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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`FARSTONE TECHNOLOGY, INC.,
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`Plaintiff,
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`Case No. 8:13-cv-01537-SVW-JEM
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`v.
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`APPLE INC.,
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`APPLE INC.,
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`v.
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`Defendant.
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`Counterclaimant,
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`FARSTONE TECHNOLOGY, INC.,
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`Counterdefendant
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`DECLARATION OF DAVID M. CUMMINGS
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`Apple Inc. Exhibit 1005 Page 1
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`I, David M. Cummings, declare as follows:
`1.
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`I am employed at Kelly Computing, Inc. as a Computer
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`Scientist. I have personal knowledge of the facts set forth below or have
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`knowledge of the facts based on information and belief, and I have formed opinions
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`of how one of ordinary skill in the art would have understood the terms at issue,
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`and if called as a witness could and would competently testify thereto.
`2.
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`I have been asked to opine regarding how a person of ordinary
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`skill in the art would interpret the terms in the claims at issue in United States
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`Patent No. 7,120,835 (“the ’835 patent,” attached as Exhibit 1) (claims 1-7 and 9-
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`13). I participated in developing the proposed constructions of claim terms
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`submitted by Apple and agree with all of the constructions. My opinions, though
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`not exhaustive, are set forth below. I expressly reserve the right to offer additional
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`opinions at the claim construction hearing in this action.
`3.
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`In consideration for my services, my employer, Kelly
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`Computing, Inc., is being paid $600 per hour, independent of the outcome of this
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`case.
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`4.
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`In preparing for this declaration, I have read the patent, its file
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`history, and the parties’ claim construction proposals (attached as Exhibit 2).
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`I.
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`EDUCATION AND EXPERIENCE
`5.
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`I graduated with a Bachelor of Arts degree in Physics from
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`Harvard University in 1977, and I earned a Master of Science and a Ph.D. in
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`Computer Science from the University of California at Los Angeles (UCLA) in
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`1991 and 2009, respectively.
`6.
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`I am the Executive Vice President of Kelly Computing, Inc.
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`During the course of my career, I have worked and consulted in many different
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`aspects of computer science and engineering, including computer software and
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`hardware architecture and design, software engineering, and software development.
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`I have over 35 years of experience as a software architect, engineering manager,
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`Apple Inc. Exhibit 1005 Page 2
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`and consultant in technology areas including fault-tolerant computing, operating
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`systems, computer architecture, wireless communications, real-time embedded
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`systems, transaction processing, backup/recovery, database management, and file
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`systems.
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`7.
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`For example, from 1977-1982, I worked at Composition
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`Systems, Inc. on the design and implementation of fault-tolerant, networked
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`transaction processing computer systems for newspapers, which were deployed
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`throughout the U.S. and in Canada and South Africa. This work included the
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`design, implementation, and troubleshooting of backup/recovery software for the
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`newspaper systems.
`8.
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`From 1982-1987, my work included the design and
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`implementation of various computer systems for aircraft testing, database machines,
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`and weather processing.
`9.
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`From 1987-1996, I worked as a consultant at NASA’s Jet
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`Propulsion Laboratory on several projects, including designing and developing
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`flight software for the Mars Pathfinder spacecraft, designing a fault-tolerant
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`operating system for spacecraft, and designing and developing software for
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`NASA’s Deep Space Network.
`10.
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`I then moved to Silicon Valley, where I worked for several
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`commercial companies from 1996-2004. My work at that time included, by way of
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`example, the design and development of software for wireless products supporting
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`IP and ATM protocols, and the design and development of software and hardware
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`for storage area networking at Brocade Communications Systems, including
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`backup/recovery infrastructure.
`11. From 2004-2007, I was the Vice President of Engineering for
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`Asempra Technologies, which was a startup company developing computer
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`systems for backup/recovery. At Asempra, I managed a distributed engineering
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`Apple Inc. Exhibit 1005 Page 3
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`team in Silicon Valley, Russia, and Ukraine in the development of the company’s
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`backup/recovery products.
`12.
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`I began working at Kelly Computing, Inc. in 2007. Attached
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`hereto as Exhibit 3 is a true and correct copy of my curriculum vitae.
`13.
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`I am generally familiar with issues involving patents and with
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`construing patent terms.
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`II. APPROACH TO CLAIM CONSTRUCTION
`14. Though I am not an attorney or registered patent agent, counsel
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`for Apple has provided me with a basic understanding of the relevant patent law,
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`which I set forth below. I understand that claim terms in a patent should be
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`interpreted from the vantage point of a person of ordinary skill in the art at the time
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`of the invention.
