UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:14-CV-0011-JRG
`
`
`
`CASE NO. 2:13-CV-0937-JRG
`
`
`§
`SIMPLEAIR, INC.
`§
`
`§
`
`§
`vs.
`§
`
`§
`
`§
`GOOGLE, INC. and YOUTUBE LLC.
`§
`
`-------------------------------------------------------- §
`SIMPLEAIR, INC.
`§
`
`§
`
`§
`vs.
`§
`
`§
`
`§
`GOOGLE, INC.
`§
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
` Before the Court are Plaintiff’s Opening Brief on Claim Construction (Dkt. No. 68),
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`Defendants’ response (Dkt. No. 76), Plaintiff’s reply (Dkt. No. 82), and Defendants’ sur-reply (Dkt.
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`No. 87). The Court held a claim construction hearing on April 2, 2015.
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`
`
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`

`
`BACKGROUND AND THE PATENTS-IN-SUIT
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`Plaintiff SimpleAir, Inc. (“SimpleAir”) brings action against defendants Google Inc. and
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`its subsidiary YouTube LLC (collectively “Google”). The action alleges infringement of U.S.
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`Patent No. 8,572,279 (“the ’279 Patent”) and U.S. Patent No. 8,601,154 (“the ’154 Patent”)
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`(collectively, the “patents-in-suit”). The patents-in-suit have a common direct parent application
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`and share a substantially common specification.1 The patents-in-suit stem from a patent family
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`that includes a series of continuation applications and multiple provisional applications with
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`priority dates spanning back to 1996.
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`
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`Two prior Eastern District of Texas claim construction orders involved patents in the
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`same patent family. Most recently, on May 20, 2013, a claim construction order was issued in
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`SimpleAir, Inc. v. Microsoft Corp., et al., 2:11-cv-0416, Dkt. No. 379 (hereinafter, Google I
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`Claim Construction Order). The Google I Claim Construction Order related to U.S. Patent No.
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`6,021,433 (“the ’433 Patent”) and U.S. Patent No. 7,035,914 (“the ’914 Patent”). Prior to the
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`Google I Claim Construction Order, on September 2, 2011, a claim construction was issued in
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`SimpleAir Inc., v. Apple Inc., et al., 2:09-cv-289, Dkt. No. 240 (hereinafter, AWS Order). The
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`AWS Order likewise addressed the ’433 Patent and the ’914 Patent (as well as two other patents
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`not directly relevant to this Order).
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`The parties raise fifteen claim disputes. Several of the claim disputes raise indefiniteness
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`issues under 35 U.S.C. § 112. Many of the claim terms in dispute were addressed in either the
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`Google I Claim Construction Order or the AWS Order. The patents-in-suit are subject to requests
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`for six post-grant reviews, including Inter Parties Reviews (IPR) and Covered Business Method
`
`(CBM) Reviews.
`
`
`1 Unless otherwise indicated herein, citations to the specification will be made to the ’279 Patent.
`2
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`

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`In general, the ’279 Patent and the ’154 Patent relate to methods of processing and
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`transmitting internet-based content and real-time notifications (e.g., breaking news alerts,
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`financial news, email notifications, sports scores, weather alerts, etc.) to remote computing
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`devices. Google I Claim Construction Order at 2. The ’279 Patent abstract recites:
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`A system and method for data communication connecting on-line networks with
`on-line and off-line computers. The present system provides for broadcast of up to
`the minute notification centric information thereby providing an instant call to
`action for users who are provided with the ability to instantaneously retrieve
`further detailed information. The notification centric portions of information is
`wirelessly broadcast to wireless receiving devices which are attached to
`computing devices. Upon receipt of the information at the personal computer, the
`user is notified through different multimedia alerts that there is an incoming
`message. Wirelessly broadcasted URL’s, associated with the data, are embedded
`in data packets and provide an automated wired or wireless connection back to the
`information source for obtaining detailed data.
`
`’279 Patent Abstract.
`
`APPLICABLE LAW
`
`1. Claim Construction
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
`
`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
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`by considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388
`
`F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc.,
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`262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
`
`specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d
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`at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of
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`3
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`ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips,
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`415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
`
`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
`
`“[T]he 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.’” Id. (quoting Vitronics
`
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
`
`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
`
`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
`
`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
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`lexicography governs. Id. The specification may also resolve ambiguous claim terms “where
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`the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to
`
`permit the scope of the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at
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`1325. But, “‘[a]lthough the specification may aid the court in interpreting the meaning of
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`disputed claim language, particular embodiments and examples appearing in the specification
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`will not generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d
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`
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`4
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`1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560,
`
`1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. The prosecution history is another
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`tool to supply the proper context for claim construction because a patent applicant may also
`
`define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352,
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`1356 (Fed. Cir. 2004) (“As in the case of the specification, a patent applicant may define a term
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`in prosecuting a patent.”).
