claims.’” Comark
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`Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant
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`v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415
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`F.3d at 1323. The prosecution history is another tool to supply the proper context for claim
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`construction because a patent applicant may also define a term in prosecuting the patent. Home
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`Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a term in prosecuting a patent.”).
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`Although extrinsic evidence can be useful, it is “‘less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
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`testimony may aid a court in understanding the underlying technology and determining the
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`particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition is entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`Claim Term 1: “an information management and synchronous communications system for
`use with wireless handheld computing devices and the internet”
`
`DISCUSSION
`
`Claim Term
`
`Ameranth’s Proposed
`Construction
`
`“an information
`management and
`synchronous
`communications
`system for use with
`wireless handheld
`computing devices
`and the internet”
`
`“a computerized system
`having multiple devices
`in which a change to data
`made on a central server
`is updated via the
`internet on wireless
`handheld computing
`devices and vice versa”
`
`PAR’s Proposed Construction
`
`“a computerized system having a plurality of
`connected components including a central
`database, at least one wireless handheld
`device, at least one Web server, and at least
`one Web page, each of which stores
`hospitality applications and data, in which a
`change made to applications and/or data
`stored on one of the components is
`automatically made in real time to
`applications and/or data stored on all other
`connected components”
`
`The parties agree that this language, which is the preamble to claims 12-15 of the ‘850
`
`patent, and claims 11-13 and 15 of the ‘325, is a limitation, but do not agree on its proper
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`construction. There are two areas of disagreement. First, PAR contends that changes made to
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`the applications and data must be made in real time. Second, Ameranth contends that elements
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`from the body of the claim should not be imported into the preamble (such as “a central database,
`
`at least one wireless handheld device, at least one Web server, and at least one Web page”).
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`A preamble is properly considered a limitation of a claim “if it recites essential structure
`
`or steps, or if it is ‘necessary to give life, meaning, and vitality’ to the claim.” Catalina Mktg.
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`Int’l, Inc. v. Coolsavings.com, Inc., 239 F.3d 801, 808 (Fed. Cir. 2001). Having considered the
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`parties’ arguments and the evidence, the Court declines to adopt the parties’ agreement that the
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`preamble is limiting and finds that no construction is necessary. Neither party has identified a
`
`single aspect of the preamble that is necessary to define the scope of the claims, or is not already
`
`captured as a limitation in the body of the claims. The parties’ dispute over whether changes
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`must be made in “real time” merits the Court’s consideration but is more properly presented in
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`consideration of the term “synchronized” in the body of the claims.
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`Claim Terms 3 and 4: “hospitality applications” and “hospitality applications and data”
`
`Claim Term
`
`Ameranth’s Proposed Construction
`
`PAR’s Proposed Construction
`
`“hospitality
`applications”
`
`“hospitality
`applications and
`data”
`
`“one or more application software
`programs enabled to present information
`to a user via a user interface regarding
`reservations, frequency, ticketing, wait
`lists, food/drink ordering, payment
`processing or other services provided in
`the hospitality industry”
`
`Other than “hospitality applications,”
`construction not required, but if
`construed:
`
`“one or more application software
`programs enabled to present information
`to a user via a user interface regarding
`reservations, frequency, ticketing, wait
`lists, food/drink ordering, payment
`processing or other services provided in
`the hospitality industry and associated
`data”
`
`“two or more software programs
`each adapted to perform or assist
`with hospitality related tasks,
`e.g., restaurant ordering,
`reservations, customer ticketing,
`and wait-list management, etc.”
`
`“two or more software programs
`each adapted to perform or assist
`with hospitality related tasks,
`e.g., restaurant ordering,
`reservations, customer ticketing,
`and wait-list management, etc.,
`and the data that is processed,
`stored, and/or manipulated by
`these programs”
`
`The terms “hospitality applications” and “hospitality applications and data” both appear
`
`in claim 12 of the ‘850 patent, which is representative of their usage in the asserted claims:
`
`12. An information management and synchronous communications
`system . . . comprising:
`a. a central database containing hospitality applications and data,
`b. at least one wireless handheld computing device on which
`hospitality applications and data are stored,
`c. at least one Web server on which hospitality applications and
`data are stored,
`d. at least one Web page on which hospitality applications and
`data are stored,
`e. an application program interface, and
`f. a communications control module, wherein applications and data
`are synchronized between the central data base, at least one
`wireless handheld computing device, at least one Web server and
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`at least one Web page; wherein the application program interface
`enables integration of outside applications with the hospitality
`applications and wherein the communications control module is an
`interface between the hospitality applications and any other
`communications protocol.
