UNITED STATES DISTRICT COURT
`
`EASTERN DISTRICT OF TEXAS
`
`MARSHALL DIVISION
`
`CARDSOFT, INC., ET AL.
`
`vs.
`VERIFONE HOLDINGS, INC., ET AL.
`
`§
`
`§
`§
`
`CASE NO. 2:08-CV-98-CE
`
`MEMORANDUM OPINION AND ORDER
`
`I.
`
`INTRODUCTION
`
`Plaintiffs CardSoft (Assignment for the Benefit of Creditors) LLC and CardSoft, Inc.
`
`(collectively “CardSoft” or “Plaintiffs”) brought this action against Verifone Holdings, Inc.,
`
`Verifone Inc., Hypercom Corporation, Ingenico S.A., Ingenico Corp., Ingenico Inc., Way
`
`Systems,
`
`Inc., Shera International Ltd.
`
`and Blue Bamboo (USA),
`
`Inc.1
`
`(collectively
`
`“Defendants”), alleging infiingement of CardSoft’s U.S. Patent Nos. 6,934,945 (“the ’945
`
`Patent”) and 7,302,683 (“the ’683 Patent”).2 The court held a Markman hearing on July 29,
`
`2011. After considering the submissions and the arguments of counsel, the court issues the
`
`following order concerning the parties’ claim construction disputes.
`
`II.
`
`THE PATENT-IN-SUIT
`
`The patents-in-suit are entitled “Method and Apparatus for Controlling Communications”
`
`and are directed “to preparing and processing information to be communicated via a network or
`
`to or fiom other data carriers.” ’945 Patent at Abstract. The Abstract of the invention explains
`
`that:
`
`Defendants Shera International Ltd. and Blue Bamboo (USA), Inc. have been dismissed
`1
`fiom this case. See Dkt. No. 226.
`
`The ‘945 and ‘683 Patent share a common specification, and therefore, for convenience
`2
`purposes, all future citations will be to the specification of the ‘945 Patent.
`
`Petitioner First Data - Exhibit 1008 - Page 1
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`

`
`For implementation of a novel “virtual machine” of the present invention, a
`minimal amount of hardware is required. Prior art virtual machines tend to slow
`down operation of the device as they interface between an application program
`and device drivers. The novel virtual machine incorporates a virtual message
`processing means that is arranged to construct, deconstruct and compare messages
`and applied in the native code of the processor. The message instruction means
`directs and controls the message processor. Similarly, a protocol processor means
`governs and organs [sic] communications, under the direction of a protocol
`instruction means in the application. These elements of the novel virtual machine
`increase the speed and efficiency and allow implementation of a practical device
`for use in communications, able to be implemented on different hardware having
`different BIOS/OS.
`
`Id. Claim 1 of the ’945 Patent, which is representative of the claims of the patents-in-suit,
`
`recites:
`
`1. A communication device which is arranged to process messages
`communications, comprising a virtual machine means which includes
`
`for
`
`a virtual fi1IlCt1OIl processor and function processor instructions for controlling
`operation of the device, and
`
`message induction [sic] means including a set of descriptions of message data;
`
`a virtual message processor, which is arranged to be called by the function
`processor and which is arranged to carry out the message handling tasks of
`assembling the messages, disassembling messages and comparing the
`messages under the direction of the message instruction means that
`is
`arranged to provide directions for operation of the virtual message processor,
`whereby when a message is required to be handled by the communications
`device the message processor is called to carry out the message handling task,
`
`wherein the virtual machine means is emulatable in different computers
`having incompatible hardwares or operating systems.
`
`Id. at 50:49-67.
`
`III.
`
`GENERAL PRINCIPLES GOVERNING CLAIM CONSTRUCTION
`
`“A claim in a patent provides the metes and bounds of the right which the patent confers
`
`on the patentee to exclude others fiom making, using or selling the protected invention.” Burke,
`
`Inc. V. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Claim construction
`
`2
`
`Petitioner First Data - Exhibit 1008 - Page 2
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`

