Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 1 of 39 PageID #: 1322
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Civil Action No. 2:10-cv-294-JRG-RSP
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
`AMERANTH, INC.,
`
`Plaintiff,
`
`v.
`
`PAR TECHNOLOGY CORP., ET AL.,
`
`Defendants.
`
`: : : : : : : : : : :
`
`- --- --- --- --- --- --- --- --- --- --- --- --- --- --- X
`
`PLAINTIFF AMERANTH’S OPENING
`CLAIM CONSTRUCTION BRIEF
`
`Apple Inc. Exhibit 1042
`
`

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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 2 of 39 PageID #: 1323
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`TABLE OF CONTENTS
`
`I.
`II.
`III.
`IV.
`
`INTRODUCTION ...............................................................................................................1
`BACKGROUND .................................................................................................................2
`LEGAL STANDARDS .......................................................................................................3
`PROPER CONSTRUCTION OF THE DISPUTED TERMS.............................................6
`A.
`“An information management and synchronous communications system for use
`with wireless handheld computing devices and the internet”…..……...………… 7
`“Wireless handheld computing device on which hospitality applications and data
`are stored” ………………………..…………………………………………….. 12
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`“Hospitality applications” and “hospitality applications and data” …………….. 13
`
`“Web page” ………………………………………….……………………..…… 21
`
`“At least one Web page on which hospitality applications and data are stored” .. 23
`
`“An application program interface” and “the application program interface enables
`integration of outside applications with the hospitality applications” …….…… 24
`
`“A communications control module” and “an interface between the hospitality
`applications and any other communications protocol” ………………………… 26
`
`“Synchronized” ………………………………………………………………… 28
`
`“A single point of entry” ………………………………………....…………… 29
`
`“Information entered on at least one Web page and transmitted over the internet is
`automatically communicated to the central database and at least one wireless
`handheld computing device” and “information entered on at least one wireless
`handheld computing device is automatically communicated to the central
`database and at least one Web page” …………………………………….…… 30
`
`K.
`
`“The data is sent to a wireless paging device” ………………………….…….. 32
`
`V.
`
`CONCLUSION..................................................................................................................33
`
`ii
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`Apple Inc. Exhibit 1042
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`

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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 3 of 39 PageID #: 1324
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`FEDERAL CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`ACTV, Inc. v. Walt Disney Co.,
`346 F.3d 1082 (Fed. Cir. 2003)..................................................................................................3
`
`Advanced Fiber Tech. Trust v. J&L Fiber Svcs., Inc.,
`No. 2011-1243 (Fed. Cir. April 3, 2012) .…........................................................................... 5
`
`C.R. Bard v. U.S. Surgical Corp.,
`388 F.3d 858 (Fed. Cir. 2004)....................................................................................................3
`
`Dayco Prod., Inc. v. Total Containment, Inc.,
`258 F.3d 1317 (Fed. Cir. 2001) …………….………………………………………………..19
`
`Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
`34 F.3d 1048 (Fed. Cir. 1994) ……………………………………………………..…….…. 5
`
`Genentech, Inc. v. Chiron Corp.,
`112 F.3d 495 (Fed. Cir. 1997) ................................................................................................11
`
`Gillette Co. v. Energizer Holdings, Inc.,
`405 F.3d 1367 (Fed. Cir. 2005) .......................................................................................... 4, 11
`
`In re: Google,
`2011 U.S. Dist. LEXIS 98469 (N.D. Cal. Aug. 31, 2011) ………………………………….. 19
`
`Intellicall, Inc. v. Phonometrics,
`952 F.2d 1384 (Fed. Cir. 1992) ................................................................................................5
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)..................................................................................................3
`
`Kara Tech., Inc. v. Stamps.com, Inc.,
`582 F.3d 1341 (Fed. Cir. 2009)..................................................................................................4
`
`Liebel-Flarsheim Co. v. Medrad, Inc.,
`358 F.3d 898 (Fed. Cir. 2004)....................................................................................................5
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996) .........................................................4
`
`Mars Inc. v. H.J. Heinz Co.,
`377 F.3d 1369 (Fed. Cir. 2004) ……………………………………………………………. 11
`
`iii
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`Apple Inc. Exhibit 1042
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`

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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 4 of 39 PageID #: 1325
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`Medrad, Inc. v. MRI Devices Corp.,
`401 F.3d 1313 (Fed. Cir. 2005)..................................................................................................4
`
`Oatey Co. v. IPS Corp.,
`514 F.3d 1271 (Fed. Cir. 2008)..................................................................................................5
`
`Phillips v. AWH Corp,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc).............................................................................. 3-5
`
`Saunders Group, Inc. v. Comfortrac, Inc.,
`492 F.3d 1326 (Fed. Cir. 2007)..................................................................................................4
`
`Versa Corp. v. Ag-Bag, Int’l,
`392 F.3d 1325 (Fed. Cir. 2004) ………………………..………………………………. 11, 19
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)................................................................................................3, 4
`
`OTHER AUTHORITIES
`
`Web Characterization Terminology & Definitions Sheet, at
`http://www.w3.org/1999/05/WCA-terms ................................................................................22
`
`iv
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`Apple Inc. Exhibit 1042
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`

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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 5 of 39 PageID #: 1326
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`I. INTRODUCTION
`
`The two patents-in-suit1 are part of a family of four issued patents directed to Ameranth’s
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`widely acclaimed and multiple-award winning synchronous hospitality communications technology.
