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`EXHIBIT 1002
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`EXHIBIT 1002
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`Filed on behalf of Patent Owner Network-1 Security Solutions, Inc.
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`By: Robert G. Mukai, Esq.
`BUCHANAN INGERSOLL & ROONEY PC
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`1737 King Street, Suite 500
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`Alexandria, Virginia 22314-2727
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`Telephone (703) 836-6620
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`Facsimile (703) 836-2021
`robert.mukai@bipc.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
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`AVAYA INC.
`Petitioner
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`v.
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`NETWORK-1 SECURITY SOLUTIONS, INC.
`Patent Owner
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`____________________
`
`Case IPR2013-00071
`Patent 6,218,930
`Administrative Patent Judges Jameson Lee, Joni Y. Chang and Justin T. Arbes
`____________________
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE TO THE PETITION
`FOR INTER PARTES REVIEW FOR U.S. PATENT NO. 6,218,930
`PURSUANT TO 35 U.S.C. § 313 AND 37 C.F.R. § 42.107
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`Case No. IPR2013-00071
`U.S. Patent No. 6,218,930
`Patent Owner’s Preliminary Response
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`I.
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`Introduction.
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`The Patent Owner Network-1 Security Solutions, Inc. respectfully requests
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`that the Board deny the Petition for Inter Partes Review filed by Avaya against
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`Network-1’s U.S. Patent No. 6,218,930 for two reasons.
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`Reason 1: The Petition fails to comply with Patent Office regulations
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`because it fails to provide a mandatory claim construction.
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`A petition for inter partes review “must identify … (3) How the challenged
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`claim is to be construed [and] (4) How the construed claim is unpatentable.” 37
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`C.F.R. § 42.104(b), (b)(3)-(4) (emphasis added). For most claim terms, a
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`petitioner could satisfy this requirement by simply stating that the terms have their
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`ordinary and customary meaning to a person of ordinary skill in the art. But when
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`terms do not have an ordinary meaning that can be applied to the prior art, the
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`petitioner must go further and expressly set forth a proposed construction. One
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`such circumstance is when a claimed phrase includes a word of degree (a relative
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`term), such as “smooth,” “slow,” or “low.”
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`Claim terms that are words of degree have no ordinary meaning apart from
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`“some standard for measuring that degree” found in the specification. Exxon
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`Research & Engineering Co. v. United States, 265 F.3d 1371, 1381 (Fed. Cir.
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`2001) (quoting Seattle Box Co. v. Indus. Crating & Packaging, Inc., 731 F.2d 818,
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`Patent Owner Preliminary Response
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`826 (Fed. Cir. 1984)). Therefore, when a claim uses words of degree, a petitioner
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`must identify a construction that includes the standard for measuring that degree.
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`A key phrase in steps [b] and [c] of Claim 6 of the ‘930 Patent (the single
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`independent claim at issue) is “low level current.” The word “low” in “low level
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`current” is a word of degree. What is the standard for determining whether a
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`current level is low enough to satisfy this claim element? Unless this question is
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`answered, it is impossible to apply the phrase “low level current” to the prior art
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`and, therefore, impossible for the Board to rule on the Petition. But Avaya’s
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`Petition is silent as to how the phrase “low level current” should be construed in
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`the context of the ‘930 Patent. Accordingly, Avaya’s Petition fails to meet the
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`mandated requirements and should be denied.
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`Reason 2: The Petition fails to meet the minimum required threshold
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`because Avaya does not demonstrate a reasonable likelihood of prevailing as to
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`any challenged claim.
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`“The Director may not authorize an inter partes review to be instituted
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`unless the Director determines that the information presented in the petition . . .
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`shows that there is a reasonable likelihood that the petitioner would prevail with
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`respect to at least 1 of the claims challenged.” 35 U.S.C. § 314(a).