`
`Ameranth argues that the term should be construed to explicitly require a user interface.
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`Dkt. No. 155 at 15-19. The Court disagrees. The patentee explicitly claimed aspects of the user
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`interface in some claims (such as claim 1 of the ‘850 patent), but not in others. Ameranth’s
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`arguments stressing the importance and novelty of the user interface disclosed by the
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`specification are not persuasive. If the user interface really was central to Ameranth’s invention,
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`Ameranth would have expressly included the user interface in its claims.
`
`Next, Ameranth and PAR each propose listing examples of business tasks in the
`
`construction of the term “hospitality applications,” but disagree as to what tasks should be listed.
`
`Ameranth contends that “payment processing” and “frequency” (e.g., “frequent customer
`
`ticketing”) should be included in this list, and that PAR improperly limits “ordering” to
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`“restaurant ordering.” Dkt. No. 155 at 13-14. PAR responds that it created its task list based
`
`upon the specification, and that its list “was not meant to be limiting in scope, but was meant to
`
`be appropriate.” Dkt. No. 157 at 16.
`
`A review of the intrinsic evidence shows that the tasks listed in the specification are
`
`meant to be exemplary, and not an exhaustive listing:
`
`While computers have dramatically altered many aspects of
`modern life, pen and paper have prevailed in the hospitality
`industry, e.g., for restaurant ordering, reservations and wait-list
`management, because of their simplicity, ease of training and
`operational speed.
`
`* * *
`The communication module also provides a single point of entry
`for all hospitality applications, e.g., reservations, frequent customer
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`ticketing, wait lists, etc. to communicate with one another
`wirelessly and over the Web.1
`
`‘850 Pat., 1:19-23 and 4:5-8. The asserted patents use the term “hospitality” to refer to the
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`hospitality industry, which has a well-known, plain and ordinary meaning. Neither party points
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`to any evidence that suggests a person having ordinary skill in the art would assign a different
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`meaning to that term, or that the inventors intended a different meaning. Because it is not
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`possible to create a complete listing of all the tasks that are properly within the scope of the
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`claims, the Court will not attempt to list tasks in the construction and will instead refer to these
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`tasks as “hospitality-related tasks” in its construction. Moreover, the Court notes that “payment
`
`processing” and “frequent customer” are examples of tasks intended to be covered by the term
`
`“hospitality-related tasks.”
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`Finally, the parties dispute whether the term “hospitality applications” requires “one or
`
`more application software programs” or “two or more software programs.” PAR argues that
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`because the word “applications” is plural, the term must mean that there are “two or more
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`software programs.” Dkt. No. 157 at 15-16. Ameranth argues that in context of the specification
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`and the claims, the use of the plural “hospitality applications” does not mean that there must be
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`multiple, separate pieces of software, and that the drafters used the term “hospitality
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`applications” to refer to types of functions implemented by the software. Dkt. No. 155 at 19-21.
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`Ameranth notes that PAR’s construction would exclude disclosed embodiments where there is a
`
`single application program running on a device. Tr. 48:5-19.
`
`As discussed above, the specification uses the term “hospitality applications” to refer to
`
`common tasks that occur in the hospitality industry. That usage suggests that the term
`
`1 With respect to the quoted text, the Court agrees with Ameranth that the phrase
`“frequent customer ticketing” was intended to include a comma as follows: “ frequent customer,
`ticketing.”
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`“applications,” by itself, is not an attempt to define a relationship between software components
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`as residing within a single application program. Rather, when referring to software components
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`and structure, the specification does so expressly. For example, the specification uses the
`
`phrases “application software” or “application software components” in that sense.2 In the
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`context of the claims and specification, the claim term “hospitality applications” uses the word
`
`“applications” to reference hospitality-related tasks. The specification reinforces this conclusion
`
`with several parallel uses of the word: “ . . . and is thus unacceptable for the time criticality of
`
`ordering, reservation and wait-list management and other similar applications” (‘850 Pat., 1:53-
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`55) and “ . . . also provides a single point of entry for all hospitality applications, e.g.,
`
`reservations, frequent customers [sic] ticketing, wait lists, etc. . . . .” (id. at 4:5-7). Therefore, the
`
`Court finds that “hospitality applications” means “software adapted to perform or assist with two
`
`or more hospitality-related tasks.” In light of this construction, the Court finds that no further
`
`construction of the term “hospitality applications and data” is necessary.