`
`The asserted claims2 encompass, inter alia, a client/server system for synchronizing hospitality
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`information between a central database, Web pages and wireless handheld computing devices in an
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`internet-enabled system, as well as between/with other hospitality and third party applications. These
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`breakthrough aspects of the patents were conceived over 13 years ago when internet and wireless
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`communications capabilities and deployment were far more limited than they are today, e.g., prior to
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`the introductions of 3G and 4G wireless networks, the ubiquity of high speed internet connections and
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`modern mobile devices/smart phones–which serve to further increase the need for this breakthrough
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`invention for practical hospitality market implementations in the 21st Century.
`
`The asserted claims are clear and unambiguous when interpreted in light of the specification.3
`
`Ameranth’s constructions are entirely consistent with, and compelled by, the intrinsic record alone.
`
`These claims are directed to synchronous communication and synchronization of computerized
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`hospitality software applications--such as for online/mobile ordering, reservations, wait lists, ticketing
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`and other applications in the hospitality industry which require a synchronized user interface across
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`different computing components of the synchronized client/server system.
`
`The Court should adopt the straightforward constructions intended by the inventors as
`
`1 The asserted patents are U.S. 6,384,850 (the “’850 Patent”) and U.S. 6,871,325 (the “’325 Patent”).
`The asserted patents claim priority to an original application filed in 1999. The ‘850 Patent issued
`from the original application. The ‘325 Patent issued from a continuation of the application which
`issued as the ‘850 Patent as did the `733 (U.S. 6,982,733) and `077 (U.S. 8,146,077) Patents. The
`patents are attached as Exhibits 1, 2, 3, and 4, respectively. The text of the specifications are nearly
`identical but the latter two patents include additional disclosure and Figures. For simplicity, citations
`herein are from the original ‘850 Patent unless otherwise indicated. Citations are in the form
`“Col.:lines.”
`2 ‘850 claims 12-15; ‘325 claims 11-13, 15.
`3 The meaning of the claims, including each of the disputed terms, is clear, upon reading the
`specification and prosecution history, to any person with even rudimentary knowledge of computer
`systems, and is thus clear to a person of ordinary skill in the art (“POSA”).
`1
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`Apple Inc. Exhibit 1042
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`evidenced by the claims themselves as well as by the specification and drawings. Ameranth’s
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`proposed constructions are also entirely consistent with Judge Everingham’s prior constructions of
`
`terms within other claims of the asserted patents in a previous case,4 which claims included some of
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`the same language which the parties ask the Court to construe in the present case. Ameranth’s
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`constructions are based entirely on the intrinsic evidence, i.e., the specification of the patents, the
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`prosecution history, and reflect the understanding of a POSA at the time of the invention in 1998.
`
`II. BACKGROUND
`
`The presently-asserted claims are directed to the synchronous integration of a hospitality
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`software system including one or more hospitality applications, wireless handheld computing devices
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`and Web pages operating with non-standard, e.g., non-desktop PC, display requirements. The
`
`inventors were the first to understand that such an integrated system required the synchronous
`
`accommodation of many different display size and format requirements of devices/displays on the
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`client side of such a system by leveraging from and maintaining synchronization with the central
`
`database/server side of such a system. As confirmed and defined by Judge Everingham in his Order
`
`construing other claims of the patents-in-suit:
`
`The invention solves a number of problems with the prior art. First, the menus can be
`automatically adapted to display properly on hand-held devices, personal
`computers connected to the Internet, or restaurant order stations. Second, the
`invention provides fast synchronization between a central database and multiple
`hand-held devices.