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`If a material element of a challenged claim is not found in any asserted prior
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`art reference, there is not a reasonable likelihood that the petitioner will prevail
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`2
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`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`with respect to that claim. If the material element is not found in any reference, no
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`reference can anticipate that claim. Verdegaal Bros. v. Union Oil Co. of
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`California, 814 F.2d 628, 631 (Fed. Cir. 1987) (“A claim is anticipated only if each
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`and every element as set forth in the claim is found, either expressly or inherently
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`described, in a single prior art reference.”). Moreover, if a combination of two (or
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`more) references fails to teach an important claimed element, it is not possible for
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`that combination to render the claim obvious. That is, assuming one of ordinary
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`skill would have thought to combine prior art references, those references would
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`still be missing an important element and therefore, even with the combination,
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`one of ordinary skill would still not possess the invention. See Microsoft Corp. v.
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`Proxyconn, Inc., Case IPR2012-00026 at 19 (P.T.A.B. Dec. 21, 2012) (“To
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`establish obviousness of a claimed invention, all the claim limitations must be
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`taught or suggested by the prior art.”) (citing CFMT, Inc. v. Yieldup Int’l Corp.,
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`349 F.3d 1333, 1342 (Fed. Cir. 2003)).
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`Here, when the phrase “low level current” is properly construed, none of
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`Avaya’s references disclose the claimed “low level current” and the claimed step
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`[b] in which this phrase is found: “delivering a low level current from said main
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`power source to the access device over said data signaling pair.” Rather, as
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`demonstrated below, Avaya’s prior art references actually teach away from this
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`element and the claimed step that incorporates this phrase.
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`3
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`Case No. IPR2013-00071
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`In this Response, the Patent Owner: (1) as background, explains the
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`invention claimed in the ‘930 Patent and the difference between the claimed “low
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`level current” approach and the approach taken in the prior art; (2) demonstrates
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`that Avaya’s Petition should be denied for failing to identify a construction for the
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`relative phrase “low level current”; and (3) demonstrates that Avaya’s Petition
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`should be denied because, when the phrase “low level current” is applied using the
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`correct construction, none of Avaya’s prior art references disclose the claimed
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`“low level current” and the step in which the phrase is found.1
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`II. Background of the ‘930 Patent.
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`To understand the importance of “low level current” in Claim 6 of the ‘930
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`Patent, it is necessary to understand (a) the invention claimed in the ‘930 Patent,
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`and (b) the differences between the “low level current” approach claimed in the
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`‘930 Patent and the approach taken in the prior art.
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`A.
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`The ‘930 Patent.
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`Generally speaking, the ‘930 Patent teaches and claims a method in which
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`an Ethernet data node (e.g., switch) determines whether a connected access device
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`1 While Avaya’s references, two of which are not even analogous art,
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`do not invalidate or establish the unpatentability of the challenged claims for other
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`reasons, this Response only focuses on the missing “low level current” element.
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`4
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`Patent Owner Preliminary Response
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`(e.g., VoIP telephone) is capable of accepting power over the Ethernet data
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`transmission signaling pairs, which is referred to as “remote power.” ‘930 Patent
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`(AV-1001), 1:41-43; id. Title (“Apparatus and method for remotely powering
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`access equipment over a 10-/100 switched Ethernet Network.”).
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`The ‘930 Patent addresses the problem of detecting whether a device
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`attached to Ethernet cables can accept remote power before sending remote power
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`that might otherwise damage connected equipment. “It is therefore an object of the
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`invention to provide methods and apparatus for reliably determining if a remote
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`piece of equipment is capable of accepting remote power.” ‘930 Patent (AV-
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`1001), 1:41-43 (emphasis added). “The invention more particularly relates to
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`apparatus and methods for automatically determining if remote equipment is
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`capable of remote power feed and if it is determined that the remote equipment is
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`able to accept power remotely then to provide power in a reliable non-intrusive
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`way.” Id. at 1:14-19 (emphasis added).
