MS 1116
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`MS 1116MS 1116
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 1 of 14 PageID #: 34075
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`**NOT FOR PRINTED PUBLICATION**
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
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`CIVIL ACTION No. 9:09CV111
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`JUDGE RON CLARK
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`§§§§§§§§§§§§
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`PERSONAL AUDIO, LLC,
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`Plaintiff,
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`v.
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`APPLE, INC.; SIRIUS XM RADIO, INC.;
`COBY ELECTRONICS CORP.; and
`ARCHOS, INC.,
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`Defendants.
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`ORDER CONSTRUING “SEPARATELY STORED” LIMITATION
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`Plaintiff Personal Audio, LLC (“Personal Audio”) filed suit against Defendant Apple,
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`Inc. (“Apple”), claiming infringement of United States Patent Nos. 6,199,076 (“the ‘076 patent”)
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`and 7,509,178 (“the ‘178 patent”). The patents-in-suit share a common specification and are
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`directed toward an audio program player that will play a sequence of audio program segments or
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`files and accept commands from the user to skip forward or backward in the sequence. The court
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`has issued two prior orders construing disputed claim terms of the patents-in-suit. [See Doc.
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`#258; Doc. #292.] The parties now raise one additional term of the ‘178 patent for construction.
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`Having carefully considered the patent and the parties’ contentions as presented in their
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`briefs, the court finds that, with respect to the limitation at issue, (1) the words “separately
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`stored” were added to claim 14 during prosecution to emphasize that the sequencing file is stored
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`separately from the audio files; (2) the patent’s specification allows for the possibility that the
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`program description data may be stored in the sequencing file; and (3) given the distinction
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`1
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 2 of 14 PageID #: 34076
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`between “files” and “data,” a person of ordinary skill in the art would interpret the claim
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`language to mean that the “audio program files” and the “playback session sequencing file” must
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`be stored separately, but the “program description data” could be stored in any file, including the
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`sequencing file. Accordingly, the court adopts the claim construction proposed by Personal
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`Audio, namely that “separately stored” in claim 14 of the ‘178 patent means that the playback
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`session sequencing file is stored separately from the audio program files.
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`I. CLAIM CONSTRUCTION STANDARD OF REVIEW
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`Claim construction is a matter of law. Markman v. Westview Instruments, Inc.
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`(Markman II), 517 U.S. 370, 388-91, 116 S. Ct. 1384, 1395-96 (1996); Cybor Corp. v. FAS
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`Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998). “The duty of the trial judge is to determine
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`the meaning of the claims at issue, and to instruct the jury accordingly.” Exxon Chem. Patents,
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`Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555 (Fed. Cir. 1995), cert. denied, 518 U.S. 1020, 116
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`S. Ct. 2554 (1996). “‘[T]he claims of a patent define the invention to which the patentee is
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`entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)
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`(en banc) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111,
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`1115 (Fed. Cir. 2004)), cert. denied, 546 U.S. 1170, 126 S. Ct. 1332 (2006). “Because the
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`patentee is required to ‘define precisely what his invention is,’ . . . it is ‘unjust to the public, as
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`well as an evasion of the law, to construe it in a manner different from the plain import of its
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`terms.’” Id. (quoting White v. Dunbar, 119 U.S. 47, 52, 7 S. Ct. 72, 75 (1886)).
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`The words of a claim are generally given their ordinary and customary meaning. Id.
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`“[T]he ordinary and customary meaning of a claim term is the meaning that the term would have
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`to a person of ordinary skill in the art in question at the time of the invention.” Id. at 1313.
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 3 of 14 PageID #: 34077
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`Analyzing how a person of ordinary skill in the art understands a claim term is the starting point
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`of claim interpretation. Id. A person of ordinary skill in the art is “deemed to read the claim term
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`not only in the context of the particular claim in which the disputed term appears, but in the
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`context of the entire patent, including the specification.” Id.
