throbber
Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 1 of 24
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`20f I AUG t 5 Ar1 9: 05
`
`CAUSE NO. A-09-CA-593-L Y
`
`BANDSPEED, INC.,
`
`PLAINTIFF,
`
`V.
`
`SONY ELECTORINICS, INC., SONY
`COMPUTER ENTERTAINMENT
`AMERICA, INC., LEGO SYSTEMS,
`INC., PARROT, INC., CAMBRIDGE
`SILICON RADIO LIMITED,
`
`DEFENDANTS.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`MEMORANDUM OPINION AND ORDER REGARDING
`CLAIMS CONSTRUCTION
`
`1.
`
`Introduction
`
`The Court renders this memorandum opinion and order to construe the claims of the
`
`patents-in-suit in this cause, U.S. Patent No. 7,027,418 (the "'418 Patent") and U.S. Patent
`
`No. 7,570,614 (the "'614 Patent"). Plaintiff Bandspeed, Inc. asserts claims against
`
`Defendants Sony Electronics, Inc., Sony Computer Entertainment America, Inc., Lego
`
`Systems, Inc., and Parrot, Inc.! for infringement of the' 418 Patent and the' 614 Patent. The
`
`patents are generally related to frequency hopping transmission techniques. In a frequency
`
`hopping communications system, a transmitter periodically changes its carrier frequency
`
`(frequency channel); that is, it changes from one frequency channel to another frequency
`
`channel. The technology underlying the '418 and '614 Patents is sometimes referred to as
`
`1 Cambridge Silicon Radio Limited was allowed to intervene as Defendant in the
`cause on March 5, 2010. (Doc. # 143).
`Bandspeed, Inc.
`EXH. 2002
`Patent Owner – Bandspeed, Inc.
`Petitioner – Qualcomm Inc.
`IPR2015-00316
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 2 of 24
`
`"adaptive frequency hopping." The '418 Patent claims methods of selecting frequency
`
`channels for use in a frequency hopping sequence for data communications. The' 614 Patent
`
`claims methods for selecting and using frequency channels by identifying channels not to be
`
`used in a frequency hopping sequence and a method for managing performance data.
`
`2.
`
`Legal Principles Applicable to Claim Construction
`
`Determining infringement is a two-step process. See Markman v. Westview
`
`Instruments, Inc., 52 FJd 967, 976 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370 (1996)
`
`("[There are] two elements of a simple patent case, construing the patent and determining
`
`whether infringement occurred .... "). First, the meaning and scope of the relevant claims
`
`must be ascertained. Id. Second, the properly construed claims must be compared to the
`
`accused device. Id. Step one, claim construction, is the current issue before this Court.
`
`Patent claims are construed as a matter of law. Id. at 979. To ascertain the meaning
`
`of claims, the court looks primarily to the intrinsic evidence: the claims, the specification,
`
`and the patent's prosecution history. Phillips v. AWHCorp., 415 FJd 1303, 1314-17 (Fed.
`
`Cir. 2005) (en bane); Markman, 52 FJd 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. Markman, 52 FJd at 979; 35 U.S.C. § 112, ~1. A patent claim must always be
`
`read or interpreted in light of the specification. Phillips, 415 FJd at 1316. For claim(cid:173)
`
`construction purposes, the specification may reveal "a special definition given to a claim
`
`term by the patentee that differs from the meaning it would otherwise possess. In such cases,
`
`the inventor's lexicography governs." Id. Indeed, the specification's written description
`
`"may act as a sort of dictionary, which explains the invention and may define terms used in
`
`2
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 3 of 24
`
`claims." Markman, 52 FJd at 979. "One purpose for examining the specification is to
`
`determine if the patentee has limited the scope of the claims." Watts v. XL Sys., Inc., 232
`
`FJd 877, 882 (Fed. Cir. 2000). 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 embodiment. Electro
`
`Med. Sys., SA. v. Cooper Life Scis., Inc., 34 FJd 1048, 1054 (Fed. Cir. 1994). The Court
`
`must be mindful that "when a patentee uses a claim term throughout the entire specification,
`
`in a manner consistent with only one meaning, he has defined that term by implication." Bell
`
`Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 FJd 1258, 1271 (Fed. Cir.