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`is an issue of law for the court to decide. Markman V. WestView Instruments, Inc., 52 F.3d 967,
`
`970-71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).
`
`To ascertain the meaning of claims, the court looks to three primary sources: the claims,
`
`the specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
`
`contain a written description of the invention that enables one of ordinary skill in the art to make
`
`and use the invention. Id A patent’s claims must be read in view of the specification, of which
`
`they are a part.
`
`Id. For claim construction purposes, the description may act as a sort of
`
`dictionary, which explains the invention and may define terms used in the claims.
`
`Id. “One
`
`purpose for examining the specification is to determine if the patentee has limited the scope of
`
`the claims.” Watts V. H Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
`
`Nonetheless, it is the function of the claims, not the specification, to set forth the lin1its of
`
`the patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l V. Matsushita
`
`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
`
`lexicographer, but any special definition given to a word must be clearly set forth in the
`
`specification.
`
`Intellicall, Inc. V. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
`
`Although the specification may indicate that certain embodiments are preferred, particular
`
`embodiments appearing in the specification will not be read into the claims when the claim
`
`language is broader than the embodiments. Electro Med. Sys., S.A. V. Cooper Life Sciences, Inc.,
`
`34 F.3d 1048, 1054 (Fed. Cir. 1994).
`
`This court’s claim construction decision must be informed by the Federal Circuit’s
`
`decision in Phillips V. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
`
`the court set forth several guideposts that courts should follow when construing claims.
`
`In
`
`particular, the court reiterated that “the claims of a patent define the invention to which the
`
`3
`
`Petitioner First Data - Exhibit 1008 - Page 3
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`

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`patentee is entitled the right
`
`to exclude.”
`
`415 F.3d at 1312 (emphasis added) (quoting
`
`Innova/Pure Water, Inc. V. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir.
`
`2004)). To that end, the words used in a claim are generally given their ordinary and customary
`
`meaning. Id. The ordinary and customary meaning of a claim term “is the meaning that the term
`
`would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as
`
`of the effective filing date of the patent application.” Id. at 1313. This principle of patent law
`
`flows naturally fiom the recognition that inventors are usually persons who are skilled in the
`
`field of the invention and that patents are addressed to and intended to be read by others skilled
`
`in the particular art. Id.
`
`The primacy of claim terms notwithstanding, Phillips made clear that “the person of
`
`ordinary skill in the art is deemed to read the claim term not only in the context of the particular
`
`claim in which the disputed term appears, but in the context of the entire patent, including the
`
`specification.” Id. Although the claims themselves may provide guidance as to the meaning of
`
`particular terms, those terms are part of “a fiilly integrated written instrument.” Id. at 1315
`
`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as
`
`being the primary basis for construing the claims. Id. at 1314-17. As the Supreme Court stated
`
`long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
`
`portions of the specification to aid in solving the doubt or in ascertaining the true intent and
`
`meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878).
`
`In
`
`addressing the role of the specification,
`
`the Phillips court quoted with approval its earlier
`
`observations fiom Renishaw PLC V. Marposs Societa ’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
`
`1998):
`
`Ultimately, the interpretation to be given a term can only be determined and
`
`4
`
`Petitioner First Data - Exhibit 1008 - Page 4
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`

`
`confirmed with a full understanding of what the inventors actually invented and
`intended to envelop with the claim. The construction that stays true to the claim
`language and most naturally aligns with the patent’s description of the invention
`will be, in the end, the correct construction.
`
`Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important
`
`role the
`
`specification plays in the claim construction process.
`
`The prosecution history also continues to play an important role in claim interpretation.
`
`Like the specification, the prosecution history helps to demonstrate how the inventor and the
`
`PTO understood the patent.
`
`Id. at 1317. Because the file history, however, “represents an
`
`ongoing negotiation between the PTO and the applicant,” it may lack the clarity of the
`
`specification and thus be less useful in claim construction proceedings.
`
`Id. Nevertheless, the
`
`prosecution history is intrinsic evidence that is relevant to the determination of how the inventor
`
`understood the invention and whether the inventor limited the invention during prosecution by
`
`narrowing the scope of the claims. Id.
`
`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
`
`favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
`
`condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
`
`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
`
`dictionaries or otherwise) before resorting to the specification for certain limited purposes.
`
`Phillips, 415 F.3d at 1319-24. The approach suggested by Texas Digital—the assignment of a
`
`limited role to the specification—was rejected as inconsistent with decisions holding the
`
`specification to be the best guide to the meaning of a disputed term. Id. at 1320-21. According
`
`to Phillips, reliance on dictionary definitions at the expense of the specification had the effect of
`
`“focus[ing] the inquiry on the abstract meaning of words rather than on the meaning of claim
`
`Petitioner First Data - Exhibit 1008 - Page 5
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`