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`Where a claim term has a particular meaning in the field of the art, the court looks to
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`“‘those sources available to the public to show what a person of skill in the art would have
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`understood [the] disputed claim language to mean.’” Id. at 1314 (quoting Innova, 381 F.3d
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`at 1116). Those sources include “‘the words of the claims themselves, the remainder of the
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`specification, the prosecution history, and extrinsic evidence concerning relevant scientific
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`principles, the meaning of technical terms, and the state of the art.’” Id. (quoting Innova, 381
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`F.3d at 1116).
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`The intrinsic evidence, that is, the patent’s specification and, if in evidence, the
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`prosecution history, is important in claim construction. See id. at 1315-17. “[T]he specification
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`‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the
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`single best guide to the meaning of a disputed term.’” Id. at 1315 (quoting Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). The patent specification and the
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`prosecution history may clarify the definition of terms used in the claims, or may show that the
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`patentee has clearly disavowed the ordinary meaning of a term in favor of some special meaning.
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`See Markman v. Westview Instruments, Inc. (Markman I), 52 F.3d 967, 979-80 (Fed. Cir. 1995),
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`aff’d, 517 U.S. 370, 116 S. Ct. 1384 (1996).
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`A claim term takes on its ordinary and accustomed meaning unless the patentee
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`demonstrated an express intent to impart a novel meaning by redefining the term “with
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 4 of 14 PageID #: 34078
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`reasonable clarity, deliberateness, and precision” in the patent specification or prosecution
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`history. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). The
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`patentee may demonstrate an intent to deviate from the ordinary meaning “by redefining the term
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`or by characterizing the invention in the intrinsic record using words or expressions of manifest
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`exclusion or restriction, representing a clear disavowal of claim scope.” Id. at 1327. If the
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`patentee clearly intended to provide his own definitions for claim terms, the “inventor’s
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`lexicography governs.” Phillips, 415 F.3d at 1316.
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`In addition to the intrinsic evidence, a court is also authorized to review extrinsic
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`evidence, such as dictionaries, inventor testimony, and learned treatises. Id. at 1317. For
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`instance, in some cases “the ordinary meaning of claim language as understood by a person of
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`skill in the art may be readily apparent even to lay judges, and claim construction . . . involves
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`little more than the application of the widely accepted meaning of commonly understood words”;
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`a general purpose dictionary may be helpful in these instances. Id. at 1314. However, extrinsic
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`evidence is “in general less reliable” than the intrinsic evidence in determining how to read claim
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`terms. Id. at 1318. Therefore, while extrinsic evidence may be used to help educate the court
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`regarding the field of the invention and what a person of ordinary skill in the art would
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`understand claim terms to mean, extrinsic evidence should be considered in the context of the
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`intrinsic evidence in order to result in a reliable interpretation of claim scope. Id. at 1319.
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`II. PERSON OF ORDINARY SKILL IN THE ART
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`The court has found that a person of ordinary skill in the art in this case is an individual
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`with the equivalent of a four-year degree from an accredited institution (usually denoted as a
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`B.S. degree) in either computer science or computer engineering with a concentration of courses
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 5 of 14 PageID #: 34079
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`in programming and the development and use of hardware and software, and approximately two
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`to three years of programming experience. Additional graduate education might substitute for
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`experience, while significant experience in the field of computer programming might substitute
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`for formal education.1 [Doc. #258 at 5.]
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`III. PATENT BACKGROUND AND TECHNOLOGY
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`The ‘076 patent was filed in 1996 and issued in 2001. U.S. Patent No. 6,199,076, at (22),
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`(45) (filed Oct. 2, 1996). The ‘178 patent, in which the disputed “separately stored” limitation is
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`found, is a divisional of the ‘076 application and issued in 2009. U.S. Patent No. 7,509,178,
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`at (62), (45) (filed Feb. 13, 2001). As noted, the patents share a common specification and are
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`directed toward an audio program player that will play a sequence of audio program segments or
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`files and accept commands from the user to skip forward or backward in the sequence. A
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`“sequencing file” defines the sequence of the audio program segments, i.e. the order in which the
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`segments will be played or what segment comes next when the user issues a command to skip
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`forward or backward in the sequence.