`Ameranth v. Menusoft et al., Case No. 2:07-cv-271-CE, Dkt. No. 106 at 2 (Exh. 5) (emphasis
`
`added).
`
`The inventors’ breakthrough solution to the non-standard display problem was not apparent to a
`
`person of ordinary skill in the art in 1998 because of, inter alia, the complexity of computerized
`
`hospitality systems and the resultant perceived difficulty of maintaining user display consistency
`
`throughout a system including diverse “non-standard” display sizes/types and/or Web pages. To solve
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`4 Ameranth v. Menusoft et al., Case No. 2:07-cv-271-CE. The fact that neither party objected to any
`aspect of Judge Everingham’s Markman Rulings confirms the correctness of those constructions.
`2
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`this problem, the inventors conceived a synchronous solution involving the configuration of a handheld
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`device or Web page display directly from the current back office central database. The back office
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`application in prior systems was displayed on standard (e.g., desktop size) display screens, but non-
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`standard display devices (e.g., wireless handhelds) in prior systems were configured and synchronized
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`independently from the back office configuration. Nor was there any appreciation of the very need for
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`synchronous generation of a Web page version of an application from a back office system, and in
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`fact the state of the art at the time taught away from the inventors’ unique solution–by assuming that
`
`separate configuration and separate databases was the only viable approach. The marketplace and the
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`prior art entirely failed to recognize the inventors’ synchronous configuration solution–including Web
`
`page generation of hospitality applications. The inventors’ breakthrough was confirmed by multiple
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`secondary factors including, inter alia, the immediate and widespread market recognition, universal
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`industry press acclaim, numerous prestigious technology awards and many licenses and partnerships.
`
`III. LEGAL STANDARDS
`
`In construing claims, courts are required to place primary importance on the intrinsic evidence.
`
`Phillips v. AWH Corp, 415 F.3d 1303, 1313-14 (Fed. Cir. 2005) (en banc); C.R. Bard, Inc. v. U.S.
`
`Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004). The words chosen by the inventors to be used in a
`
`claim “are generally given their ordinary and customary meaning” in the art to which the invention
`
`pertains. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The “ordinary
`
`and customary meaning” is the meaning known to a person of ordinary skill in the art when the
`
`application was filed. Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111,
`
`1116 (Fed. Cir. 2004).
`
`The claims themselves usually provide substantial guidance as to the meaning of a particular
`
`term. Phillips, 415 F.3d at 1312; Vitronics, 90 F.3d at 1582; see also ACTV, Inc. v. Walt Disney Co.,
`
`346 F.3d 1082, 1088 (Fed. Cir. 2003) (“the context of the surrounding words of the claim also must be
`
`considered in determining the ordinary and customary meaning of those terms”). “Other claims of the
`3
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`Apple Inc. Exhibit 1042
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`patent in question, both asserted and unasserted, can also be valuable sources of enlightenment as to
`
`the meaning of a claim term.” Phillips, 415 F.3d at 1314 (citing Vitronics, 90 F.3d at 1582); see also
`
`Innova, 381 F.3d at 1123 (“different words or phrases used in separate claims are presumed to indicate
`
`that the claims have different meanings and scope”) (citation omitted). Federal Circuit caselaw is clear
`
`that an element from one claim cannot be imported into another claim. Kara Tech., Inc. v.
`
`Stamps.com, Inc., 582 F.3d 1341, 1347 (Fed. Cir. 2009).
`
`However, claims do not exist in a vacuum; they are part of “a fully integrated written
`
`instrument.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed. Cir. 1995), aff’d, 517
`
`U.S. 370 (1996). The claims must be interpreted in light of the specification:
`
`Importantly, the person of ordinary skill in the art is deemed to read the claim term not
`only in the context of the particular claim in which the disputed term appears, but in the
`context of the entire patent, including the specification.
`Phillips, 415 F.3d at 1313. The specification “is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Id. at
`
`1315 (quoting Vitronics, 90 F.3d at 1582). As stated by the Phillips court:
`
`[T]he interpretation to be given to 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.
`Phillips, 415 F.3d at 1316 (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`
`1250 (Fed. Cir. 1998)); Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005)
`
`(claims must be interpreted “in the context of the written description and the prosecution history”)
`
`(quoting DeMarini Sports, Inc. v. Worth, 239 F.3d 1314, 1324 (Fed. Cir. 2004)).