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`terms within the context of the patent.” Id. at 1321. Phillips emphasized that the patent system
`
`is based on the proposition that the claims cover only the invented subject matter.
`
`Id. What is
`
`described in the claims flows fiom the statutory requirement imposed on the patentee to describe
`
`and particularly claim what he or she has invented.
`
`Id. The definitions found in dictionaries,
`
`however, often flow fiom the editors’ objective of assembling all of the possible definitions for a
`
`Word. Id. at 1321-22.
`
`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
`
`Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
`
`court emphasized that claim construction issues are not resolved by any magic formula. The
`
`court did not impose any particular sequence of steps for a court to follow when it considers
`
`disputed claim language.
`
`Id. at 1323-25. Rather, Phillips held that a court must attach the
`
`appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
`
`bearing in mind the general rule that the claims measure the scope of the patent grant.
`
`The patents-in-suit include claim limitations that are alleged to fall within the scope of 35
`
`U.S.C. § 112, 1] 6. “An element in a claim for a combination may be expressed as a means or
`
`step for performing a specified function without the recital of structure. .
`
`. in support thereof, and
`
`such claim shall be construed to cover the corresponding structure .
`
`.
`
`. described in the
`
`specification and equivalents thereof.” 35 U.S.C. § 112, 1} 6. The first step in construing a
`
`means-plus-fiinction limitation is to identify the recited function. See Micro Chem., Inc. v. Great
`
`Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999). The second step in the analysis is to
`
`identify in the specification the structure corresponding to the recited function.
`
`Id. The
`
`“structure disclosed in the specification is ‘corresponding’ structure only if the specification or
`
`prosecution history clearly links or associates that structure to the function recited in the claim.”
`
`6
`
`Petitioner First Data - Exhibit 1008 - Page 6
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`

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`Medical Instrumentation and Diagnostics Corp. V. Elekta AB, 344 F.3d 1205, 1210 (Fed. Cir.
`
`2003) (citing B. Braun V. Abbott Labs, 124 F.3d 1419, 1424 (Fed. Cir. 1997)). The patentee
`
`must clearly link or associate structure with the claimed function as part of the quid pro quo for
`
`allowing the patentee to express the claim in terms of fimction pursuant to § 112, 1] 6. See id. at
`
`1211; see also Budde V. Harley-DaVidson, Inc., 250 F.3d 1369, 1377 (Fed. Cir. 2001). The
`
`“price that must be paid” for use of means-plus-fiinction claim language is the limitation of the
`
`claim to the means specified in the written description and equivalents thereof. See 0.I. Corp. V.
`
`Tekmar Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997). “If the specification does not contain an
`
`adequate disclosure of the structure that corresponds to the claimed fiJIlClIlOIl, the patentee will
`
`have ‘failed to particularly point out and distinctly claim the invention as required by the second
`
`paragraph of section 112,’ which renders the claim invalid for indefmiteness.” Blackboara’, Inc.
`
`V. Desire2Learn, Inc., 574 F .3d 1371, 1382 (Fed. Cir. 2009) (quoting In re Donaldson Co., 16
`
`F.3d 1189, 1195 (Fed. Cir. 1994) (en banc)).
`
`It is important to determine whether one of skill in
`
`the art would understand the specification itself to disclose the structure, not simply whether that
`
`person would be capable of implementing the structure. See Atmel Corp. V. Info. Storage
`
`DeVices,
`
`Inc.,
`
`198 F.3d 1374, 1382 (Fed. Cir.
`
`1999); Biomedino, 490 F.3d at 953.
`
`Fundamentally, it is improper to look to the knowledge of one skilled in the art separate and
`
`apart from the disclosure of the patent. See Medical Instrumentation, 344 F.3d at 1211-12. “[A]
`
`challenge to a claim containing a means-plus-fiinction limitation as lacking structural support
`
`requires a finding, by clear and convincing evidence, that the specification lacks disclosure of
`
`structure sufficient to be understood by one skilled in the art as being adequate to perform the
`
`recited fiinction.” Budde, 250 F.3d at 1376-77
`
`Petitioner First Data - Exhibit 1008 - Page 7
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`

