`
`CIVIL ACTION NO. 2:13-CV-349-JRG
`
`
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`
`
`ROBERT BOSCH HEALTHCARE
`SYSTEMS, INC.,
`
`Plaintiff,
`
`v.
`
`CARDIOCOM, LLC, and ABBOTT
`DIABETES CARE, INC.,
`
`Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
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`§
`§
`§
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`§
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`§
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`
`DEFENDANT’S PRELIMINARY CLAIM CONSTRUCTIONS
`AND DISCLOSURE OF EXTRINSIC EVIDENCE PURSUANT TO
`LOCAL PATENT RULE 4-2
`
`
`
`
`Defendant Cardiocom, LLC (“Cardiocom”), in accordance with P.R. 4-2, identifies the
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`following preliminary proposed constructions of claim terms, phrases, or clauses of U.S. Patent
`
`Nos. 7,516,192 (“the ’192 patent”); 7,587,469 (“the ’469 patent”); 7,769,605 (“the ’605 patent”);
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`7,840,420 (“the ’420 patent”); 7,870,249 (“the ’249 patent”); and 7,921,186 (“the ’186 patent”)
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`(collectively, the “Asserted Patents”) as well as its preliminary identification of extrinsic
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`evidence supporting those constructions.
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`Cardiocom reserves the right to modify or supplement its claim constructions as
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`discovery proceeds in view of any additional contentions made, or information disclosed by
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`Robert Bosch Healthcare Systems, Inc. (“Bosch”). To the extent the claim terms set forth below
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`include particular words or phrases appropriate to be construed separately, such claim words or
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`phrases are deemed part of this disclosed list. Similarly, to the extent it is appropriate to construe
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`words and phrases listed below in the context of additional claim language, such additional
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`language is deemed part of this disclosure. All dependent claims incorporate the terms of the
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`1
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`Bosch Ex. 2058
`Cardiocom v. Bosch IPR2013-00468
`
`

`

`
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`independent claims as well as any dependent claim from which the claim depends. While some
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`terms are identified with particular claims, if the same terms arise in claims not listed, the same
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`definition should apply in the unlisted claims.
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`Cardicom’s preliminary claim constructions shall not act as a waiver of any defense of
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`noninfringement, invalidity, or unenforceability of the Asserted Patents. The inclusion of a
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`claim term or phrase disclosed below is not intended to, and does not constitute an admission
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`that the term or phrase is capable of construction and not indefinite under 35 U.S.C. § 112,
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`lacking enablement or adequate written description. Cardiocom expressly reserves its right to
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`contest the validity of any claim of the Asserted Patents on any ground. For those claim terms
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`marked “indefinite” where Cardiocom has offered a construction, the construction shall not act
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`as a waiver of Cardiocom’s assertion of invalidity for reasons of claim indefiniteness.
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`Cardiocom specifically asserts each of the defenses under 35 U.S.C. § 112 described under Local
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`Rule 3-3 and 3-4.
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`Cardiocom reserves the right to support is constructions with intrinsic evidence, which
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`under local rule need not be identified herein, including prosecution histories and IPR
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`proceedings of the Asserted Patents and related patents. Cardiocom also reserves its right to seek
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`construction of the terms listed on its Disclosure of Proposed Terms and Claim Elements for
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`Construction, which currently it asserts should be subject to their plain meaning and thus do not
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`require construction, if a dispute arises as to the plain meaning of such terms. Cardiocom also
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`incorporates by reference all invalidity disclosures and responses to Bosch’s interrogatories that
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`have been served by Cardiocom in this matter.
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`2
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`

