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`Exhibit 2122
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`Exhibit 2 122
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`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 1 of 22 PageID #: 6332
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CALL WA VE COMMUNICATIONS, LLC,
`
`Civil Action No. 12-1701-RGA
`
`Civil Action No. 12-1702-RGA
`
`Civil Action No. 12-1703-RGA
`
`Civil Action No. 12-1704-RGA
`
`Plaintiff,
`
`v.
`
`AT&T MOBILITY, LLC, et al.,
`
`Defendants.
`
`CALL WA VE COMMUNICATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`SPRINT NEXTEL CORP., et al.,
`
`Defendants.
`
`CALL WA VE COMMUNICATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`T-MOBILE USA INC., et al.,
`
`Defendants.
`
`CALL WA VE COMMUNICATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`VERIZON SERVICES CORP., et al.,
`
`Defendants.
`
`1
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 2 of 22 PageID #: 6333
`
`CALL WA VE COMMUNICATIONS, LLC,
`
`Plaintiff,
`
`v.
`
`AT&T MOBILITY, LLC, et al.,
`
`Defendants.
`
`Civil Action No. 12-1788-RGA
`
`MEMORANDUM OPINION
`
`Edmond D. Johnson, Esq., James G. McMillan, III, Esq., PEPPER HAMILTON, LLP,
`Wilmington, DE; William D. Belanger, Esq. (argued), Noah V. Malgeri, Esq., Leah R. McCoy,
`Esq., Christopher Boundy, Esq., Supama Datta, Esq., PEPPER HAMILTON, LLP, Boston, MA;
`Gregory S. Bishop, Esq. (argued), PEPPER HAMILTON, LLP, Redwood City, CA.
`
`Attorneys for Plaintiff Call Wave Communications, LLC.
`
`Jack B. Blumenfeld, Esq., Paul Saindon, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL,
`Wilmington, DE; James F. Hurst, Esq., George C. Lombardi, Esq. (argued), WINSTON &
`STRAWN, Chicago, IL; Scott R. Samay, Esq. (argued), Krishnan Padmanabhan, Esq.,
`WINSTON & STRAWN, New York, NY.
`
`Attorneys for Defendant Google, Inc.
`
`Arthur G. Connolly, III, Esq., Ryan P. Newell, Esq., CONNOLLY GALLAGHER LLP,
`Wilmington, DE; Ramsey M. Al-Salam, Esq., Kaustuv M. Das, Esq., PERKINS COIE LLP,
`Seattle, WA; Kirk R. Ruthenberg, Esq., Mark L. Hogge, Esq., DENTONS US LLP, Washington,
`DC.
`
`Attorneys for Defendant T-Mobile USA, Inc.
`
`Karen Jacobs, Esq., Stephen J. Kraftschik, Esq., Eleanor G. Tennyson, Esq., MORRIS,
`NICHOLS, ARSHT & TUNNELL, Wilmington, DE; Kirk R. Ruthenberg, Esq., Mark L. Hogge,
`Esq., DENTONS US LLP, Washington, DC.
`
`Attorneys for Defendants Sprint Spectrum L.P., et al.
`
`Collins J. Seitz, Jr., Esq., Benjamin J. Schladweiler, Esq., SEITZ ROSS ARONSTAM &
`MORITZ LLP, Wilmington, DE; Kevin P. Anderson, Esq., Karin A. Hessler, Esq., Paul M. Kim,
`Esq., WILEY REIN LLP, Washington, DC.
`
`Attorneys for Defendants Verizon Services Corp., et al.
`
`2
`
`I f
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 3 of 22 PageID #: 6334
`
`Collins J. Seitz, Jr., Esq., Benjamin J. Schladweiler, Esq., SEITZ ROSS ARONSTAM &
`MORITZ LLP, Wilmington, DE; Joseph P. Zammit, Esq., Daniel S. Leventhal, Esq. (argued),
`Brett McKean, Esq., FULBRIGHT & JAWORSKI LLP, New York, NY; Mark C. Nelson, Esq.,
`Steven M. Geiszler, Esq., Daniel A. Valenzuela, Esq., DENTONS US LLP, Dallas, TX.