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`IV.
`
`CLAIM TERMS IN DISPUTE
`
`a. “virtual machine means”
`
`Plaintiffs’ Pro nosed Construction
`
`Defendants’ Pro nosed Construction
`
`to
`programmed
`a
`emulate
`A computer
`hypothetical computer for applications relating
`to transport of data, including payment terminal
`devices
`in which message processing and
`communication
`comprise
`a
`significant
`proportion of the operation of the device.
`
`A computer programmed to emulate a
`hypothetical computer, which hypothetical
`computer processes instructions expressed
`in a hardware/operating system-independent
`language on the communications device,
`including function processor
`instructions
`
`and message instructions.
`
`Claim 1 of the ’945 Patent, which is representative of the use of the term “virtual
`
`machine means” in the patents-in-suit, recites as follows:
`
`1. A communication device which is arranged to process messages
`communications, comprising a virtual machine means which includes
`
`for
`
`a virtual function processor and function processor instructions for controlling
`operation of the device. . ..
`
`’945 Patent at 50:49-67 (emphasis added). CardSoft argues that the claimed “virtual machine
`
`means” should be construed to mean “a computer programmed to emulate a hypothetical
`
`computer for applications relating to transport of data, including payment terminal devices in
`
`which message processing and communication comprise a significant proportion of the operation
`
`of the device.” Defendants, on the other hand, argue that the term should be construed to mean
`
`“a computer programmed to emulate a hypothetical computer, which hypothetical computer
`
`processes instructions expressed in a hardware/operating system-independent language on the
`
`communications device, including function processor instructions and message instructions.”
`
`The parties’ only dispute concerning the term is whether the claimed virtual machine must
`
`“process instructions expressed in a hardware/operating system-independent language.”
`
`Petitioner First Data - Exhibit 1008 - Page 8
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`

`
`In a theme that recurs throughout all of their proposed constructions, Defendants seek to
`
`limit
`
`the claimed virtual machine to a hypothetical computer that “processes instructions
`
`expressed in a hardware/operating system-independent
`7)
`device.... Defendants argue that this proposed limitation is required by the language of the
`
`language on the communications
`
`claims, the common specification’s description of the “virtual machine,” and the prosecution
`
`history of the patents-in-suit. Defendants note that all of the independent claims of the patents-
`
`in-suit require that the “virtual machine means” be “emulatable in different computers having
`
`incompatible hardwares or operating systems.” Id. at 50:65-67; 52:13-15; 52:34-36; ’683 Patent
`
`at 58:8-10. Thus, Defendants argue that the virtual machine’s emulation of the hypothetical
`
`computer must somehow overcome incompatibility between both different operating systems
`
`and different hardware (processors) that can only understand and process its own specific native
`
`code. Defendants contend that the only way that the claimed “virtual machine means” can
`
`overcome these incompatibilities is if the virtual machine is programmed and receives
`
`instructions in a language that is independent of both the hardware processor and the operating
`
`system.
`
`Furthermore, Defendants argue that this conclusion is supported by the common
`
`specification, which consistently emphasizes the importance of the virtual machine and its
`
`components being independent of the specific hardware processor. See, e.g., id. at 2:3-3:8, 3:40-
`
`45, 5:4-8, 9:37-45, at 9:66-10:21, 17:24-47. For example, the common specification explains
`
`that:
`
`In conventional devices, each time a message is constructed or deconstructed, the
`operation of the machine will be handled by the application program. To change
`operation of the machine, the application must be changed. This is laborious, and
`gives rise to problems, as discussed above.
`
`The technique of creating a virtual processor (or in this case microprocessor) is
`well known and referred to as an interpreter. This allows programs to operate
`
`9
`
`Petitioner First Data - Exhibit 1008 - Page 9
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`