`15.
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`I understand that Farstone contends that the ’835 patent has a
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`priority date and thus a date of invention of Feb. 1, 2002.
`16. Based on my review of the ’835 patent and its file history, it is
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`my belief that one of ordinary skill in the art with respect to the ’835 patent in the
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`2002 time frame would have an undergraduate degree in computer science or
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`equivalent and one year of experience in the design and implementation of
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`backup/recovery systems.
`17.
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`In view of my education and my experience with the
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`implementation and design of software since 1977, including backup/recovery
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`software at several different companies, I believe that I am at least one of ordinary
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`skill in the art and that I am qualified to appreciate the knowledge of one of
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`ordinary skill in the art from working with such persons, and I am therefore
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`qualified to present the perspective of one of ordinary skill in the relevant art in
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`2002.
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`18.
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`I am familiar with patents and with the legal framework by
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`which claim terms in patents are to be interpreted. I understand that claim terms
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`Apple Inc. Exhibit 1005 Page 4
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`must be given their ordinary meaning to one of skill in the art at the time of the
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`invention after reading the patent. In particular, I understand that claim terms must
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`be read in light of the specification and file history, because the best source for
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`understanding a technical term is the specification, informed, as needed, by the file
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`history.
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`19.
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`I also understand that the file history can often inform the
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`meaning of the claim language by demonstrating how the inventor understood the
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`invention and whether the inventor limited the invention in the course of
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`prosecution, thus making the claim scope narrower than it would otherwise be.
`20.
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`Inventors can be their own lexicographers and can define
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`terminology in the specification.
`21.
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`I also understand that both general and technical dictionaries as
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`well as treatises may be used to assist the Court in construing a term.
`22. Claim language is construed from the vantage point of one of
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`ordinary skill in the art at the time of the patent application.
`23. A claim limitation that uses the word “means” is presumptively
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`a “means-plus-function” limitation under 35 U.S.C. § 112, ¶ 6. Such a presumption
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`can be overcome when the limitation further includes sufficient structure necessary
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`to perform the recited function of the claim limitation.
`24.
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`I’ve been advised that a limitation that lacks the term “means” is
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`presumptively not a means-plus-function limitation. However, such a limitation
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`may overcome the presumption against means-plus-function treatment if the claim
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`term recites a function without reciting sufficient structure for performing that
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`function.
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`25. The first step in construing a means-plus-function limitation is
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`to identify the function explicitly recited in the claim, which includes construing
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`any terms in the recited function. The next step is to identify the corresponding
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`structure set forth in the written description that is clearly linked to and necessary to
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`Apple Inc. Exhibit 1005 Page 5
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`perform the particular function set forth in the claim because the means-plus-
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`function term will cover only the corresponding structure, material, or act in the
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`specification and equivalents thereof. For corresponding structure involving
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`computer algorithms, the specification must at least disclose some algorithm to
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`perform the recited function (not just a discussion of the end result) and it is
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`insufficient to rely solely on the knowledge of one of ordinary skill in the art to
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`provide such algorithm.
`26. The corresponding structure in the means-plus-function element
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`must perform the recited function and such corresponding structure must be linked
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`or associated with performing that function.
`27.
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`I further understand that a claim is indefinite if one skilled in the
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`art would not understand what is claimed even after the claim is read in light of the
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`specification. Specifically, a claim is indefinite if a person of ordinary skill in the
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`art would not understand the scope of the claim with reasonable certainty.
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`III. OVERVIEW OF THE ’835 PATENT
`28. The ’835 patent lists Simon Qin and Jiessie Zhang as the named
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`inventors. The ’835 patent resulted from U.S. Patent Application No. 10/241,626
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`and claims priority to Taiwanese Patent Application No. 91101762. It is my
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`understanding that the original priority application was not filed in the English
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`language.
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`29. The specification for the ’835 patent discloses “a computer
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`equipment” in Fig. 1, including “a processing system 10 and a displaying system
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`20.” (’835 patent, 4:59-65.) “The processing system 10 has at least one hardware
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`resource for processing or operating, such as a computer system, wherein a
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`processing unit 12, a storage device 14, and an I/O device 16 are included therein.