`
`Claim Term 5: “web page”
`
`Claim Term
`
`Ameranth’s Proposed Construction
`
`PAR’s Proposed Construction
`
`“web page”
`
`“a document, with associated files for
`graphics, scripts, and other resources,
`accessible over the internet and viewable
`in a web browser”
`
`“a document accessible via the
`Internet and viewable by a user
`with an Internet
`connection and a browser”
`
`The substantive difference between the parties’ proposed constructions is whether a web
`
`page is limited to “a document” alone or also includes “associated files for graphics, scripts, and
`
`other resources.” The intrinsic evidence does not shed light on the dispute, and both parties rely
`
`2 Examples include: “a well defined application program interface” (‘850 Pat., 2:11); a
`desktop software application” (id. at 3:16); “GUIs for software applications” (id. at 5:17-18);
`“interacts with application programs” (id. at 5:67-6:1); and “the application programs make use
`of operating system functions” (id. at 6:2-4).
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`on extrinsic evidence. PAR relies on the 2008 edition of the Oxford Dictionary of Computing,
`
`which defines a web page as “a hypertext document on the World Wide Web.” Dkt. No. 157 at
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`18. Ameranth relies on the World Wide Web Consortium’s 1999 definition of a web page as
`
`“[a] collection of information, consisting of one or more Web resources, intended to be rendered
`
`simultaneously, and identified by a single URI.” Dkt. No. 155 at 22. The same source provides
`
`an example of a web page using the definition: “[a]n image file, an applet, and an HTML file
`
`identified and accessed through a single URI, and rendered simultaneously by a Web client.” Id.
`
`The Court accords greater weight to Ameranth’s dictionary evidence because it was
`
`published in the same year as the earliest effective filing date of the asserted patents. Moreover,
`
`the World Wide Web Consortium is a well-known standards body in the field of Internet
`
`technologies. The dictionary PAR relies upon was not published until nearly a decade after the
`
`earliest filing date. Moreover, PAR suggests a very narrow construction of the claim term,
`
`which is not convincingly supported by the definition they cite – the Oxford definition refers to a
`
`“hypertext document,” which is not simply “a document,” as PAR suggests. Therefore, the
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`Court adopts Ameranth’s construction and construes the term “web page” to mean “a document,
`
`with associated files for graphics, scripts, and other resources, accessible over the internet and
`
`viewable in a web browser.”
`
`Claim Terms 7 and 10: “an application program interface” and “the application program
`interface enables integration of outside applications with the hospitality applications”
`
`Claim Term
`
`Ameranth’s Proposed Construction
`
`PAR’s Proposed Construction
`
`“an application
`program interface”
`
`“a software specification or program
`configured to enable users and
`software applications to
`communicate with each other”
`
`“a set of functions, procedures,
`standards or conventions by
`which an application program can
`gain access to specific operating
`system or network services”
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`PAR argues that the specification does not provide a definition for an application
`
`program interface, but instead merely describes its functionality. Dkt. No. 157 at 21. PAR relies
`
`on dictionary definitions of application program interfaces, and argues that Ameranth has not
`
`identified any intrinsic or extrinsic evidence “to refute the inclusion of [the term] ‘operating
`
`system’” in its construction. Id. at 20.
`
`Ameranth claims that PAR relies on overly generic definitions of an application program
`
`interface, and injects unnecessary terms into the construction such as “operating system” and
`
`“network services.” Tr. 70:21-71:14. Ameranth contends that its proposal better captures the
`
`specification’s description of an application program interface that operates at the application-
`
`level, and not the “operating system or network services” level. Dkt. No. 155 at 24-25.
`
`Ameranth argues that the following discussion of the application program interface in the
`
`specification supports its position: “[the invention’s features include] a well-defined API that
`
`enables third parties such as POS companies, affinity program companies and internet content
`
`providers to fully integrate with computerized hospitality applications . . . .” ‘850 Pat., 3:63-67.
`
`The Court agrees that intrinsic evidence refers to application program interfaces that
`
`operate at the application-level. Ultimately, PAR does not appear to dispute this point, but
`
`instead argues that application-level interfaces are covered by the “network services” portion of
`
`its proposed construction. Whether or not “network services” applies as PAR contends, PAR
`
`provides no justification for augmenting the construction with the phrase “specific operating
`
`system or network services,” which is not used by the asserted patents. The Court finds that the
`
`term “an application program interface” means “a set of functions and procedures that enables a
`
`program to gain access to other software programs.”