`
`Attorneys for Defendant AT&T Mobility LLC.
`
`Colm F. Connolly, Esq., Jody C. Barillare, Esq., MORGAN, LEWIS & BOCKIUS LLP,
`Wilmington, DE; Eric Kraeutler, Esq., John V. Gorman, Esq. (argued), Andrew C. Whitney,
`Esq., Squire J. Servance, Esq., MORGAN, LEWIS & BOCKIUS LLP, Philadelphia, PA.
`
`Attorneys for Defendants Blackberry Corp., et al.
`
`December!+-, 2014
`
`3
`
`

`

`l
`
`'~ t ,
`
`I i
`! ~ !
`I
`I
`I
`I
`I
`I
`
`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 4 of 22 PageID #: 6335
`
`AND~~I TruCT
`
`Pending before the Court is the issue of claim construction for the disputed terms found
`
`in U.S. Patent Nos. 6,771,970 ("the '970 patent") and 7,907,933 ("the '933 patent").
`
`I.
`
`BACKGROUND
`
`On December 12 and 28, 2012, CallWave Communications, LLC ("CallWave") filed
`
`these actions for patent infringement against Defendants, alleging infringement of the '970 and
`
`'933 patents. (DJ. 1 ). 1 The Court has considered the parties' joint claim construction brief (D.I.
`
`168), joint appendix (DJ. 170), and oral argument (D.I. 195).
`
`II.
`
`LEGALSTANDARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`
`which the patentee is entitled the right to exclude." Phillips v. AWHCorp., 415 F.3d 1303, 1312
`
`(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). "' [T]here is no magic formula or
`
`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
`
`weight to appropriate sources 'in light of the statutes and policies that inform patent law.'"
`
`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
`
`415 F.3d at 1324). When construing patent claims, a matter oflaw, a court considers the literal
`
`language of the claim, the patent specification, and the prosecution history. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), ajf'd, 517 U.S. 370
`
`(1996). Of these sources, "the specification is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`
`Phillips, 415 F.3d at 1315 (internal quotation marks and citations omitted).
`
`1 All references to docket items use the numbering of the docket in case No. 12-1701.
`
`4
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 5 of 22 PageID #: 6336
`
`"[T]he words of a claim are generally given their ordinary and customary meaning ....
`
`[Which 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."
`
`Phillips, 415 F.3d at 1312-13 (internal quotation marks and citations omitted). "[T]he ordinary
`
`meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent."
`
`Id at 1321 (internal quotation marks omitted). "In some cases, the ordinary meaning of claim
`
`language as understood by a person of skill in the art may be readily apparent even to lay judges,
`
`and claim construction in such cases involves little more than the application of the widely
`
`accepted meaning of commonly understood words." Id at 1314 (internal citations omitted).
`
`A court may consider extrinsic evidence, which "consists of all evidence external to the
`
`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
`
`treatises," in order to assist the court in understanding the underlying technology, the meaning of
`
`terms to one skilled in the art, and how the invention works. Id at 1317-19 (internal quotation
`
`marks and citations omitted). Extrinsic evidence, however, is less reliable and less useful in
`
`claim construction than the patent and its prosecution history. Id.
`
`"A claim construction is persuasive, not because it follows a certain rule, but because it
`
`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa' per
`
`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
`
`exclude the inventor's device is rarely the correct interpretation." Osram GmbH v. Int'! Trade
`
`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (internal quotation marks and citation omitted).
`
`5
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 6 of 22 PageID #: 6337
`
`III. CONSTRUCTION OF DISPUTED TERMS
`
`A.
`
`The '970 Patent
`
`1.
`
`"mobile platform"
`
`a.
`
`b.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`Defendants 'proposed construction: Any mobile entity that can be
`
`tracked or have a tracking device installed or attached (including, but not limited to a vehicle, a
`
`person, a portable computer, or a mobile telephone).
`
`c.
`
`Court's construction: Any mobile entity that can be tracked or
`
`have a tracking device installed or attached (for example, a vehicle, a person, a portable
`
`computer, or a mobile telephone).
