Case 6:12-cv-00957-MHS Document 91 Filed 08/14/13 Page 1 of 34 PageID #: 2758
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`UNITED STATES DISTRICT COURT
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`EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`Case No. 6:12cv957
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`LONE STAR WIFI LLC,
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`Plaintiff,
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`v.
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`JURY TRIAL DEMANDED
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`LEGACY STONEBRIAR HOTEL, LTD. D/B/A
`WESTIN STONEBRIAR HOTEL, LEGACY
`STONEBRIAR HOTEL II, LTD. D/B/A
`SHERATON STONEBRIAR HOTEL, HAC
`PLANO PARTNERS, L.P. D/B/A ALOFT
`PLANO HOTEL, HAC FRISCO PARTNERS,
`L.P. D/B/A ALOFT FRISCO HOTEL,
`AIMBRIDGE HOSPITALITY, L.P.,
`STARWOOD HOTELS AND RESORTS
`WORLDWIDE, INC.,
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`Defendants.
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`PLAINTIFF LONE STAR WIFI’S OPENING CLAIM CONSTRUCTION BRIEF
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`LONE STAR WIFI’S OPENING CLAIM CONSTRUCTION BRIEF
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`STARWOOD Ex 1009, page 1
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`Case 6:12-cv-00957-MHS Document 91 Filed 08/14/13 Page 2 of 34 PageID #: 2759
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`TABLE OF CONTENTS
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`PAGE
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`INTRODUCTION .............................................................................................................. 1 
`BACKGROUND OF THE TECHNOLOGY ..................................................................... 1 
`LEGAL STANDARDS FOR CLAIM CONSTRUCTION ................................................ 3 
`ARGUMENT REGARDING DISPUTED CLAIM TERMS ............................................. 8 
`A. 
`“Webpages” ............................................................................................................ 8 
`B. 
`“Files” ................................................................................................................... 10 
`C. 
`“Streams” .............................................................................................................. 11 
`D. 
`“Communication Part,” “Network Portion,” and “Networking Device” .............. 13 
`E. 
`“Keys” ................................................................................................................... 14 
`F. 
`“User’s Network Credential” ................................................................................ 18 
`G. 
`“Transmitting Over Substantially a Same Transmitting Area” ............................ 19 
`H. 
`“Transmitting… From an Area Overlapping from the Same Space as the First
`Networking Device” ............................................................................................. 21 
`“Including Access to Files on a System” .............................................................. 24 
`I. 
`CONCLUSION ................................................................................................................. 28 
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`I. 
`II. 
`III. 
`IV. 
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`V. 
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`TABLE OF AUTHORITIES
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`PAGE
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`Cases 
`Abtox, Inc. v. Exitron Corp.
`122 F.3d 1019 (Fed. Cir. 1997)................................................................................................... 6
`Allergan, Inc. v. Sandoz Inc.
`2011 WL 1599049 (E.D. Tex. Apr. 27, 2011) ............................................................................ 6
`Andersen Corp. v. Fiber Composites, LLC
`474 F.3d 1361 (Fed. Cir. 2007)................................................................................................... 7
`Avago Techs. U.S., Inc. v. STMicroelectronics, Inc.
`2011 WL 34399295 (E.D. Tex. Aug. 5, 2011) ........................................................................... 5
`Corning Glass Works v. Sumitomo Elec. U.S.A., Inc.
`868 F.2d 1251 (Fed. Cir. 1989)................................................................................................... 3
`Eolas Techs., Inc. v. Adobe Sys., Inc.
`810 F. Supp. 2d 795 (E.D. Tex. 2011) ........................................................................................ 5
`Globetrotter Software, Inc. v. Elam Computer Grp., Inc.
`362 F.3d 1367(Fed. Cir. 2004 ................................................................................................... 23
`i2 Techs., Inc. v. Oracle Corp.
`2011 WL 209692 (E.D. Tex. Jan. 21, 2011) ............................................................................... 6
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.