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`Claim Term
`
`Ameranth’s Proposed Construction
`
`“the application
`program interface
`enables integration
`of outside
`applications with
`the hospitality
`applications”
`
`“a server side software specification or
`program configured to enable applications
`of third parties such as point of sale
`(“POS”) companies, affinity program
`companies and internet content providers
`or other applications to integrate and
`synchronize with hospitality applications
`on one or more of the databases, servers,
`and/or wireless handheld computing
`devices used in the system”
`
`PAR’s Proposed
`Construction
`
`“the API enables third-party
`computer programs to fully
`integrate with the hospitality
`applications”
`
`At argument, PAR indicated that it was indifferent to the construction of this term (as
`
`well as term 7, “an application program interface”), but offered that Ameranth’s proposed
`
`construction was needlessly verbose. Tr. 73:5-74:4. Ameranth agreed that the construction of
`
`claim term 7 would largely resolve the dispute over claim term 10. Tr. 71:15-22. However,
`
`Ameranth believes that its construction of term 10 provides greater clarity because it gives
`
`particular examples from the specification of “outside applications.” Tr. 72:12-18. Ameranth
`
`does not know what the phrase “fully integrate” means in PAR’s proposed construction, or why
`
`it is necessary. Tr. 72:19-24.
`
`The Court is persuaded that construction is necessary to clarify the meaning of “outside
`
`application,” which appears in this term (i.e. term 10). The Court finds that Ameranth has not
`
`justified importing the exemplars of “outside applications” from the specification into the claim
`
`language itself. Accordingly, the Court construes the term “the application program interface
`
`enables integration of outside applications with the hospitality applications” to mean “the
`
`application program interface enables third-party software programs to integrate with the
`
`hospitality applications.”
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`Claim Terms 8 and 11: “a communications control module” and “an interface between the
`hospitality applications and any other communications protocol”
`
`Claim Term
`
`Ameranth’s Proposed Construction
`
`PAR’s Proposed Construction
`
`“a
`communications
`control module”
`
`“an interface
`between the
`hospitality
`applications and
`any other
`communications
`protocol”
`
`“a software program that is enabled to
`allow communication of hospitality
`information between interconnected
`devices or different applications via
`one or more application program
`interfaces and via one or more
`communications protocols”
`
`Other than “hospitality applications,”
`construction not required, but if
`construed:
`
`“a software program that is enabled to
`allow communication of information
`regarding reservations, frequency,
`ticketing, wait lists, food/drink
`ordering, payment processing or other
`services provided in the hospitality
`industry between interconnected
`devices via one or more application
`program interfaces and via one or more
`communications protocols”
`
`“a communications control program
`that facilitates the transfer of
`communications to and from
`hospitality applications stored on
`each of a central database, at least
`one wireless handheld device, at
`least one Web server, and at least
`one Web page”
`
`“the communications control
`program facilitates the transfer of
`communications to and from
`hospitality applications stored on
`each of a central database, at least
`one wireless handheld device, at
`least one Web server, and at least
`one Web page”
`
`PAR does not identify any material differences between the parties’ proposed
`
`constructions, but believes that its constructions do a better job of defining the functionality of
`
`the communications control module, and would be more easily understood by a jury. Tr. 74:6-
`
`19. Ameranth argues that there are a number of problems with PAR’s construction for term 8.
`
`First, PAR allegedly imports other claim elements into these terms without a basis for doing so,
`
`such as “a central database, at least one wireless handheld device, at least one Web server, and at
`
`least one Web page.” Second, PAR’s constructions improperly define where communications
`
`are stored. Finally, PAR’s constructions introduce the phrase “transfer of communications,” for
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`which there is no support. See Tr. 74:23-76:8; Dkt. No. 155 at 26-27. Ameranth contends that
`
`no construction of term 11 is necessary. Dkt No. 155 at 26; Tr. 74:20-75:5.
`
`The parties identify three portions of the specification that are relevant to defining the
`
`communications control module:
`
`The communication module also provides a single point of entry
`for all hospitality applications, e.g., reservations, frequent customer
`ticketing, wait lists, etc. to communicate with one another
`wirelessly and over the Web. This communication module is a
`layer that sits on top of any communication protocol and acts as an
`interface between hospitality applications and the communication
`protocol and can be easily updated to work with a new
`communication protocol without modifying the core hospitality
`applications.
`
`* * *
`A communications control program monitors and routes all
`communications to the appropriate devices. It continuously
`monitors the wireless network access point and all other devices
`connected to the network such as pagers, remote devices, internet
`Web links and POS software. Any message received is decoded by
`the software, and then routed to the appropriate device.