`
`During oral argument, CallWave informed the Court that the parties had agreed to use
`
`Defendants' construction for "mobile platform." (DJ. 195 at 7:10-11). CallWave originally
`
`proposed this construction as an alternative in the parties' first joint claim construction chart
`
`(D.I. 144, Ex. A at 1), and Defendants adopted this construction in the parties' joint claim
`
`construction brief. (DJ. 168 at 17). The Court made one amendment to Defendants'
`
`construction, changing "including, but not limited to" to "for example," for purposes of clarity.
`
`Otherwise, Defendants' construction remains as the parties agreed.
`
`2.
`
`"remote tracking system" and "remote tracking service"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: A system [service] for determining the
`
`location of one or more mobile platforms.
`
`6
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 7 of 22 PageID #: 6338
`
`b.
`
`Defendants' proposed construction: A system physically separate
`
`from the mobile platform being tracked that determines and returns the location of the mobile
`
`platform.
`
`c.
`
`Court's construction: A system physically separate from the
`
`mobile platform being tracked that determines the location of the mobile platform.
`
`CallWave argues that no construction is necessary for this term, and in the alternative, for
`
`"a system [service] for determining the location of one or more mobile platforms." (D.I. 168 at
`
`19). The Federal Circuit has made clear that patent "claims are interpreted with an eye toward
`
`giving effect to all terms in the claim," and "physical structures and characteristics specifically
`
`described in a claim" should not be interpreted as "merely superfluous." Bicon, Inc. v.
`
`Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006). Here, CallWave's construction reads out
`
`the word "remote." Call Wave argues that the tracking unit should be interpreted as part of the
`
`remote tracking system. (D.I. 195 at 13:18-14:2). The specification, however, does not support
`
`this construction. The summary of the invention describes "a system for location tracking of
`
`mobile platforms, each mobile platforms [sic] having a tracking unit; the system including ... a
`
`plurality ofremote tracking systems." (D.I. 146, Ex.Tat 148, 2:2-14). The specification further
`
`teaches that the remote tracking systems "determin[ e] the location of the remote platform," while
`
`"[t]he tracking unit ... transmits data via a wireless data transmission protocol ... to the
`
`associated location tracking service provider." (Id. at 148, 2:15-16 & 149, 3:64-67). The
`
`specification uses two distinct terms to describe the tracking units and remote tracking systems,
`
`and teaches that the two components serve different functions within the invention. Thus, the
`
`tracking units and remote tracking systems must be treated as distinct elements, and "remote"
`
`must be given its plain and ordinary meaning in the context of the patent.
`
`7
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 8 of 22 PageID #: 6339
`
`The Court removed "and return" from Defendants' construction because it places an
`
`improper limitation on the claim term. Claim 1 teaches that the remote tracking systems are
`
`"adapted to determine the location of a respective mobile platform," and "the appropriate remote
`
`tracking system receiving said mobile platform identity ... and returning mobile platform
`
`location information." (Id. at 150, 6:60-63 & 151, 7:1--4). Claim 14, on the other hand, teaches
`
`only "[a] method of determining the location of mobile platforms ... locatable by a plurality of
`
`remote tracking systems." (Id. at 151, 7:57-59). The summary of the invention mirrors claim 1,
`
`describing a system that includes "a plurality of remote tracking systems ... for determining the
`
`location of the remote platform," and "the appropriate remote tracking system receiving said
`
`mobile platform identity and returning mobile platform location information." (Id. at 148, 2: 14-
`
`16 & 2:20-22). Although claim 1 includes the "appropriate" remote tracking system "returning"
`
`the location information of a mobile platform, this limitation does not appear in claim 14. In
`
`order to construe remote tracking system in light of the patent as a whole, the construction
`
`cannot include a limitation that appears in one claim, but not another. Therefore, the Court
`
`removes "and return" from Defendants' construction.
`
`3.
`
`"a property that is predetermined for each mobile platform"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: A property of a mobile platform determined
`
`before a remote tracking system determines the location of the mobile platform.
`
`b.
`
`Defendants' proposed construction: A property of the mobile
`
`platform fixed before the time the mobile platform can first be tracked that is used to determine
`
`the remote tracking system by which the mobile platform will be tracked.