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`The processing system 10 may also include a CD-ROM drive, a printer or a soft
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`disk drive.” (’835 patent, 4:65-5:3.) “The processing system 10 has a
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`backup/recovery module. The backup/recovery module can be a backup/recovery
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`Apple Inc. Exhibit 1005 Page 6
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`program. … The backup/recovery program can create at least one recovery point to
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`hold backup data. The backup/recovery module can be installed in the storage
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`device 14 or in the hard disk 18.” (’835 patent, 5:11-18.)
`30.
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`“The displaying system 20 can display data stored in the storage
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`device 14. The displaying system 20 may include a user-operating interface. The
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`user-operating interface can be a keyboard, a mouse, or the like, to provide the user
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`with inputting command and information. The displaying system 20 may have a
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`selecting means. The selecting means selects a status corresponding to the
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`processing system 10. The displaying system 20 displays the selected status.”
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`(’835 patent, 5:32-40.)
`31.
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`“The status corresponding to the processing system 10 is a status
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`of the computer equipment at the time creating the corresponded recovery point.
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`The data contained in the processing system 10 corresponding to the recovery point
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`includes configuration corresponding to the hardware resources at that time and the
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`backup data held in the corresponded recovery point respectively.” (’835 patent,
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`5:41-47.)
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`32.
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`I understand that claims 1-7 and 9-13 are asserted against Apple.
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`IV. CLAIM TERMS OF THE ’835 PATENT
`33.
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`I understand that certain terms of the asserted claims are still in
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`dispute. The parties’ joint claim construction statement showing the parties’
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`proposals is attached as Exhibit 2.
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`A.
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`“a backup/recovery module, said backup/recovery module
`creating at least one recovery unit to hold backup data” (Claim 1)
`34. As discussed above, I understand that a limitation that lacks the
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`term “means” is presumptively not a means-plus-function limitation. However, as
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`discussed above, I am also informed by counsel that such a limitation may
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`overcome the presumption against means-plus-function treatment if the claim term
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`recites a function without reciting sufficient structure for performing that function.
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`Apple Inc. Exhibit 1005 Page 7
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`35. Here, the claim requires the “backup/recovery module” to
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`perform a recited function (i.e., creating at least one recovery unit to hold backup
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`data). However, the term “backup/recovery module” conveys no special structural
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`meaning to one of skill in the art and hence the term, by itself, does not convey
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`structure to one of skill in the art on how to perform the recited function.
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`Therefore, this limitation should be construed as a means-plus-function limitation.
`36.
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`I further note that, as discussed in Paragraphs 39-43, a person of
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`ordinary skill in the art would not understand the term “recovery unit” in the recited
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`function—“creating at least one recovery unit to hold backup data.”
`37. The ’835 patent specification discloses to one of ordinary skill
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`that the backup/recovery module may be either software (e.g., “[t]he
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`backup/recovery module can be a backup/recovery program,” ’835 patent, 5:12-13)
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`or hardware (e.g., “hardware resources with a backup/recovery module,” ’835
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`patent, 2:33-36; “[t]he processing module 34 computes data in the current computer
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`equipment and data backed up in the backup module 32,” ’835 patent, 7:60-62
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`(emphasis added)). The specification of the ’835 patent contains absolutely no
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`disclosure of an algorithm for “creating at least one recovery unit to hold backup
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`data.” In every instance where the specification discusses creating a recovery unit,
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`it merely parrots or paraphrases the functional language of the claim with no further
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`explanation of how to create a recovery unit—whatever a recovery unit is. (See,
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`e.g., ’835 patent, 2:34-36; 2:42-48; 4:36-37; 5:66-6:15.) Furthermore, if the
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`backup/recovery module is hardware, the only pictorial representation is in Fig. 2 of
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`the patent (although it is identified as the “Backup module”). There, it is depicted
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`as a black box only, with absolutely no structure inside, and nowhere else does the
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`’835 patent specification provide additional structural detail. Therefore, the ’835
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`patent does not disclose any structure, either software or hardware, for performing
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`the recited function.
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`Apple Inc. Exhibit 1005 Page 8
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`38. Farstone argues that this limitation should not be construed as a
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`means-plus-function limitation but notes that in the event the Court decides the
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`term is a means-plus-function limitation, Farstone agrees that the recited function
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`is: “creating at least one recovery unit to hold backup data.” Farstone, however,
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`argues that the corresponding structure is: “a backup/recovery module as described
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`and shown in the ’835 patent.” (Exhibit 2, Exhibit A at 1-2.) But, as discussed
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`above, the specification does not disclose any algorithm or hardware structure,
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`much less one for “creating at least one recovery unit to hold backup data.”
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`B.