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`IV. “SEPARATELY STORED” LIMITATION
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`The disputed claim term is found in claim 14 of the ‘178 patent. The relevant portion of
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`this claim is set out below, with the disputed term in bold.
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`1 To become familiar with the technology underlying the patents-in-suit from the
`perspective of one skilled in the art, and to better understand the technical aspects of the parties’
`arguments, the court appointed Dr. Frank Shipman as technical advisor. [See Docs. #148
`& #170.] Dr. Shipman received his Ph.D. in computer science from the University of Colorado
`in 1993, his M.S. in computer science from the University of Colorado in 1990, and his B.S. in
`Electrical Engineering from Rice University in 1988. He is currently a professor at Texas A&M
`University, where he has been on the faculty since 1995. Dr. Shipman’s curriculum vitae can be
`found at http://www.csdl.tamu.edu/~shipman/vitae.pdf.
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 6 of 14 PageID #: 34080
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`14. An audio program player for automatically playing a collection of audio program
`files selected by a listener, said player comprising, in combination:
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`a memory unit for storing:
`(a) a plurality of audio program files,
`(b) program description data including displayable text describing each of
`said audio program files, and
`(c) at least one separately stored playback session sequencing file2 which
`specifies an ordered sequence of a collection of said plurality of audio
`program files,
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`. . . .
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`‘178 patent, col. 48, ll. 1-10.
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`V. CLAIM CONSTRUCTION
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`Claim 14 requires that the claimed player include a memory unit for storing three items:
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`(a) a plurality of audio program files,
`(b) program description data, and
`(c) a “separately stored” sequencing file.
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`See ‘178 patent, col. 48, ll. 4-10. Although the claim language specifies that the sequencing file
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`must be “separately stored,” it does not state from what item or items the file must be stored
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`separately. Personal Audio asserts that the sequencing file need only be stored separately from
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`the audio program files; Apple asserts that the sequencing file must be stored separately from
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`both the audio program files and the program description data.
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`Apple asserts that the plain language and structure of claim 14 indicate that each of the
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`three listed items, (a) audio program files, (b) program description data, and (c) sequencing file,
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`must be stored separately in the player’s memory unit. [See Doc. #307, Def.’s Resp. Br. at 2-3.]
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`Personal Audio, on the other hand, asserts that the phrase “separately stored playback session
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`2 The court has previously found that “playback session sequencing file” means “a file of
`data that identifies the order in which audio program segments are to be played and that may
`contain information about the sequence of events that occur during playback.” [Doc. #258 at 21.]
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 7 of 14 PageID #: 34081
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`sequencing file which specifies an ordered sequence of a collection of said plurality of audio
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`program files” in item (c) simply indicates that the sequencing file must be separately stored
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`from the plurality of audio program files. [See Doc. #297, Pl.’s Br. at 3.] Personal Audio also
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`points out that the claim language makes a distinction between “files” and “data,” arguing that
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`this would indicate to a person of ordinary skill in the art that the “audio program files” must be
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`stored separately from the “sequencing file,” but the “program description data” “could be stored
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`in any file in memory assuming an appropriate file format.” [Doc. #297 at 2-3 (“The claim gives
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`no indication of where or in what file the ‘program description data’ is stored.”).]
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`Although both parties assert that the plain language of the claim supports their respective
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`proposed constructions, a person of ordinary skill in the art reading the claim by itself could
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`reasonably interpret the language in the manner suggested by both parties, i.e. either each of the
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`three items listed must be stored separately in the memory unit, or the sequencing file need only
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`be stored separately from the audio program files. However, claim terms are not to be interpreted
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`in a vacuum, but rather must be read in the context of the written description and prosecution
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`history. Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005). Accordingly,
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`the court turns to the intrinsic record for guidance.
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`A. The prosecution history indicates that the words “separately stored” were added to
`claim 14 to emphasize that the sequencing file is stored separately from the audio files,
`but were not intended to add a limitation that the sequencing file is stored separately
`from the program description data.