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`The Patent describes and claims a system that can (a) detect whether a
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`device is attached to the Ethernet cable and, in addition, (b) if a device is
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`connected, determine whether the device can accept remote power: “[a] automatic
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`detection of remote equipment being connected to the network; [b] determining
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`whether the remote equipment is capable of accepting remote power in a non-
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`intrusive manner.” ‘930 Patent (AV-1001), 1:53-56 (enumeration added). See
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`5
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`Patent Owner Preliminary Response
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`also AV-1011 (Zimmerman Decl.) ¶13 (“The ’930 Patent generally relates to
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`powering remote equipment over a network. In particular, it relates to a method
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`for automatically determining if remote equipment is capable of receiving a remote
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`power feed and, if it is determined that the remote equipment is able to accept
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`power remotely, then to provide power.”).
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`This is a central aspect of the invention because devices that can be
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`connected to an Ethernet cable include both devices that can accept power and
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`devices that cannot. For example, the connection depicted in the preferred
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`embodiment of the ‘930 Patent, an “RJ45 connector” (‘930 Patent (AV-1001),
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`3:33-34), is a standard connection that can be connected to both devices that can
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`accept remote power through the Ethernet cables (e.g., certain VoIP telephones)
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`and devices that cannot accept remote power (e.g., computers).2
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`As set forth in Claim 6 of the ‘930 Patent, the claimed invention makes these
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`determinations by:
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`2
`Ethernet devices were originally designed with no expectation that
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`power would be delivered over the Ethernet cable.
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`6
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`‘930 Patent (AV-1001), Claim 6, 4:60-68. If the sensing reveals that the access
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`device can accept remote power, then the data node controls the power by
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`providing operating power over the data signaling pairs.
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`
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`B.
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`Significant differences between the “low level current” approach
`and the approach taken in the prior art.
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`In this section the Patent Owner explains why the detection problem tackled
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`by the inventors of the ‘930 Patent (collectively “Katzenberg”) had two
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`characteristics that, for those of ordinary skill in the art, pointed sharply away from
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`the “low level current” solution that Katzenberg ultimately adopted: the problem
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`required (1) obtaining information from a remote device for purposes of
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`determining further interactions, and (2) a solution that would avoid sending an
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`operating current to power the device (which could damage a device that was not
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`designed to accept remote power) until after detecting whether the device could
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`accept remote power.
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`7
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`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`1.
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`Prior art approach: data, not currents, are used to carry
`information.
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`The problem that Katzenberg confronted was not simply the problem of
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`determining whether a device was attached to the remote end of a data signaling
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`pair. It further required determining what kind of device was attached. In the
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`words of the ‘930 Patent, the invention required not simply “automatic detection of
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`remote equipment being connected to the network,” but further required
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`“determining whether the remote equipment is capable of accepting remote
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`power.” ‘930 Patent (AV-1001), 1:53-56.
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`Katzenberg sought to develop a system that would allow a wide variety of
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`remote devices to be safely attached to the data signaling pairs. A user might
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`attach to one of Katzenberg’s power sourcing switches a compatible access device
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`that was designed to accept power over data signaling pairs. Or a user might
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`instead attach legacy devices that were not designed with the Katzenberg power
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`sourcing equipment in mind. Katzenberg needed a solution that could distinguish
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`among these various devices and send power only to a device that was confirmed
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`to be capable of accepting power.
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`At the time of the Katzenberg invention, for problems that involved
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`obtaining information from a remote device for purposes of determining further
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`interactions, the accepted solution was to use a data signal that could carry
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`Patent Owner Preliminary Response
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`information (as contrasted with a current that, if increased to a certain level, could
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`power the device). For example, in the Ethernet field, the use of Normal Link
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`Pulse (NLP) signal groups was in use by 10BaseT Ethernet equipment before the
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`Katzenberg patent application. The use of data signals were also the accepted
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`method for systems outside the Ethernet field.3
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`Even apart from the well-known examples of using data signals from remote
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`devices to determine further interactions, what one of ordinary skill in the art
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`would have understood about the nature of data signals would have made such
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`signals the natural avenue to use for detection and identification. Data signals are
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`designed to contain information and therefore to convey information. When
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`designing a system that calls for conveying an important piece of information (i.e.,
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`whether a device can be powered), one of ordinary skill would have thought of
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`using a data signal.