`
`8
`
`

`

`I I I i
`
`I
`~
`
`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 9 of 22 PageID #: 6340
`
`c.
`
`Court's construction: A property of a mobile platform determined
`
`before a remote tracking system determines the location of the mobile platform.
`
`During oral argument, the parties agreed that the relevant period for determining the
`
`property is when a subscriber makes a search request through the system to locate a mobile
`
`platform. (D.1. 195 at 43:13-15). Defendants contend, however, that the predetermined property
`
`must be "fixed before the time the mobile platform can first be tracked." Defendants rely on the
`
`specification, which teaches that the location determination system "determine[s] the appropriate
`
`location tracking system (11-14) for the vehicle." (D.I. 146, Ex.Tat 149, 4:41--42). The
`
`prosecution history also states that the invention determines "the appropriate remote tracking
`
`system for the mobile entity which a user wishes to locate," and "allows multiple remote tracking
`
`systems, each operating according to a respective and different protocol, to determine the
`
`location of a mobile platform." (Id., Ex. Vat 172).
`
`CallWave argues that nothing in the patent or its prosecution history requires the
`
`predetermined property to be fixed. (D.1. 168 at 26). CallWave cites to the specification, which
`
`teaches a method that includes "determining for each remote platform one of the remote tracking
`
`systems that is capable oflocating said remote platform." (D.I. 146, Ex.Tat 149, 3:11-13). The
`
`prosecution history states that "each of the remote tracking systems is adapted to determine the
`
`location of a respective remote platform according to a property that is predetermined for each
`
`mobile platform." (Id., Ex. Vat 173). The specification language implies that multiple remote
`
`tracking systems may be "capable" of locating a mobile platform, and nothing in the intrinsic or
`
`extrinsic record says that the predetermined property must be "fixed." Defendants' construction
`
`adds a limitation that is not supported by the specification or prosecution history, and thus the
`
`Court does not include this limitation in its construction.
`
`9
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 10 of 22 PageID #: 6341
`
`Additionally, Defendants' construction requires that the predetermined property be "used
`
`to determine the remote tracking system." The claim language, however, teaches that the remote
`
`tracking systems are "adapted to determine the location of a respective mobile platform
`
`according to a property that is predetermined for each mobile platform for determining the
`
`location of the mobile platform." (Id., Ex.Tat 150, 6:62-65). The specification also notes that
`
`the remote tracking systems are used for "determining the location of the remote platform." (Id.
`
`at 148, 2:15-16). It follows that Defendants' limitation is contrary to the claim language and the
`
`specification, and the Court does not include it in the term's construction.
`
`4.
`
`"determining [determine] for each mobile platform one of the remote tracking
`
`systems that is capable of locating said mobile platform"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: Determining [determine] for each mobile
`
`platform (as defined) one of the remote tracking systems (as defined) that is capable of locating
`
`said mobile platform (as defined).
`
`b.
`
`Defendants' proposed construction: Determining [determine]
`
`which one (and only one) of the remote tracking systems is appropriate for use to locate each
`
`mobile platform.
`
`c.
`
`Court's construction: No construction is necessary.
`
`The point of contention here is whether the word "one" should be construed as "one (and
`
`only one)." (D.I. 195 at 47:8-11). Claim 1 requires the location determination system "to
`
`determine an appropriate one of the plurality ofremote tracking systems," which contemplates
`
`the existence of multiple remote tracking systems capable of locating a mobile platform. (Id. at
`
`150, 6:66-151, 7:1). This language is consistent with claim 14, which describes a method that
`
`10
`
`

`

`1 I
`I i I
`
`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 11 of 22 PageID #: 6342
`
`includes "determining for each mobile platform one of the remote tracking systems that is
`
`capable oflocating said mobile platform." (Id at 151, 7:65-67). The specification teaches that a
`
`communication system will "determine an appropriate one of the plurality of remote tracking
`
`systems." (Id at 148, 2:17-19). The claims and specification refer to "an appropriate" remote
`
`tracking system, rather than "the appropriate" remote tracking system, which suggests that more
`
`than one remote tracking system may be capable of locating a mobile platform. Further, the
`
`plain and ordinary meaning of the word "one" is contrary to Defendants' construction of "one
`
`(and only one)."
