UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`SOFTVIEW LLC,
`
`Plaintiff,
`
`
`
`v.
`
`APPLE INC.; AT&T MOBILITY LLC;
`DELL INC.; HTC CORP.; HTC AMERICA,
`INC.; HUAWEI TECHNOLOGIES CO.,
`LTD.; FUTUREWEI TECHNOLOGIES,
`INC.; KYOCERA CORP.; KYOCERA
`WIRELESS CORP.; LG ELECTRONICS,
`INC.; LG ELECTRONICS USA, INC.;
`LG ELECTRONICS MOBILECOMM
`U.S.A., INC.; MOTOROLA MOBILITY
`INC.; SAMSUNG ELECTRONICS CO.,
`LTD.; SAMSUNG ELECTRONICS
`AMERICA, INC.; SAMSUNG
`TELECOMMUNICATIONS AMERICA,
`LLC; and SONY ERICSSON MOBILE
`COMMUNICATIONS (USA) INC.,
`
`Defendants.
`
`Civil Action Nos. 10-389-LPS
`CONSOLIDATED
`
`)))))))))))))))))))))))))
`
`SOFTVIEW LLC'S OPENING CLAIM CONSTRUCTION BRIEF
`
`
`OF COUNSEL:
`
`Morgan Chu
`Samuel K. Lu
`Erin McCracken
`Craig Johnson
`IRELL & MANELLA LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`(310) 277-1010
`
`Steven L Caponi (#3483)
`BLANK ROME LLC
`1201 Market Street, Suite 800
`Wilmington, DE 19801
`(301) 425-6400
`caponi@blankrome.com
`Attorneys for Plaintiff SoftView LLC
`
`Dated: September 21, 2012
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`TABLE OF CONTENTS
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`Page
`
`I. 
`
`II. 
`
`INTRODUCTION ............................................................................................................ 1 
`
`OVERVIEW OF THE TECHNOLOGY .......................................................................... 1 
`
`III. 
`
`RELEVANT CLAIM CONSTRUCTION PRINCIPLES ................................................ 2 
`
`A. 
`
`B. 
`
`Claim Terms Should Be Given Their Ordinary And Accustomed
`Meaning ................................................................................................................ 2 
`
`Limitations From The Specification Must Not Be Imported Into
`The Claims ............................................................................................................ 2 
`
`IV. 
`
`DISPUTED CLAIM TERMS ........................................................................................... 3 
`
`A. 
`
`B. 
`
`C. 
`
`D. 
`
`E. 
`
`F. 
`
`G. 
`
`H. 
`
`I. 
`
`J. 
`
`K. 
`
`L. 
`
`M. 
`
`N. 
`
`O. 
`
`P. 
`
`"scalable content" .................................................................................................. 3 
`
`"scalable / scaling / scaled" ................................................................................... 4 
`
`"translating" .......................................................................................................... 4 
`
`"processing [the] HTML-based Web content to produce scalable
`content" ................................................................................................................. 5 
`
`"format" ................................................................................................................. 6 
`
`"vector-based content" .......................................................................................... 7 
`
`"scalable vector-based content" ............................................................................ 7 
`
`"vector" ................................................................................................................. 8 
`
`"primary datum" .................................................................................................. 10 
`
`"object datum" .................................................................................................... 12 
`
`"layout location datum" ...................................................................................... 13 
`
`"enabling the user to zoom and pan a view of the Web page" ........................... 14 
`
`"original" ............................................................................................................. 16 
`
`"fit across" ........................................................................................................... 17 
`
`"tapping" ............................................................................................................. 19 
`
`"preserve(s) / preserved / preserving / preservation" .......................................... 21 
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`Page
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`Q. 
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`R. 
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`S. 
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`"machine-readable medium" ............................................................................... 23 
`
`"storage means" .................................................................................................. 24 
`
`"processing means" ............................................................................................. 25 
`
`1. 
`
`2. 
`
`The "processing means" performs the function of
`processing ................................................................................... 25 
`
`"Processing means" corresponds to a processor,
`microcontroller, or logic circuitry .............................................. 26 
`
`T. 