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`As a result, in stark contrast to the claimed invention of using a “low level
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`current” for detection, the prior art in the field (and even post-art in the period
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`following Katzenberg’s invention) used a very different approach. This other art
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`3
`Examples include dial-up modems that use an AC signal (discovery
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`tone) to identify attached modems over a network and FAX machines that discover
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`each other across a telephone network via handshake tones and data packets.
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`taught using a data signal (something designed to contain information), rather than
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`a “low level current,” for detection. Examples of such data signals are the
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`“discovery tone” or bit pattern disclosed in a contemporaneous reference (N1-
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`2002, 3:3-7) and the “timing signal” of one of Avaya’s references. Chang (AV-
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`1006), 10:18; 10:20-21.
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`Rather than detecting based on signals that carry data, the Katzenberg
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`invention used a novel “current” approach to detection. Those of ordinary skill in
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`the art at the time would not have viewed a current that was applied to drive a load
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`as a likely tool to use in developing a method to determine whether an attached
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`remote device was of a type suitable for further interactions. The ingrained
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`thinking of a person of ordinary skill in the art at the time was that currents
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`arranged to drive a load and power a device are not used to carry information. This
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`thinking would have impeded a person of ordinary skill from considering a current
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`(as opposed to data) as a useful tool for determining whether an attached remote
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`device was of a type suitable for further interactions.
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`The Katzenberg method of using a current at low levels explored new
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`territory when testing what devices can accept power through the data signaling
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`pair. The data signal mode of thinking in the prior art taught sharply away from
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`the Katzenberg invention.
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`10
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`Patent Owner Preliminary Response
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`2.
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`Prior art approach: current should be avoided until after a
`compatible device is detected.
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`Fundamental to the problem addressed by Katzenberg was that a current
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`arranged to power the access device should not be sent over the data signaling
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`pairs until after the detection process has been completed. Accordingly, the
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`problem was viewed as avoiding sending any such powering current until after the
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`detection process determined that a given access device could receive remote
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`power. This understanding would have further inclined one of ordinary skill in the
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`art away from thinking outside the data signal box and in the direction of using a
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`current as part of the solution to the problem.
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`III. Avaya’s Petition should be denied because Avaya did not provide a
`construction for the key relative phrase found in two steps of the
`challenged claims – “low level current.”
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`
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`A. A petition for Inter Partes Review must both (a) identify how the
`challenged claims are to be construed, and (b) apply the construed
`claims to the asserted prior art references.
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`Sections 312(a)(3) and (4) of Title 35 require that the petition identify “with
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`particularity each claim challenged [and] the grounds on which the challenge to
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`each claim is based,” and that the petition provide “such other information as the
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`Director may require by regulation.” 35 U.S.C. § 312(a)(3) and (4).
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`The Director has required by regulation that a petition must: “[p]rovide a
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`statement of the precise relief requested for each claim challenged. The statement
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`must identify the following: … (3) How the challenged claim is to be construed …
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`(4) How the construed claim is unpatentable under the statutory grounds identified
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`in paragraph (b)(2) of this section.” 37 C.F.R. § 42.104(b), (b)(3)-(4) (emphasis
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`added). A petition without such a statement is incomplete and will not be accorded
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`a filing date. 37 C.F.R. § 42.106(a)(1), (b).
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`A petitioner’s identification of the claim construction is necessary because a
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`claim cannot be compared to the prior art unless the meaning of the claim is
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`known:
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`• “Anticipation and obviousness require the court to compare the properly
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`construed claims to the available prior art.” Genetics Inst., LLC v. Novartis
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`Vaccines & Diagnostics, Inc., 655 F.3d 1291, 1302 (Fed. Cir. 2011)
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`(emphasis added);
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`• “It is elementary in patent law that, in determining whether a patent is valid
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`… the first step is to determine the meaning and scope of each claim in suit.”
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`Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1334 (Fed.