`
`Defendants cite language from the prosecution history stating that "the invention allows
`
`multiple remote tracking systems, each operating according to a respective and different
`
`protocol, to determine the location of a mobile platform and each being selected by the
`
`communication system so that only one suitable remote tracking system is employed in a manner
`
`that is wholly transparent to the end user." (Id., Ex. V at 172). Defendants rely on the language
`
`"only one suitable remote tracking system," but the full sentence reads "so that only one suitable
`
`remote tracking system is employed in a manner that is wholly transparent to the end user."
`
`Reading the phrase in context does not imply that only one remote tracking system is capable of
`
`locating a specific mobile platform. To the contrary, CallWave points to language in the
`
`prosecution history that states, "[a prior art reference] ... discloses that device 12 [(i.e., mobile
`
`platform)] includes circuitry standard to GPS locator devices and paging/cellular communication
`
`devices." (Id., Ex. X at 194). Thus, the prosecution history contemplates the existence of
`
`multiple technologies capable of locating a single mobile platform. Therefore, the Court does
`
`not impose Defendants' added limitation on the claim term.
`
`11
`
`

`

`J
`
`J
`1
`
`.~ i i I
`
`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 12 of 22 PageID #: 6343
`
`5.
`
`"transmitting [transmit] the location of each mobile platform to said subscriber"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: Transmitting [transmit] the location (as
`
`defined) of each mobile platform (as defined) to said subscriber (as defined).
`
`b.
`
`Defendants' proposed construction: Transmitting [transmit] the
`
`location of the mobile platform, as received from the remote tracking system, to the subscriber.
`
`c.
`
`Court's construction: No construction is necessary.
`
`During oral argument, Defendants wanted to "make clear that the location is determined
`
`by the 'remote tracking system' and not some other part of the system." (D.I. 195 at 59:4-6).
`
`For this reason, Defendants added the language "as received from the remote tracking system."
`
`(Id. at 59:7-10). The Court finds that Defendants' added limitation causes more confusion than
`
`clarity. That the remote tracking system is the thing from which the transmitting occurs is clear
`
`from the claim. The term's plain and ordinary meaning would be apparent to a juror. Therefore,
`
`no construction is necessary.
`
`6.
`
`"subscriber"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: User.
`
`b.
`
`Defendants' proposed construction: A user that can request the
`
`location of a plurality of mobile platforms, from which the user is physically separate, through an
`
`intermediary location system with which the user is registered.
`
`c.
`
`Court's construction: A person or company that subscribes to the
`
`location determination services.
`
`12
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 13 of 22 PageID #: 6344
`
`During oral argument, the Court proposed the construction: "A person or company who
`
`purchases the location determination services." (D.I. 195 at 9:8-11). CallWave's primary
`
`objection to the Court's construction was to the use of the word "purchases." (Id at 60:11-12).
`
`Call Wave argues that "purchases" is too narrow because the invention contemplates alternative
`
`forms of payment, such as advertisement. (Id at 60:19-21). CallWave points to language in
`
`claim 4, referring to "free advertising systems" as a source of location information. (D.I. 146,
`
`Ex.Tat 151, 7:25-29). CallWave also argues that the plain meaning of the word "subscribe"
`
`does not require payment, and thus is broader than purchases. (D.I. 195 at 60:13-16). For this
`
`reason, CallWave proposed using "subscribes" instead of purchases. (Id. at 62:9-11).
`
`Defendants, on the other hand, agreed with the use of purchases in the Court's construction. (Id
`
`at 62:23-63:1). The Court finds, upon reflection, that CallWave is correct in arguing that
`
`"purchases" is narrower than "subscribes," and thus uses the latter in the Court's construction.
`
`7.
`
`"plurality of remote tracking systems"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: More than one remote tracking systems (as
`
`defined).
`
`b.
`
`Defendants' proposed construction: Multiple remote tracking
`
`systems, each supervising a different group of mobile platform[ s].
`
`c.
`
`Court's construction: No construction is necessary.
