Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 1 of 18 PageID# 4887
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
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`_ FILED"
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`JUL 2 5" 2D&
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`CLERK, U.S. DISTRICT COURT
`NORFOLK. VA
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`I
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`Plaintiff and Counterclaim Defendant,
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`Civil Action No. 2:12cv351
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`Defendant and Counterclaim Plaintiff.
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`COMSCORE, INC.,
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`v.
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`MOAT, INC.,
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`ORDER AND OPINION
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`On June 10th and 11th, 2013, the Court conducted a Markman hearing for the purposes
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`of construing twenty-two (22) terms in the Plaintiffs patent at issue, and five (5) terms in the
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`Counterclaim Plaintiffs patent at issue. After careful consideration of the parties' briefs, oral
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`argument, and visual presentations in support thereof, the Court ruled from the bench and hereby
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`issues this Order and Opinion detailing the Court's claim construction.
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`I.
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`Factual Background and Procedural History1
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`A. Factual Background
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`There are eight (8) patents at issue in the instant action (the "patents-in-suit"), seven (7)
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`that are asserted by Plaintiff and Counterclaim Defendant comScore, Inc. ("Plaintiff,"
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`"Counterclaim Defendant," or "comScore), and one (1) that is asserted by Defendant and
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`Counterclaim Plaintiff Moat, Inc. ("Defendant," "Counterclaim Plaintiff," or"Moat").2
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`1This section details only those aspects ofthe facts and procedural history relevant to the issues presently before the
`Court.
`2The patents-in-suit asserted by comScore include U.S. Patent No. 6,115,680 (the "'680 patent"); the Blumenau
`Family 1, which is comprised of: U.S. PatentNos. 7,386,473 (the '"473 patent"), 7, 613,635 (the '"635 patent"),
`7,716,326 (the "'326 patent"), 7,756,974 (the '"974 patent"); and the Blumenau Family2, which is comprised of:
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`COMSCORE 1006
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`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 2 of 18 PageID# 4888
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`U.S. Patent No. 6,115,680 (the "'680 patent") was issued on September 5, 2000 and is
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`titled "Computer Use Meter and Analyzer." The '680 patent generally describes and claims "a
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`system for collecting, logging, and, and analyzing preselected operations in a personal computer
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`and reporting use trends." '680 patent at 1:13-16. Essentially, the patent relates to monitoring
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`what individuals do on their computers, and analyzing and reporting on the collected data.
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`2:12cv351, Doc. 91 at 5. According to Plaintiff, this is accomplished using software located on
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`the client computer that captures data identifying the software applications and resources the user
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`is accessing. Id,
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`The Blumenau Family 1 is a group of related patents that monitor the display and
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`observation of web content, such as a web page or online advertisement, at client computers.
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`2:12cv351, Doc. 91 at 12. The invention described in the Blumenau Family 1 is a mechanism
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`for enabling advertisers to monitor the display and observation of their advertisements that are
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`disseminated over a computer network. 2:12cv351, Doc. 89 at 24.
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`The Blumenau Family 2 is a group of related patents that process web content using
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`interfaces ofa browser. Doc. 91 at 30.4 This is achieved by installing software meters on
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`computers so that the exposure of Internet content can be measured and extrapolated over the
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`population as a whole. Doc. 89 at 39 (quoting '470 patent at 1:63-67). This metering is
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`implemented using a number of methods, which are detailed in the parties' papers and the
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`patents' specifications.
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`The '826 patent, entitled "Performance Optimizer System and Method," was issued on
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`November 8, 2005. The '826 patent generally describes and claims a method for analyzing
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`U.S. Patent Nos. 6,327,619 (the "'619 patent") and 6,418,470 (the "'470 patent"). 2:12cv695, Doc. 1. Moat has
`asserted U.S. Patent No. 6,963,826 (the "'826 patent"). 2:12cv695, Doc. 8.
`3The oldest patent in that family, U.S. Patent No. 6,108,637 ('"637" patent) was issued on August 22, 2000.
`Plaintiff has indicated (provisionally) that it does not intend to assert the '637 patent.
`4The oldest patent inthe family, the '619 patent, was issued on December 4, 2001.