`
`2001). However, "case law is clear that an applicant is not required to describe in the
`
`specification every conceivable and possible future embodiment of his invention .... [I]n
`
`short, it is the claims that measure the invention, as informed by the specification." Rexnord
`
`Corp. v. Laitram Corp., 274 FJd 1336, 1344 (Fed. Cir. 2001). It is axiomatic that although
`
`claims must be read in light of the specification, limitations from the specification may not
`
`be imported into the claims. Playtex Prods., Inc. v. Proctor & Gamble Co., 400 FJd 901,
`
`906 (Fed. Cir. 2005). Furthermore, courts are not required to construe every limitation
`
`present in a patent's asserted claims. 02 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
`
`521 FJd 1351, 1362 (Fed. Cir. 2008). Rather, claim construction is a matter of resolution
`
`of disputed meanings and technical scope, to clarify and when necessary to explain what the
`
`patentee covered by the claims, for use in the determination of infringement. US Surgical
`
`Corp. v. Ethicon, Inc., 103 FJd 1554, 1568 (Fed. Cir.1997).
`
`3
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 4 of 24
`
`The "words of a claim 'are generally given their ordinary and customary meaning. '"
`
`Phillips, 415 FJd at 1312 (quoting Vitronics Corpv. Conceptronic, Inc., 90 FJd 1576,1582
`
`(Fed. Cir. 1996)). "[T]he 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 date of the patent application." Phillips, 415 FJd at 1313
`
`(citing InnovaiPure Water, Inc. v. Safari Walter Filtration Sys., Inc., 381 FJd 1111, 1116
`
`(Fed. Cir. 2004); Home Diagnostics, Inc. v. LifeScan, Inc., 381 FJd 1352, 1358 (Fed. Cir.
`
`2004); Ferguson Beauregard/Logic Controls v. Mega Sys., LLC, 350 FJd 1327, 1338 (Fed.
`
`Cir. 2003)). There is a "heavy presumption in favor of the ordinary meaning of claim
`
`language." Johnson Worldwide Assoc. v. Zebco Corp., 175 FJd 985,989 (Fed. Cir. 1999).
`
`Although extrinsic evidence, such as dictionaries, may be helpful to the court, such evidence
`
`is less reliable than intrinsic evidence. Phillips, 415 F Jd at 1318. Extrinsic evidence may
`
`be useful when considered in the context of the intrinsic evidence, id. at 1319, but it cannot
`
`"alter a claim construction dictated by a proper analysis of the intrinsic evidence," On-Line
`
`Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 FJd 1133, 1139 (Fed. Cir. 2004).
`
`3.
`
`Discussion
`
`A.
`
`Agreed Terms
`
`Either prior to, during, or after the claims-construction hearing on March 8, 2011, the
`
`parties agreed to various claim terms. The following table summarizes the parties'
`
`agreement.
`
`4
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 5 of 24
`
`Claim Term
`
`'418 Patent
`Claims
`
`'614 Patent
`Claims
`
`Construction
`
`a specified [length, 25, 128
`amount] of time
`
`11
`
`[channel]
`identification data
`
`5, 15, 19,21,25, None
`26,27,36,41
`
`channel
`identification data
`
`None
`
`[communications]
`channel
`
`1,5, 10, 12-15,
`19,21-30,33-
`37,40,41,42,
`120, 123-128
`
`1,3,8,25,26,
`35,36,38
`
`None
`
`a predetennined [length,
`amount] of time
`
`No construction
`
`No construction
`
`separate communication
`frequencies
`
`data that identifies None
`a particular
`channel
`
`encrypting the first 18
`identification data
`
`less than a
`specified number
`
`plurality of
`channels
`
`None
`
`None
`
`plurality of
`communications
`channels
`
`1,3,5, 12-15,
`19,23-30,33-
`37,40,41,120
`
`slots
`
`specified number
`
`123, 124
`
`2,6, 9, 14,26,
`34,35,41
`
`specified number
`of votes
`
`6,9
`
`vote
`
`2,6,9
`
`6
`
`No construction
`
`None
`
`No construction
`
`less than a predetennined
`number
`
`plurality of
`communications channels
`
`multiple, separate
`communication
`frequencies
`
`storage locations
`
`predetennined number
`
`predetennined number of
`binary expressions
`
`a binary expression
`
`10,51,62
`
`None
`
`None
`
`None
`
`10,13
`
`None
`
`None
`
`5
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 6 of 24
`
`B.