`
`The Court has already defined remote tracking systems, and thus the only word
`
`remaining is "plurality." The Court proposed "two or more" for the construction of plurality
`
`(D.I. 195 at 9:12-14), but the parties agree that no construction is necessary for this term. (Id at
`
`72:4-7).
`
`13
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 14 of 22 PageID #: 6345
`
`8.
`
`"map information"
`
`a.
`
`Cal/Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: Information relating to a map.
`
`b.
`
`Defendants' proposed construction: Data which represents a map
`
`image.
`
`c.
`
`Court's construction: No construction is necessary.
`
`Defendants argue that map information should be construed as "data which represents a
`
`map image." Defendants attempt to redefine "map information" as "map image," which is not
`
`supported by the specification or the plain meaning of the words. CallWave cites to the
`
`specification, which provides that "[t]he location data received by a subscriber is normally an
`
`HTML representation of the information requested ... [and] may be composed of, for example,
`
`HTML and a GIF (image) component." (DJ. 146, Ex.Tat 150, 5:19-22). In addition, the
`
`specification refers to other types of data that may be transmitted by the map and location data
`
`servers such as location, traffic, road names, videos, and Yellow Pages information. (Id. at 150,
`
`5 :3-10). Thus, the specification contemplates different types of map information-not just
`
`images. Recognizing that "map information" is a broad concept, the Court nevertheless finds no
`
`reason to limit it. Therefore, the Court will not construe it, as a jury can understand its meaning.
`
`B.
`
`The '933 Patent
`
`The parties agree that claim 13 is the only asserted independent claim in the '933 patent,
`
`and the only claim containing disputed terms. (D.I. 195 at 78:6-9).
`
`1.
`
`"information ... related to a user's purchase request" and "the purchase request
`
`information"
`
`14
`
`

`

`Case 1:12-cv-01701-RGA Document 224 Filed 12/17/14 Page 15 of 22 PageID #: 6346
`
`a.
`
`Cal!Wave 's proposed construction: No construction is necessary.
`
`If the Court determines construction is necessary: Information related to a user's request to
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`purchase, lease, or license a good or service.
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`b.
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`Defendants' proposed construction: Information ... specific to a
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`request made to purchase, lease, or license a selected good or service.
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`c.
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`Court's construction: Information related to a user's request to
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`purchase, lease, or license a selected good or service.
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`During oral argument, the parties agreed, or nearly agreed, to the Court's construction.
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`(DJ. 195 at 94: 17-95:5). There is no dispute over the meaning of the word "purchase" in the
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`term because the patentee defines "purchase" to include "a lease or licensing of a good or
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`service." (DJ. 145, Ex. A at 15, 3:34-35). The only point of contention is whether the word
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`"selected" should be included before "good or service." (DJ. 195 at 93:23-94:3). Defendants
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`argue that "selected" should be included because "purchase request information" should relate
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`only to the request to buy a good or service, and should not include account information
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`provided by the purchaser when signing up for the service. (Id at 87:15-18). CallWave, on the
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`other hand, argues that "selected" should not be included because the specification provides that
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`"[t]he message can include information related to the purchase price and an [Automatic Number
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`Identification] associated with a phone line of the user." (DJ. 145, Ex. A at 14, 2:4-6).
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`Additionally, the specification provides that the message can include "an account identifier, such
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`as a phone number, user identifier, password, or other identifier," and "the amount of the charge,
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`whether the charge is recurring, ... and the like." (Id at 15, 4:3-9).
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`CallWave argues that adding "selected" places an unnecessary limitation on the claim
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`language because the information accompanying the message, as disclosed in the specification,
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`may not be related to a "selected good or service." The Court, however, finds that including
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`"selected" before "good or service" indicates that a purchase is actually taking place, and thus
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`better reflects the meaning of the claim term. The exact demarcation between "related" and
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`"unrelated" information is a question of applying the Court's construction to the facts, and is a
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`matter for trial. Therefore, the Court includes "selected" in the final construction.
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`2.
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`"causing at least in part an electronic communication to be originated from
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`a mobile device"
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`a.
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`Cal/Wave 's proposed construction: No construction is necessary.
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`If the Court determines construction is necessary: At least partly causing an electronic
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`transmission to be transmitted from a mobile device.