`
`A narrower example in the specification “does not impose a limit on the broader claim
`
`language.” Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1374 (Fed. Cir. 2005). A Court
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`must review the patent specification, but only to interpret the claims’ stated terms, not to incorporate
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`features from the specification into the claims. See Saunders Group, Inc. v. Comfortrac, Inc., 492 F.3d
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`4
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`Apple Inc. Exhibit 1042
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`1326, 1332-33 (Fed. Cir. 2007). Even a single disclosed embodiment does not limit claims which do
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`not recite that embodiment:
`
`[T]his court has expressly rejected the contention that if a patent describes only a
`single embodiment, the claims of the patent must be construed as being limited to
`that embodiment . . . . Even when the specification describes only a single
`embodiment, the claims of the patent will not be read restrictively unless the patentee
`has demonstrated a clear intention to limit the claim scope using “words or
`expressions of manifest exclusion or restriction.”
`Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (citations omitted).
`
`Moreover, absent express disavowal of claim scope, claims cannot be construed to exclude a disclosed
`
`embodiment. Oatey Co. v. IPS Corp., 514 F.3d 1271, 1276 (Fed. Cir. 2008).
`
`Extrinsic evidence is “less significant than the intrinsic record in determining the legally
`
`operative meaning of claim language.” Phillips, 415 F.3d at 1317 (citation omitted). Technical
`
`dictionaries and treatises may provide definitions that are too broad or not indicative of how the term is
`
`used in the patent. Id. at 1318. A district court errs by “rel[ying] on extrinsic evidence that
`
`contradicted the patent’s specification, including the claims and written description.” Advanced Fiber
`
`Tech. Trust v. J&L Fiber Svcs., Inc., No. 2011-1243, at 16 (Fed. Cir. April 3, 2012) (quoting Phillips,
`
`415 F.3d at 1319 (“[E]xtrinsic evidence may be useful to the court, but it is unlikely to result in a
`
`reliable interpretation of patent claim scope unless considered in the context of the intrinsic
`
`evidence.”)).
`
`The patentee is free to be his own lexicographer, but any special definition given to a word
`
`must be clearly set forth in the specification. Intellicall, Inc. v. Phonometrics, 952 F.2d 1384, 1388
`
`(Fed. Cir. 1992). And, although the specification may indicate that certain embodiments are preferred,
`
`particular embodiments appearing in the specification will not be read into the claims when the claim
`
`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc., 34
`
`F.3d 1048, 1054 (Fed. Cir. 1994).
`
`5
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`Apple Inc. Exhibit 1042
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`IV. PROPER CONSTRUCTION OF THE DISPUTED TERMS
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`The parties agree (consistent with Judge Everingham’s construction in the prior Ameranth v.
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`Menusoft case) that the preamble of the claims is a limitation and should be construed.
`
`The parties also agree, as shown in the next chart, on the construction of “wireless handheld
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`computing device,” “stored” and “a central database,” all of which constructions are intertwined with
`
`the constructions of disputed terms and the meaning of the claims as a whole.
`
`CLAIM LANGUAGE
`
`AGREED CONSTRUCTION
`
`wireless handheld
`computing device
`
`Stored
`
`a central database
`
`a wireless computing device that is sized to be held in
`one’s hand
`
`saved temporarily or permanently
`
`one or more databases associated with the server side
`of a client/server system
`
`(See Joint Claim Construction and Pre-Hearing Statement, Dkt. No. 151 at 2). Other than the agreed
`
`constructions and the disputed terms discussed below, the parties agree that no other terms, including,
`
`e.g., “Web server,” require construction.
`
`Patentee Ameranth’s proposed constructions of disputed claim language are presented in an
`
`order reflecting their appearance in the claims and are grouped by similar or related terms, as follows.
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`6
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`Apple Inc. Exhibit 1042
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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 11 of 39 PageID #: 1332
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`A.
`
`“An information management and synchronous communications system for use with
`wireless handheld computing devices and the internet”
`
`AMERANTH’S CONSTRUCTION
`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
`
`CLAIM LANGUAGE
`[1]5 an information
`management and
`synchronous
`communications
`system for use with
`wireless handheld
`computing devices
`and the internet
`
`DEFENDANTS’ 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
`
`This is a preamble limitation, which appears in each of the asserted independent claims. The
`
`parties agree that the preamble of the claims is a limitation.6 However, the parties’ proposed
`
`constructions of the preamble are starkly different.