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`information relating to the usage of technology. According to Moat, the method is performed by
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`obtaining usage information related to a person's interaction with technology. Further, Moat
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`notes, transactional information related to information collected by the technology is provided as
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`well. The method then aggregates and/or segments the usage information and/or the
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`transactional information before applying a statistical methodology to obtain statistical analysis
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`information. 2:12cv351, Doc. 87 at 4.
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`B. Procedural History
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`On July 20, 2012, comScore filed its Complaint alleging infringement of the patents-in-
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`suit. 2:12cv695, Doc. 1. Moat filed its Answer and Counterclaim on September 20, 2012.
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`2:12cv695, Doc. 8. On December 12, 2012, the case was reassigned to this Court, and on
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`December 20, 2012, was consolidated with two other similar cases. 2:12cv695, Doc. 42.5
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`On January 30, 2013, the Court ordered the parties to submit their joint claim
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`construction statement by May 13, 2013, and that, if the Court determines a Markman hearing is
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`necessary, such a hearing would be held on June 10, 2013. Docs. 37, 38. On March 25, 2013,
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`Defendants filed a Joint Motion to Limit the Number of Claims Asserted by Plaintiff, which was
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`fully briefed and referred to the Court for review on April 12, 2013. Docs. 54-56, 61-62, 67 -68.6
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`The parties filed their Joint Statement on Claim Construction, Doc. 79, on May 13, 2013. On
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`May 17, 2013, the parties filed a Joint Motion for Leave to File Excess Pages for Claim
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`Construction Brief. Doc. 80. On May 21, 2013, the Court issued an Order granting the parties
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`leave to file excess pages and scheduling a Markman hearing on June 10, 2013. Doc. 82. The
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`5Future citations to the docket will referexclusively to the docket in 2:12cv351.
`6OnJune 11, 2013, at the close of theMarkman hearing, the Court directed the parties to narrow the number of
`patents and claims that will be asserted at trial. Doc. 105. The Court suggested that the Plaintiff might identify a
`single representative patent for each category of invention being asserted. The parties were further directed to
`submit their proposed list of patents and claims being asserted for trial to the Court by July 11, 2013. Upon receipt
`of said submissions, the Court will review them, with an eye towards identifying further opportunities to narrow the
`number of patents and claims being asserted, if necessary. The Court will then issue an Order ruling on Defendants'
`Joint Motion to Limit the Number of Claims Asserted by Plaintiff. 2:12cv351, Doc. 54.
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`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 4 of 18 PageID# 4890
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`parties filed their respective Opening Briefs on Claim Construction and supporting documents on
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`May 24,2013. Docs. 85-97. The parties' Responsive Briefs were filed on June 3, 2013. Docs.
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`99-103. The Court conducted a Markman hearing on June 10-11, 2013.
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`II.
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`Legal Principles of Claim Construction
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`C. General Principles
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`The purpose of a Markman hearing is to assist the Court in construing the meaning of the
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`patent(s) at issue. Markman v. Westview Instruments. Inc.. 517 U.S. 370, 371 (1996); Markman
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`v. Westview Instruments. Inc.. 52 F.3d 967 (Fed. Cir. 1995), affd. 517 U.S. 370 (1996). Patents
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`consist of "claims," and the construction of those claims "is a question of law, to be determined
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`by the court." Markman, 517 U.S. at 371: Markman. 52 F.3d at 970-71. A court need only
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`construe, however, claims "that are in controversy, and only to the extent necessary to resolve
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`the controversy." Vivid Techs.. Inc. v. Am. Science Eng'g. Inc.. 200 F.3d 795, 803 (Fed. Cir.
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`1999) (citations omitted). To be clear, "[c]laim construction is a matter of resolution of disputed
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`meanings and technical scope, to clarify and when necessary to explain what the patentee
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`covered by the claims, for use in the determination of infringement. It is not an obligatory
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`exercise in redundancy." NTP. Inc. v. Research in Motion. Ltd.. 418 F.3d 1282, 1311 (Fed. Cir.
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`2005) (citing U.S. Surgical Corp. v. Ethicon. Inc.. 103 F.3d 1554, 1568 (Fed. Cir. 1997)).
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`Claim construction begins with the words of the claims. Vitronics Corp. v. Conceptromc.
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`Inc.. 90 F.3d 1576, 1582 (Fed. Cir. 1996) ("First, we look to the words of the claims themselves
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`...."). Words in a claim are generally given their ordinary meaning as understood by a person
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`of ordinary skill in the art.