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`“recovery unit” (Claims 1, 2, 3, 9, 10, 11)
`39. A person of ordinary skill in the art would not understand the
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`term “recovery unit” with reasonable certainty. Specifically, the specification of
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`the ’835 patent states that the backup/recovery module creates a recovery unit to
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`hold backup data, but it does not define or further describe what constitutes a
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`“recovery unit.” The term “recovery unit” also does not have a well-known
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`meaning in the art. In addition, the usage of “recovery unit” in the claims does not
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`assist in the definition of this term.
`40. The ’835 patent uses the terms “recovery unit” and “recovery
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`point” inconsistently. At times, the patent uses these terms seemingly
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`interchangeably. Both are described as holding backup data. (See, e.g., ’835
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`patent, 2:34-36, 4:36-37, 5:15-16, 5:43-47, 6:11-15.) Elsewhere, however, the ’835
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`patent seems to distinguish between “recovery unit” and “recovery point.” (See,
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`e.g., ’835 patent, 6:26-29.) Furthermore, as shown by the file history, the inventors
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`selectively changed many occurrences of “recovery unit” in the patent specification
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`to “recovery point,” and selectively left many other occurrences of “recovery unit”
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`in the specification intact. (See, e.g., ’835 patent file history, Oct. 20, 2005
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`Amendment at pp. 16-18.) This suggests that to the inventors, “recovery unit” and
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`“recovery point” are two different things, even though the inventors use the terms
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`interchangeably in many places. Because of these inconsistencies and
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`Apple Inc. Exhibit 1005 Page 9
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`contradictions, a person of ordinary skill would not understand what is the
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`difference between a recovery unit and a recovery point in the ’835 patent, and
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`therefore, what the patent means by recovery unit versus recovery point. The terms
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`as used in the patent are hopelessly unclear.
`41. Farstone argues that no construction of the term “recovery unit”
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`is necessary, and thus the plain and ordinary meaning of the term should apply.
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`However, as discussed, I disagree. The term “recovery unit” does not have a plain
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`and ordinary meaning to one of ordinary skill in the art.
`42. Farstone offers the following construction, in the event the
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`Court determines the term should be construed: “a collection of file backup data
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`and configuration information reflecting a state of a computer hardware resource at
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`a point in time.” (Exhibit 2, Exhibit A at 2.)
`43.
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`I have considered Farstone’s proposed construction. However,
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`it does not make sense in view of the claim language. For example, claim 1 claims
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`a “backup/recovery module creating at least one recovery unit to hold backup data.”
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`(’835 patent, 8:64-67.) If Farstone’s construction is applied, claim 1 requires
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`creating a collection of file backup data to hold backup data. The collection of file
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`backup data is the backup data; it cannot be created to hold backup data. This is
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`further supported by the specification. For example, the specification states that
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`“[t]he processing module has a data computing unit for computing data held in the
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`storage device and data stored in the at least one recovery unit.” (’835 patent,
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`3:44-46 (emphasis added).) That is, backup data is stored in the recovery unit, and
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`thus the recovery unit cannot be the collection of backup data itself, as Farstone’s
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`construction proposes.
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`C.
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`“selecting means, said selecting means selecting a status
`corresponding to said processing system at the time of creation of
`each of said at least one recovery unit” (Claim 1)
`44. As discussed above, it is my understanding that a claim element
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`that includes the term “means” is presumptively a means-plus-function limitation.
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`Apple Inc. Exhibit 1005 Page 10
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`Here, the “selecting means” term includes the term “means,” and thus the
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`presumption applies.
`45. The recited function is: “selecting a status corresponding to said
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`processing system at the time of creation of each of said at least one recovery unit.”
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`As discussed in Paragraphs 48-53, a person of ordinary skill in the art would not
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`understand this term with reasonable certainty.
`46. Further, there is no corresponding structure disclosed in the
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`specification such that one of ordinary skill in the art can understand what structure
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`will perform the recited function. The specification states that the “displaying
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`10
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`system has a selecting means” and the “selecting means selects a status
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`11
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`corresponding to the processing system.” (’835 patent, 4:40-42.) But it fails to
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`describe any structure for how “said selecting means select[s] a status
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`corresponding to said processing system at the time of creation of each of said at
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`least one recovery unit.”