`
`Ameranth’s construction is entirely consistent with Judge Everingham’s prior preamble
`
`construction in which he correctly construed “information management and synchronous
`
`communications system” in the asserted patents to mean “a computerized system having multiple
`
`devices in which a change to data made on a central server is updated on client devices and vice
`
`versa.” (Case No. 2:07-cv-271-CE, Dkt. No. 106 at 8 (Exh. 5)). Integration of this Court’s prior
`
`construction of the first part of this preamble with “for use with wireless handheld computing
`
`devices and the internet” straightforwardly and dispositively yields Ameranth’s proposed
`
`construction for the expanded preamble of the presently-asserted claims. Defendants’ proposed
`
`5 Bracketed numbers herein correspond to disputed language identified by the same numbers in the
`Joint Claim Construction and Prehearing Statement filed April 2, 2012 (Dkt. No. 151).
`6 The present preambles are necessary to give meaning to the claims and they provide antecedent
`basis to limitations in the body of the claims.
`
`7
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`Apple Inc. Exhibit 1042
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`construction, on the other hand, wrongly imports numerous limitations into the preamble which are
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`simply not there, and are neither suggested nor required, and conflict with the Court’s previous
`
`construction of the pertinent preamble language. Defendants seek to improperly import “central
`
`database,” “Web server,” “Web page,” “hospitality applications,” “automatically,” “real time” and
`
`their own made-up term “a change made to applications” into the preamble. In fact, not only do the
`
`Defendants seek to import into the preamble claim terms which are not present therein, they seek to
`
`distort the actual meaning of the preamble and of the claims overall. All of the basic premises of
`
`claim construction require rejection of Defendants’ preamble proposal in its entirety.
`
`As was recognized by the Court’s prior construction in the Ameranth v. Menusoft case, the
`
`patent specification is unambiguously clear that synchronous communication is communication of
`
`information such that operational consistency is maintained on disparate non-standard user
`
`interfaces throughout the system:
`
`This invention relates to an information management and synchronous communications
`system and method for generation of computerized menus for restaurants and other
`applications with specialized display and synchronous communications requirements
`related to, for example, the use of equipment or software with non-PC-standard
`graphical formats, display sizes and/or applications
`‘850 Patent 1:6-12 (emphasis added (Exh. 1)).
`A single point of entry works to keep all wireless handheld devices and linked websites
`in synch with the backoffice server applications so that the different components are in
`equilibrium at any given time and an overall consistency is achieved.
`Id. 4:14-18 (emphasis added). The “synchronous communications” recitation requires only that,
`
`e.g., menu information presented to users on disparate system element nodes is operationally
`
`consistent, i.e., all users see the current menu.
`
`Defendants’ proposal that “real time” communication is required by the asserted
`
`independent claims is simply wrong and was also rejected by the Court in its prior construction.
`
`The Court construed the claims to provide operational consistency between the server and clients in
`
`a client/server system by requiring that a change to data made on a central server is updated on
`
`client devices and vice versa. However, the Court did not hold that such updating must be done in
`8
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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 13 of 39 PageID #: 1334
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`real time. Moreover, the specification is clear that while the invention includes real time
`
`communication, the invention is not limited to only real time communication:
`
`The information management and synchronous communications system of the
`present invention features include . . . real-time communication over the internet with
`direct connections or regular modem dialup connections and support for batch
`processing that can be done periodically throughout the day to keep multiple sites in
`synch with the central database.
`‘850 Patent 3:59-4:4 (Exh. 1).
`
`Still further, the doctrine of claim differentiation precludes a restriction of the asserted
`
`independent claims to only “real time” communication. Claims 14 and 15 of the ‘850 Patent recite
`
`that information is “automatically communicated” between system components. As discussed
`
`below in Section IV(J), Defendants’ proposed construction of terms in Claims 14 and 15 of the ‘850
`
`Patent correctly includes the “real time” restriction. Defendants thus admit that “automatically
`
`communicated” as used in the patents means communicated in real time--but such a limitation is not
`
`present in the asserted independent claims. This definition of “automatically communicated” is
`
`amply illustrated by the specification:
`
`For example, a reservation made online is automatically communicated to the
`backoffice server which then synchronizes with all the wireless handheld devices
`wirelessly. Similarly, changes made on any of the wireless handheld devices will be
`reflected instantaneously on the backoffice server and the other handheld devices.