`
`Disputed Terms
`
`The parties dispute the construction of fourteen terms. Those terms and the Court's
`
`construction are set forth below.
`
`1.
`
`2.
`
`first
`the
`that
`specifies
`identification data
`"channel
`communications channel is not to be used [by the first
`participant1 for the [first/second1 communication" ('614 Patent,
`Claims 1,3,25)
`AND
`"channel identification data that . . . specifies that the
`[first/fourth] communications channel is not to be used" ('614
`Patent, Claim 36)
`
`Plaintiff contends that no construction is necessary for these terms, but if required,
`
`Plaintiff proposes that "channel identification data specifies that the first communications
`
`channel is not to be used [by the first participant] for the [first/second] communication" be
`
`construed as "channel identification data tells the [first participant/communication device]
`
`to not use the first communications channel for the [first/second] communication" and
`
`"channel identification data that ... specifies that the [first/fourth] communications channel
`
`is not to be used" be construed as "channel identification data tells the [first
`
`participant/second participant/communication device]
`
`to not use the [first/fourth]
`
`communications channel."
`
`Defendants propose the first term be construed as "channel identification data tells
`
`the recipient to not use the first communications channel for only the [first/second]
`
`communication" while the second term should be construed as "channel identification data
`
`tells the recipient to not use the [first/fourth] communications channel."
`
`6
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 7 of 24
`
`The Court finds that the term "channel identification data specifies that the first
`
`communications channel is not to be used [by the first participant] for the [first/second]
`
`communication" means "channel identification data tells the [first participant/communication
`
`device] to not use the first communications channel for the [first/second] communication."
`
`The Court further finds that the term "channel identification data that ... specifies that the
`
`[first/fourth] communications channel is not to be used" means "channel identification data
`
`tells the [first participant/second participant/communication device] to not use the
`
`[first/fourth] communications channel."
`
`The parties agree that Defendants ~ use of the "recipient" renders the claims indefinite
`
`by inserting the undefined word. Defendants' assert that "recipient" was added only to aid
`
`the jury and to form a commonality between these terms. Defendants further argue that the
`
`use of the word "only" reflects the fact that a person of skill in the art would understand that
`
`the channel "not to be used" in the claims and specification is only for a single, specified
`
`communication in the frequency hopping sequence.
`
`Although Defendants argue the use of the word "only" reflects the meaning of the
`
`term "not to be used" to a person skilled in the art at the time of the invention, their proposed
`
`construction fails per the parties agreement on the term "recipient." Furthermore, the
`
`specification teaches that the term "not to be used" is much broader than Defendants~
`
`proposed meaning. See '614 Patent, 9:20-23 ("Informing the participant that the poor
`
`performing channel is not to be used helps to avoid loss of packets over the selected
`
`channel.").
`
`7
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 8 of 24
`
`The Court construes the term "channel identification data specifies that the first
`
`communications channel is not to be used [by the first participant] for the [first/second]
`
`communication"
`
`to mean "channel
`
`identification data
`
`tells
`
`the
`
`[first
`
`participant/communication device] to not use the first communications channel for the
`
`[first/second] communication," and the term "channel identification data that ... specifies
`
`that the [first/fourth] communications channel is not to be used" to mean "channel
`
`identification data tells the [first participant/second participant/communication device]
`
`to not use the [first/fourth] communications channel."
`
`3.
`
`"[channel] performance data" ('418 Patent, Claims 12, 13, 15, 19,
`24-30,33,34,35,40,41; '614 Patent, Claims 30, 35,36)
`
`Plaintiff proposes that the term "[channel] performance data" be construed as "data
`
`that, at least, indicates performance." Defendants propose the term be construed as "a result
`
`of a measurement of performance, distinct from a result of classifying." The Court finds the
`
`term "[channel] performance data" to mean "data that, at least, indicates performance."
`
`Plaintiff contends that the specification teaches that "according to one embodiment
`
`ofthe invention, channel performance is monitored using one or more channel performance
`
`measurement techniques" such as "special test packets containing known content." '418
`
`Patent, 10:2-4, 17-18. Plaintiff continues that Claim 15 ofthe '418 Patent contains a broader
`
`definition of performance data (data that at least indicates performance) while Claims 28 and
`
`29, dependent from Claim 15, contain a narrower definition of performance data (data that
`
`at least indicates a measurement of performance). See '418 Patent, 28:34-36, 31 :4-11, 31 :17-
`
`25. In both the broader and narrower interpretation, Plaintiff argues, performance data is data
`
`8
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 9 of 24
`
`that at least indicates performance. Plaintiff asserts that nowhere in the patent is there any
`
`suggestion that performance data be limited to "a result."