`
`"wireless communication[s] means" ................................................................... 27 
`
`CONCLUSION ............................................................................................................... 29 
`
`V. 
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases 
`
`Atmel Corp. v. Info. Storage Devices, Inc.,
`198 F.3d 1374 (Fed. Cir. 1999)......................................................................................... 28
`
`Brown v. 3M,
`265 F.3d 1349 (Fed. Cir. 2001)........................................................................................... 2
`
`Budde v. Harley-Davidson, Inc.,
`250 F.3d 1369 (Fed. Cir. 2001)......................................................................................... 27
`
`Ekchian v. Home Depot, Inc.,
`104 F.3d 1299 (Fed. Cir. 1997)........................................................................................... 2
`
`F5 Networks, Inc. v. A10 Networks, Inc.,
`No. 2:10-CV-00654-MJP, 2011 U.S. Dist. LEXIS 73689 (W.D. Wash.
`July 8, 2011)...................................................................................................................... 10
`
`Haemonetics Corp. v. Baxter Healthcare Corp.,
`607 F.3d 776 (Fed. Cir. 2010)........................................................................................... 21
`
`In re Nuijten,
`500 F.3d 1346 (Fed. Cir. 2007)................................................................................... 23, 24
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)......................................................................................... 20
`
`Karlin Tech. Inc. v. Surgical Dynamics, Inc.,
`177 F.3d 968 (Fed. Cir. 1999)............................................................................................. 6
`
`Playtex Products, Inc. v. Procter & Gamble Co.,
`400 F.3d 901 (Fed. Cir. 2005)........................................................................................... 28
`
`SRI Int'l v. Matsushita Elec. Corp. of Am.,
`775 F.2d 1107 (Fed. Cir. 1985)........................................................................................... 3
`
`St. Clair Intellectual Property Consultants, Inc. v. Apple Inc.,
`No. 10-982-LPS, 2012 U.S. Dist. LEXIS 110481 (D. Del. August 7, 2012) ................... 27
`
`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`299 F.3d 1313 (Fed. Cir. 2002)....................................................................................... 2, 3
`
`Tex. Digital Sys. Inc. v. Telegenix Inc.,
`308 F.3d 1193 (Fed. Cir. 2002)........................................................................................... 2
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`Page(s)
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`Trilithic, Inc. v. Wavetek U.S., Inc.,
`64 F. Supp. 2d 816 (S.D. Ind. 1999) ................................................................................. 28
`
`Vas-Cath, Inc. v. Mahurkar,
`935 F.2d 1555 (Fed. Cir. 1991)......................................................................................... 28
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)........................................................................................... 18
`
`Statutes 
`
`35 U.S.C. § 101 ............................................................................................................................. 24
`
`35 U.S.C. § 112 ....................................................................................................................... 25, 28
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`I.
`
`INTRODUCTION
`
`Defendants contend that they do not infringe the patents-in-suit. But a review of
`
`Defendants' proposed claim constructions reveals that Defendants' non-infringement strategy is
`
`based on inserting as many extraneous and unsupported limitations into SoftView's claims as
`
`possible. These claim constructions ignore the Federal Circuit's oft-repeated warnings against
`
`re-writing the plain and ordinary meaning of claim terms and confining claims to only the
`
`preferred embodiments disclosed in the patent specifications.
`
`In contrast, SoftView proposes claim constructions based largely on the plain and
`
`ordinary meaning of the claim terms. SoftView refers to the patent specifications and other
`
`intrinsic evidence to confirm the plain and ordinary meaning of the claim terms, or, where
`
`necessary, to add clarity to the disputed claim terms without altering their scope or meaning.
`
`Defendants also assert that several claim terms are indefinite. However, as discussed
`
`below, all of these claim terms can be construed using the intrinsic evidence identified by
`
`SoftView. Thus, Defendants cannot establish by clear and convincing evidence that these terms
`
`are "insolubly ambiguous" and "not amenable to construction."