`

`Term/Phrase
`Script Program
`
`No.
`1.
`
`Claims
`‘192 Patent: all claims
`‘186 Patent: all claims
`‘469 Patent: claims 10,
`16, 22
`‘249 Patent: all claims
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`10.
`
`11.
`
`‘192 Patent: all claims
`‘186 Patent: all claims
`‘469 Patent: all claims
`‘249 Patent: all claims
`‘192 Patent: claim 17
`‘249 Patent: all claims
`
`Program
`
`Script generator
`
`Data merge / data merge
`program
`Script assignment unit /
`script assignor
`
`‘192 Patent: claim 1
`‘249 Patent: all claims
`‘192 Patent: claims 2,
`5, 8, 10
`‘249 Patent: all claims
`‘469 Patent: claim 11,
`17
`‘469 Patent: all claims Execute said computer
`programs to provide a
`diagnosis of a performance
`of said [primary device or
`household appliance]
`
`Household appliance
`
`‘192 Patent: all claims
`‘186 Patent: all claims
`‘249 Patent: all claims
`
`‘192 Patent: claims 1,
`20
`
`Custom(ized) script
`program
`
`Customizing the script
`program
`Generic script program
`
`‘605 Patent: all claims
`‘420 Patent: all claims
`
`Icon
`
`‘605 Patent: all claims
`‘420 Patent: all claims
`
`Group overview chart /
`chart
`
`
`
`Proposed Construction
`an interpreted software
`program (as opposed to
`compiled), whose program
`files comprise commands,
`written in ASCII text, and
`which must be read by an
`interpreter in order to be
`executed
`A complete set of
`instructions which direct a
`computer to carry out a
`particular task1
`A program that creates a file
`containing a script program
`
`a program that combines two
`or more sets of data into one.
`a program that associates a
`script program with an
`individual
`electronic equipment devised
`for home use
`Execute said computer
`programs to provide a
`conclusion regarding the
`existence and cause of
`performance problems of
`said [primary device or
`household appliance]
`A generic script program that
`has been modified by
`inserting patient specific data
`
`A script program containing
`placeholders corresponding
`to patient-specific data to be
`inserted into the program
`through a data merge
`a graphical representation of
`an underlying function or
`data
`information for multiple
`patients arranged in a form
`
`
`1 Dictionary of Personal Computing and the Internet, Simon Collin, 1997 at 148.
`3
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`