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`IcL This "person of ordinary skill in the art is deemed to read the
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`claim term not only in the particular claim in which the disputed term appears, but in the context
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`of the entire patent, including the specification." Phillips v. AWH Corp.. 415 F.3d 1303, 1313
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`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 5 of 18 PageID# 4891
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`(Fed. Cir. 2005) (en banc). "In some cases,... the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than application of the widely accepted meaning
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`of commonly understood words." Id. at 1314. Often, however, "determining the ordinary and
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`customary meaning of the claim requires examination of terms that have a particular meaning in
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`a field of art. Because the meaning of a claim term as understood by persons of skill in the art is
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`often not immediately apparent, and because patentees frequently use terms idiosyncratically, the
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`court looks to those sources available to the public that show what a person of skill in the art
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`would have understood disputed claims language to mean." Id.
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`Further, the claims themselves can provide substantial guidance as to the meaning of
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`particular claim terms.
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`Id. First, "the context in which a term is used within a claim can be
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`highly instructive." IcL In addition, other claims of the patent in question, both asserted and
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`unasserted, can also be useful because claim terms are "normally used consistently throughout
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`the patent," and therefore "can often illuminate the meaning of the same term in other claims."
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`Id,
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`The claims should not be read alone, however, but rather should be considered within the
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`context of the specification of which they are a part. Markman. 52 F.3d at 978. As the Federal
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`Circuit stated in Vitronics and restated in Phillips, "the specification is always highly relevant to
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`the claim construction analysis. Usually, it is dispositive; it is the single best guide to the
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`meaning of a disputed term." Phillips, 415 F.3d at 1315. In addition to consulting the
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`specification, a court may also consider the patent's prosecution history, if in evidence, because
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`it provides information regarding how the United States Patent and Trademark Office and the
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`inventor understood the patent. See id at 1317.
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`These elements of the patent itself—the claims, the specification, and its prosecution
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`history—constitute intrinsic evidence of claim construction. In addition to such intrinsic
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`evidence, a court may consider extrinsic evidence to determine the meaning of disputed claims.
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`Phillips. 415 F.3d at 1317. Such extrinsic evidence "consists of all evidence external to the
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`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
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`treatises." Phillips, 415 F.3d at 1317 (citing Markman, 52 F.3d at 980).
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`Such extrinsic evidence, however, is generally held as less reliable than the intrinsic
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`evidence, and "is unlikely to result in a reliable interpretation of patent claim scope unless
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`considered in the context of intrinsic evidence." IdL at 1317-18. With respect to expert
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`evidence, for example, "[c]onclusory, unsupported assertions by experts as to the definition of a
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`claim term are not useful to a court... [and] a court should discount any expert testimony that is
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`clearly at odds with the claim construction mandated by the claims themselves, the written
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`description, and the prosecution history, in other words, with the written record of the patent."
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`IdL at 1318.
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`With respect to general usage dictionaries, the Federal Circuit noted that "[dictionaries
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`or comparable sources are often useful to assist in understanding the commonly understood
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`meaning of words and have been used ... in claim construction," and further noted that "a
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`dictionary definition has the value of being an unbiased source 'accessible to the public in
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`advance of litigation.'" Id. at 1322 (citing Vitronics, 90 F.3d at 1585). However, the Federal
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`Circuit cautions that (1) "'a general-usage dictionary cannot overcome art-specific evidence of
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`the meaning' of a claim term;" (2) "the use of the dictionary may extend patent protection
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`beyond what should properly be afforded by the inventor's patent," and (3) that "[t]here is no
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`guarantee that a term is used in the same way in a treatise as it would be by the patentee."
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`Phillips, 415 F.3d 1322 fquoting Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366
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`F.3d 1311, 1321 (Fed. Cir. 2004)).7 Indeed, "different dictionary definitions may contain
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`somewhat different sets of definitions for the same words. A claim should not rise or fall based
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`upon the preferences of a particular dictionary editor,... uninformed by the specification, to rely
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`on one dictionary rather than another." Id,
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`D. The "Canons of Claim Construction"
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`The Federal Circuit has recognized certain guideposts, or "canons of construction," to
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`assist a court in determining the meaning of disputed claim terms and phrases. These are merely
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`guideposts, however, and are not immutable rules:
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`1.