`381 F.3d 1111 (Fed. Cir. 2004)......................................................................................... 3, 7, 12
`Klausner Techs., Inc. v. Alcatel-Lucent USA, Inc.
`2013 WL 2242453 (E.D. Tex. May 20, 2013) ............................................................................ 4
`Liebel–Flarsheim Co. v. Medrad, Inc.
`358 F.3d 898 (Fed. Cir. 2004)............................................................................................. 15, 23
`Markman v. Westview Instruments, Inc.
`52 F.3d 967 (Fed. Cir. 1995)................................................................................................... 3, 7
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................... 4
`Pfizer, Inc. v. Teva Pharm., USA, Inc.
`429 F.3d 1364 (Fed. Cir. 2005)................................................................................................... 8
`Phillips v. AWH Corp.
`415 F.3d 1303 (Fed. Cir. 2005).......................................................................................... passim
`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc.
`711 F.3d 1348 (Fed. Cir. 2013)............................................................................................... 6, 7
`Pozen Inc. v. Par Pharm., Inc.
`800 F. Supp. 2d 789 (E.D. Tex. 2011) ........................................................................................ 5
`Prompt Med. Sys., L.P. v. Allscriptsmysis Healthcare Sol’ns, Inc.
`2011 WL 6318560 (E.D. Tex. Dec. 15, 2011) ............................................................................ 5
`Raylon LLC v. Complus Data Innovations
`2011 WL 1104175 (E.D. Tex. Mar. 23, 2011) ........................................................................... 6
`Raytheon Co. v. Roper Corp.
`724 F.2d 951 (Fed. Cir. 1983)..................................................................................................... 7
`SFA Sys., LLC v. 1-800-Flowers.com, Inc.
`--- F.Supp.2d ----, 2013 WL 1507762 (E.D. Tex. Apr. 11, 2013) .............................................. 4
`Star Scientific, Inc. v. R.J. Reynolds Tobacco Co.
`655 F.3d 1364 (Fed. Cir. 2011)........................................................................................... 17, 20
`Teleflex, Inc. v. Ficosa N. Am. Corp.
`299 F.3d 1313 (Fed. Cir. 2002)........................................................................................... 3, 6, 7
`ii
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`U.S. Surgical Corp. v. Ethicon, Inc.
`103 F.3d 1554 (Fed. Cir. 1997)......................................................................................... 3, 4, 10
`UltimatePointer, L.L.C. v. Nintendo Co., Ltd.
`2013 WL 2325118 (E.D. Tex. May 28, 2013) ............................................................................ 4
`Uniloc USA, Inc. v. Inmagine Corp., LLC
`2013 WL 3871360 (E.D. Tex. July 24, 2013) ............................................................................ 4
`Verve, LLC v. Crane Cams, Inc.
`311 F.3d 1116 (Fed. Cir. 2002)................................................................................................. 21
`Vitronics Corp. v. Conceptronic, Inc.
`90 F.3d 1576 (Fed. Cir. 1996)....................................................................................... 3, 6, 7, 23
`Statutes 
`35 U.S.C. § 112 ............................................................................................................................. 20
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`I.
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`INTRODUCTION
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`The parties’ disputes over various terms in U.S. Patent Nos. 7,490,3481 (“’348 Patent”)
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`and 8,312,2862 (“’286 Patent”) (collectively the “Patents-in-Suit”) reduce to two, basic
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`questions: (1) whether the Court must explicitly define words and phrases whose plain and
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`ordinary meaning would be understood perfectly well by a person of ordinary skill in the art at
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`the time of the invention, and (2) where such explicit constructions are necessary, whether they
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`should be based on litigation-inspired, extrinsic evidence or the intrinsic record of proceedings
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`before the Patent Office. Fortunately, both of these questions have already been answered by
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`controlling Federal Circuit precedent, which favors ordinary meaning and intrinsic evidence as a
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`way to yield the simplest, most accurate explanations for disputed terms.
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`Here, because Lone Star has followed the Federal Circuit’s tenets and proposed
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`constructions based on plain and ordinary meaning and the intrinsic record, the Court should
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`adopt Lone Star’s constructions over the result-oriented versions submitted by Defendants.