`

`12.
`
`‘249 Patent: all claims
`
`[assigning said / sending the
`/ executing the] script
`program
`
`13.
`
`14.
`
`‘186 Patent: all claims
`
`(v) said programming
`information is presented to
`said individual by executing
`said computer program on
`said apparatus
`‘469 Patent: all claims Digital file
`
`15.
`16.
`
`17.
`
`‘469 Patent: all claims Through speech recognition
`‘605 Patent: all claims Patient’s control over said
`health condition
`Telephone message
`
`‘605 Patent: all claims
`‘420 Patent: all claims
`
`18.
`
`‘605 Patent: all claims
`‘420 Patent: all claims
`
`Electronic mail message
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`19.
`
`‘605 Patent: all claims Processing . . . by the
`processing unit includes
`evaluating said
`corresponding set of
`measurements against said
`stored medical health
`
`
`
`of one or more tables,
`graphs, or diagrams;
`excluding lists of patients
`Indefinite; OR
`The script program assigned,
`sent, or executed is the script
`program after it has been
`customized
`Indefinite
`
`Indefinite; OR
`a named and ordered
`sequence of bytes that is
`known by an operating
`system. A file can
`be zero or more bytes and
`has a file format, access
`permissions, and file system
`characteristics (metadata)
`such as size and last
`modification date2
`Indefinite
`Indefinite
`
`An audio message selected
`and delivered by the
`computer system via a
`telephone device without
`human input
`A message selected and
`delivered by the computer
`system through Simple Mail
`Transfer Protocol (SMTP)
`without human input
`Processing by the processing
`unit includes the processing
`unit comparing said
`corresponding set of
`measurements to stored
`medical health history
`
`
`2 PREMIS Data Dictionary for Preservation Metadata v. 2.1, p. 7 (Jan. 2011) (accessed Feb. 8, 2014 at
`http://www.loc.gov/standards/premis/v2/premis-report-2-1.pdf)
`4
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`history information
`
`information and making
`specific determinations
`regarding patient health
`
`‘605 Patent: all claims Evaluating
`
`Indefinite
`
`
`
`‘186 Patent: all claims Programming information
`
`22.
`
`‘420 Patent: all claims
`
`Receiving a user input, the
`user input selecting a data
`point…
`
`‘420 Patent: all claims Proactively initiate said
`communication with the
`selected patient via the
`system
`
`Data comprising each of: a
`query, a message; a
`customized script program;
`and information specific to
`said individual
`Receiving a user input, the
`user input consisting only of
`the user selecting a data
`point
`Indefinite OR
`Initiate communication by
`the computer system with the
`selected patient, based on the
`computer system’s
`assessment that the
`communication is required
`based on data related to the
`patient’s health condition
`to fix or specify in
`correspondence or
`relationship3
`
`to perform indicated tasks
`according to encoded
`instructions4
`
`A computer chip that
`generates audio signals from
`text input
`
`A medium for receiving or
`sending audio data5
`
`20.
`
`21.
`
`23.
`
`24.
`
`25.
`
`26.
`
`27.
`
`28.
`
`29.
`
`The customized script
`
`Indefinite
`
`Computer program(s)
`
`a script program
`
`‘192 Patent: claims 2,
`8, 10, 23, 26, 28
`‘249 Patent: all claims
`‘186 Patent: all claims
`‘192 Patent: claim 37
`
`‘469 Patent: all claims
`‘186 Patent: all claims
`‘192 Patent: all claims
`‘249 Patent: all claims
`‘186 Patent: all claims
`‘469 Patent: all claims
`‘249 Patent: all claims
`‘469 Patent: claims 2,
`12
`
`Assign(s) / assigning
`
`Execute / executing /
`executed
`
`Audio processor
`
`‘249 Patent: all claims Audio interface
`
`
`3 Merriam-Webster Online Dictionary at http://www.merriam-webster.com/dictionary/assign (last viewed March 8,
`2014).
`4 Merriam-Webster Online Dictionary at http://www.merriam-webster.com/dictionary/execute (last viewed, March
`8, 2014)
`
`5
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`Message(s)
`
`
`
`An intended and existing
`communication that is to be
`sent or received
`
`
`
` Message being based upon
`. . . said processing…
`
`The message created or
`selected using the results of
`said processing
`
`30.
`
`31.
`
`32.
`
`‘192 Patent: all claims
`‘249 Patent: all claims
`‘186 Patent: all claims
`‘469 Patent: all claims
`‘605 Patent: all claims
`‘420 Patent: all claims
`‘605 Patent: all claims
`
`
`
`‘605 Patent: all claims
`‘420 Patent: all claims
`
`33.
`
` ‘420 Patent: all
`claims
`
`Chart including [having] a
`plurality of data points . . .
`each of the data points
`represents one
`corresponding patient
`Method for monitoring . .
`.via a computer system
`
`A chart including [having] a
`plurality of data
`points…where every data
`point on the chart represents
`exactly one patient
`Every step recited in the
`claim must be performed by
`the computer system; the
`system must proactively
`initiate the communication
`Indefinite; OR
`Each of elements (i) – (vi) is
`required in the claimed
`apparatus; including the
`second communication
`interface must be configured
`to transmit a computer
`program having the
`characteristics of element
`(vi) parts (a), (b), and (c)
`Indefinite; OR
`automatically associating the
`user-selected data point with
`an electronic mail address or
`telephone number of the
`selected patient by the
`computer system, following,
`and as a direct result of, the
`patient being selected
`
`34.
`
`‘186 Patent: all claims Apparatus/method . . .
`wherein [elements (i) – (vi)]
`
`35.
`
`‘420 Patent: all claims
`
`correlating the user-selected
`data point with patient data
`for the selected patient
`associated with the user-
`selected data point, the
`patient data including one
`of: an electronic mail
`address associated with the
`selected patient and a
`telephone number
`associated with the selected
`patient
`
`
`5 Polycom, Inc. v. Codian, LTD, Case No. 05-CV-520, Claim Construction Order, D.I. 238 at 27-32 (E.D. Tex, Oct.
`19, 2007) (construing “audio and video interface”)
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`6
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`Pursuant to P.R. 4-2, Cardiocom also discloses the following extrinsic evidence which it
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`may rely upon in support of its proposed claim constructions. Cardiocom reserves the right to