`‘850 Patent 4:18-23 (Exh. 1). Thus, because the dependent claims in which “automatically
`
`communicated” appears are limited to real time communication, the independent claim from which
`
`these dependent claims depends does not have such a real time restriction, because the independent
`
`claim does not recite “automatically communicated.” The asserted independent claims do not
`
`include a “real time” limitation and thus those claims cannot be so limited.
`
`Moreover, the Court’s prior construction of “information management and synchronous
`
`communications system” did not require that “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 [is] stored on
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`all other connected components” as proposed by Defendants. In fact, the Court’s previous
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`9
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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 14 of 39 PageID #: 1335
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`construction explicitly declined to require that changes made on a client device were updated on any
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`other client device:
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`The defendants’ proposed construction suggests synchronization between the clients:
`“a change made to any database is immediately reflected in all databases.” However,
`throughout the specification and claims, the patents contemplate changes being
`communicated between the clients and the central server. (E.g., ‘850 patent, 6:22-
`25 (“configuring a menu on the desktop PC and then downloading the menu
`configuration onto the POS interface on the handheld device”); 11:36-42 (“For
`example, a reservation made online is automatically communicated to the backoffice
`server which then synchronizes with all the wireless handheld devices wirelessly.
`Similarly, changes made on any of the wireless handheld devices will be reflected
`instantaneously on the backoffice server and the other handheld devices.”)).
`Therefore, the term simply requires synchronization between the clients and the
`central server, not between the clients themselves.
`Ameranth v. Menusoft et al., Case No. 2:07-cv-271-CE, Dkt. No. 106, at 7-8 (Exh. 5) (emphasis
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`added). The preamble does not require system-wide synchronization between everything and
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`anything that might possibly be connected in or to the claimed system as defendants now
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`mistakenly propose. The preamble requires only updating/synchronization between the central
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`server and client devices (in the form of wireless handheld computing devices) and that this be done
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`via the internet.7 Further, the claims require only “at least one wireless handheld computing device.”
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`There is likewise no support for Defendants’ proposal to require that a change on any
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`component be reflected on “all other connected components.” Defendants seek to add their own
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`concocted limitations to these claims, limitations which are simply not present in the actual
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`language of the claims, in hopes of creating a non-infringement argument for themselves based on
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`connection to some unclaimed, inconsequential, component. But the only system components on
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`which any changes need to be updated are the explicitly enumerated components. The preamble
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`that is being construed here by the Court reads “An information management and synchronous
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`communication system for use with wireless handheld computing devices and the internet
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`7 Consistent with the client/server architecture of the invention as reflected in Judge Everingham’s
`claim construction, client devices can communicate with other connected devices, but are not
`required to do so, and any such communication or synchronization occurs via the central database,
`back office server and communications control module, not directly between clients.
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`Case 2:10-cv-00294-JRG-RSP Document 155 Filed 04/19/12 Page 15 of 39 PageID #: 1336
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`comprising:” with a list of several elements following the preamble. The law is clear that
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`“comprising” in a preamble, as exists in all of the asserted independent claims, does not close the
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`claim to un-recited elements, i.e., adding an unclaimed element does not avoid infringement. Versa
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`Corp. v. Ag-Bag, Int’l, 392 F.3d 1325, 1329 (Fed. Cir. 2004) (“Although ‘comprising’ language is
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`not limiting and may include features not recited in the claim, such language cannot be read to
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`require other structure.”); Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
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`("Comprising" is a term of art used in claim language which means that the named elements are
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`essential, but other elements may be added and still form a construct within the scope of the claim.);
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`Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376 (Fed. Cir. 2004) ("like the term 'comprising,' the
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`terms 'containing' and 'mixture' are open-ended."). In Gillette Co. v. Energizer Holdings Inc., 405
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`F.3d 1367, 1371-73 (Fed. Cir. 2005), the Federal Circuit held that a claim to "a safety razor blade
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`unit comprising a guard, a cap, and a group of first, second, and third blades" encompasses razors
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`with more than three blades because the transitional phrase "comprising" in the preamble and the
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`phrase "group of" are presumptively open-ended. "The word 'comprising' transitioning from the
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`preamble to the body signals that the entire claim is presumptively open-ended." Id.
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`Defendants’ proposed construction also improperly imports the “at least one Web server,”
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`“at least one Web page,” “stores” and “hospitality applications and data” terms from the body of the
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`claim into the preamble. This is wrong for obvious reasons and should be rejected.
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`Further, there is no support for Defendants’ proposal to add “applications and/or data” to the
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`construction, nor is it discernible what this means. The claims recite “hospitality applications and
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`data.” It is clear throughout the specification, a