`47. Farstone argues that this limitation should not be construed as a
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`means-plus-function limitation but notes that in the event the Court decides the
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`term should be construed as a means-plus-function limitation, Farstone agrees that
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`the recited function is: “selecting a status corresponding to said processing system
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`at the time of creation of each of said at least one recovery unit.” Farstone,
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`however, argues that the corresponding structure is: “a user interface and input
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`devices as described and shown in the ’835 patent.” (Exhibit 2, Exhibit A at 3-4.)
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`However, neither the specification nor the claim disclose the structure that is used
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`to perform the recited function. Moreover, the closest term to “user interface” in
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`24
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`the ’835 patent (in both the specification and the claims) is “user-operating
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`interface.” (See, e.g., ’835 patent, 5:33-34; 6:15-16; 9:25-26.) The ’835 patent
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`discloses that the “user-operating interface” is distinct from the “selecting means.”
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`(See, e.g., ’835 patent, 5:33-37; 9:4-5; 9:25-26.) Further, the only discussion of
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`28
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`input devices in the specification discloses that the input devices are associated with
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`10
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`Apple Inc. Exhibit 1005 Page 11
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`the user-operating interface rather than with the “selecting means” for selecting a
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`status. (’835 patent, 5:33-39.) Thus, Farstone’s proposed structure for the
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`“selecting means” is at odds with the disclosures of the ’835 patent specification
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`and claims.
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`D.
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`“selecting a status corresponding to said processing system at the
`time of creation of each of said at least one recovery unit”
`(Claim 1)
`48. A person of ordinary skill in the art would not understand the
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`term “selecting a status corresponding to said processing system at the time of
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`creation of each of said at least one recovery unit” with reasonable certainty. This
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`10
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`term has no well-known meaning in the art, and the specification of the ’835 patent
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`11
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`fails to sufficiently describe “selecting a status corresponding to said processing
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`13
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`system at the time of creation of each of said at least one recovery unit.”
`49. Specifically, the specification of the ’835 patent does not
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`describe what is meant by “a status corresponding to said processing system,” and
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`this term has no well-known meaning in the art. The only disclosure in the
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`specification that further describes the “status corresponding to said processing
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`system” states that “[i]n the preferred embodiment of the invention, the status
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`corresponding to said processing system is a status of said computer equipment at
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`the time creating said corresponded recovery unit.” (See, e.g., ’835 patent, 2:42-
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`45.) There are similar statements elsewhere in the specification as well. (See, e.g.,
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`’835 patent, 3:4-7; 4:44-46; 6:9-11.) This, however, merely replaces one unclear,
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`ambiguous term with another. It is no clearer in the specification what is meant by
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`“a status of said computer equipment,” and this term also has no well-known
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`meaning in the art. Moreover, because of the complexity of computer systems, the
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`claimed “status” corresponding to a processing system or computer equipment
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`could be any of a vast number of things—to name just a few: what devices are
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`connected, what programs are installed, what processes are running,
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`performance/usage statistics for each connected device, performance/usage
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`Apple Inc. Exhibit 1005 Page 12
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`statistics for each internal component, how various programs and devices are
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`configured, what errors have been recorded in the error log, memory utilization
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`information, CPU utilization information, paging statistics, network statistics, I/O
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`statistics, bus statistics, etc. Because the specification fails to identify which of
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`these numerous things, if any, constitutes the bounds of the claimed status, a person
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`of ordinary skill in the art cannot determine the scope of the claim with reasonable
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`certainty.
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`50. Additional uncertainty is added by the ambiguity in the terms
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`“processing system” and “computer equipment.” Specifically, as discussed, the
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`10
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`specification states that “[i]n the preferred embodiment of the invention, the status
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`corresponding to said processing system is a status of said computer equipment at
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`the time creating said corresponded recovery unit.” (See, e.g., ’835 patent, 2:42-
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`13
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`45.) But the specification and the claims also state that the computer equipment
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`comprises a processing system. (See, e.g., ’835 patent, Abstract, 4:34-35, 8:62-64
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`(emphasis added).) Because the processing system is a subset of the computer
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`equipment, it introduces ambiguity to say that the status of the processing system is
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`the status of the computer equipment.
`51. Further, even if one of skill in the art could understand what the
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`claimed “status” is, the patent is equally unclear on how to select a status.
`52. Farstone believes that no construction of this term is necessary,
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`and thus the plain and ordinary meaning of the term should apply. However, as
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`discussed, the “selecting a status” term does not have a plain and ordinary meaning
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`23
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`to one of ordinary skill in the art.
`53. Farstone offers the following construction, in the event the
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`Court determines the term should be construed: “selecting a recovery unit.”