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`II.
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`BACKGROUND OF THE TECHNOLOGY
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`As Lone Star’s tutorial explained, in today’s hyper-connected world, the separation of
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`people’s data from the physical devices they use to access it results in several complications.
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`Where users typically care most about speed—how long it takes to retrieve a file, send an email,
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`or download a movie—those hosting networks must balance that need against their concerns
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`about access and security. Who can see what file? What permissions does each user have? If
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`access is not carefully controlled, data or resources can be stolen or coopted by those who should
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`not have them.
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`1 Declaration of Thomas Millikan (“Millikan Decl.”), Ex.A.
`2 Millikan Decl., Ex. B.
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`The unique solution inventor Scott C. Harris developed for these problems is to utilize
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`multiple, overlapping network streams, where each of the network streams has different
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`attributes and allows users to have different access to resources. For example, a class of users of
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`“Stream 1”3 might have access to proprietary files on a server, while another class of users of
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`“Stream 2” and “Stream 3” might not. Similarly, Stream 2 might allow certain users a faster
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`speed of network access than Stream 3.
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`Access to the various streams is accomplished with some combination of keys, e.g.,
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`passwords or other data each user offers a particular network when logging onto it. For example,
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`access to Stream 1 might require a first key, Stream 2 a second, different key, and Stream 3 no
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`key at all.
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`The networks and network streams addressed in the Patents-in-Suit cover wired and
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`wireless networks, but are primarily wireless. Certain claims envision multiple transmitters
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`being contained within a single, physical housing, while others do not. Also, according to the
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`claims, certain networks or streams are encrypted so unauthorized users cannot intercept and
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`access them, while others are not.
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`On March 17, 2003, Mr. Harris filed Provisional Patent Application No. 60/454,694
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`containing these ideas. That provisional application ultimately issued as the ’348 patent on
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`February 10, 2009. Mr. Harris has filed three continuation applications based on the ’348
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`patent’s specification. One of these issued as the ’286 patent on November 13, 2012. Another
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`continuation, Application No. 13/748,523 (“the Continuation Application”), was granted a
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`Notice of Allowance on May 31, 2013, but has not yet formally issued as a U.S. patent. See
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`Millikan Decl., Ex. 5. The third is pending at the Patent Office.
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`3 In wireless networking, a network’s name is often called the “service set identifier,” or “SSID.”
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`The ’348 Patent has three independent claims and eleven dependent claims. Of the
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`fourteen claims, eight are directed to systems while six are method claims. The ’286 Patent has
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`three independent and fifteen dependent claims, all of which are system claims. Because of the
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`shared specification, similar terms are found in both patents’ claims, and the constructions
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`offered here are proposed for both patents where the terms overlap.
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`III. LEGAL STANDARDS FOR CLAIM CONSTRUCTION
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`The claims of a patent define the scope of the invention. Teleflex, Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002). They provide the “metes and bounds” of the
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`patentee’s right to exclude. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251,
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`1257 (Fed. Cir. 1989). The purpose of claim construction is to resolve the meanings and
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`technical scope of claim terms. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed.
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`Cir. 1997). Accordingly, claim construction begins with and “remain[s] centered on the claim
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`language itself.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111,
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`1116 (Fed. Cir. 2004). Claim construction is a matter of law. Markman v. Westview
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`Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995).
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`Claim terms are normally given their “ordinary and customary meaning.” Phillips v.
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`AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quoting Vitronics Corp. v. Conceptronic,
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`Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). Generally, “the ordinary and customary meaning of a
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`claim term is the meaning that the term would have to a person of ordinary skill in the art in
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`question at the time of the invention.” Id at 1313.
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`Not every claim term or phrase requires an explicit construction, however. If commonly
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`understood words are used in the claims, then 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 the application of the widely accepted
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`meaning of commonly understood words.” Phillips, 415 F.3d at 1314. To do otherwise would
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`convert claim construction from “a matter of resolution of disputed meanings and technical
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`scope, to clarify and when necessary to explain what the patentee covered by the claims,” into
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`“an obligatory exercise in redundancy.” U.S. Surgical, 103 F.3d at 1568. Thus, “district courts
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`are not (and should not be) required to construe every limitation present in a patent’s asserted
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`claims.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir.