`
`Defendants argue that Plaintiff s proposed construction of "performance data" is over
`
`broad and should be rejected. Defendants contend that it encompasses far more data than is
`
`disclosed in, or enabled by, the specifications, including data that is not useful for the
`
`claimed inventions. Defendants assert that Claim 8 of the '418 Patent supports their position
`
`because it demonstrates that performance data indicates the performance of the channels, not
`
`a theoretical attribute such as a performance target. '418 Patent, 27:24-29.
`
`In this instance, the specification teaches that the performance data can be both a
`
`known preamble or the result ofa performance test. See '418 Patent, 10:17-20. Neitherthe
`
`specification nor the claims limit the performance data to results.
`
`The Court construes the term "[channel] performance data" to mean "data that, at
`
`least, indicates performance."
`
`4.
`
`"[channel] selection criteria" ('418 Patent, Claims 1,2,6,9, 14,
`24,120)
`
`Plaintiff contends that no construction is necessary for this term. Defendants assert
`
`that the term means "one or more rules for selecting channels." The Court finds that the term
`
`"[channel] selection criteria" means "one or more standards on which a decision for selecting
`
`channels can be made."
`
`Plaintiff contends that the patents, in referencing the term "criteria" 98 times, gave
`
`it a well developed meaning and hence, no construction is necessary. Plaintiff further argues
`
`9
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 10 of 24
`
`that neither of the patents use the term "rule" and the word "rule" provides no better
`
`understanding or clarity for a jury than "criteria."
`
`Defendants contend that a person of skill in the art would understand
`
`"criterion/criteria" to mean "rule/rules." Additionally, Defendants argue that since
`
`"criterion/criteria" is not a term of art and in light of the confusing and incorrect grammatical
`
`use of the term in the patent, a construction consistent with the definition of the term at the
`
`time of the patent is appropriate.
`
`Because "criterion/criteria" is used in a grammatically incorrect manner within the
`
`patent, the jury would be aided by construing the term.
`
`In this instance, the term
`
`"criterion/criteria" could be interpreted to mean "rule/rules" by one skilled in the art.
`
`However, although "criterion/criteria" could be a rule, in the context of its use in the patent,
`
`it is a set of standards used to determine which channels to select.
`
`The Court construes the term "[channel] selection criteria" to mean "one or more
`
`standards on which a decision for selecting channels can be made."
`
`5.
`
`6.
`
`"classifying" ('418 Patent, Claims 24, 40; '614 Patent, Claims 9,
`10,37)
`AND
`"determining classification" ('418 Patent, Claim 41)
`
`Plaintiff contends that no construction is necessary for these terms. Defendants assert
`
`that the term "classifying" means "assigning a class to a channel based on the performance
`
`of the channel and one or more criteria" and the term "determining classification" means
`
`"classifying." The Court finds that the terms "classifying" and "determining classification"
`
`10
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 11 of 24
`
`mean "assigning a class to a channel based on the performance of the channel and one or
`
`more criteria."
`
`Defendants argue that the term "classifying" is defined within the claims of the
`
`patents. For example, Claim 24 of the' 418 Patent states "classifying" is "based on the first
`
`performance data and one or more classification criteria that includes at least the first
`
`performance criteria."
`
`'418 Patent, 29:57-61. Claim 40 of the '418 Patent states that
`
`"classifying" is "based on the first performance data and at least the first performance
`
`criteria."
`
`'418 Patent, 32:51-52. Similarly, Claim 41 of the '418 Patent states that
`
`"determining classification" is "based on the first performance data and at least a first
`
`performance criterion." '418 Patent, 33:5-6. Additionally, the '614 Patent contains similar
`
`language defining "classifying." See '614 Patent, 33:18-22, 37:56-60.
`
`Plaintiff contends that the terms are clearly understandable to Defendants' expert, Dr.
`
`Goodman, therefore, no construction is necessary.