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`26
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`(Exhibit 2, Exhibit A at 4.) The language of claim 1, however, makes clear that it
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`is not selection of a recovery unit, but instead it is selection of a “status
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`28
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`corresponding to said processing system at the time of creation of each of said at
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`Apple Inc. Exhibit 1005 Page 13
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`least one recovery unit.” (’835 patent, 9:4-7.) That is, the claim indicates selection
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`of a status that corresponds to the processing system at the time when the recovery
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`unit was created (whatever that means)—not selection of the recovery unit itself. If
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`the applicant wanted to claim selecting a recovery unit, it would have been plainly
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`obvious to draft the claim accordingly. Instead, the claim is drafted as selecting a
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`status.
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`E.
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`“said displaying system displaying said selected status” (Claim 1)
`54. A person of ordinary skill in the art would not understand the
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`term “said displaying system displaying said selected status” with reasonable
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`10
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`certainty. At the outset, “said selected status” is unclear and ambiguous for the
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`same reasons status is unclear and ambiguous in the “selecting a status” term, as
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`discussed above. In addition, the specification fails to disclose how the displaying
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`system displays the selected status or what it means to display a selected status.
`55. Farstone believes that no construction of this term is necessary,
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`and thus the plain and ordinary meaning of the term should apply. However, as
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`indicated in the previous paragraph, the “displaying said selected status” term does
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`not have a plain and ordinary meaning to one of ordinary skill in the art.
`56. Farstone offers the following construction, in the event the
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`Court determines the term should be construed: “the displaying system displays the
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`state or condition of the processing system reflected in the selected recovery unit.”
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`(Exhibit 2, Exhibit A at 5.) This construction is just as ambiguous as the claim
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`term, if not more so. The construction effectively replaces the term “status” with
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`the term “state or condition.” The term “state or condition” is never used in the
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`24
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`specification, it does not have a well-known meaning in the art, and it is ambiguous
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`25
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`for the same reasons discussed above with respect to the “status” terms. Also, even
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`26
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`if a person of ordinary skill in the art could understand what constitutes a “state or
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`27
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`condition,” the specification fails to describe what it means to or how to “display
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`the state or condition of the processing system.” Furthermore, the specification
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`Apple Inc. Exhibit 1005 Page 14
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`does not describe what it means for the “state or condition of the processing
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`system” to be “reflected in the selected recovery unit,” or how the “state or
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`condition of the processing system” would be “reflected in the selected recovery
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`unit.” Finally, this construction is inconsistent with Farstone’s construction for
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`“selecting a status …,” which according to Farstone means “selecting a recovery
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`unit,” as discussed above. If “selecting a status” means “selecting a recovery unit,”
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`as Farstone asserts, then “displaying said selected status” must mean “displaying
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`said selected recovery unit,” which is not Farstone’s proposed construction for this
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`term.
`
`F.
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`“said at least one recovery unit respectively reflects a
`corresponding status of said at least one hardware resource [of
`said processing system] at the time of creation of each of said at
`least one recovery unit” (Claims 1 and 9)
`57. The portion of the above term in brackets is only in claim 9, and
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`the underlined portion is only in claim 1. Despite this, the interpretation of both
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`terms is the same because the first limitation of claim 1 makes clear that the
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`hardware resource is also part of the processing system: “a processing system
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`having at least one hardware resource.” (’835 patent, 8:64.)
`58. A person of ordinary skill in the art would not understand the
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`term “said at least one recovery unit respectively reflects a corresponding status of
`
`said at least one hardware resource [of said processing system] at the time of
`
`creation of each of said at least one recovery unit” with reasonable certainty. For
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`one, the specification does not describe what is meant by “status of said at least one
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`hardware resource.” The issues with this term are similar to the issues with the
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`other “status” terms, discussed above. As with the other “status” terms, the
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`specification fails to identify which of many numerous possibilities, if any,
`
`constitutes the bounds of the claimed status, and so a person of ordinary skill in the
`
`art cannot determine the scope of the claim with reasonable certainty. Further, the
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`specification also does not describe how a recovery unit “respectively reflects” a
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`Apple Inc. Exhibit 1005 Page 15
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`corresponding status of a hardware resource, and it is not clear what purpose the
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`word “respectively” serves in the term.
`59. Farstone believes that no construction of this term is necessary,
`
`and thus the plain and ordinary meaning of the term should apply. However, as
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`indicated above, this term does not have a plain and ordinary meaning to one of
`
`ordinary skill in the art.
`60. Farstone offers the following