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`2.
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`3.
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`4.
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`Doctrine of Claim Differentiation: Ordinarily, each claim in a patent has a
`different scope. See, e.g.. Versa Corp. v. Ag-Bag Int't Ltd.. 392 F.3d 1325, 1330
`(Fed. Cir. 2004). Ordinarily, a dependent claim has a narrower scope than the
`claim from which it depends. See, e.g., Phillips, 415 F.3d at 1315. Ordinarily, an
`independent claim has a broader scope than a claim that depends from it. See,
`e.g., Free Motion Fitness. Inc. v. Cvbex, In't. Inc., 423 F.3d 1343, 1351 (Fed. Cir.
`2005).
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`Ordinarily, claims are not limited to the preferred embodiment disclosed in the
`specification. See, e.g., Phillips. 415 F.3d at 1323.
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`Ordinarily, different words in a patent have different meanings. See, e.g.,
`Innova/Pure Water. Inc.. 381 F.3d at 1119-20.
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`Ordinarily, the same word in a patent has the same meaning. See, e.g., Phillips,
`415F.3datl314.
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`7In Phillips, the Federal Circuit thus expressly discounted the approach taken in Texas Digital Systems. Inc. v.
`Telegenix. Inc.. 308 F. 3d 1193 (Fed. Cir. 2002), in which the court placed greater emphasis on dictionary
`definitions of claim terms. Phillips. 415 F.3d at 1319-24 ("Although the concern expressed by the court in
`Texas Digital was valid, the methodology it adopted placed too much reliance on extrinsic sources such as
`dictionaries, treatises, and encyclopedias and too little on intrinsic sources, in particular the specification and
`prosecution history."). The Federal Circuit reaffirmed the approach in Vitronics. Markman. and Innova as the
`proper approach for district courts to follow in claim construction, but acknowledged that there was "no magic
`formula" for claim construction, and that a court is not "barred from considering any particular sources ... as
`long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic
`evidence." Phillips. 415 F.3d at 1324.
`8This list isderived from the one provided in the Federal JUDICIAL CENTER, Patent Lawand PRACTICE, §
`5.I.A.3.d (5th ed. 2006).
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`5.
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`6.
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`7.
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`8.
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`9.
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`Ordinarily, the meaning should align with the purpose of the patented invention.
`See, e.g., Innovad Inc. v. Microsoft Corp.. 260 F.3d 1326, 1332-33 (Fed. Cir.
`2001).
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`Ordinarily, general descriptive terms are given their full meaning. See, e.g..
`Innova/Pure Water. Inc.. 381 F.3d at 1118.
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`If possible, claims should be construed so as to preserve their validity. See, e.g.,
`Energizer Holdings. Inc. v. International Trade Comm'n, 435 F.3d 1366 (Fed. Cir.
`2006).
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`Ordinarily, absent broadening language, numerical ranges are construed exactly
`as written. See, e.g., Jeneric/Pentron v. Dillon Co.. 205 F.3d 1377,1381 (Fed.
`Cir. 2000).
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`Ordinarily, absent recitation of order, steps of a method are not construed to have
`a particular order. See, e.g.. Combined Svs.. Inc. v. Def. Tech. Corp. of Am.. 350
`F.3d 1207, 1211-12 (Fed. Cir. 2003).
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`10.
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`Absent highly persuasive evidentiary support, a construction should literally read
`on the preferred embodiment. See, e.g., Cvtologix Corp. v. Ventana Medical
`Svs.. Inc.. 414 F.3d 1168, 1175 (Fed. Cir. 2005).
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`III. Agreed Terms
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`The parties have reached agreement on the following terms and accompanying
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`constructions:
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`1. content provider site: a device that is part of the network and that can provide
`content to another device that is part of the network
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`2. content display site: a device that is part of the network and that can receive and
`display content from another device that is part of the network
`3. contentprovider server: a server that is part of the network and that can provide
`content to another device that is part of the network
`4. content: any sensory images (or data used to produce those sensory images)
`displayed by a device
`5. a content provider with an assigned account number, a content provider to
`which an account number has been assigned
`to cause/that causes/causes: to produce a specific result/that produces a specific
`result/produces a specific result
`7. causing display ofthe content to be detected: producing the specific result of
`detecting whether the content is presented on the display screen
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`6.