`II.
`OVERVIEW OF THE TECHNOLOGY
`
`As described in the Technology Tutorial, SoftView's asserted claims focus on four
`
`features of web browsers for mobile devices.
`
`Preserving the original page layout of the web page. This feature is important because
`
`many prior art browsers for mobile devices stripped out content such as images and re-formatted
`
`the web page so that it could be viewed on the small screen of a mobile device. The SoftView
`
`patents, however, cover a web page displayed on a mobile device that has the original layout of
`
`the web page, as that web page was retrieved from the server and intended to be rendered on a
`
`desktop.
`
`Zooming the web page in and out. A complete web page intended for use on a desktop
`
`computer cannot be effectively viewed all at once on the small screen of a mobile device. The
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`SoftView patents cover translating web content into scalable content to enable a user to zoom the
`
`web page in and out. One type of scalable content covered by the patents is vector content.
`
`Panning the web page. A zoomed-in web page may display only a portion of the
`
`complete web page. Thus, in conjunction with zooming the web page in and out, the SoftView
`
`patents also cover enabling a user to pan the view of the web page in any direction.
`
`Context-based zooming of the web page. The inventors recognized that a user will often
`
`want to view particular items on a web page such as an image, a column, or a paragraph.
`
`Context-based zooming eliminates the need for the user to manually zoom and pan to the item.
`
`Instead, the user taps on a web page image, for example, to automatically zoom in on that image.
`III. RELEVANT CLAIM CONSTRUCTION PRINCIPLES
`
`A.
`
`Claim Terms Should Be Given Their Ordinary And Accustomed Meaning
`
`"The terms used in the claims bear a 'heavy presumption' that they mean what they say
`
`and have the ordinary meaning that would be attributed to those words by persons skilled in the
`
`relevant art." Tex. Digital Sys. Inc. v. Telegenix Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002). As
`
`the Federal Circuit emphasized, "claim terms take on their ordinary and accustomed meanings
`
`unless the patentee demonstrated an intent to deviate from the ordinary and accustomed meaning
`
`of a claim term by redefining the term or by characterizing the invention in the intrinsic record
`
`using words or expressions of manifest exclusion or restriction, representing a clear disavowal of
`
`claim scope." Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir.
`
`2002). Terms that "are not technical terms of art" simply "do not require elaborate
`
`interpretation." Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001).
`B.
`Limitations From The Specification Must Not Be Imported Into The Claims
`
`The Federal Circuit has repeatedly "cautioned against limiting the claimed invention to
`
`preferred embodiments or specific examples in the specification." Ekchian v. Home Depot, Inc.,
`
`104 F.3d 1299, 1303 (Fed. Cir. 1997); Teleflex, 299 F.3d at 1328 (refusing to limit claim based
`
`on single preferred embodiment because "record is devoid of clear statements of scope"
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`disavowing ordinary meaning of term). The reason for this is the following: "Specifications
`
`teach. Claims claim." SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 n.14
`
`(Fed. Cir. 1985) (en banc).
`IV. DISPUTED CLAIM TERMS
`
`A.
`
`"scalable content"
`
`SoftView's construction for "scalable content" is based on the definitions provided by the
`
`inventors in the patent specifications. Specifically, the inventors defined the word "scaled" as
`
`"zoomed" in no fewer than three places in the patent specification: the abstract, the summary of
`
`the invention, and the first sentence of the detailed description of the invention. See '353,
`abstract, 2:24-25, and 4:51 (each defining "scaled" as "zoomed" as follows: "scaled (zoomed)").
`Per Merriam-Webster's Collegiate Dictionary, the suffix "-able" has the meaning
`
`"capable of." Declaration of Craig Johnson in Support of Plaintiff SoftView LLC's Opening
`Claim Construction Brief, Ex. 5 at 3.2 Thus, the term "scalable" means capable of being "scaled"
`or, applying the inventors' definition, "capable of being zoomed." Thus, SoftView proffers the
`
`construction "capable of being rendered at multiple zoom levels." (The existence of "multiple"
`
`zoom levels or "multiple" user-selected scaled resolutions is not in dispute.) The Court's inquiry
`
`can end here as it is black letter law that "an inventor may choose to be his own lexicographer."
`
`See Teleflex, Inc., 299 F.3d at 1325.
`
`SoftView's proposed construction is amply supported by the patent specification: "In
`
`accordance with aspects of the invention, mobile devices enabled to support resolution-
`
`independent scalable display of Internet (Web) content to allow Web pages to be scaled
`
`(zoomed) and panned for better viewing on smaller screen sizes are disclosed. . . . The scalable
`
`
`1 The '353 and '926 patents share a common disclosure. Citations to the patents will
`identify the patent number and the column and line number. '353, 2:24-25 refers to the '353
`patent, column 2, lines 24-25. Copies of the patents are provided as Exhibits 1 and 2.
`2 Subsequent citations to the Johnson Declaration exhibits will simply refer to the
`corresponding exhibit number.
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`content and/or data derived therefrom are then employed to enable the Web content to be rapidly
`
`rendered, zoomed, and panned." '353, 2:22-32 (emphasis added).
`
`Defendants assert that "scalable content" must be data (1) "in a format generated after
`
`pre-rendering;" that (2) "provides the layout functionality, and design of the web page;" (3) "at
`
`multiple user-selectable scaled resolutions." Defendants' claim construction ignores the
`
`inventors' definition and attempts to read every possible limitation into the term "scalable
`
`content." For example, Defendants argue that "scalable content" must be data in a "pre-
`
`render[ed]" format, as set forth in "the process of blocks 150-154 of Figure 5." But there is no
`
`basis to incorporate such a limitation based on the plain and ordinary meaning of "scalable" or
`
`"content." This language, like the other language proposed by Defendants, is simply an attempt
`
`to saddle the term "scalable content" with as many limitations as possible.
`B.
`"scalable / scaling / scaled"
`
`As discussed above, "scaled" is explicitly defined by the inventors as "zoomed."
`
`"Scaling" and "scalable" should be construed consistently with that definition. Defendants argue
`
`for a different construction of "scaling" and "scaled" than they do for "scalable." This
`
`inconsistency should be taken into consideration in weighing the merits of Defendants'
`
`construction for "scalable content."
`C.
`"translating"
`
`The term "translating" is not a term of art but rather has a plain and ordinary meaning.
`
`As such, it does not require construction. For instance, Claim 4 of the '353 patent provides for
`
`"retrieving and translating Web content associated with the hyperlink to produce additional
`
`scalable content." '353, 24:57-58. This simply means taking web content associated with the
`
`hyperlink and "translating" such content into scalable content. Similarly, Claim 1 of the '926
`
`patent provides for "translating the HTML-based Web content to produce scalable vector-based
`
`page layout information." '353, 22:35-36. This simply means taking HTML-based Web content
`
`and "translating" such content into scalable vector-based page layout information. As the above
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`examples illustrate, the phrase "translating" is clear on its face and requires no elaboration.
`
`Something meeting a first limitation (e.g., HTML-based Web content) is "translated" into
`
`something meeting a second limitation (e.g., scalable vector-based page layout information).
`
`Defendants, however, seek to define "translating" to require "converting the format of."
`
`Defendants further define "format" to mean "structure of data in a file (e.g., .htm, .css, .svf, .bmp,
`
`.jpg, .gif)." Taken together, Defendants' construction of "translating" would require converting
`
`one structure of data into a different structure of data. Defendants' construction would also
`
`require that the translating be done to a file (which is understood to be a unit of storage). Ex. 6
`
`(Microsoft Computer Dictionary) at 211 ("[a] file is the basic unit of storage . . . ."). Thus,
`
`"translating" would appear not to cover data that is being streamed, as Internet content often is,
`
`instead of stored.