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`2008).
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`Consistent with this precedent, this Court has often exercised such restraint, refusing to
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`explicitly construe words and phrases whose plain and ordinary meaning are obvious from the
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`context of the claims without express definitions. See, e.g., Uniloc USA, Inc. v. Inmagine Corp.,
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`LLC, 2013 WL 3871360, *4 (E.D. Tex. July 24, 2013) (“As the claim language already provides
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`substantial guidance as to the meaning of the claim terms, the plain and ordinary meaning of the
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`claim language controls. Therefore, the term ‘determine if the [first/second] right is available’
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`does not require construction.”); UltimatePointer, L.L.C. v. Nintendo Co., Ltd., 2013 WL
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`2325118, *14 (E.D. Tex. May 28, 2013) (“Substituting ‘separation’ for ‘distance’ provides no
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`meaningful guidance as to the meaning of the term…. These terms employ the word ‘distance’
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`with its common and ordinary meaning. Therefore, no construction is necessary for these
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`terms.”); Klausner Techs., Inc. v. Alcatel-Lucent USA, Inc., 2013 WL 2242453, *6 (E.D. Tex.
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`May 20, 2013) (“The claim language itself [for ‘predetermined list of names’] is clear and would
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`be easily understandable to a juror in the context of the claims at issue. Accordingly, no
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`construction is required.”); SFA Sys., LLC v. 1-800-Flowers.com, Inc., --- F.Supp.2d ----, 2013
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`WL 1507762, *7 (E.D. Tex. Apr. 11, 2013) (“While the specification does describe using the
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`claimed systems and methods to assist a salesperson, it does not do so to the exclusion of other
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`potential embodiments. Further, the Court will not import a salesman limitation where a
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`salesperson is not literally required by the claims. ‘[A] computer implemented sales
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`system’/‘automated sales system’ does not require construction.”); Prompt Med. Sys., L.P. v.
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`Allscriptsmysis Healthcare Sol’ns, Inc., 2011 WL 6318560, *9 (E.D. Tex. Dec. 15, 2011) (“CPT
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`code is well-understood by a person of ordinary skill in the art as a code promulgated by the
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`AMA to provide ‘a uniform language that details medical, surgical, and diagnostic services.’
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`These codes are commonly used to communicate medical services performed to third-parties,
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`such as insurance providers. Additionally, the term ‘final’ is readily understood by its plain
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`meaning. Thus, the term ‘final CPT code’ does not require construction and will be given its
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`plain and ordinary meaning as understood by a person of ordinary skill in the art.”); Eolas
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`Techs., Inc. v. Adobe Sys., Inc., 810 F. Supp. 2d 795, 805 (E.D. Tex. 2011) (“Regarding the
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`‘specifies the location [of at least a portion of [an/said] object]’ language, the parties’ proposed
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`constructions are merely attempts to restate the claim language or an effort to include the plain
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`and ordinary meaning. Accordingly, this term needs no construction.”); Pozen Inc. v. Par
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`Pharm., Inc., 800 F. Supp. 2d 789, 802 (E.D. Tex. 2011) (“The use of the term ‘therapeutic,’ as
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`noted above, implies nothing more than that the complete package is intended for use in
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`therapy—the adjective ‘therapeutic’ does not imply any particular structure for the container
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`portion of the package. Thus, even if this term is a limitation, one of ordinary skill in the art
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`would understand the plain and ordinary meaning of ‘therapeutic package’ as simply a package
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`for use in therapy.”); Avago Techs. U.S., Inc. v. STMicroelectronics, Inc., 2011 WL 3439929, *5
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`(E.D. Tex. Aug. 5, 2011) (“As with ‘host device,’ the Court will not specifically construe the ‘an
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`electronic chip for use in an apparatus’ since its plain and ordinary meaning would be readily
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`understood by the jury.”); Allergan, Inc. v. Sandoz Inc., 2011 WL 1599049, *16-17 (E.D. Tex.