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`8. cause detection ofdisplay ofcontent associated with the contentfile: produce
`the specific result of detecting whether the content associated with the content file
`is presented on the display screen
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`9. causes display ofcontent associated with the contentfile to be detected:
`produces the specific result of detecting whether the content associated with the
`content file is presented on the display screen
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`10. causes display ofthe content associated with the file to be detected: produces the
`specific result of detecting whether the content associated with the file is
`presented on the display screen
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`11. determining... displayed: determining ... actually presented on a display
`screen. Doc. 79 at 3
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`IV.
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`Disputed Terms and Claim Constructions
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`The parties dispute the following terms, contained in the '680 patent, Blumenau Family
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`1, Blumenau Family 2, and the '826 patent, respectively. For brevity's sake, the Court has not
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`recounted the parties' arguments or the reasons for the Court's findings. The parties' positions
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`on the construction of the terms at issue are set forth in their respective briefs. See Docs. 85, 87,
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`89, 91, 99, 101,102,103. The Court's reasons for its findings are stated in the record.
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`A. The '680 Patent
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`The '680 patent has five (5) disputed claim terms, "local computer use meter," "installed
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`in user computer machines," "log," "predetermined events," and "said log of predetermined
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`events identifies character strings reflecting on-line activity." The disputed claim terms appear
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`in claims one (1) and twelve (12) of the '680 patent.
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`1. "local computer use meter/ user meter"
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`The Court ORDERS that the proper construction of the term "local computer use
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`meter/user meter" is "a software program installed in user computer machines, designed to
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`collect information regarding the use of other software programs."
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`2. "installed in user computer machines"
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`Here, the parties' dispute centered on the meaning ofthe word "installed."9 The Court
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`FINDS that the meaning of the word "installed" is plain to one of "ordinary skill in the art," and
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`therefore ORDERS that the proper construction of the term is as written in the claim: installed
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`in user computers. Vitronics, 90 F.3d at 1582.
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`3. "log"
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`The Court ORDERS that the proper construction of the term "log" is "a record."
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`4. "predetermined events"
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`The Court will determine the proper construction of the term "predetermined events" at
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`the final pre-trial conference, after deciding the appropriate construction of the claim term, "said
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`log of predetermined events identifies character strings reflecting on-line activity."
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`5. "said log of predetermined events identifies character strings reflecting on-line
`activity"
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`Consistent with its construction of the terms "log" and "predetermined events" the
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`Court ORDERS that the proper construction of the term "said log of predetermined events
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`identifies character strings reflecting online activity" is either "wherein a record of
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`operating system messages of types specified before recording begins which are identified
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`by character strings reflecting online activity," or "wherein a list of occurrences or actions
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`which meet the definition of 'predetermined events' and are identified by character strings
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`reflecting online activity." The Courtwill select one of thesetwo definitions at the final pre
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`trial conference.
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`9See Doc. 91 at 7, Doc. 89at 14-15, Doc. 79at 7-9
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`10
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`B. Blumenau Family 1
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`The Blumenau Family 1 group of patents contains six (6) disputed claim terms, "file,"
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`"computer executable ... instruction/computer executable . . . function," "event notification
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`passed from a host environment," "receives the at least one monitoring function as part of
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`receiving the content file," "B 'is referenced by' A / A 'references' B," and "located
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`in/in/contains/containing/including."
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`6. "file"
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`The Court ORDERS that the proper construction of the term "file" is "a named
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`collection of information stored as an apparent unit."
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`7. "computer executable... instruction/computer executable.. .function"
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`The Court ORDERS that the proper construction of the term "computer executable ...
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`instruction/ computer executable ... function" is "information specifying one or more steps
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`to be performed by a computer's processor."
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`8. "event notification passedfrom a host environment"
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`The Court has taken the parties proposed constructions and argument under advisement
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`and will reserve ruling upon the proper construction of "event notification passed from a host
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`environment," if this terms needs construction.
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`9. "receives the at least one monitoringfunction as part ofreceiving the contentfile"
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`The parties' dispute on the meaning of this claim term centered on the meaning of the
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`phrase "as part of."10 The Court FINDS that the meaning ofthe phrase "as part of is plain to
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`one of "ordinary skill in the art," and therefore ORDERS that the proper construction of the term
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`is as written in the claim: receives the at least one monitoring function as part of receiving
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`the content file. Vitronics, 90 F.3d at 1582.