`
`While "translating" does require some change that would turn the first limitation into the
`
`second limitation, there is nothing in the plain and ordinary meaning of the claim language that
`
`would require this change to be from one file data structure into a different file data structure, or
`
`that "translating" be to something that is "stored" (i.e., a "file"). Moreover, Defendants do not
`
`identify anything in the patent specification that would require "translating" to convert one file
`
`data structure into another file data structure or that would preclude "translating" from being
`
`performed on streamed data rather than on stored data.
`D.
`"processing [the] HTML-based Web content to produce scalable content"
`
`The parties dispute the meaning of "scalable content," which is addressed in Section
`
`IV.A. SoftView contends that the remaining words in the claim term have plain and ordinary
`
`meanings and do not need construction. In particular, the term "processing" has a plain and
`
`ordinary meaning that is easily understood by a lay person.
`
`Defendants, however, assert that "processing" should be construed as "converting" from
`
`HTML format to scalable content format. But it is unclear how replacing "processing" with
`
`"converting" renders the claim term any clearer than it already is. Moreover, the meaning of
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`"processing" is broader than the meaning of "converting" from one format to another format.
`
`"Processing" includes all manners of operations on an object, not just "converting" the object
`
`from one format into another format. For example, one can "process" water by filtering it to
`
`remove contaminants. But the water would not have been "converted" into something else.
`
`Moreover, as described in the previous section, Defendants contend that "translating"
`
`should also be construed as "converting the format of." Thus, Defendants argue that two
`
`different claim terms, with two different plain and ordinary meanings, should be defined to mean
`
`"converting" from one format to another. Defendants' proposed construction fails at the outset
`
`because it contravenes the well settled principle of claim differentiation, which creates a
`
`presumption that different claim terms have different meanings. See, e.g., Karlin Tech. Inc. v.
`
`Surgical Dynamics, Inc., 177 F.3d 968, 971-72 (Fed. Cir. 1999).
`
`An additional problem with Defendants' proposed construction is that it imposes a
`
`limitation on the claim term that is not required or supported by the claims. In particular,
`
`Defendants' construction would require web content to be processed from an HTML format to a
`
`scalable content format, where format is defined by Defendants as "structure of data in a file."
`
`The phrase "scalable content format" appears nowhere in the intrinsic evidence. The plain
`
`language of the claims recite "processing" "to produce scalable content," not "scalable content
`
`format" (whatever that means). In addition, as described in the section below, there is no basis to
`
`limit processing to a (stored) file, as Defendants' construction of "format" would require.
`E.
`"format"
`
`SoftView contends that the claim term "format" has a plain and ordinary meaning and
`
`does not need construction. Alternatively, "format" can be construed as "a particular way that
`
`information is encoded." Defendants, however, argue that "format" means "structure of data in a
`
`file (e.g., .htm, .css, .svf, .bmp, .jpg, .gif)." SoftView's claim construction does not require data
`
`to be stored in a file in order to have a format.
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`Because, as discussed previously, a file refers to a unit of storage, Defendants'
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`construction is impermissibly limiting. Nowhere in the intrinsic evidence is "format" so defined.
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`Indeed, the specification's use of the phrase "file formats" suggests that a "file format" is a
`
`specific subset of the more general concept of "format." See '353, 1:61 ("Internet content is
`
`stored in multiple file formats.") (emphasis added). Defendants' attempt to limit the claims to a
`
`"file format" must be rejected where the claims only recite a "format."
`F.
`"vector-based content"
`
`The parties' key dispute regarding the meaning of "vector-based content" centers on the
`
`meaning of "vector," a claim term that is addressed in Section IV.H. Setting aside this issue for
`
`now, the remaining dispute between the parties is whether "vector-based content" is "scalable
`
`vector based-content," as Defendants argue.
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`Defendants' claim construction is easily rejected by comparing the language of the instant
`
`disputed claim term "vector-based content" with the language of another disputed claim term
`
`"scalable vector-based content." The only difference between the two claim terms is the
`
`modifier "scalable." Notwithstanding the fact that the claim term "vector-based content" lacks
`
`this modifier, Defendants insist that the two claim terms have the same meaning. However,
`
`Defendants' claim construction re-writes the claim term "vector-based content" to add a
`
`limitation that is not literally present in the claim language and that the patentee clearly did not
`
`mean to include based on the fact that he added the modifier "scalable" to another claim term
`
`"scalable vector-based content." The Court should therefore reject Defendants' claim
`
`construction.