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`During prosecution, claim 14 was amended to add the words “separately stored.”
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`[See Doc. #297-4, Oct. 28, 2008 Amendment at 6 (prosecution claim 47, which issued as
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`claim 14).] In the remarks accompanying this amendment, the applicants repeatedly emphasized
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`that the prior art cited by the examiner did not utilize a sequencing file as claimed.
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 8 of 14 PageID #: 34082
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`[See, e.g., Doc. #297-4 at 16 (“Neither Janky nor Hair describe an audio program player as set
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`forth in independent claim[] . . . 47 . . . that employs a communications port to download . . . a
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`sequencing file and a plurality of audio program files wherein the downloaded sequencing file
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`specifies an ordered sequence of a collection of the audio program files stored in the player’s
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`memory unit.”).]
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`The impetus behind the addition of the words “separately stored” appears to have been to
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`make clear that the sequencing file is stored separately from the audio program files:
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`Janky[] . . . does not download and store a file of any kind, let alone a sequencing file
`as claimed that identifies an ordered sequence of a collection of separate audio
`program files . . . . This novel arrangement is clearly set forth in independent
`claim[] . . . 47 as amended . . . .
`. . . .
`. . . [N]either Janky nor Hair disclose or suggest downloading a sequencing
`file . . . where the downloaded sequencing file identifies a collection of stored
`programs and establishes an ordered sequence for playing back those programs. In
`Janky and Hair, the stored audio program files, and the sequence in which they are
`played, are both specified by the user at the time playback selections are made by the
`listener. Nothing in either reference suggests that specific audio files which are to be
`played in a playback session could or should be specified by a sequencing file that
`is downloaded from a remote server . . . rather than being selected by the user at the
`time playback is desired.
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`[Doc. #297-4 at 17-18 (emphasis added).] The court has located no place in the remarks
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`accompanying this amendment where the applicants relied on the sequencing file being stored
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`separately from the program description data as a feature necessary to distinguish their invention
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`from the prior art. In fact, the portions of the remarks discussing prosecution claim 47, which
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`ultimately issued as claim 14, do not mention program description data at all.
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`Apple points to a portion of the remarks that discuss the preferred embodiment of the
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`invention, in which the sequencing file contains a sequence of unique identifiers that are used to
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`access program description data records. [See Doc. #307 at 5-6; Doc. #297-4 at 21.] In this
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`MS 1116 - Page 8
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 9 of 14 PageID #: 34083
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`embodiment, a unique integer value, called a “ProgramID,” is used as a “key” to index and
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`access various tables, and the sequencing file simply contains an ordered sequence of
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`ProgramIDs. See ‘178 patent, col. 17, ll. 55-64; id. col. 18, ll. 32-34; id. fig. 5; [accord Doc.
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`#297-4 at 21 (“For storage efficiency, each audio program may be designated by a unique
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`program identifier and the sequencing file specifies the program identifier for each audio
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`program file in the sequenced collection.”)]. The program description data is stored in a separate
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`“Programs Table” which contains “Program_Segment” records indexed by ProgramID. See ‘178
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`patent, col. 17, ll. 27-30, 55-58; id. col. 18, ll. 43-46; [accord Doc. #297-4 at 21 (“[The] player’s
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`memory unit stores also program description data records that describe each given program file,
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`and these records contain or are designated by the unique program identifier that designates the
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`given audio program file . . . .”)].
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`With respect to this embodiment, the prosecution history remarks state that
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`[n]either Janky nor Hair describe a downloadable sequencing file at all, let alone the
`use of unique program identifiers in such a sequencing file to provide efficient access
`keys to designate and access the additional specified data records containing
`information needed to implement the functions made possible by the downloaded
`sequencing file.