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`10 SeeDoc. 91 at 17-18; Doc. 89 at 38; Doc. 79 at 97-99.
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`11
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`10. "B 'is referenced by' A /A 'references' B"
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`The Court ORDERS that the proper construction of the terms "B 'is referenced by' A/
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`A 'references' B" is "A identifies a location from which B may be retrieved."
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`11. "located in/in/contains/containing/including"
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`The Court FINDS that the meaning of the terms "located
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`in/in/contains/containing/including" is plain to one of "ordinary skill in the art," and therefore
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`ORDERS that the proper construction of these terms are as written in the claim: located
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`in/in/contains/containing/including. Vitronics, 90 F.3d at 1582. The Court cautions, however,
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`that each of these terms must be interpreted as the context of the claim requires.
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`C. Blumenau Family 2
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`There are eleven (11) disputed terms in the Blumenau Family 2 group of patents,
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`"object/objects," "list of objects," "obtaining a list of objects in the web content," "meta level of
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`the program code/browser," "metering exposure of the listed objects ... metering the one object.
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`..," "image," "contained in/in," "control," "inserting a reference to a control," "in order to
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`process the web content," and "at least some of the listed objects."
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`12. "object/objects"
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`The Court ORDERS that the proper construction of the term "object(s)" is "discrete
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`item(s), including an image or a video, that can be individually selected and manipulated."
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`13. "list ofobjects"
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`The Court ORDERS that the proper construction of the term "list of objects" is "a list
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`of more than one object."
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`12
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`14. "obtaining a list ofobjects in the web content"
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`The parties' dispute focuses on the meaning ofthe word "obtaining."11 The Court
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`FINDS that the meaning of the word "obtaining" is plain to one of "ordinary skill in the art," and
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`therefore ORDERS that the proper construction of the term is as written in the claim: obtaining
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`a list of objects in the web content. Vitronics, 90 F.3d at 1582.
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`15. "meta-level ofthe program code/browser"
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`The parties' dispute on the meaning of this claim term centered on the proper
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`construction ofthe word "meta-level."12 The Court adopted a construction that was derived from
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`both parties' proposals, and ORDERS that the proper construction for the term "meta-level" as
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`used in the terms "meta-level of the program code" and "meta-level of the browser" is "code
`
`that permits access through interface with objects and methods of the software that
`
`implements its method so that functionality of that software can be extended or
`
`supplemented."
`
`16. "metering exposure of the listed objects, wherein step b) includes the following
`steps: determining whether one ofthe objects is an object ofinterest; and, metering
`the one object only ifit is an object ofinterest."
`
`The Court ORDERS that the proper construction of the claim term containing the
`
`language "metering exposure of the listed objects, wherein step b) includes the following
`
`steps: determining whether one of the objects is an object of interest; and, metering the one
`
`object only if it is an object of interest" is "determining whether one of the objects is an
`
`object of interest; and, metering the one object only if it is an object of interest."
`
`1' SeeDoc. 91 at 36, Doc. 89 at 44; Doc. 79 at 113-15.
`12 SeeDoc. 91 at 30-32; Doc. 89 at 40; Doc. 79 at 104.
`
`13
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`

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`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 14 of 18 PageID# 4900
`
`17. "image"
`
`The Court ORDERS that the proper construction of the term "image" is "an electronic
`
`representation in whole or in part of an object which may be in a static or video format."
`
`18. "containedin/in"
`
`The Court FINDS that the meaning of the term "contained in/in" is plain to one of
`
`"ordinary skill in the art," and therefore ORDERS that the proper construction of the term is as
`
`written in the claim: contained in/in. Vitronics, 90 F.3d at 1582. The Court cautions, however,
`
`that each of these terms must be interpreted as the context of the claim requires.
`
`19. "control"
`
`The Court ORDERS that the proper construction of the term "control" is "an
`
`additional computer executable code that adds functionality to a computer program."
`
`20. "inserting a reference to a control [in the received HTML/in HTML received by the
`computer]"
`
`The Court ORDERS that the proper construction of the term "inserting a reference to a
`
`control (in the received HTML/in HTML received by the computer]" is "inserting data
`
`editing the HTML which identifies a location from which the control may be retrieved."