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`b.
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`Defendants 'proposed construction: Transmitting instructions to a
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`mobile device that results in origination of an electronic communication from a mobile device.
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`c.
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`Court's construction: No construction is necessary.
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`The term "electronic communication" is defined in the section below. The remaining
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`words of the term are ordinary English words, and may be given their plain and ordinary
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`meaning. Defendants' proposed construction is narrower than that contemplated by the
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`specification, and reads out the phrase "at least in part." Therefore, the Court finds that no
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`construction is necessary.
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`3.
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`"electronic communication"
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`a.
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`Cal/Wave 's proposed construction: No construction is necessary.
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`If the Court determines construction is necessary: An electronic transmission of information or
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`instructions.
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`b.
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`Defendants' proposed construction: A telephone call.
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`c.
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`Court's construction: A telephone call.
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`The issue here is whether "electronic communication" should be construed to be limited
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`to only a telephone call. CallWave argues that no construction is necessary because the "words
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`are plain English words that any juror would readily understand." (D.I. 195 at 97:7-8). Claim
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`13 teaches that the purchase request causes an "electronic communication to be originated from a
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`mobile device," which in light of the specification appears to be referring to a telephone call.
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`(D.I. 145, Ex. A at 18, 10:16-18). CallWave highlights that claim 1 refers specifically to "a
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`call," while claim 13 refers to an "electronic communication." (D.I. 168 at 70). Thus, CallWave
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`argues that "call" explicitly refers to a telephone call, while "electronic communication" includes
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`other forms of communication.
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`Defendants argue that claim differentiation does not save CallWave's construction in
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`light of the specification and prosecution history. "Any presumption created by the doctrine of
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`claim differentiation will be overcome by a contrary construction dictated by the written
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`description or prosecution history." Retractable Techs., Inc. v. Becton, Dickinson and Co., 653
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`F.3d 1296, 1305 (Fed. Cir. 2011). In addition, "[w]hen a patent ... describes the features of the
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`'present invention' as a whole, this description limits the scope of the invention." Verizon Servs.
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`Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007). "While clear language
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`characterizing 'the present invention' may limit the ordinary meaning of claim terms, such
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`language must be read in context of the entire specification and the prosecution history."
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`Rambus Inc. v. Infineon Techs. Ag, 318 F.3d 1081, 1094 (Fed. Cir. 2003). Here, Defendants
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`argue that the specification narrows the scope of the invention by stating that "[t]he present
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`invention is related to systems and methods for routing and placing telephone calls." (D.I. 145,
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`Ex. A at 14, 1 :39-40). Defendants also argue that the prosecution history shows that the patent
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`examiner understood the invention to operate by "causing a call to be placed from a mobile
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`device." (D.I. 146, Ex. Sat 139).
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`Call Wave argues that the specification contemplates methods of electronic
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`communication other than just telephone calls. In support of this proposition, CallWave cites a
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`passage that refers to signaling methods (e.g., ISDN, Advanced Intelligent Network ("AIN"),
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`and MF Inband Signaling), which are used to pass signal information along with a telephone call.
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`(D.I. 145, Ex. A at 15, 4:53-61). CallWave relies on the statement that "the invention is not
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`limited to these methods and contemplates other methods in which [Automatic Number
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`Identification] or similar signaling information can be passed." (Id. at 15, 4:59-61). This
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`language, however, refers only to methods for transmitting signal information in conjunction
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`with a telephone call. The preferred embodiment further explains that "the call manager system
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`delivers, over a signaling channel ... information identifying the origin of the call through a
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`service known as Automatic Number Identification (ANI), or using other types of signaling
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`information." (Id. at 15, 4:36-40). Thus, the specification makes clear that ANI and other
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`signaling channels are not distinct forms of electronic communication, but rather different
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`methods for passing signaling information. In light of the written description and prosecution
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`history, the scope of the invention is limited to telephone calls. Therefore, the Court construes
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`the term "electronic communication" accordingly.
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`4.
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`"over at least one network"
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`a.
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`Cal!Wave 's proposed construction: No construction is necessary.
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`If the Court determines construction is neces