Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 1 of 13 PageID #: 4928
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`§§§
`
` CIVIL ACTION NO. 6:11-cv-287-MHS-JDL
`
`§§
`
`CONSOLIDATED LEAD CASE
`
`§§§§
`
`MACROSOLVE, INC.
`
`v.
`
`ANTENNA SOFTWARE, INC., et al.,
`
`MACROSOLVE’S REPLY MARKMAN BRIEF
`
`RPX-1007
`Page 1 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 2 of 13 PageID #: 4929
`
`I.
`
`
`
`INTRODUCTION
`
`Defendants say that MacroSolve has taken “snippets” of text out of context, relied, “of
`
`course,” on “misleading” quotations and “marginally relevant extrinsic evidence,” and proposed
`
`“strange and confusing” claim constructions. Response at 1, 6.
`
`
`
`This rhetoric is not matched by what defendants actually show (or could show) in their
`
`response. The truth is that defendants were forced to abandon many of their claim constructions
`
`because they were not tenable in view of the evidence that MacroSolve presented in its opening
`
`brief. While some of defendants’ constructions are now, in some respects, more reasonable, the
`
`constructions they are proposing still contain numerous attempts to add unwarranted limitations.
`
`II.
`
`QUESTIONNAIRE
`
`Disputed Term
`
`questionnaire
`
`MacroSolve’s
`Construction
`a request for information,
`whether collected
`automatically or
`manually
`
`Defendants’ Original Construction
`
`a complete form or program that includes
`questions and internal branching logic, i.e.,
`instructions that provide a path from one
`question to another based upon a user’s response
`Geico’s New Construction
`plain meaning Response at 4, n. 1
`
`Newegg’s arguments in response show that it is seeking to inject multiple separate
`
`limitations into the definition of “questionnaire.” Geico, on the other hand, has now abandoned
`
`these additional limitations and says that the term should be given its plain meaning.
`
`The Court should reject each of the additional limitations sought by Newegg because
`
`they are not warranted by the plain meaning of the claims or anything in the description of the
`
`invention. The Court should reject Gecio’s proposal and should construe the term
`
`“questionnaire” because the specification explicitly defines the term.
`
`A.
`
`The Questionnaire Need Not Be Complete
`
`RPX-1007
`Page 2 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 3 of 13 PageID #: 4930
`
`There is no basis to require the questionnaire to be “complete,” and indeed the patent
`
`specification contains examples that are inconsistent with such a construction. See Opening
`
`Brief at 5. Newegg responds that its use of the word “complete” was not meant to suggest that it
`
`could not be modified later, but was meant only to make clear that the questionnaire “includes
`
`the series of questions and internal branching logic that it is required to include.” Response at 9.
`
`As an initial matter, the questionnaire is not required to include internal branching
`
`logic—more on that below. But more generally, Newegg’s use of the word “complete” is not the
`
`normal meaning of “complete” and the jury would not understand the word “complete” to mean
`
`what Newegg says. Indeed, Newegg’s meaning of “complete” is, completely, circular: it
`
`requires the questionnaire to include everything that it is “required to include.” If Newegg
`
`believes that something is necessary to make the questionnaire “complete,” then Newegg should
`
`have identified what it believes is required. The Court should not allow Newegg to argue that
`
`something is not a questionnaire because it is not “complete” in some undisclosed sense.
`
`B.
`
`The Questionnaire Need Not Be A Program Or Form
`
`Newegg argues as if the specification defines “questionnaire” to be a “form or program”
`
`and thus argues that a “questionnaire” must contain much more than requests for information.
`
`Response at 5. But, the specification defines a questionnaire as a series of questions or
`
`statements that call for a response, i.e., requests for information, not as a form or program.
`
`In definitional language, the specification makes clear that a questionnaire is simply a
`
`series of questions or statements requesting information:
`
`According to the preferred arrangement, data may be gathered by prompting the
`user via the handheld 28 with a series of questions or statements, each of which
`calls for a response. This series of questions or statements will have been
`constructed on computer 22 and reduced to tokenized form for transmission to the
`handheld 28. For purposes of the instant disclosure, the series of
`questions/statements will collectively be referred to as a questionnaire.
`
`RPX-1007
`Page 3 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 4 of 13 PageID #: 4931
`
`Ex. 1 at 8:12-19 [816 Patent]. The Court should adopt this express definition of “questionnaire.”