`
`21. "in order to process the web content"
`
`The Court ORDERS that the proper construction of the term "in order to process the
`
`web content" is "in order to process the metered data in accordance with the newly edited
`
`HTML."
`
`22. "at least some ofthe listed objects"
`
`The Court ORDERS that the proper construction of the term "at least some of the listed
`
`objects" is "two or more of the listed objects."
`
`14
`
`

`
`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 15 of 18 PageID# 4901
`
`D. The '826 Patent (The Counterclaim)
`
`The '826 patent contains five (5) disputed terms: "transactional information," "usage
`
`information," "statistical methodology," "statistical analysis information," and "technology."
`
`All disputed terms appear in the claim 1 of the '826 patent.
`
`/. "transactional information "
`
`The Court FINDS that the meaning of the term "transactional information" is plain to
`
`one of "ordinary skill in the art," and therefore ORDERS that the proper construction of the term
`
`is as written in the claim: transactional information. Vitronics, 90 F.3d at 1582.
`
`2. "usage information "
`
`The Court FINDS that the meaning of the term "usage information" is plain to one of
`
`"ordinary skill in the art," and therefore ORDERS that the proper construction of the term is as
`
`written in the claim: usage information. Vitronics. 90 F.3d at 1582.
`
`3. "statistical methodology"
`
`The Court ORDERS that the proper construction of the term "statistical methodology"
`
`is "mathematical concept."
`
`4. "statistical analysis information "
`
`The Court FINDS that the meaning of the term "statistical analysis information" is
`
`plain to one of "ordinary skill in the art," and therefore ORDERS that the proper construction of
`
`the term is as written in the claim: statistical analysis information. Vitronics. 90 F.3d at 1582.
`
`5. "technology"
`
`The Court ORDERS that the proper construction of the term "technology" is "any
`
`devices that are capable of sending or receiving data across a communication network."
`
`15
`
`

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`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 16 of 18 PageID# 4902
`
`V.
`
`Conclusion
`
`For the reasons stated on the record, the Court issues this Order and Opinion delineating
`
`the Court's construction of twenty-seven (27) terms contained in the patents-in-suit for the
`
`above-captioned case and related counterclaim. For ease of reference, the disputed terms and the
`
`Court's constructions are listed below:
`
`1
`
`"local computer use meter"
`
`ThM680 Patent
`a software program installed in user computer
`machines, designed to collect information
`regarding the use of other software programs
`The proper construction is as written in the
`claim.
`a record
`The Court will determine the proper
`construction of the term at the final pre-trial
`conference.
`The Court will select one of the following
`constructions at the final pre-trial conference:
`(1) "wherein a record of operating system
`messages of types specified before recording
`begins which are identified by character
`strings reflecting online activity;" or (2)
`"wherein a list of occurrences or actions
`which meet the definition of 'predetermined
`events' and are identified by character strings
`reflecting online activity."
`Blumenau Family 1
`a named collection of information stored as an
`apparent unit
`information specifying one or more steps to
`be performed by a computer's processor
`
`"installed in user computer machines'
`
`"log"
`'predetermined events'
`
`"said log of predetermined events
`identifies character strings reflecting on
`line activity"
`
`"file"
`
`"computer executable ...
`instruction/computer executable ...
`function"
`"event notification passed from a host
`environment"
`
`"receives the at least one monitoring
`function as part of receiving the content
`file"
`" B is referenced by A/A references B'
`
`10
`
`The Court has taken the parties' positions
`under advisement and will reserve ruling on
`the proper construction of this term, if the
`term needs construction.
`The proper construction is as written in the
`claim.
`
`A identifies a location from which B may be
`retrieved
`
`16
`
`

`
`Case 2:12-cv-00351-HCM-DEM Document 118 Filed 07/25/13 Page 17 of 18 PageID# 4903
`
`11
`
`"located
`in/in/contains/containing/including"
`
`12
`
`"object/objects"
`
`The proper construction is as written in the
`claim. The Court cautions, however, that the
`terms must be interpreted as the context of the
`claim requires.
`Blumenau Faniily 2
`discrete item(s), including an image or a
`video, that can be individually selected and
`manipulated
`a list of more t