`G.
`
`"scalable vector-based content"
`
`See the preceding section for why the claim terms "vector-based content" and "scalable
`
`vector-based content" should be construed differently. The meaning of "scalable" and "vector"
`
`are addressed in Sections IV.A and IV.H, respectively.
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`H.
`
`"vector"
`
`Vector has a meaning that is understood by those of ordinary skill in the art. Merriam-
`
`Webster's Collegiate Dictionary, for example, defines "vector" as "a quantity that has magnitude
`
`and direction and that is commonly represented by a directed line segment whose length
`
`represents the magnitude and whose orientation in space represents the direction . . . ." Ex. 5 at
`
`1304. A similar definition is provided by the Microsoft Computer Dictionary: "2. In computer
`
`graphics, a line drawn in a certain direction from a starting point to an endpoint, both of whose
`
`locations are identified by the computer using x-y coordinates on a grid. . . ." Ex. 6 at 548.
`
`Indeed, the Microsoft Computer Dictionary defines vector graphics as "[i]mages generated from
`
`mathematical descriptions that determine the position, length, and direction in which lines are
`
`drawn . . . ." Id. at 549.
`
`The first half of SoftView's proposed construction of the claim term "vector" is consistent
`
`with these definitions: "a mathematical expression representing a length and a direction in a
`
`two-dimensional space." The second half of SoftView's proposed construction, also consistent
`
`with these definitions, defines a vector in conjunction with the X, Y coordinate system used in
`
`most computer graphics applications: "In an X, Y coordinate system, a vector is represented by
`
`a value X2, Y2 relative to an origin point, represented by X1, Y1." SoftView's proposed
`
`construction comports with the claim language. For example, asserted Claim 58 of the '353
`
`Patent, recites "generating a vector from the primary datum to the object datum for the object."
`
`'353, 27:39-40. The "primary datum" would correspond to an origin point, represented by X1,
`
`Y1. The "object datum" would correspond to the value X2, Y2 relative to the origin point. Both
`
`a magnitude (or length) and a direction would be represented by a directed line segment drawn
`
`between these two points.
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`SoftView's construction is also supported by
`
`the patent specification. Figure 4D of the '353 patent,
`
`on the right, is illustrative. The patent discloses that
`
`"the vector for a given object may be stored as the
`
`XY value of the datum point of that object relative to
`
`0,0." '353, 18:3-8. Thus, for vector 250D (in blue),
`
`the origin (X1,Y1) value would be (0,0) (element
`
`262) and the object datum point (X2,Y2) would be
`
`150, 225 (element 268). Id. A magnitude (or length)
`
`and a direction are represented by the directed line
`
`segment (vector) drawn between (X1,Y1) and
`
`(X2,Y2).
`
`The prosecution history of the '926 Patent
`
`also provides support for SoftView's proposed construction. For example, in explaining the
`
`concept of a "vector," the Applicant made clear that "a vector in a two-dimensional coordinate
`
`system is defined by a length and direction (i.e., angle) . . . ." Ex. 4 at FH003593.