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`Cir. 2004) (quoting Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
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`F.3d 1343, 1351 (Fed. Cir. 2001));
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`• “Our validity analysis is a two-step procedure: ‘The first step involves the
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`proper interpretation of the claims.’” TI Grp. Auto. Sys. (N. Am.), Inc. v.
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`12
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`VDO N. Am., L.L.C., 375 F.3d 1126, 1139 (Fed. Cir. 2004) (quoting
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`Beachcombers, Int’l, Inc. v. WildeWood Creative Prods., Inc., 31 F.3d 1154,
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`1160 (Fed. Cir.1994)).
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`Accordingly, Rule 104 requires a petitioner to provide notice to the patent owner
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`and the Board of “[h]ow the challenged claim is to be construed” and “[h]ow the
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`construed claim is unpatentable.” 37 C.F.R. § 42.104(b), (b)(3)-(4) (emphasis
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`added). Only with this information can a patent owner effectively respond to the
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`petition and the Board evaluate if a cited prior art reference meets the claim
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`elements.
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`For most claim terms, a petitioner may satisfy this requirement by simply
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`stating that the terms have their ordinary and customary meaning to a person of
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`ordinary skill in the art:
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`[there is] a ‘heavy presumption’ that a claim term carries its ordinary
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`and customary meaning. CCS Fitness, Inc. v. Brunswick Corp., 288
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`F.3d 1359, 1366 (Fed. Cir. 2002). By ‘plain meaning’ we refer to the
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`ordinary and customary meaning the term would have to a person of
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`ordinary skill in the art. Such terms have been held to require no
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`construction. See, e.g., Biotec Biologische Naturverpackungen GmbH
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`& Co. KG v. Biocorp, Inc., 249 F.3d 1341, 1349 (Fed. Cir. 2001).
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`13
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`Synopsys, Inc. v. Mentor Graphics Corp., Case IPR2012-00041 at 4-5 (P.T.A.B.
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`Feb. 22, 2013). The Board and patent owner can apply such terms to the prior art
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`without further elaboration.
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`But for certain terms, a petitioner must go further and expressly set forth a
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`proposed construction. Such circumstances include:
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`(1) Lexicographer: The ordinary meaning of a term does not apply when
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`the patentee has acted as his own lexicographer and set forth an express definition
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`that varies from ordinary meaning. See Microsoft Corp. v. Proxyconn, Inc., Case
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`IPR2012-00026 at 12 (P.T.A.B. Dec. 21, 2012) (“[T]he claim term will not receive
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`its ordinary meaning if the patentee acted as his own lexicographer and clearly set
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`forth a definition of the disputed claim term in either the specification or
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`prosecution history.” (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
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`1359, 1366 (Fed. Cir. 2002)). In such a case, a petitioner must identify what it
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`contends is an express definition disclosed in the specification.
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`(2) Disavowal: The ordinary meaning of a term does not apply when the
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`patentee sets forth in the specification an express and unambiguous disavowal of
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`claim scope, asserting that a particular claim phrase does not include something
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`that would otherwise be within its ordinary meaning. “The presumption of
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`ordinary meaning will be ‘rebutted if the inventor has disavowed or disclaimed
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`scope of coverage, by using words or expressions of manifest exclusion or
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`restriction, representing a clear disavowal of claim scope.’” Gemstar-TV Guide
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`Int’l, Inc. v. ITC, 383 F.3d 1352, 1364 (Fed. Cir. 2004) (quoting ACTV, Inc. v.
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`Walt Disney Co., 346 F.3d 1082, 1091 (Fed. Cir. 2003)). In such a circumstance, a
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`petitioner must identify what it contends is an express disavowal of claim scope.
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`(3) Words of degree: Claim terms that are words of degree or relative terms
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`have no ordinary meaning apart from “some standard for measuring that degree” as
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`found in the specification. Exxon Research & Engineering Co. v. United States,
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`265 F.3d 1371, 1381 (Fed. Cir. 2001) (quoting Seattle Box Co. v. Indus. Crating &
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`Packaging, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984)). When a claim uses words of
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`degree, a petitioner must identify what it contends is the standard for measuring
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`that degree.