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`[Doc. #297-4 at 21.] These remarks indicate that the applicants distinguished their invention
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`from the prior art on the basis of the sequencing file alone, and the “use of unique program
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`identifiers” simply provided an additional basis for distinction but was not necessary to make the
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`claimed invention nonobvious. Further, these remarks are specifically directed toward
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`prosecution claims 41, 61, and 62, which ultimately issued as dependent claims 8, 28, and 29,
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`and thus do not provide a basis for limiting independent claim 14 to the embodiment discussed.
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 10 of 14 PageID #: 34084
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`B. The specification allows for the possibility that the program description data and the
`sequencing file may be stored together in a single file, and claim 14 should not be
`limited to the preferred embodiment of the invention.
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`As noted above, the preferred embodiment of the invention is one in which the
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`sequencing file contains a sequence of unique ProgramIDs that are used to access
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`Program_Segment records that contain program description data. Apple points to the
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`specification’s disclosure of this embodiment to support its argument that the sequencing file
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`must be stored separately from the program description data. [See Doc. #307 at 3-4.] However,
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`the scope of a claim should generally not be confined only to the preferred embodiment.
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`See Phillips, 415 F.3d at 1323; Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.
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`Cir. 2004) (even when specification describes only one embodiment, claims will not be read
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`restrictively unless patentee has demonstrated clear intention to limit claim scope by
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`characterizing invention using “words or expressions of manifest exclusion or restriction”).
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`Further, the patent’s specification allows for the possibility that the sequencing file and
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`the program description data may be stored together in a single file. The specification describes
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`that the player will download a “download compilation file” from a host server. See ‘178 patent,
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`col. 6, l. 60 to col. 7, l. 1; id. at col. 48, ll. 11-13 (player of claim 14 includes “a communications
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`port for downloading at least some of said audio program files and said playback session
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`sequencing file from one or more server computers”). The download compilation file includes
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`“data defining compressed program, advertising, and glue segments,” i.e. data defining audio
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`program files, “and/or associated text program data.” See ‘178 patent, col. 7, ll. 1-7; id. at col.
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`48, ll. 6-7 (in claim 14, program description data includes “displayable text describing each of
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`[the] audio program files”). The download compilation file
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 11 of 14 PageID #: 34085
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`preferably takes the form of one or more subscriber and session specific files which
`contain the identification of separately stored shar[e]able files. By way of example,
`the recommended order and the identification of the program files making up an
`individual playback session are stored in a session schedule file . . . which contains
`program identifiers of the program segments to be played during an upcoming
`session.
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`‘178 patent, col. 7, ll. 11-19 (emphasis added).
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`The fact that the specification states that the download compilation file containing the
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`“session schedule file,” i.e. the sequencing file, and “text program data,” i.e. program description
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`data, may consist of “one or more” files implies that the sequencing file and the program
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`description data may be stored together in a single file or may be stored separately in multiple
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`files. And, like the description of the invention in the prosecution history, the specification states
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`that the sequencing file must be stored separately from the audio program files but is silent as to
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`whether the sequencing file must be stored separately from the program description data.3
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`3 Even claim 8, which claims the preferred embodiment discussed above, while
`explicitly providing that both the sequencing file and the program description data must be
`stored separately from the audio program files, does not place any limitation on whether the
`sequencing file and the program description data must be stored separately from one another. See
`‘178 patent, col. 45, ll. 65-67 (claim 1, from which claim 8 depends, claims audio program
`player with a “digital memory unit . . . for persistently storing said separate digital compressed
`audio program files and said separate sequencing file” (emphasis added)); ‘178 patent, col. 47,
`ll. 12-15 (claim 8 provides that the “digital memory unit further stores program description data
`comprising a plurality of program description records stored separately from said audio program
`files” (emphasis added)).
`The parties agree that the phrase “wherein said digital memory unit further stores
`program description data comprising a plurality of program description records stored separately
`from said audio program files” in claim 8 does not require construction. [Doc. #297 at 2, 8;
`Doc. #307 at 1 n.1.] Both sides agree that this phrase means that the program description records
`must be stored separately from the audio program files, but does not require that the program
`description data or records be stored separately from the sequencing file. [See Doc. #297 at 1-2,
`4; Doc. #307 at 3 (claim 8 suggests a reading that allows sequencing file to be stored with
`program description data).]