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`Apr. 27, 2011) (finding “nothing confusing about” phrase “reducing the number of daily topical
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`ophthalmic doses” and therefore finding no construction necessary); Raylon LLC v. Complus
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`Data Innovations, 2011 WL 1104175, *4 (E.D. Tex. Mar. 23, 2011) (“The word ‘display’ used
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`within the context of the claims is easily understood and does not require additional definition
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`beyond its plain and ordinary meaning.”); i2 Techs., Inc. v. Oracle Corp., 2011 WL 209692, *4
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`(E.D. Tex. Jan. 21, 2011) (“The plain language of the term is understandable; therefore,
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`‘planning coordination protocol’ and ‘a planning coordination system for providing a protocol to
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`coordinate’ do not require construction.”).
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`To determine the proper meaning to attribute to a disputed term, the best guide is a
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`patent’s intrinsic evidence, including the patent’s specification and prosecution history. Teleflex,
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`299 F.3d at 1325. Construction begins with the language of the claim, and the court “presume[s]
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`that the terms in the claim mean what they say.” Power Integrations, Inc. v. Fairchild
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`Semiconductor Int’l, Inc., 711 F.3d 1348, 1360 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1312
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`(“[T]he claims are of primary importance, in the effort to ascertain precisely what it is that is
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`patented.”)). Also, “the context in which a term is used in the asserted claim can be highly
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`instructive.” Phillips, 415 F.3d at 1314; see also Abtox, Inc. v. Exitron Corp., 122 F.3d 1019,
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`1023 (Fed. Cir. 1997) (“[T]he language of the claim frames and ultimately resolves all issues of
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`claim interpretation.”). For example, “[d]ifferences among claims can… be a useful guide in
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`understanding the meaning of particular claim terms.” Phillips, 415 F.3d at 1314.
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`In addition to the claims, the specification’s written description is an important
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`consideration during the claim construction process. Vitronics, 90 F.3d at 1582. “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Phillips, 415 F.3d at
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`1315 (quoting Vitronics, 90 F.3d at 1582). But, care must be taken to avoid unnecessarily
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`reading limitations from the specification into the claims. Teleflex, 299 F.3d at 1326; see also
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`Raytheon Co. v. Roper Corp., 724 F.2d 951, 957 (Fed. Cir. 1983) (“That claims are interpreted in
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`light of the specification does not mean that everything expressed in the specification must be
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`read into all the claims.”). “[P]articular embodiments appearing in the written description will
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`not be used to limit claim language that has broader effect.” Innova/Pure Water, 381 F.3d at
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`1117; see also Phillips, 415 F.3d at 1323 (“[A]lthough the specification often describes very
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`specific embodiments of the invention, we have repeatedly warned against confining the claims
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`to those embodiments.”).
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`The prosecution history is also part of the intrinsic evidence. Phillips, 415 F.3d at 1317.
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`It “consists of the complete record of the proceedings before the PTO and includes the prior art
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`cited during the examination of the patent.” Id. Events and statements made during the
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`prosecution of one patent may bear on the construction of related patents, particularly if they
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`stem from common applications and share subject matter. See, e.g., Andersen Corp. v. Fiber
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`Composites, LLC, 474 F.3d 1361, 1368 (Fed. Cir. 2007).
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`Finally, if the intrinsic record is ambiguous, the court may rely on extrinsic evidence—
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`i.e., everything external to the patent and prosecution history, including expert and inventor
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`testimony, dictionaries, and learned treatises—to aid with understanding the meaning of claim
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`terms. Power Integrations, 711 F.3d at 1360 (citing Phillips, 415 F.3d at 1317, and Markman,
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`52 F.3d at 980-81). Extrinsic evidence is generally less useful or reliable, Phillips, 415 F.3d at
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`1317, and it should not be relied on when it contradicts the intrinsic evidence. Markman, 52
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`F.3d at 981.