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`The third circumstance applies here. The word “low” in “low level current”
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`is a word of degree. “Low” compared to what? What is the standard for
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`determining whether a current level is low enough to satisfy this claim element?
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`Unless this question is answered, it is impossible to apply “low level current” to
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`the prior art and, therefore, impossible for the Board to rule on the petition.
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`For example, the word “smooth” is a word of degree. When “smooth”
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`appears in a claim, it does not have an inherent ordinary meaning. Rather, it has
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`meaning only by identifying a standard for measuring that degree based on the
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`inventor’s purpose. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796
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`15
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`F.2d 443, 450 (Fed. Cir. 1986) (relative terms are construed so as to define the
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`degree necessary “to serve the inventor’s purposes”). Accordingly, in a stent
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`patent, “smooth” was construed to mean “smooth enough to be capable of
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`intraluminal delivery,” which was the inventor’s purpose. Cordis Corp. v.
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`Medtronic Ave, Inc., 511 F.3d 1157, 1180 (Fed. Cir. 2008). But in a contact lens
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`patent, “smooth” was construed as “smooth enough … not to inflame or irritate the
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`eyelid of the wearer or be perceived by him at all when in place,” which was the
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`inventor’s purpose. Bausch & Lomb, , 796 F.2d at 450.
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`Accordingly, when the claim uses a word of degree, the requirement that the
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`petitioner’s “statement must identify … [h]ow the challenged claim is to be
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`construed,” (Rule 104(b)(3)), cannot be satisfied with the conclusory assertion that
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`the term has its “customary and ordinary meaning.” Instead, the petitioner must set
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`forth a proposed construction that includes the standard for measuring the degree.
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`B. Avaya’s Petition does not provide any construction for a key
`relative phrase in in the challenged claims – “low level current.”
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`Claim 6 – the only independent claim at issue – includes the following two
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`steps: [b] “delivering a low level current from said main power source to the
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`access device over said data signaling pair,” and [c] “sensing a voltage level on the
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`data signaling pair in response to the low level current.” Claim 6 (emphasis
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`added).
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`The Petition, however, does not identify any construction for the relative
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`phrase “low level current” found in these steps. Appreciating the requirement to
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`identify proposed construction, Avaya purports to address “how the challenged
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`claims are to be construed.” Petition at 7. Avaya identifies specific constructions
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`for two terms (“main power source” and “secondary power source”). Petition at 8-
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`9. For “low level current,” however, Avaya provides no construction. Avaya
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`merely asserts all other terms have the “ordinary and customary meaning that the
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`term would have to a person of ordinary skill in the art.” Petition 8. Because the
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`phrase “low level current” is a term of degree, it does not have an “ordinary and
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`customary meaning” apart from a standard for measuring that degree.
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`On its face, “low level current” in a data network patent could have any
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`number of meanings, for example: low enough not to cause appreciable heating of
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`the access device; low enough not to cause interference with data transmission
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`signals delivered over neighboring wires; or low enough not to electrocute a person
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`who is exposed to the current. In fact (as shown below), examining the
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`specification of the ‘930 Patent demonstrates that “low level current” has yet
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`another meaning. Avaya, however, makes no attempt to offer a construction of
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`“low level current.”4
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`Moreover, Avaya’s analysis of the references provides no explanation as to
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`why the voltages or currents it cites satisfy the “low level current” recitation. For
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`example, regarding the Matsuno reference, Avaya’s analysis of “low level current”
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`is limited to the conclusory assertion that Matsuno “provides a low level
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`current/voltage (-V2) to an access device (NT1/DTE) over the data signaling pair
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`(subscriber line 12).” Petition at 21. Avaya makes no attempt to say why the
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`disclosed voltage generates a current that meets the standard for a “low level
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`current.” Avaya cannot do this because Avaya offered no construction of “low
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`level current” and, in particular, no construction that identifies the standard for
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`determining whether the current level is sufficiently low to be the claimed “low
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`level current.”