`
`See, e.g., Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995), aff’d, 517
`
`U.S. 370 (1996) (“As we have often stated, a patentee is free to be his own lexicographer.”).1
`
`Newegg focuses on the following sentences that immediately follow the definition above:
`
`As will be discussed in greater detail below, the questionnaire is actually designed
`to include internal branching logic which is implemented by the OIS. Hence,
`with regard to the present invention, the terms ‘program’ and ‘form’ are used
`interchangeably with questionnaire.
`
`Ex. 1at 8:19-24 [816 Patent]. According to Newegg, this shows that a “questionnaire” must be
`
`limited to a form or a program. But in reality it shows only that questionnaires can take the form
`
`of a program or a form, and that it should be understood in the patent specification that
`
`references to “forms” and “programs” will have the same general meaning as “questionnaire”
`
`that had already been expressly provided; i.e., that they are also requests for information.
`
`C.
`
`The Questionnaire Need Not Include Questions
`
`Newegg’s proposed construction contains a separate clause stating that the questionnaire
`
`must be something “that includes questions.” It is not clear, but to the extent that Newegg is
`
`arguing that “questions” must be interrogatives with question marks at the end, this part of the
`
`proposed construction is also unwarranted. The patent says, in definitional language, that the
`
`questionnaire can contain “questions or statements” requesting information. See Ex. 1 at 8:12-
`
`19. This is consistent with the plain meaning of questionnaire: questionnaires often contain
`
`requests for information that are not phrased in the form of a question, for example a blank field
`
`labeled “Name:”, or sections that allow a choice from multiple listed options.
`
`1 The patent specification is also unambiguous that the responses can be provided automatically by the software
`running on the handheld device. See Opening Brief at 4-5. Defendants concede this. See Response at 6
`(acknowledging that “the information that is ‘automatically collected’ represents responses to questions/inquiries
`that are part of the questionnaire.”). Accordingly, the Court should clarify to the jury that responses can be collected
`manually or automatically.
`
`RPX-1007
`Page 4 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 5 of 13 PageID #: 4932
`
`D.
`
`The Questionnaire Need Not Include Branching Logic
`
`The final limitation Newegg seeks to add to “questionnaire” is that it must include
`
`internal branching logic. The patent teaches that the questionnaire can be designed to include
`
`branching logic, and the patent has claims directed specifically to that concept, but the term
`
`“questionnaire” does not necessarily require branching logic.
`
`Newegg’s argument is premised solely on portions of the “description of the preferred
`
`embodiments” of the patent. See Response at 7-8. According to Newegg, the specification
`
`“consistently” describes a questionnaire as including branching logic. Not so.
`
`The specification does not even come close to describing branching logic as some
`
`integral, necessary part of the invention such that the requirement of branching logic should be
`
`grafted onto the definition of the term “questionnaire.” The patent starts by describing the
`
`general purposes of the invention, none of which requires branching logic. For example, the
`
`abstract highlights the fact that the invention can be used when a network connection is not
`
`always available. See Ex. 1 [816 Patent]. The patent contains a background section discussing
`
`various problems with prior art approaches, concluding with a list of “objects of the present
`
`invention” in view of those problems. Various possible aspects of the invention are highlighted
`
`in these objects, but branching logic is not mentioned. See id. at 1:21-4:35, specifically 4:16-36.
`
`A “summary of the invention” section follows, which starts by describing the invention in its
`
`“broadest sense” as a method designed to accomplish three things, none of which involve
`
`branching logic. See id. at 4:39-54. It then goes on to describe various additional aspects of the
`
`invention, only one of which is branching logic. See generally 4:39-6:42 (branching logic is
`
`mentioned briefly only at 5:24-27). By no means is “branching logic” so consistently disclosed
`
`in the specification that it should be injected into the construction of the word “questionnaire.”
`
`RPX-1007
`Page 5 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 6 of 13 PageID #: 4933
`
`Even the example from the description of the preferred embodiment on which Newegg
`
`relies makes clear that branching logic is only an optional feature. The patent explains that, in a
`
`preferred embodiment, the questionnaire is designed to include branching logic. See id. at 8:19-
`
`22 (“As will be discussed in greater detail below, the questionnaire is actually designed to
`
`include internal branching logic . . . .”). But what the patent discusses below shows that
`
`branching logic is an option that may be contained in a questionnaire, not an inherent part of a
`
`questionnaire. See id. at 8:38-40 (“As the client creates a list of questions, symbols from a tool
`
`bar may be used to control conditional branching based on the user’s response.”) (emphasis
`
`added); at 8:43-46 (“Each token preferably corresponds to a logical, mathematical, or branching
`
`operation and is preferably selected and made a part of the questionnaire through a graphical
`
`interface.”) (emphasis added).