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 12 of 14 PageID #: 34086
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`Apple argues that any embodiment in which the download compilation file consists of a
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`single file is already excluded by the language of claim 14, even under Personal Audio’s
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`proposed construction, because in a “single file” embodiment, the audio program files would
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`necessarily be stored in the download compilation file along with the sequencing file. [See Doc.
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`#307 at 4-5.] In other words, Apple argues that in a “single file” embodiment, the sequencing file
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`would not be stored separately from the audio program files as required by claim 14. [See Doc.
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`#307 at 4-5.]
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`The court does not agree with Apple’s interpretation of the specification. The
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`specification explicitly states that the “shareable files,” i.e. audio program files, are stored
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`separately from the download compilation file. See ‘178 patent, col. 7, ll. 10-13. The
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`specification further describes that, after the download compilation file is downloaded, the player
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`utilizes the “identifiers” contained in the sequencing file to issue download requests for those
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`audio program files that are not already stored in the player’s memory unit. See ‘178 patent,
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`col. 7, ll. 19-22. Thus, the audio program files are not part of the download compilation file, but
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`rather are downloaded separately.
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`C. Extrinsic evidence indicates that a person of ordinary skill in the art would make a
`distinction between “files” and “data,” and would understand that the program
`description data could be stored in any file.
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`As noted above, the player of claim 14 includes a memory unit for storing (a) “audio
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`program files,” (b) “program description data,” and (c) a “playback session sequencing file.” The
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`Academic Press Dictionary of Science and Technology defines “file” as “any collection of data
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`that is stored and manipulated as a named unit by a file-management system.” 826 (Christopher
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`Morris, ed. 1992) (emphasis added). Thus, a person of ordinary skill in the art would understand
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 13 of 14 PageID #: 34087
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`that the program description data would be stored in a file of some sort. Item (b) in claim 14 does
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`not state that the program description data must be stored in a specific file; nor does it state that
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`the program description data must be stored in a file that is separate from the sequencing file.
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`Given the distinction between “files” and “data,” and the fact that the claim language does not
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`specify that the program description data must be stored in any particular file, a person of
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`ordinary skill in the art could, and likely would, interpret the claim language to mean that the
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`two types of files listed in claim 14 must be stored separately, but the program description data
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`could be stored in any file, including the sequencing file.
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`D. The court construes “separately stored” to mean that the sequencing file must be stored
`separately from the audio program files.
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`Although the claim language itself is not a model of clarity, the prosecution history
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`indicates that the phrase “separately stored” was added in order to emphasize that the sequencing
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`file is a file separate from the audio program files; the amendment does not appear to be intended
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`to add a limitation that the sequencing file must be stored separately from the program
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`description data. Further, the patent’s specification allows for the possibility that the sequencing
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`file and the program description data may be stored together in a single file, and the court has
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`found nothing in the intrinsic evidence suggesting that the scope of claim 14 should be limited to
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`the preferred embodiment in which the program description data is stored in a separate
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`“Programs Table.” Extrinsic evidence further supports a construction that allows the program
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`description data to be stored in any file.
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`Unless compelled to do otherwise, the court should give a claim term the full range of its
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`ordinary meaning as understood by an artisan of ordinary skill. Rexnord Corp. v. Laitram Corp.,
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`13
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`MS 1116 - Page 13
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`Case 9:09-cv-00111-RC Document 363 Filed 05/23/11 Page 14 of 14 PageID #: 34088
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`274 F.3d 1336, 1342 (Fed. Cir. 2001). Accordingly, the term “separately stored playback session
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`sequencing field” in the ‘178 patent is construed as follows:
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`“Separately stored” means that the playback session sequencing file is stored
`separately from the audio program files.
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`VI. CONCLUSION
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`The jury will be instructed in accordance with the court’s interpretation of the “separately
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`stored” limitation in the ‘178 patent.
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`14
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`MS 1116 - Page 14