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`4
`This is particularly surprising because “low level current” was a focus
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`of contention in prior litigations involving the ‘930 Patent. See AV-1008 at 4; AV-
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`1009 at 28-33. Prior litigations involving the ‘930 Patent were Network-1 Security
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`Solutions, Inc v. D-Link Corporation et al., No. 6:2005-cv-00291 (E.D. Tex., filed
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`Aug. 10, 2005) and Network-1 Security Solutions, Inc v. Cisco Systems, Inc., et al.,
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`No. 6:08-cv-30-ED (E.D. Tex., filed Feb. 7, 2008) (“the Cisco Litigation”).
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`A petition “must identify … How the challenged claim is to be construed.”
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`Rule 104(b)(3). To do so for any relative terms or words of degree in the
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`challenged claim, the petition must identify a construction that includes the
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`standard to be applied to measure that degree. Avaya’s Petition does not do that.
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`The Petition thus fails to meet the statutory requirements and should be denied.
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`IV. None of Avaya’s references disclose the claimed “low level current” and
`the step in which the phrase appears: [b] “delivering a low level current
`from said main power source to the access device over said data
`signaling pairs.”
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`Any reasonable construction of “low level current” demonstrates that: (1)
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`none of Avaya’s prior art reference disclose the claimed “low level current” and
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`step [b] of the challenged claims; (2) if none of the references disclose the claimed
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`“low level current,” no reference could anticipate or, in combination, make
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`obvious the claims at issue; and (3) as a result, the Petition should be denied
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`because there would not be “a reasonable likelihood that the petitioner would
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`prevail with respect to at least 1 of the claims challenged in the petition.” 35
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`U.S.C. § 314(a). As demonstrated below, no reference discloses the claimed “low
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`level current” and step [b] of the asserted claims in which this claim element is
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`found.
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`A.
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`The claimed “low level current.”
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`The claims are interpreted using the broadest reasonable construction. See
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48766 (Aug. 14, 2012); 37
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`CFR § 42.100(b). In doing so, “[t]here is a ‘heavy presumption’ that a claim term
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`carries its ordinary and customary meaning.” Synopsys, Inc. v. Mentor Graphics
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`Corp., Case IPR2012-00041 at 4-5 (P.T.A.B. Feb. 22, 2013) (quoting CCS Fitness,
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`Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
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`The ordinary and customary meaning of words of degree or relative terms –
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`such as the word “low” in the phrase “low level current,” – depends on identifying
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`“some standard for measuring that degree” as found in the specification. Exxon
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`Research & Engineering Co. v. United States, 265 F.3d 1371, 1381 (Fed. Cir.
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`2001) (quoting Seattle Box Co. v. Indus. Crating & Packaging, Inc., 731 F.2d 818,
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`826 (Fed. Cir. 1984)). In particular, relative terms must be construed based on the
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`result sought to be achieved by the patent at issue. Exxon Research & Engineering
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`Co. v. United States, 265 F.3d 1371, 1381 (Fed. Cir. 2001).5 Accordingly, relative
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`5
`In Exxon, the Federal Circuit construed the phrase “substantial
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`absence of slug flow.” The court held: “One of skill in the art would understand
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`from the specification that the reason slug flow should be avoided is that it may
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`interfere with reactor efficiency. Whether there is a ‘substantial absence of slug
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`terms are construed so as to define the degree necessary “to serve the inventor’s
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`purposes.” Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443,
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`450 (Fed. Cir. 1986); see also,
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`• Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1180 (Fed. Cir. 2008)
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`(“the patentee intended for the term ‘smooth’ to be defined functionally, so
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`that a stent would be considered ‘smooth’ if it was smooth enough to be
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`capable of intraluminal delivery.”);
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`• Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901, 908 (Fed. Cir.
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`2005) (“The disputed claim term is clearly a comparative term. Comparison
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`requires a reference point. Therefore, to flatten something, one must flatten
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`it with respect to either itself or some other object.”);
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`• Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322,
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`1329 (Fed. Cir. 2006) (“‘Rigid’ is a very relative term. In fact, the
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`specification states only that the insert must be rigid enough for the
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`invention to work.”).
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