`
`Defendants' position is that "vector" means "for each object, a directional data structure
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`that stores X&Y values from a single point for the page or frame to the object." Defendants'
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`proposed construction seems to be derived from (but does not adopt verbatim) the PTO's
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`construction of the term "vector" in the Inter Partes Reexamination proceeding relating to the
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`'353 Patent initiated by Apple. In that proceeding, the Examiner construed the term "vector" as
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`"a directional data structure that stores X & Y values from known datum (primary datum) to
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`object bounding box (object datum)." Ex. 7 at 15. The Examiner relies upon the definition of
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`"vector" cited by SoftView above: "Evidence supporting the definition of the term 'vector' is
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`provided by Examiner from the Microsoft Computer Dictionary, Fifth Edition." Id. The
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`Examiner's construction is largely consistent with SoftView's construction. The primary
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`difference between the two is that the Examiner's construction improperly defines the end point
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`of the vector ("object datum") based on the preferred embodiment disclosed in the patent
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`specifications. See Declaration of Glenn Reinman in Support of SoftView LLC's Opening Claim
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`Construction Brief ("Reinman Decl.") ¶¶ 9-10. This limitation is not present in the independent
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`claims, but is claimed in dependent claims. See, e.g., '353, Claim 58 ("generating a vector from
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`the primary datum to the object datum for the object"). As such, SoftView submits that the
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`Examiner's claim construction from the pending re-examinations will be subject to correction as
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`the re-examination advances. See F5 Networks, Inc. v. A10 Networks, Inc., No. 2:10-CV-00654-
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`MJP, 2011 U.S. Dist. LEXIS 73689, at *11-12 (W.D. Wash. July 8, 2011) (explaining that the
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`findings of the reexaminer in an ongoing reexamination should not be treated as intrinsic
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`evidence for purposes of claim construction).
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`But Defendants add to the Examiner's definition of vector the following limitation: there
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`can be but a "single point for the page or frame." However, the limitation a "single point for the
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`page or frame" does not appear in the Examiner's construction. Nor does it appear in the
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`extrinsic dictionary evidence relied upon by the Examiner. Should the Court elect to rely upon a
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`construction based on the Examiner's construction from the pending re-examinations, it should
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`(1) decline to adopt the additional limitation proposed by Defendants and (2) decline to adopt the
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`portion of the Examiner's claim construction that identifies the end point of the vector (because
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`this incorporates the preferred embodiment). See Reinman Declaration ¶¶ 9-10.
`I.
`"primary datum"
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`The parties' disagreement concerning the construction of "primary datum" is two-fold.
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`First, the parties disagree about whether the X, Y coordinate must be "fixed." Second, the parties
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`disagree about whether the X, Y coordinate must be "on the full-size web page."
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`SoftView contends that "primary datum" should be construed as "an origin point defined
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`at an X, Y coordinate." This is consistent with the plain and ordinary meaning of the claim
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`language. Claim 58 of the '353 patent, by way of example, requires "defining a primary datum . .
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`. " as well as an object datum and then "generating a vector from the primary datum to the object
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`datum . . ." '353, 27:37-40. Thus, the primary datum is the "origin point" of the vector that is
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`generated. The remainder of SoftView's claim construction, that the point is "defined at an X, Y
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`coordinate," is not in dispute by the parties.
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`The written description and the figures of the patents-in-suit support SoftView's claim
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`construction. As an initial matter, the type of "primary datum" most often described in the
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`specification is the "page datum," which is an origin point that helps determine the layout of a
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`particular page. A person of ordinary skill in the art would understand the "page datum," as
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`described in the specification, to be a type of "primary datum," as recited in the claims. Reinman
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`Decl. ¶ 11. Accordingly, a person of ordinary skill in the art would understand that references to
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`a "page datum" in the patent are also references to a "primary datum." Id.
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`Block 156 in Figure 5 requires "defin[ing] [the] datum point for [the] page and for each
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`object bounding box." This description corresponds to the claim language "defining a primary
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`datum . . . " and "defining an object datum . . ." The written description then provides that
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`"[o]nce the page's datum point and an object's datum point are known, a vector between these
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`points is generated for each object in a block 158." '353, 17:65-67. Block 158 in Figure 5
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`describes this step as "generat[ing a] vector from primary datum to bounding box datum for each
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`object." These two descriptions (one of which uses the term "page datum" and the other of
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`which uses the term "primary datum") correspond to the claim language "generating a vector
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`from the primary datum to the object datum . . . ." Thus, the written description and figures
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`confirm that the "primary datum" is the "origin point" of the vector that is generated.
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`Attempting to narrow the scope of SoftView's claims, Defendants add two limitations
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`that are not otherwise par