`
`Indeed, the patent goes on to provide an explicit example of a questionnaire that involves
`
`no branching logic at all. See id. at 10:21-11:24. In this example, a questionnaire for a mystery
`
`shopper prompts the user to provide various information about a visit to a fast-food restaurant.
`
`The questionnaire contains various requests for information such as the time and location of the
`
`store, the time it takes to be served at a drive-through window, whether the speaker was working,
`
`if the menu was neat and clean, etc. In this example, however, none of the requests for
`
`information depend on the response of the user to an earlier request for information. According
`
`to Newegg’s proposed construction, this would not be a questionnaire even though the patent
`
`consistently uses the word “questionnaire” in describing this example.
`
`Finally, the doctrine of claim differentiation weighs against Newegg’s proposed addition
`
`of branching logic because the patent also provides separate, independent claims that are directed
`
`at the concept of branching logic. Opening Brief at 6. In response, Newegg argues that the
`
`RPX-1007
`Page 6 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 7 of 13 PageID #: 4934
`
`doctrine of claim differentiation does not apply because claim 3 has additional limitations
`
`beyond branching logic. Response at 9. But the thrust of claim 3 is clearly the branching logic
`
`limitation. The other limitations are things like using a computer to design the questionnaire,
`
`and are really only providing context for the additional requirement of branching logic.
`
`E.
`
`The Court Should Construe The Term Questionnaire
`
`Geico originally proposed the same construction as Newegg, but now asks that the Court
`
`to adopt the plain meaning of “questionnaire.” See Response at 4, n. 1. Instructing the jury that
`
`it should accord “questionnaire” its plain meaning would allow Geico to argue to the jury that
`
`should be resolved by the Court on claim construction. For example, Geico should not be
`
`allowed to argue to the jury that its products do not use questionnaires because they request
`
`information with statements rather than questions. Such an argument would be inconsistent with
`
`the explicit definition of the term questionnaire contained in the patent specification that makes
`
`clear that it can consist of questions or statements requesting responses.
`
`III.
`
`TOKENS
`
`Disputed Term MacroSolve’s Construction
`tokens
`any non-reducible textual
`element in data that is being
`parsed
`
`Defendants’ Original Construction
`computer code that point to each question
`and response and correspond to operating
`logic, and that are recognized by the
`operating system as valid instructions
`Defendants’ Current Construction
`nonreducible computer code that is being
`parsed
`Defendants have now dropped their original attempt to inject multiple limitations into the
`
`
`
`construction of the term “tokens.” But rather than accept the correct (computer) dictionary
`
`definition, defendants have tinkered with it in a manner that fundamentally changes its meaning.
`
`
`
`It is true that when the questionnaire is tokenized, the resulting tokens are “computer
`
`code” in the sense that the resulting code can be read by a computer. But it is not the computer
`
`RPX-1007
`Page 7 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 8 of 13 PageID #: 4935
`
`code that must be non-reducible. Rather, it is the individual, atomic elements of the computer
`
`code that are non-reducible. They are non-reducible because they each have a specific meaning
`
`to the parser that is reading them. That is why it makes sense to adopt the definition proposed by
`
`MacroSolve, which comes directly from the Microsoft computer dictionary.
`
`Defendants argue that their definition should be accepted because MacroSolve does not
`
`dispute that tokens are computer code. Response at 10. But the point is not that tokens are not
`
`computer code. The point is that it is each token that is a nonreducible element; it is not the
`
`computer code as a whole that must be nonreducible.
`
`Defendants also argue that the term “textual element in data” should be rejected because
`
`it does not appear anywhere in the specification. But the terms “nonreducible,” “computer
`
`code,” and “parsed,” also not in the specification, are part of their proposed construction. Both
`
`sides are relying on extrinsic evidence for the definition of “tokens.” The only difference is that
`
`MacroSolve has accepted the definition from an appropriate technical dictionary, whereas
`
`defendants are proposing to modify it in ways that are unwarranted.