`
`Although extrinsic evidence can be useful, it is “‘less significant than the intrinsic record
`
`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
`
`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
`
`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
`
`testimony may aid a court in understanding the underlying technology and determining the
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`particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
`
`assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`
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`5
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`2. Claim Indefiniteness
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`
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`Patent claims must particularly point out and distinctly claim the subject matter regarded
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`as the invention. 35 U.S.C. § 112, ¶ 2. “[I]ndefiniteness is a question of law and in effect part of
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`claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012). A
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`party challenging the definiteness of a claim must show it is invalid by clear and convincing
`
`evidence. Young v. Lumenis, Inc., 492 F.3d 1336, 1345 (Fed. Cir. 2007).
`
`
`
`The definiteness standard of 35 U.S.C. § 112, ¶ 2 requires that:
`
`[A] patent’s claims, viewed in light of the specification and prosecution history,
`inform those skilled in the art about the scope of the invention with reasonable
`certainty. The definiteness requirement, so understood, mandates clarity, while
`recognizing that absolute precision is unattainable. The standard we adopt
`accords with opinions of this Court stating that “the certainty which the law
`requires in patents is not greater than is reasonable, having regard to their subject-
`matter.
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129–30 (2014) (internal citations
`
`omitted).
`
`3. Construing Claim Terms that Have Previously Been Construed by This Court or
`Other Courts
`
`As indicated above, this is not the first opportunity for this Court to construe some of the
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`disputed terms. See AWS Order; Google I Claim Construction Order. Although the disputes in
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`this case present some of the same issues that have already been resolved in the cases mentioned
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`above, the Court still carefully considered all of the parties’ arguments in construing the claims
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`in this case. See Burns, Morris & Stewart Ltd. P’ship v. Masonite Int’l Corp., 401 F. Supp. 2d
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`692, 697 (E.D. Tex. 2005) (describing that although a previous construction may be instructive
`
`and provide the basis of the analysis, particularly when there are new parties and those parties
`
`have presented new arguments, the previous construction is not binding on the court). As
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`indicated by Burns, however, the previous constructions in those cases, and particularly from
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`6
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`those in this District, are instructive and will at times provide part of the basis for the analysis.
`
`See id.
`
`DISPUTED TERMS
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`1. “an information source” (’279 Patent claim 1, ’154 Patent claim 1)
`
`
`
`SimpleAir
`one or more content or online service
`providers that provide data to the central
`broadcast server, such as an online source of
`news, weather, sports, financial information,
`games, personal messages or emails.
`
`
`Google
`one or more content or online service
`providers, including all content providers on
`the Internet, that provide data to the central
`broadcast server, such as an online source of
`news, weather, sports, financial information,
`games, personal messages or emails.
`
`Both parties propose a construction similar to that adopted in the Google I Claim
`
`Construction Order. Google seeks to add to the Google I construction the phrase “including all
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`content providers on the Internet.”
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`Positions of the Parties
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`
`
`SimpleAir notes that Google’s briefing asserts that the added phrase “including all
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`content providers on the Internet” clarifies that the content providers on the Internet, not the
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`medium, constitute an information source. (Dkt. No. 82 at 1 (citing Dkt. No. 76 at 1)).
`
`SimpleAir asserts, however, that Google’s expert contradicted this statement by stating that this
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`phrase has the opposite effect, as it “allows for the Internet itself to be an information source
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`where as [SimpleAir’s construction] does not.” (Dkt. No. 82 at 1 (quoting Wicker Depo. 150:3–
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`8, Dkt. No. 82, Ex. 38).
`
`
`
`Google acknowledges that in Google I the Court found that “the physical medium of the
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`Internet, absent content” could not be an “information source.” Google asserts that its
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`construction merely seeks to clarify that the “content providers on the Internet,” not the medium
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`itself, constitute an “information source.” (Dkt. No. 76 at 1). Google asserts that this conforms
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`
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`7
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`to the specification and clarifies what was stated in Google I: “[T]he network by itself is not
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`information, but rather the content on the network is the information.” Google I Claim
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`Construction Order at 27. At the oral hearing, Google further reiterated that it was not
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`contending that the Internet medium itself is an information source. (Claim Construction Hr’g
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`Tr. 8:7–18).