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`IV. ARGUMENT REGARDING DISPUTED CLAIM TERMS
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`A.
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`Claim Term
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`“Webpages”4
`’348
`’286
`Claims
`Claims
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`Lone Star’s Proposed
`Construction
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`webpages
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`14
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`1, 12, 15 No construction is necessary. This
`language should be given its plain
`and ordinary meaning.
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`Alternatively:
`an HTML file with associated files
`for graphics and scripts in a
`particular directory on a particular
`machine.
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`Defendants’
`Proposed
`Construction5
`electronic file(s)
`suitable for display
`by a web
`browser
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`The dispute over how to construe “webpages” typifies several of the disputes the parties
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`have regarding terms in the Patents-in-Suit. “Webpages” does not need a construction and
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`should be given its plain and ordinary meaning. A person of ordinary skill in the art at the time
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`of the invention would understand what the word “webpage” means. Indeed, most lay jurors
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`would have no trouble understanding it as well. Accordingly, no express construction is
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`instructive or necessary.
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`Despite the term’s obvious plain and ordinary meaning, Defendants propose construing
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`“webpage” to mean “electronic file(s) suitable for display by a web browser.” Not only is that
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`construction unnecessary, it is fatally flawed by attempting to read today’s technology rather
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`than the technology at the time of the invention, i.e., 2003. “When interpreting claims, we
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`inquire into how a person of ordinary skill in the art would have understood claim terms at the
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`time of the invention.” Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d 1364, 1372-73 (Fed.
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`Cir. 2005) (citing Phillips, 415 F.3d at 1313) (emphasis added). With today’s modern web
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`4 See Millikan Decl., Ex. 10, Amended Joint Claim Construction Chart, Item No. 27.
`5 Shortly before Lone Star was due to file its brief, Defendants wrote to Lone Star indicating they
`may relent with respect to construing this term.
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`Case 6:12-cv-00957-MHS Document 91 Filed 08/14/13 Page 13 of 34 PageID #: 2770
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`browsers, almost any electronic file can be “displayed”: movies, Word documents, PowerPoint
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`slideshows, PDFs, etc. Yet none of these are “webpages” and no one would think of them as
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`such in 2003 or today.
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`Defendants’ attempted overreach is illustrated by the gymnastics they perform to arrive at
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`their construction. Defendants start, not with intrinsic evidence to see if there is an ambiguity,
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`but rather with extrinsic evidence, the “Official Netscape Enterprise Server 3 Book.” (Millikan
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`Decl., Ex. 7 at DEFS-LS0008390.) Making matters worse, Defendants then ignore the book’s
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`own definition of “web page,” which Netscape defines as “another term for an HTML
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`document.” (Id.) Instead, Defendants cobble their construction together from the definitions of
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`three different terms: “Web browser” (“Application used to navigate World Wide Web and
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`display HTML document”), “HTML” (“A subset of SGML used for World Wide Web
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`documents.”), and “document” (Any form of stored data or information that is human readable”).
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`(Id. at. DEFS-LS0008388-390.)
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`Lone Star maintains that the term “webpage” is fully understandable without any express
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`construction based on its plain and ordinary meaning. If, however, the Court feels the term
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`requires an explicit construction, Lone Star offers an alternative drawn directly from the
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`Microsoft Dictionary Defendants identified in their disclosures. Microsoft defines “web page”
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`as “an HTML file with associated files for graphics and scripts in a particular directory on a
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`particular machine.” (Millikan Decl., Ex. 8 at LSW006245.) That definition, while unnecessary,
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`is at least accurate and consistent with the term’s plain and ordinary meaning.
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`STARWOOD Ex 1009, page 13
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`Case 6:12-cv-00957-MHS Document 91 Filed 08/14/13 Page 14 of 34 PageID #: 2771
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`“Files”6
`’348
`Claims
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`1, 4
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`B.
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`Claim Term
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`files on a
`system
`files on said
`system
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`network files
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`6
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`’286
`Claims
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`
`
`Lone Star’s
`Proposed
`Construction
`No construction is
`necessary for “file”.