`
`
`
`Finally, defendants argue that MacroSolve’s construction would allow a single period to
`
`be a token and that a single character “by itself could never be a token.” Response at 11.
`
`Defendants provide no support for this proposition. It is possible to design a system in which a
`
`single character is a token. For example, the single character ‘X’ could be used as a token
`
`assigned to the statement “enter your password.” When the parser receives the questionnaire it
`
`breaks it parses it and recognizes the token “X” and interprets it as meaning that it should display
`
`the text “enter your password” to the user. Indeed, other patents in similar technology use a
`
`single character as a token. Ex. A at 11:48-58 [421 Patent] (token “1” used to designate a
`
`phrase). Consequently, there is no reason why a token could not be a single character.
`
`RPX-1007
`Page 8 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 9 of 13 PageID #: 4936
`
`IV.
`
`TOKENIZING SAID QUESTIONNAIRE
`
`
`
`MacroSolve agrees that “assigning tokens to the questionnaire” as now proposed by
`
`defendants is an appropriate construction of “tokenizing said questionnaire.”
`
`V.
`
`EXECUTING AT LEAST A PORTION OF SAID PLURALITY OF TOKENS
`
`Disputed Term
`
`executing at least a portion of
`said plurality of tokens
`representing said
`questionnaire
`
`Disputed Term
`
`at said remote computing
`device to collect a response
`from a user / on said handheld
`remote computing device to
`collect a response from a user
`
`MacroSolve’s
`Construction
`processing at
`least some of
`the tokens so
`as to present at
`least part of the
`questionnaire
`
`MacroSolve’s
`Construction
`no
`construction
`necessary
`
`Defendants’ Original Construction
`
`performing . . . the operating instructions
`corresponding to at least some of the
`tokens
`Defendants’ Current Construction
`executing at least some of the tokens so as
`to present a question
`
`Defendants’ Original Construction
`
`. . . at the remote computing device . . .
`Defendants’ Current Construction
`to collect a response from a user on said
`remote computing device / to collect a
`response from a user on said handheld
`remote computing device
`
`Defendants have broken this claim phrase into two separate parts, which are reflected
`
`above. Defendants have also changed their proposed constructions, but two disputes remain.
`
`Defendants’ current construction of the “executing” claim phrase requires a “question” to
`
`be presented. As discussed above in section II, the patent defines questionnaire to mean a series
`
`of “questions or statements” that request information. Defendants’ proposed construction of the
`
`“executing” phrase is acceptable to MacroSolve so long as it is understood that questions can be
`
`statements requesting information (and not just interrogatives with question marks.)
`
`Defendants’ new constructions of the “at said remote computing device” and “on said
`
`handheld remote computing device” phrases, however, are not acceptable. Defendants argue that
`
`they are “simply” making a grammatical change to “explain, but not to change, the scope of the
`
`RPX-1007
`Page 9 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 10 of 13 PageID #: 4937
`
`claims.” Response at 18. Not so. Defendants reverse the order of the clauses so that the “at said
`
`remote computing device” and “on said handheld remote computing device” no longer describe
`
`where the executing step is done, but rather describe where the collection of the response is done.
`
`There is no good reason to rearrange the clauses to change their meaning.
`
`VI. AFTER SAID … CONNECTION IS TERMINATED, EXECUTING…TOKENS
`
`Disputed Term
`after said first wireless modem or wireless LAN
`connection is terminated, executing at least a portion of
`said plurality of tokens representing said questionnaire at
`said remote computing device to collect a response from a
`user after said handheld remote computing device has been
`taken out of electronic communication with said first
`computer, executing at least a portion of said plurality of
`tokens representing said questionnaire on said handheld
`remote computing device to collect a response from a user
`
`Defendants’ Construction
`after the network connection
`becomes unavailable and
`before another network
`connection becomes available,
`storing at the remote computing
`device a response from a user
`by executing [as defined herein]
`at least some of the tokens
`(emphasis added)
`
`Defendants argue that the additional “and before” limitation should be added into the
`
`claims based on the specification’s description of a “loosely networked” computer, as well as
`
`prosecution history statements. Response at 20-22. But the “loose network” described by the
`
`specification is the network that the claims say must be terminated and the executing steps must
`
`take place after the network connection is terminated. Similarly, during prosecution, the “after”
`
`limitation was added regarding the first network connection. No temporal limitation was added
`
`regarding when the second network connection is established and when the executing tokens step
`
`occurs. Accordingly, there was no disclaimer of claim scope that would warrant turning an
`
`“after” claim limitation into both “after” and “before” claim limitations.