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`independent of [sic] processor. With the newer technique of also creating virtual
`peripherals then the whole is referred to as a “virtual machine”.
`
`A virtual machine is computer programmed to emulate a hypothetical computer.
`Different
`incompatible computers may be programmed to emulate the same
`hypothetical computer. Any computer programmed to emulate the hypothetical
`computer will thus be capable of executing programs for the virtual computer.
`This creates a complete portable environment for program operations.
`
`A problem with virtual machines is emulation is slower than normal program
`execution. For some applications this performance penalty is a significant
`problem.
`
`The above problems and disadvantages which have been discussed specifically in
`relation to devices configured to process payment transactions also would apply
`to devices configured to prepare and process any information to be sent or
`received via a network, not restricted to payment transaction information.
`
`A virtual machine is computer programmed to emulate a hypothetical computer.
`Different
`incompatible computers may be programmed to emulate the same
`hypothetical computer. Any computer programmed to emulate the hypothetical
`computer will thus be capable of executing programs for the virtual computer.
`This creates a complete portable environmentforprogram operations.
`
`Id. at 3:40-46.
`
`Defendants also contend that the during prosecution of the patents-in-suit, CardSoft made
`
`several clear disclaimers of claim scope by repeatedly stressing the importance of the virtual
`
`machine’s compatibility and portability. First, Defendants argue that, in making the following
`
`statements, the applicant was explaining that the virtual machine of the patents-in-suit is coded
`
`using a language independent of both the hardware processor and the operating system of the
`
`device:
`
`lines 2-3 of the present
`As discussed in the Specification page 6,
`application, a virtual machine is a computer, which is programmed to emulate a
`hypothetical computer.
`This means that diflerent
`incompatible computers
`(incompatible hardware and operating systems) may be programmed to emulate
`the same hypothetical computer. Applications may then be written for the
`hypothetical
`computer, which are therefore portable to
`the previously
`incompatible computers. . ..
`
`l0
`
`Petitioner First Data - Exhibit 1008 - Page 10
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`

`
`does not describe a conventional virtual
`invention
`The present
`machine, but an addition to a conventional virtual machine....
`There is a
`conventional virtual machine processor, being the “function processor”, which
`together with the HAL and the instructions to operate it (“primitives”), controls
`the overall operation of the communications device.
`In addition, however, a
`separate virtual processor, the virtual message processor, is provided, the specific
`function of which is to disassemble, assemble, and compare messages.
`The virtual machine architecture of the present invention, therefore, is not
`conventional. It includes two virtual processors (and three in the preferred
`embodiment where a protocol processor is also provided).
`
`Ex. C at 3-4, attached to Defendants’ Responsive Claim Construction Brief, Dkt. No. 210
`
`(original emphasis omitted, emphasis added); see also Ex. D at 2-4 (applicant explaining that the
`
`prior art does not teach the claimed virtual machine that is portable and not dependent on
`
`particular hardware). Defendants also argue that the following prosecution history statements
`
`operate as a clear disclaimer of claim scope:
`
`Applicant respectfiilly points out that Stern fails to teach the claimed
`“virtual machine means” that
`is emulatable in different computers having
`incompatible hardware or operating systems.” The cited Stern col 6, lines 18-23,
`describes merely JavaOS being operable on different processors supporting the
`Java Virtual Machine.
`
`The presently claimed virtual machine means is not just a Java0S or a
`Java Virtual Machine. As recited in Claim 1 (now further amended), the claimed
`Virtual Machine Means comprises, inter alia, (l) the virtual fiJIlClIlOIl processor,
`(2) the message instruction means, and (3) the virtual message processor that
`performs several tasks, one of which being “comparing [of] the messages under
`the direction of the message instruction means that
`is arranged to provide
`directions for operation of the virtual message processor.”
`
`Ex G at 8-9, attached to Defendants’ Responsive Claim Construction Brief, Dkt. No. 210
`
`(emphasis added). Defendants contend that, since the applicant repeatedly argued that the virtual
`
`machine of the patents-in-suit eliminate dependence on the hardware of the device, the applicant
`
`clearly disavowed any claim scope where the virtual machine is dependent on the hardware.
`
`Having carefully reviewed Defendants’ arguments, the court is not convinced that the
`
`patentee clearly lin1ited the scope of his invention to “virtual machines” that “process[]
`
`ll
`
`Petitioner First Data - Exhibit 1008 - Page 11
`
`