`
`Analysis
`
`
`
`In Google I, SimpleAir asserted a position that information sources are located on the
`
`Internet rather than an information source being the Internet itself. The Google I defendants
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`asserted that the Internet medium itself may be an information source. Google I Claim
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`Construction Order at 25–26. The Court found in Google I that in context of the entire
`
`specification the Internet was not equated to an information source by stating: “[T]he network by
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`itself is not information, but rather the content on the network is the information.” Id. at 27.
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`Despite the comments of Google’s expert, Google’s current response brief and oral hearing
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`statements make clear that Google’s current position conforms to the finding in Google I. Thus,
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`there is no disagreement between the parties as to this issue. (Dkt. No. 76 at 1–2); (Dkt. No. 82
`
`at 1); (Claim Construction Hr’g Tr. at 8:7–18). For the same reasons as discussed in the Google
`
`I Claim Construction Order at pages 27 through 28, the Court reaffirms that in context of the
`
`entire specification the Internet itself is not equated to an information source, but rather the
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`content on the network is the information. In light of the Court’s ruling here, Google I, and the
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`lack of a genuine dispute regarding this issue, Google’s “clarification” and change to the Google
`
`I construction is unnecessary.
`
`
`
`The Court construes “an information source” to be “one or more content or online
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`service providers that provide data to the central broadcast server, such as an online
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`8
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`source of news, weather, sports, financial information, games, personal messages, or
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`emails.”
`
`
`
`2. “data” (’279 Patent claim 1, ’154 Patent claim 1)
`
`SimpleAir
`any type of digital information suitable for
`digital transmission or computer use
`
`Google
`content of a message (such as news, weather,
`sports, or financial information)
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`The parties dispute whether the meaning of “data” includes any information suitable for
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`digital transmission or is limited to only the content or “payload” of the message.
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`Positions of the Parties
`
`
`
`SimpleAir asserts that the term appears in the context of data that is transmitted “to
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`remote computing devices.” SimpleAir cites to the specification passage at 3:30–35 as
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`conforming to its construction: “[D]ata parsed from a plurality of incoming data feeds from
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`existing information sources is prepared for optimized wireless transmission and then transmitted
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`nationwide to . . . computing devices.” SimpleAir asserts that in this context the ordinary
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`meaning of data applies. (Dkt. No. 68 at 4 (citing expert declaration and dictionary definitions)).
`
`
`
`SimpleAir asserts that Google’s limitation of the term to the content of a message is
`
`meant to limit the term only to the “payload” and exclude all other data. SimpleAir asserts that
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`in Google I, Google argued at trial and in post-trial motions that “data” in the phrase “parsing
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`said data with parsers” meant “payload.” (Dkt. No. 68 at 5 n.2). SimpleAir asserts that the
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`Court rejected such arguments in the Google I Order on Judgment as a Matter of Law: “[T]he
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`Court is not persuaded that Google must parse only the payload of a message in order to meet the
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`‘parsing’ limitation.” (Dkt. No. 68 at 5 n.2 (quoting SimpleAir, Inc. v. Microsoft Corp. et al., No.
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`2:11-cv-416, Dkt. No. 765 (E.D. Tex. Dec. 10, 2014) (hereinafter, Google I JMOL Order)). At
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`9
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`the oral hearing, SimpleAir made clear that it could accept “no construction” for the term, but
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`that SimpleAir seeks its construction to prevent Google from raising a “payload” construction
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`argument at trial similar to the argument raised at trial in Google I.
`
`
`
`SimpleAir further asserts that there is a “heavy presumption” that a term carries its
`
`ordinary meaning unless (1) a patentee sets out a definition and acts as a lexicographer, or (2)
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`disavows the full scope of a claim term. (Dkt. No. 82 at 1–2 (citing Starhome GmbH v. AT&T
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`Mobility LLC, 743 F.3d 849, 856–57 (Fed. Cir. 2014))). SimpleAir asserts that Google merely
`
`attempts to limit the term based on specification embodiments. SimpleAir asserts that Google’s
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`own fact witness and experts have acknowledged that the ordinary meaning of the term is not
`
`limited to “content.” (Dkt. No. 68 at 6–7); (Dkt. No. 82 at 2).
`
`
`
`SimpleAir asserts that the specification uses the term “data” to refer to any type of digital
`
`information, and that even in the preferred embodiments, the “data” that is transmitted from the
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`information source to the central broadcast server includes information that is not “content.”
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`Rather, SimpleAir asserts such “data” includes headers, packet data, data to ensure proper
`
`transmission, and error correction:
`
`Data is transmitted from an information source to the central broadcast server 34
`as discrete message blocks using E-mail or a well-known high speed
`protocol . . . . In particular, each data packet transmitted by the information
`source 12 includes a header, packet data and information to ensure proper
`transmission to the central broadcast server 34. Additionally, an error correction
`code is typically added to each packet prior to transmission.
`
`’279 Patent 11:44–55. SimpleAir also notes that the specification refers to “data” in the context
`
`of “subscription data” (id. 22:16–17) and “diagnostic data” (id. 22:59–66)—data that is not even
`
`part of a message, much less the content of a message. (Dkt. No. 68 at 6).
`
`
`
`Google asserts that although the Google I Claim Construction Order did not construe
`
`“data,” the order made clear with regard to other terms that what is passed from the information
`
`
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`10
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`source to the remote computing device is “content” from the information source: “access to the
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`content within the information sources 12 is what is important” (Google I Claim Construction
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`Order at 13) and “information sources” refers to the “content on the network” and not the mere
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`physical medium (Google I Claim Construction Order at 27). Google asserts that SimpleAir’s
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`construction is overly expansive and ignores the asserted claims and the specification. (Dkt. No.
`
`76 at 2).
`
`
`
`Google asserts that the specification teaches transmission of content such as “electronic
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`mail (E-mail) and other personal alert notifications, news, sports, and financial stories, premium
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`and special event feeds, advertisements/promotions, graphics, sounds and scheduled updates.”
`
`’279 Patent 7:66–8:03. Google asserts that the information gateway then builds “data blocks”
`
`around parsed data to enable transmission of the data. (Dkt. No. 76 at 3 (citing ’279 Patent
`
`11:37–40, 15:28–32)). Google cites to Figures 5-1 and 5-2. In particular, Google notes that
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`“data block contents” in Figure 5-2 is described as “data from the information source.” ’279
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`Patent fig.5-2. Google asserts that the figures distinguish the content from the headers. (Dkt.
`
`No. 76 at 3). Google further asserts that the specification provides that the “data block” is
`
`enclosed in one or more “data packets.” (Dkt. No. 76 at 4 (citing ’279 Patent 11:44–64, 13:27–
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`54)). Google further points to Figure 9, which states that the “Packet Contents” are “the header
`
`and the contents of the data block contained in this packet.” Google asserts that the specification
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`clearly distinguishes between the “packet contents,” which are the “data portion of the packet,”
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`and the non-data headers information. (Dkt. No. 76 at 4 (citing ’279 Patent fig.5-8; id. 12:64–
`
`13:15, 13:35–54 (describing the Figure 8 and 9 packet data blocks as “the packet header is
`
`followed by the data block header and the data block contents”))). Google also asserts that it is
`
`the contents of the data block that were parsed from the “data from the information source”
`
`
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`11
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`

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`recited in the claims. (Dkt. No. 76 at 4 n.5). Google asserts that the header (either the data block
`
`header or the data packet header), in contrast, were generated by the central broadcast server or
`
`one of the gateways. (Dkt. No. 76 at 4 n.5 (citing ’279 Patent 11:31–42)).
`
`
`
`Google further points to the claims. Google asserts that the claims explicitly require
`
`transmitting “data” from an information source to remote computing devices. Google asserts
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`that the claims further specify (1) that the central broadcast server can be configured to receive
`
`“data” from the information source and to process the received “data” with a parser (’279 Patent
`
`32:48–50, 34:59–61), (2) that an information gateway be configured to build data blocks from
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`the parsed “data” (id. 32:53–55, 34:64–65), and (3) that a transmission gateway be configured to
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`transmit the blocks containing parsed “data” to receivers coupled to the remote computing
`
`devices (id. 32:57–61, 35:1–5). (Dkt. No. 76 at 5). Google asserts that these components all
`
`process and transmit content in the specification. Id. Google also notes that SimpleAir’s expert
`
`acknowledged that “in the context of this claim, the data that they’re talking about is data going
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`from an information source to a remote computing device.” (Dkt. No. 76 at 5 n.6 (quoting Knox
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`Depo. 69:4–8, Dkt. No. 76, Ex. 1)).
`
`
`
`Google asserts that SimpleAir ignores what is actually sent from the information source
`
`and relies on a quote from the specification regarding “data packets.” Google asserts that data
`
`packets are packets with data in the payload and non-data elements in the headers. (Dkt. No. 76
`
`at 5). Google asserts that a “data packet” is not itself data, for the same reason a “milk carton” is
`
`not itself milk. (Dkt. No. 76 at 5). Google asserts that Figure 8 makes this clear as the “data
`
`packet” contains a “Header” and “Contents” and the “Contents” includes “Packet Contents,”
`
`which are called “the data portion of the packet.” Google also asserts that “subscription data”
`
`and “diagnostic data” cited by SimpleAir are not transmitted from the information source but
`
`
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`12
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`

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`from the central broadcast server and a communications server, respectively. (Dkt. No. 76 at 6
`
`(citing ’279 Patent 8:34–40, 22:59–67)).
`
`
`
`Google asserts that SimpleAir is merely adopting a dictionary definition in contradiction
`
`to the patent’s own descriptions of “data.” Google asserts that terms must be given their
`
`ordinary meaning in context of the claim and the specification. (Dkt. No. 76 at 6). Google
`
`asserts that SimpleAir is ignoring the context of both.
`
`Analysis
`
`
`
`As Google acknowledged at the hearing, the ordinary meaning of “data” to one skilled in
`
`the art is broader than the construction Google proposes. In Phillips, the court set forth several
`
`guideposts that courts should follow when construing claims. The court reiterated that “the
`
`claims of a patent define the invention to which the patentee is entitled the right to exclude.”
`
`Phillips, 415 F.3d at 1312. 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.
`
`The claims merely utilize the term “data” from the information source. The language of the
`
`claims does not limit “data” to message content or payload.
`
`
`
`Google asserts that the embodiments in the specification limit “data” to the content of a
`
`message. Though there are instances of “data” being used to refer to the contents of a message,
`
`there is no disclaimer or disavowal in the intrinsic record limiting the term to require reading in
`
`the preferred embodiment. See Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 632 F.3d 1246,
`
`1254 (Fed. Cir. 2011) (“[E]ven where a patent describes only a single embodiment claims will
`
`not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim
`
`
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`13
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`scope using words of expressions of manifest exclusion or restriction” (citation omitted)).
`
`Moreover, the specification is not clear that “data” with regard to the messages would exclude
`
`other types of data. For example, Figure 7 illustrates a format for the messages in which the
`
`“Contents” are listed as “Message Contents” described as “the data portion of the message.”
`
`’279 Patent 4:39–40 & fig.7. Figure 8 describes the packets and lists, under the item “Contents,”
`
`the item of “Packet Contents,” which are described as “the data portion of the packet.” Id. 4:41–
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`42 & fig.8. Figure 9 illustrates single packet data blocks and lists, under the item “Contents,” the
`
`item of “Packet Contents,” which are described as “the header and contents of the data block
`
`contained in this packet.” Id. 4:43–44 & fig.9. In this context, “data” of the packet contents may
`
`include header and “contents” of the data block. Similarly, the specification describes “data is
`
`transmitted from an information source” “as discrete message blocks” in a packet protocol and
`
`the data packets include a header, packet data, and information to ensure transmission. Id.
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`11:44–53. The Court notes that the “data” transmitted is not clearly limited to just the “packet
`
`data” but includes header, information to ensure proper transmission, and error correction codes.
`
`See id. 11:44–55. In the overall context of the specification, “data” is not clearly limited to only
`
`the message contents. Elsewhere in the specification with regards to other aspects of the
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`disclosure, “data” is similarly used in a more general manner. See id. 22:16–17 (“subscription
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`data”); id. 22:59–66 (“diagnostic data”).
`
`In the specification, a patentee may define his own terms, give a claim term a different
`
`meaning that it would otherwise possess, or disclaim or disavow claim scope. Phillips, 415 F.3d
`
`at 1316. That has not been done here. In the context of the specification as a whole, “data” is
`
`not limited to the contents of a message (as opposed to its broader, understood meaning to one
`
`skilled in the art). The Court’s finding also conforms to the evidence and arguments presented in
`
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`14
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`

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`the Google I JMOL Order, in which “data” was found not to be merely limited to the payload.
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`Google I JMOL Order at 9–10.
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`
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`The Court construes “data” to mean “any type of digital information suitable for
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`digital transmission or computer use.”
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`
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`3. “data from an information source” (’279 Patent claim 1, ’154 Patent claim 1)
`
`
`
`SimpleAir
`[no additional construction necessary]
`
`
`Google
`data created at or combined by an information
`source
`
`
`
`The parties dispute the meaning of “from.”
`
`Positions of the Parties
`
`
`
`SimpleAir asserts that Google replaces “from” with “created at or combined by.”
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`SimpleAir asserts that “from” specifies the point or source from which the central broadcast
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`sever receives the claimed “data.” (Dkt. No. 68 at 7–8 (citing dictionary definitions of “from”)).
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`SimpleAir asserts that nothing in the term “from an information source” specifies what occurred
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`at the information source to cause the existence of the data, much less “created or combined.”
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`SimpleAir asserts that no limitation in ’279 Patent claim 1 addresses how the data arrived at the
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`information source. SimpleAir further notes that ’154 Patent claim 1 contains an express
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`limitation regarding “generating data” at the information source. SimpleAir asserts that the
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`“generating” limitation is the limitation that is directed toward the creation of the data, not the
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`“from” limitation. (Dkt. No. 68 at 8 (noting that in the “generating” term discussion below
`
`SimpleAir asserts that “generating” is not limited to “created”)). At the oral hearing, SimpleAir
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`emphasized that in the claims of both the ’279 Patent and ’154 Patent “from” is used in a
`
`directional sense as to where the data came from, not what created or generated the data.
`
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`15
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`

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`
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`Google asserts that to be an “information source,” the “source” must create or combine
`
`the data. Google asserts that both experts agree that to one skilled in the art something that just
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`passes data through (such as a router) is not considered a “source.” (Dkt. No. 76 at 7). Google
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`thus asserts that its construction conforms to the “source” requirement.
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`Analysis
`
`
`
`The parties have sought construction of “data” and “information source.” The term in
`
`dispute merely adds “from.” The claims themselves can provide substantial guidance in
`
`determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. Here, the
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`surrounding claim language provides a context to the meaning of “from” that accords with
`
`SimpleAir’s arguments. The claim term is found in the context of “[a] system to transmit data
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`from an information source to remote computing devices.” Thus, “from” is used in context of
`
`where the data is transmitted from (transmitting from point A to point B) not what creates the
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`data. In such context, the claim is directed to the point from which data is transmitted, not the
`
`particular way or place data is created. Thus, because of the clear context of the claims
`
`themselves no further construction of “data from an information source” is required. Google’s
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`arguments are more directed toward the meaning of “information source” rather than “from.”
`
`Google’s arguments that “from” requires details of creation or origin are explicitly rejected. As
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`noted above, the parties have generally agreed what constitutes an information source and both
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`parties included language that has an information source being content or online providers “that
`
`provide data.”
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`
`
`The Court finds that “data from an information source” does not need further
`
`construction other than the constructions of “data” and “information source” provided
`
`elsewhere herein.
`
`
`
`16
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`

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`
`
`4. “generating data” (’154 Patent claim 1)
`
`
`SimpleAir
`producing data to be transmitted to the central
`broadcast server by creating or combining
`data
`
`Google
`the information source creating data to be
`transmitted to the central broadcast server
`
`The parties dispute whether “generating” means “creating or combining” or whether
`
`“generating” is limited to “creating.”
`
`Positions of the Parties
`
`
`
`SimpleAir objects to Google limiting the term “generating” to “creating data.”
`
`SimpleAir asserts that Google seeks to argue that the information source must create the data
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`from scratch. (Dkt. No. 68 at 8). SimpleAir asserts that in the context of computing and
`
`communications, “generating data” encompasses creating something out of nothing as well as
`
`producing by combining or reproducing data items created elsewhere. (Dkt. No. 68 at 8 (citing
`
`expert declaration and a variety computing and electronics dictionaries)).
`
`
`
`SimpleAir further asserts that Google’s proposal is inconsistent with the preferred
`
`embodiment. SimpleAir cites to the example information source “Quotecom.” (Dkt. No. 68 at 9
`
`(citing ’279 Patent 6:14–23)). SimpleAir asserts that such data is not necessarily created at the
`
`information source, but rather, the information source may simply collect, compile, and provide
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`the data, noting for example that stock quotes are not “created” by Quotecom. SimpleAir asserts
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`such information is created by market transactions and Quotecom merely t