`
`Lastly, defendants argue that the response must be stored at the handheld device based on
`
`the claim language “executing at least a portion of said plurality of tokens representing said
`
`questionnaire at said remote computing device to collect a response from a user.” This disputed
`
`claim language does not require storing a response on the handheld device.
`
`RPX-1007
`Page 10 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 11 of 13 PageID #: 4938
`
`VII. NOT EVERY STEP MUST BE PERFORMED IN ORDER
`
`Disputed Term
`order of method
`steps
`
`MacroSolve’s Construction
`The claims need to be performed in order
`only as dictated by the logic of the claims.
`
`Defendants’ Construction
`Steps must be done in order
`
`Defendants’ flawed logic leads to a narrow interpretation of how the steps can only be
`
`performed in order. First, defendants completely ignore the explicit example in the specification
`
`showing how steps (a) and (b) can overlap as a user creates questions and tokenizes the questions
`
`in real time. See, e.g., Opening Brief at 19, Ex. 1 at 8:38-56. Second, defendants claim that
`
`logic instructs that the connection be made only after the questionnaire is created and tokenized
`
`but fail to point to any language, prosecution history statement, or example in the patent showing
`
`that the steps must occur this way. Instead, defendants rely on the “most natural reading” but
`
`fail to show that the steps must be performed in order.
`
`Next, defendants argue that transmitting the tokens must be done after creating and
`
`tokenizing the questionnaire, steps (a) and (b). This is incorrect because these steps can overlap.
`
`For example, a user can enter a single question, tokenize that question, and send it to the
`
`handheld device all before starting the process over for question 2. Consequently, the steps may
`
`overlap and are not required to be performed in order. The same goes for steps (c)-(f)
`
`overlapping steps (g)-(h).
`
`VIII. INCORPORATING SAID TRANSMITTED TOKENS…
`
`MacroSolve drops the claims containing this term so that it is no longer at issue.
`
`IX.
`
`TERMINATING SAID FIRST . . . CONNECTION
`
`Defendants appear to have abandoned their position that these claim phrases should be
`
`construed (Response at 27) but condition it on MacroSolve agreeing that the connection must be
`
`“unavailable.” MacroSolve does not agree with that position. See Opening Brief at 15.
`
`RPX-1007
`Page 11 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 12 of 13 PageID #: 4939
`
`Dated: September 13, 2013
`
`Respectfully submitted,
`
`By: /s/ Califf T. Cooper
`Matthew J. Antonelli (lead counsel)
`Texas Bar No. 24068432
`matt@ahtlawfirm.com
`Zachariah S. Harrington
`Texas Bar No. 24057886
`zac@ahtlawfirm.com
`Larry D. Thompson, Jr.
`Texas Bar No. 24051428
`larry@ahtlawfirm.com
`Califf T. Cooper
`Texas Bar No. 24055345
`califf@ahtlawfirm.com
`ANTONELLI, HARRINGTON &
`THOMPSON LLP
`4200 Montrose Blvd, Suite 430
`Houston, TX 77006
`(713) 581-3000
`(713) 581-3020 fax
`
`S. Calvin Capshaw
`State Bar No. 03783900
`Email: ccapshaw@capshawlaw.com
`Elizabeth L. DeRieux
`State Bar No. 05770585
`Email: ederieux@capshawlaw.com
`D. Jeffrey Rambin
`State Bar No. 00791478
`Email: jrambin@capshawlaw.com
`CAPSHAW DeRIEUX, LLP
`114 E. Commerce Ave.
`Gladewater, Texas 75647
`Telephone: 903-236-9800
`Facsimile: 903-236-8787
`
`ATTORNEYS FOR PLAINTIFF
`MACROSOLVE, INC.
`
`RPX-1007
`Page 12 of 13
`
`

`

`Case 6:11-cv-00287-MHS-KNM Document 441 Filed 09/13/13 Page 13 of 13 PageID #: 4940
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on the 13th day of September, 2013, I electronically filed the
`foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of
`such filing to all counsel of record.
`
`/s/ Califf T. Cooper
`Califf T. Cooper
`
`RPX-1007
`Page 13 of 13
`
`