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`The proper term for
`construction is the
`entire phrase. See
`above
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`The proper term for
`construction is the
`entire phrase. See
`entries 1-9 above.
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`Defendants’ Proposed
`Construction7
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`The term “file” should be construed
`as “the basic unit of storage that
`enables a computer to distinguish
`one set of information from another,
`such as a program, a set of data used
`by a program, or a user created
`document”
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`The term “system” does not need to
`be construed and should be given its
`plain and ordinary meaning.
`files stored by a device connected to
`the wireless network
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`Rather than construe an entire contextual phrase, like “including access to files on a
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`system/server,” Defendants propose cherry-picking the word “files” and the term “network files”
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`out from their respective phrases for construction. The truth is, however, just as with
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`“webpages,” the term “files” can be given its plain and ordinary meaning without an explicit
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`construction. A person of ordinary skill in the art in 2003 would certainly understand what the
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`word “file” means as it relates to a computer. Indeed, most lay people have sufficient computer
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`experience to understand what a “file” is. Likewise, “network files” does not require a separate
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`construction, as the descriptor “network” provides sufficient explanation on its own. Attempting
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`to explain that “network files” means “files residing on a network” to the jury is exactly the kind
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`of “exercise in redundancy” the Federal Circuit has warned against. U.S. Surgical, 103 F.3d
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`at 1568.
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`6 See Millikan Decl., Ex 10, Item Nos. 12-13.
`7 Shortly before Lone Star was due to file its brief, Defendants wrote to Lone Star indicating they
`may relent with respect to construing this term.
`10
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`STARWOOD Ex 1009, page 14
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`Case 6:12-cv-00957-MHS Document 91 Filed 08/14/13 Page 15 of 34 PageID #: 2772
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`C.
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`Claim Terms
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`“Streams”8
`’348
`Claims
`
`’286
`Claims
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`Lone Star’s Proposed
`Construction
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`communication
`stream
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`1, 4
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`
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`wireless network
`stream
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`
`
`wireless system
`network stream
`
`1, 3,
`12, 14,
`15, 17,
`18
`15
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`No construction is necessary. This
`language should be given its plain
`and ordinary meaning.
`Alternatively: a continuous
`communication
`No construction is necessary. This
`language should be given its plain
`and ordinary meaning.
`Alternatively: a continuous
`communication without wires
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`Defendants’
`Proposed
`Construction
`wireless data
`transmission
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`Like “webpage” and “files,” the variations on the word “streams” in the Patents-in-Suit
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`require no explicit construction. Their plain and ordinary meaning is obvious from context, and
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`there is no indication in the intrinsic evidence these terms were intended to take on a special
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`meaning other than their plain and ordinary meaning.
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`Defendants’ constructions of the “stream” terms are extremely problematic for several
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`reasons. First, Defendants’ proposed construction of “wireless data transmission” effectively
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`removes the word “stream” from the terms entirely and, in doing so, radically changes their
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`meaning. An electronic “stream”—just like a stream of water—connotes something that is
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`continuously flowing. Indeed, even Defendants’ own dictionary defines the word “stream” as
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`“any data transmission, such as movement of a file between disk and memory, that occurs in a
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`continuous flow,” or “to transfer data continuously, beginning to end, in a steady flow.”
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`(Millikan Decl., Ex.8 at.) By attempting to characterize each of these “streams” as a
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`“transmission,” which typically has a beginning and an end, Defendants would change a
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`continuous flow to a short burst of data.
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`8 See Millikan Decl., Ex 10, Item Nos. 24-26.
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`STARWOOD Ex 1009, page 15
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`A second, equally important problem is that, by attempting to construe all of the “stream”
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`terms equivalently, Defendants have surreptitiously inserted the word “wireless” into the
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`construction of “communication stream.” Unlike “wireless network stream” and “wireless
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`system network stream,” which are obviously expressly limited to wireless embodiments by their
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`very wording, there is absolutely no reason a “communication stream” must inherently be
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`wireless. Indeed, the only reason for attemp