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`rely on the deposition testimony of any witness deposed in this lawsuit, including any expert
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`identified by Bosch. Cardiocom also reserves the right to identify additional extrinsic evidence
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`as claim construction proceeds in view of any contentions made or information disclosed by
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`Bosch, including, for example, in rebuttal to Bosch’s claim construction positions and/or
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`extrinsic evidence Bosch may present in support of its proposed claim constructions.
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`1.
`
`Pleadings, motions, briefs, orders, transcripts, expert, fact, inventor, and other
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`testimony, and other materials filed, served, or produced in or pertaining to the above-captioned
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`pending actions or in any other lawsuit, active or closed, involving the asserted patents or any
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`patents or patent applications related to the asserted patents;
`
`2.
`
`(Exhibit 1)
`
`3.
`
`Dictionary of Personal Computing and the Internet, Simon Collin, 1997 at 148.
`
`PREMIS Data Dictionary for Preservation Metadata v. 2.1, p. 7 (Jan. 2011)
`
`(accessed Mar. 8, 2014 at http://www.loc.gov/standards/premis/v2/premis-report-2-1.pdf)
`
`4.
`
`Merriam-Webster Online Dictionary at http://www.merriam-
`
`webster.com/dictionary/assign (last viewed March 8, 2014).
`
`5.
`
`Merriam-Webster Online Dictionary at http://www.merriam-
`
`webster.com/dictionary/execute (last viewed, March 8, 2014)
`
`6.
`
`Polycom, Inc. v. Codian, LTD, Case No. 05-CV-520, Claim Construction Order,
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`D.I. 238 at 27-32 (E.D. Tex, Oct. 19, 2007) (construing “audio and video interface”) (Exhibit 2)
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`7.
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`Attached as Exhibit 3 is the declaration of Dr. Matthew Might regarding several
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`of the above definitions. If permitted by the Court, Cardiocom may offer the expert testimony
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`7
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`of Dr. Might on the meaning of one or more of the disputed terms and phrases to a person of
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`ordinary skill in the art at the time of the invention of the Patents-in-Suit. If called, Dr. Might
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`will testify that the disputed terms and phrases should be construed as proposed by Cardiocom
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`herein, and will support his opinions based on the asserted patents, the prosecution history, the
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`level of skill and common knowledge of person of ordinary skill in the art at the time of the
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`invention, and based on the extrinsic evidence identified. Cardiocom may also offer expert
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`testimony to rebut the testimony of any experts offered by Bosch in support of its proposed
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`claim constructions of the disputed terms and phrases and any extrinsic evidence relied upon by
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`Bosch or their experts for those constructions. Dr. Might may rely upon the prosecution history,
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`including any claims under prosecution, the issued claims, arguments advanced by the applicant
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`during prosecution or any post-grant proceeding, the references of record cited, and
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`distinguished during prosecution or any post-grant proceeding, and any extrinsic evidence to
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`rebut the constructions proposed by Bosch.
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`
`Dated: March 14, 2014
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`8
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`
`
`/s/ William D. Schultz
`Daniel W. McDonald
`William D. Schultz
`MERCHANT & GOULD P.C.
`Suite 3200
`80 South Eighth Street
`Minneapolis, MN 55402
`Telephone: (612) 332-5300
`Facsimile: (612) 332-3081
`dmcdonald@merchantgould.com
`wschultz@merchantgould.com
`
`Wesley Hill
`State Bar No. 24032294
`E-mail: wh@wsfirm.com
`Ward & Smith Law Firm
`111 W. Tyler Street
`Longview, Texas 75601
`(903) 757-6400 (telephone)
`(903) 757-2323 (facsimile)
`
`ATTORNEYS FOR DEFENDANT
`CARDIOCOM, LLC
`
`
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`

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`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing DEFENDANT’S PRELIMINARY CLAIM
`
`CONSTRUCTIONS AND DISCLOSURE OF EXTRINSIC EVIDENCE PURSUANT TO
`
`LOCAL PATENT RULE 4-2 is being served upon counsel for plaintiff via an agreed
`
`
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`email distribution list to the email addresses below.
`
`
`Chris R. Ottenweller, Bar No. 73649
`Bas de Blank, Bar No. 191487
`Lillian J. Mao, Bar No. 267410
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, California 94025
`Telephone: (650) 614-7400
`Facsimile: (650) 614-7401
`Email: Bosch_Cardiocom-OHS_Only@orrick.com
`
`Trey Yarbrough
`Bar No. 22133500
`Debby E. Gunter
`Bar No. 24012752
`YARBROUGH WILCOX GUNTER, PLLC
`100 E. Ferguson, Ste. 1015
`Tyler, Texas 75702
`Telephone: (903) 595-3111
`Facsimile: (903) 595-0191
`Email: trey@yw-lawfirm.com
`Email: debby@yw-lawfirm.com
`
`
`I declare under penalty of perjury that the foregoing is true and correct.
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`
`
` /s/ Christopher C. Davis____
`
`
`
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`March 14, 2014
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