`
`Although the Court is mindful not to add complexity where it is not necessary and
`
`the terms "classifying" and "determining classification" are defined within the patents-in(cid:173)
`
`suit, the Court will construe the terms to avoid confusion.
`
`The Court construes the terms "classifying" and "determining classification" to mean
`
`"assigning a class to a channel based on the performance of the channel and one or
`
`more criteria."
`
`11
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 12 of 24
`
`7.
`
`"default set of two or more communications channels" ('418
`Patent, Claims 23,125-128)
`
`Defendants contend that no construction is necessary for this term. Plaintiff asserts
`
`that the term means "a set of communications channels from which default selection occurs."
`
`The Court finds that the term "default set of two or more communications channels" means
`
`"an original set of communication channels."
`
`Plaintiff relies on the specification of the' 418 Patent for its construction of the term
`
`"default set of two or more communications channels." For example, the '418 Patent
`
`specification refers to "default" as the "original ... set of communication channels." '418
`
`Patent, 18:43. However, the Court sees no support for Plaintiffs construction of "a set of
`
`communications channels from which default selection occurs." The specification indicates
`
`that when a participant is unable to use one of the selected good performing channels, "some
`
`participants may communicate with each other using the original or default set of
`
`communications channels while other participants communicate using a selected set of good
`
`channels."
`
`'418 Patent, 18:39-45. There is no default selection. When unable to
`
`communicate over the good channels selected, the communications revert to an original set
`
`of communication channels, which is the default set of two or more communication
`
`channels.
`
`The Court finds the specification instructive and construes the term "default set of
`
`two or more communication channels" to mean "an original set of communication
`
`channels."
`
`12
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 13 of 24
`
`8.
`
`"[first/second/third] performance [criterion/criteria]" ('418
`Patent, Claims 15, 19,22,24-27,40,41)
`
`Plaintiff contends that no construction is necessary for this tenn. Defendants assert
`
`that the tenn means "each of the first, second and third perfonnance criteria could be the
`
`same as or different from each other." The Court finds that no construction is necessary for
`
`the tenn "[first/second/third] perfonnance [criterion/criteria]."
`
`Defendants argue that the perfonnance criteria could be the same or different from
`
`each other. For example, Claim 22 ofthe '418 Patent states "the first perfonnance criterion
`
`is different than the second perfonnance criterion." '418 Patent, 29:41-42. Defendants
`
`further contend that since Claim 22 is dependant from Claim 19, which is dependant from
`
`Claim 15, there is a presumption that Claims 15 and 19 do not include the restriction that the
`
`first perfonnance criterion is different from the second perfonnance criterion, because Claim
`
`22 adds that limitation to the claims from which it depends. '418 Patent, 28:35-36, 29:3-6;
`
`see Phillips, 415 F Jd at 1315 ("[T]he presence of a dependent claim that adds a partiCUlar
`
`limitation gives rise to a presumption that the limitation in question is not present in the
`
`independent claim.").
`
`Plaintiff contends that by principles of claim differentiation, Claims 15 and 19 must
`
`indicate that the first perfonnance criteria can be the same as the second perfonnance criteria.
`
`'418 Patent, 28:35-36, 29:3-6. Hence, depending on the claim, the first/second perfonnance
`
`criteria can be the same as or different from each other. Therefore, Plaintiff argues, it is
`
`impennissible to add Defendants' proposed qualifier since it is only correct as to some
`
`claims, but not all claims.
`
`13
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 14 of 24
`
`The Court
`
`finds Defendant's construction does not clarify
`
`the
`
`tenn
`
`"[first/second/third] perfonnance [criterion/criteria]." The claims construction, although it
`
`supports Defendants' position that the perfonnance criteria could be the same or different,
`
`requires no construing. The Court will not construe the tenn.
`
`9.
`
`"hop" ('418 Patent, Claims 1, 14, 15,41)
`
`Defendants contend that no construction is necessary for this tenn. Plaintiff asserts
`
`that the tenn means "interval between frequency changes." The Court finds that the tenn
`
`"hop" means "the switch from one frequency to another frequency."