`
`instructions
`
`expressed in a hardware/operating
`
`system-independent
`
`language on the
`
`communications device, including function processor instructions and message instructions.”
`
`First, Defendants’ proposed limitation runs contrary to the language of the claims. For example,
`
`Claim 5 of the ’945 Patent recites that the message processor is implemented in the native
`
`software code of the microprocessor in the device. See ’945 Patent at 51:18-22. Furthermore,
`
`Claim 6 recites the same for the fi1IlCtlOIl processor. See id. at 51:23-25.
`
`If both the message
`
`processor and the function processor, which are part of the virtual machine, can be implemented
`
`in the native software code of the microprocessor, then they do not have to be expressed in “a
`
`hardware/operating system-independent language” as Defendants’ proposed construction would
`
`require.
`
`Second, the specification sections on which Defendants rely do not compel Defendants’
`
`proposed limitation. For example, column 3, lines 29-55 of the specification, which is quoted
`
`above, criticizes prior art virtual machines for requiring applications written in hardware-specific
`
`code since such applications would not be portable to different devices.
`
`’945 Patent at 3:37-54.
`
`It does not, however, discuss whether the virtual machine itself can be written in hardware-
`
`specific code — indeed, the cited portion is silent on the topic of the code used to implement the
`
`claimed virtual machine.
`
`Likewise, none of the other specification language to which
`
`Defendants cite states that the virtual machine, or any part thereof, must necessarily be written in
`
`a hardware/operating system independent
`
`language in order to be emulatable in different
`
`computers.
`
`Finally, Defendants’ contention that the doctrine of prosecution disclaimer supports their
`
`proposed limitation is rejected. For prosecution disclaimer to apply, there must be a clear and
`
`unequivocal disavowal of a particular construction or scope of a claim term.
`
`See, e.g.,
`
`12
`
`Petitioner First Data - Exhibit 1008 - Page 12
`
`

`
`Honeywell Int’l, Inc. V. Universal Avionics Sys., 493 F.3d 1358 (Fed. Cir. 2007). The portions of
`
`the prosecution history cited and relied upon by Defendants, however, do not make any such
`
`clear disclaimer of virtual machines written in hardware-specific code. For example, Defendants
`
`allege that
`
`the applicant argued to the PTO that
`
`the claimed virtual machine was not
`
`conventional because it was coded using language independent of hardware. To the contrary, the
`
`passages on which Defendants rely demonstrates that the applicant argued that the claimed
`
`virtual machine was not conventional because “[i]t includes two virtual processors [the virtual
`
`message processor and the virtual function processor]... .” Ex. C at 3-4, attached to Defendants’
`
`Responsive Claim Construction Brief, Dkt. No. 210; see also Ex G at 8-9, attached to
`
`Defendants’ Responsive Claim Construction Brief, Dkt. No. 210 (explaining that the “claimed
`
`virtual machine means is not just a JavaOS or a Java Virtual Machine” because it is comprised of
`
`the virtual
`
`function processor,
`
`the message instruction means, and the virtual message
`
`processor). Accordingly,
`
`the court rejects Defendants’ argument that the “virtual machine
`
`means” must “process[] instructions in a hardware/operating system-independent language on
`
`the communication device.”
`
`In contrast
`
`to Defendants’ proposed construction,
`
`the court
`
`finds that CardSoft’s
`
`proposed construction of “virtual machine means” — i.e., “a computer programmed to emulate a
`
`hypothetical computer for applications relating to transport of data, including payment terminal
`
`devices in which message processing and communication comprise a significant proportion of
`
`the operation of the device” — is supported by the common specification of the patents-in-suit.
`
`For example, the specification states that “[a] virtual machine is [a] computer programmed to
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`emulate a hypothetical computer.” See, e.g., ’945 Patent at 3:40-41. However, although the
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`specification states that “[t]he virtual machine therefore lends itself particularly to applications
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`13
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`Petitioner First Data - Exhibit 1008 - Page 13