`* * *
`The synchronous communications control module discussed above
`provides a single point of entry for all hospitality applications to
`communicate with one another wirelessly or over the Web. This
`communications module is a layer that sits on top of any
`communication protocol and acts as an interface between
`hospitality applications and the communication protocol. This
`layer can be easily updated to work with a new communication
`protocol without having
`to modify
`the core hospitality
`applications.
`
`‘850 Pat., 4:5-13, 9:21-27 and 11:24-32 (emphasis added).
`
`In this instance, the Court finds that the specification itself provides the best construction
`
`for the term at issue. “[A] communication control module” means “a software layer that sits on
`
`top of a communication protocol and acts as an interface between hospitality applications and the
`
`communications protocol.” Given its inherent clarity, the Court is persuaded that no
`
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`
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`

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`Case 2:10-cv-00294-JRG-RSP Document 169 Filed 08/10/12 Page 14 of 22 PageID #:
` 1832
`
`construction is necessary for claim term 11 (“an interface between the hospitality applications
`
`and any other communications protocol”).
`
`Claim Term 9: “synchronized”
`
`Claim Term
`
`Ameranth’s Proposed Construction
`
`PAR’s Proposed Construction
`
`“synchronized” “enabled to cause substantially the
`same hospitality information to be
`reflected or maintained consistently
`for user operation via user interface
`on client side devices in a
`client/server system”
`
`“a change made to applications and/or
`data on one of the connected system
`components (a central server, a wireless
`handheld computing device, a web
`server, or a web page) is automatically
`made in real time to applications and/or
`data stored on each of the other
`connected components”
`
`The parties primarily dispute whether the term “synchronized” requires that changes be
`
`made in “real time.” PAR is the primary proponent of requiring “synchronized” to mean “real
`
`time,” and advances several arguments in support of its position.
`
`First, PAR argues that Ameranth distinguished claims over prior art U.S. Patent No.
`
`5,991,739 (“Cupps”) during prosecution by arguing that the claims require real time
`
`synchronization. Dkt. No. 157 at 4-5 and 11. In essence, PAR argues that Ameranth disclaimed
`
`non-real time synchronization during prosecution. PAR submits that the applicants for the ‘850
`
`patent amended relevant claims (1, 12 and 31) to include the phrase, “wherein data comprising
`
`the modified menu is synchronized between the data storage device and at least one other
`
`computing device.” PAR further points out that in making the quoted amendment, the applicants
`
`argued:
`
`Cupps does not describe the synchronization of generated menus
`between different databases or computing devices. As matter of
`fact Cupps describes data transmission via phone or fax (e.g., col.
`10 lines 26-42) precisely because Cupps did not appreciate what
`Applicants describe and claim, i.e., real-time synchronization of
`data on different computers or databases. Claims 12 and 31 as
`
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`Case 2:10-cv-00294-JRG-RSP Document 169 Filed 08/10/12 Page 15 of 22 PageID #:
` 1833
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`amended are thus believed to be patentably distinguishable over
`Cupps.
`
`Dkt. No. 157 at 5. PAR concludes from the quoted argument that the applicants equated the
`
`claim term “synchronize” with the concept of “real time.” Dkt. No. 157 at 11. At the core of
`
`this argument lies the applicants’ statement that, “[a]s matter of fact Cupps describes data
`
`transmission via phone or fax (e.g., col. 10 lines 26-42) precisely because Cupps did not
`
`appreciate what Applicants describe and claim, i.e., real-time synchronization of data on
`
`different computers or databases.” Dkt. No. 157, Ex. 3 at 15.
`
`The Court finds that there was no disclaimer of non-real time synchronization during
`
`prosecution. First, PAR’s argument rests on a sentence that is merely illustrative in the context
`
`of the overall argument. Immediately prior to that sentence, the applications make clear that the
`
`distinction between the applicants’ then pending claims and the Cupps reference was that “Cupps
`
`does not describe the synchronization of generated menus between different databases or
`
`computing devices.” Id. This distinction was sufficient because Cupps did not disclose
`
`synchronization. The Cupps reference discloses an online ordering system where the client
`
`devices interact directly with dynamically generated web pages. Thus, there is no suggestion or
`
`disclosure that applications or data must be synchronized between the devices and the server,
`
`whether real time or not, because the data was maintained on the server.
`
`Second, the statements made during prosecution that are quoted by PAR