`
`, "
`
`Defendants originally argued that Plaintiff s initial construction ("switch among
`
`frequencies") failed because in both patents all communications occur while both the master
`
`and slave are operating on a particular channel, not while switching between channels. The
`
`claim language confinns that "at each hop in the hopping sequence, only one
`
`communications channel is used for communications between a pair of participants." '418
`
`Patent, 26:43-45. Defendants further argued that the construction fails because it would
`
`require communicating during a transition period-that is, while switching among frequency
`
`channels-rather than while at a particular frequency. At the claims-construction hearing,
`
`Plaintiff relented and agreed with Defendants' expert, Dr. Goodman, that the proper
`
`construction would be "interval between frequency changes."
`
`Defendants now argue that "interval between frequency changes" is not compatible
`
`with the specification which states:
`
`With the [frequency hopping] approach, the frequency band is broken up into
`separate frequencies, often referred to as "channels." The FH system
`transmits data on one channel, hops to the next channel in the hopping
`
`14
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 15 of 24
`
`sequence to transmit more data, and continues by transmitting data on
`subsequent channels in the hopping sequence.
`
`'418 Patent, 1 :59-63 (emphasis added). Defendants contend that although "interval between
`
`frequency changes" would be compatible with the claim language, the specification clearly
`
`defines "hop" as the "switch among frequencies." This incompatibility, Defendants argue,
`
`renders the claims invalid as a matter oflaw. See Allen Eng'g Corp. v. Bartell Indus., Inc.,
`
`299 FJd 1336, 1349 (Fed. Cir. 2002) (patent claims were indefinite when specification
`
`taught contrary meaning of term than manner it was used in claims).
`
`Although the specification teaches that the term "hop," when used as a verb, means
`
`"switch among frequencies," the specification also teaches that the term "hop," when used
`
`as a noun, means "the switch from one frequency to another frequency." See '418 Patent,
`
`12:4-5 (stating "the frequency hopping rate is 1,600 hops per second"). This definition of
`
`the term is compatible with the claim language which states that "at each hop in the hopping
`
`sequence, only one communications channel is used for communications between a pair of
`
`participants." Patent, '418,26:43-45 (emphasis added).
`
`The Court construes the term "hop" to mean "the switch from one frequency to
`
`another frequency."
`
`10.
`
`"indicates a measurement of performance" ('418 Patent, Claims
`28,29,30)
`
`Plaintiff contends that no construction is necessary for this term, but if required,
`
`Plaintiffproposes: "indicates performance measurement." Defendants propose the term be
`
`construed as: "indicates the result of a performance measurement." The Court finds that the
`
`15
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 16 of 24
`
`term "indicates a measurement of performance" means "indicates the results of channel
`
`performance testing."
`
`Plaintiff asserts that the word "result" is not required and that there is no support
`
`within the '418 Patent to suggest that a "result" is necessary to define a measurement.
`
`Defendants' argue that use of the word "result" properly excludes data, for example, that
`
`merely indicates that a performance measurement will be made or has been made.
`
`The specification of the '418 Patent teaches that "[c]hannels may be classified by
`
`comparing the test results to the performance criteria." '418 Patent, 6: 18·19. Furthermore,
`
`the specification teaches that "a channel may be classified as 'good' or 'bad' based on the
`
`results of the channel performance testing by applying one or more performance
`
`measurements to specified performance criteria." '418 Patent, 14:35·38. The term at issue
`
`appears in Claim 28 as "data that indicates a measurement of performance of [] at least one
`
`communications channel ... based on transmitting ... data over at least one communications
`
`channel." '418 Patent, 31: 7·11. Read in light of the specification, "data that indicates a
`
`measurement of performance" is data that is based on the results of channel performance
`
`testing. The Court consludes "measurement of performance" is meant to be "the results of
`
`channel performance testing."
`
`The Court construes the term "indicates a measurement of performance" to mean
`
`"indicates the results of channel performance testing."
`
`16
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 17 of 24
`
`11.
`
`"participants" ('418 Patent, Claims 1,2,5,6,9,14,15,18,19,21,
`23,25-30,32,35,36,37,120,123,124,125,127,128; '614 Patent,
`Claims 1, 3, 6, 8, 25, 28, 30, 35, 36, 38)
`
`Defendants contend that no construction is necessary for this term. Plaintiff asserts
`
`that the term means 44devices that communicates [sic] with other devices." The Court finds
`
`the term 44participants" to mean 4'devices or mechanisms that communicate with other
`
`devices or mechanisms."
`
`The term Hparticipant" is plainly defined in the specifications: "[a]s used herein, the
`
`term 'participant' refers to a device or mechanism that communicates with other devices or
`
`mechanisms." '418 Patent, 1:29-31; '614 Patent, 1:34-36.
`
`The Court construes 44participants" to be "devices or mechanisms that communicate
`
`with other devices or mechanisms."
`
`12.
`
`13.
`
`"performance [of/for a channel]" ('418 Patent, Claims 1, 12-15,
`19,22-30,33,34,35,40,41,120; '614 Patent, Claims 1, 7, 8, 9,13,
`25,28,30,35,36,37)
`AND
`"data that indicates [the] performance" ('418 Patent, Claims 15,
`19,25,26,27; '614 Patent, Claims 8, 30, 36)
`
`Defendants propose that the term "performance [of/for a channel]" be construed as
`
`"the quality with which a channel carries communications" and the term "data that indicates
`
`[the] performance" be construed as " data that indicates the quality with which a channel
`
`carries communications." Plaintiff proposes these terms not be construed. The Court finds
`
`these terms do not need construction.
`
`Plaintiff argues that the term "performance" has a broad meaning when read in the
`
`context of the patent specification that goes beyond subjective "quality." See '418 Patent,
`
`17
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 18 of 24
`
`3:17-20, 7:26-33; '614 Patent, 2:47-50, 10:19-20. Plaintiff further contends that using
`
`Defendants' proposed construction is vague and indefinite as to the tenn "quality." See 35
`
`U.S.C. § 112, ~1. Relying on PureChoice, Inc. v. Honeywell Int 'I, Inc., Plaintiff argues that
`
`the tenn "quality" "does not infonn the public what qualities the invention is concerned with,
`
`and is overbroad." 333 Fed. Appx. 544, 547 (Fed. Cir. 2009).
`
`Defendants contend that the tenns "quality" and "perfonnance" are intertwined.
`
`Defendants point to the specification of the '614 Patent: "[a] common problem for
`
`communications systems is poor transmission quality of communications channels, also
`
`referred to as poor channel perfonnance ... poor channel perfonnance may increase the bit
`
`rate error ... leading to reduced transmission quality." '614 Patent, 2:46-51. Defendants
`
`conclude then that both patents and their specifications use the tenn "perfonnance" to refer
`
`to channel quality.
`
`With reference to Plantiff s indefiniteness argument, Defendants assert that "[i]f a
`
`claim is indefinite, the claim, by definition, cannot be construed." Enzo Biochem, Inc. v.
`
`Applera Corp., 599 FJd 1325,1331 (Fed. Cir. 2010). In addition, Defendants point out that
`
`a claim tenn is not indefinite merely because it has a subjective component, as long as
`
`persons skilled in the art would understand its meaning. See Source Search Techs., LLC v.
`
`Lending Tree, LLC, 588 FJd 1063, 1076 (Fed. Cir. 2009) (subjective tenns are definite if
`
`capable of being understood by skilled artisans). Therefore, Defendants conclude that since
`
`the tenn being construed is not "quality," the construction does not fail for indefiniteness.
`
`Defendants' expert, Dr. Goodman, states that a person of ordinary skill in the art
`
`would understand "perfonnance" to refer to the ability of a channel to convey
`
`18
`
`

`

`Case 1:09-cv-00593-LY Document 256 Filed 08/12/11 Page 19 of 24
`
`communications accurately. There is a "heavy presumption in favor of the ordinary meaning
`
`of claim language." Johnson, 175 FJd at 989. Given this "heavy presumption," coupled
`
`with Dr. Goodman's expert opinion, the Court finds it unnecessary to construe the terms
`
`"performance [of/for a channel]" and "data that indicates [the] performance." Id.
`
`14.
`
`"register" ('418 Patent, Claims 120, 123, 124, 125, 127, 128)
`
`Plaintiff proposes that this term be construed as "a storage device having a set of slots
`
`addressable by a selection kernel." Defendants propose the term be construed as "an area of
`
`memory." The Court finds the term "register" means "an area of memory having a set of
`
`addressable slots."
`
`Plaintiff contends that the' 418 Patent specification mandates to one skilled in the art
`
`that a register must be defined as "a storage device having a set of slots addressable by a
`
`selection kernel." Defendants argue that the particular part of the specification Plaintiff cites
`
`refers to certain embodiments of the in

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket