Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 1 of 35 PageID #: 907
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`C.A. No. 2:13-cv-522
`(Consolidated – Lead Case)
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`JURY TRIAL DEMANDED
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`§
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`INNOVATIVE DISPLAY
`TECHNOLOGIES LLC,
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`Plaintiff,
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`v.
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`ACER INC. AND ACER AMERICA
`CORP.,
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`Defendants.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`Plaintiff Innovative Display Technologies LLC (“Plaintiff” or “IDT”) hereby files its
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`opening claim construction brief pursuant to the Court’s Docket Control Order, Dkt. No. 37.
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`Sony Corp. Exhibit 1018
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`SONY_000881
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 2 of 35 PageID #: 908
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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`PATENTS-IN-SUIT ..................................................................................................... 1
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`TECHNOLOGY ........................................................................................................... 2
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`TERMS IN DISPUTE................................................................................................... 5
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`A. “Pattern of Deformities” Terms ……………………………………………………..5
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`B. “Continuous Side Walls” ……………………………………………….…………….8
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`C. “Transition Region” …………………………………………………….…………...10
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`D. “Deformities…of a Different Type” ……………………………………...................12
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`E. “Air Gap” Terms……………………………..............................................................14
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`F. “Desired Light Output” Terms……………………………………………………….16
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`G. “Predetermined”……………………………...………………………………………18
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`H. “Posts, tabs, or other structural features the provide a mount”……………………....19
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`I. “Well Defined Deformities” Terms………………………….……….……………...21
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`J. “Pattern of Deformities” is “Quite Small” ……………………………….……….…25
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`K. “Pass through a liquid crystal display with low loss” …..………………….………..27
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`L. “To [suit/fit] a particular application” …..………………….………………………..29
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`IV.
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`CONCLUSION……………………………………………………………………....30
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`SONY_000882
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 3 of 35 PageID #: 909
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`TABLE OF AUTHORITIES
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`Cases
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`Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338 (Fed. Cir. 2008). .............................. 19
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`Dow Chem. Co. v. Sumitomo Chem. Co., Ltd., 257 F.3d 1364 (Fed. Cir. 2001) …………………7
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`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002) ........................... 23
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`Liebel–Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed. Cir. 2004) ........................................ 11
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`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) .............................. 21, 23-25, 26
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`Novatek, Inc. v. Sollami Co., No. 2013-1389, 2014 WL 1229547 (Fed. Cir. Mar. 26, 2014) ..... 10
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`Omega Eng’g, Inc., v. Raytek Corp., 334 F.3d 1314 (Fed. Cir. 2003) ........................................ 16
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`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) .............................................................. 11
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`Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298 (Fed. Cir. 1999) ................................ 9
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`Purdue Pharma L.P. v. Endo Pharm. Inc., 438 F.3d 1123 (Fed. Cir. 2006) .............................. 13
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`Research Corp. Technologies, Inc. v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010) ............. 19
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`SanDisk Corp. v. Kingston Tech. Co., Inc., 695 F.3d 1348 (Fed. Cir.2012)……………………11
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`Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193 (Fed. Cir. 2002) ................................. 17
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`Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362 (Fed. Cir. 2012)......................... 8, 10
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`Toshiba Corp. v. Imation Corp., 681 F.3d 1358 (Fed. Cir. 2012) ............................................... 10
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`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996). ...................................... 7, 9
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`Statute and Rules
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`35 U.S.C. § 112 ........................................................................................................ 21,24, 25,27,29
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`SONY_000883
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 4 of 35 PageID #: 910
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`
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`I.
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`PATENTS-IN-SUIT
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`IDT asserts seven United States patents in this lawsuit: (1) 6,755,547 (“the ’547 patent”);
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`(2) 7,300,194 (“the ’194 patent”); 7,404,660 (“the ’660 patent”); (4) 7,384,177 (“the ’177 patent”);
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`(5) 7,434,974 (“the ’974 patent”); 7,537,370 (“the ’370 patent”); and 8,215,816 (“the ’816 patent”)
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`(collectively, the “patents-in-suit”). The seven patents-in-suit all share a common parent patent
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`and have virtually the same written descriptions, with only minor variations between them. The
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`patents-in-suit also share the same inventor, Jeffery R. Parker. Generally, the patents-in-suit relate
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`to the field of backlights, which can be used to illuminate liquid crystal displays, known as LCDs.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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` PAGE 1
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`SONY_000884
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 5 of 35 PageID #: 911
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`TECHNOLOGY OVERVIEW
`II.
`Many consumer products today, such as televisions, laptops, smart phones, and tablets, use
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`LCDs to display images and video. The liquid crystals inside an LCD are its operative parts. Liquid
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`crystals themselves do not emit light. Therefore, for an LCD to produce an image that we can see,
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`the LCD requires a separate light source. Typical LCDs use a backlight for that light source. A
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`backlight sits behind the LCD and shines light through the LCD toward the viewer. A basic
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`backlight for an LCD consists of several parts: a panel (sometimes called a light guide or optical
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`conductor), an LED strip (light sources), a tray, and films, as seen in the simplified graphic at
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`Illustration 1 below.
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`Illustration 1
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`In the accused products, the panel of a backlight receives light from a strip of light emitting
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`diodes (“LEDs”) on its edge(s). A backlight’s panel uses an arrangement of deformities improve
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`the efficiency, uniformity, and the visual appearance of light it emits. When light hits one of the
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`deformities on the panel, it is either emitted from the panel at that point or it is reflected to the
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`opposite side of the panel and emitted on that side.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000885
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 6 of 35 PageID #: 912
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`The proper placement of deformities will cause the panel to emit more uniform and
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`efficient light. For example, a panel can be designed to have a small number of deformities close
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`to the LED light sources. That small number of deformities limits the amount of light that escapes
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`the panel on the side near the LEDs, where light is abundant. At the far side of the panel away
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`from the LEDs, there is less light available. Therefore, the far side of the panel can be designed to
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`have more deformities, which causes the panel to extract more of the available light that reaches
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`the far side. Arranging the deformities in that manner can correct the imbalance between the light
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`emitted from the near side of the panel versus the light emitted from the far side of the panel.
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`The deformities themselves can be a variety of shapes and sizes in a variety of patterns.
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`For example, the deformities can be circles, prisms, lenses, or ridges. They can be formed, for
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`example, as protrusions or depressions. The deformities can be set in a rigid pattern, in a random
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`placement pattern, or in a variable pattern.
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`Most backlight panels include a transition region in the area of the panel nearest to the LED
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`strip. The transition region generally allows the light to distribute more evenly when it first enters
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`the panel from the LEDs. Light travels through the transition region until it reaches the part of the
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`panel that is designed to allow light to escape and illuminate the LCD. To better allow light to
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`travel through it, the transition region will have fewer or none of the deformities found on the rest
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`of the panel.
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` A backlight also generally includes sheets or films that are placed on top of the panel to
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`further condition the light before it enters the LCD. Air gaps between the panel and films as well
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`as between the films themselves are created to ensure the light mixes properly and does not show
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`interference effects to the viewer of an LCD. A film can include small deformities on its back
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000886
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 7 of 35 PageID #: 913
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`surface, with those deformities causing an air gap between the film and the part of the backlight
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`below it.
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`A typical backlight includes a tray that holds in place the panel, LEDs, films, and other
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`components. The films, LEDs, panel, and tray must all be carefully aligned and spaced relative to
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`each other for the backlight to function properly and to give the display the best visual appearance
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`possible. If the LEDs and the panel are not carefully aligned, some of their light will miss the panel
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`and be wasted. If the films are not carefully placed and spaced apart they will likewise fail to
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`properly condition the light. The tray can be designed with features to the hold the panel, films,
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`and LEDs strips in the proper place to avoid those issues. Examples of such features are tabs on
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`the films and tray.
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`In addition to holding those components in place, the tray is also used to reflect light that
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`escapes the panel, and would otherwise be wasted, back into the panel. The efficiency of backlights
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`is critical to their operation, and any light that escapes the backlight and is not directed toward the
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`LCD is wasted. Wasted light increases the power consumption and reduces battery life of display
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`devices such as laptops, phones, and tablets. Wasted light also decreases the brightness of the
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`displays of such devices. Therefore, the trays are designed to conserve as much light as possible
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`by reflecting light that would otherwise be wasted back into the panel and ultimately directing that
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`light toward the LCD.
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`A backlight is ideally designed to achieve the entire light transmission process from the
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`LED strip through LCD panel while losing the least light possible, i.e., in the most efficient manner
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`possible. The more light that is lost in that process, the more power needed to replace the lost light;
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`if the lost light is not replaced, the LCD will appear dimmer to the viewer. A well-designed
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000887
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 8 of 35 PageID #: 914
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`backlight transmits light through an LCD with low loss to conserve power and provide a brighter
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`and more uniform image to the user.
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`The design of a backlight is an intensive and careful process designed to maximize
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`efficiency such that light travels through backlight and through the LCD with low loss. The
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`backlight and its components are usually modeled in a computer simulation that predicts how rays
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`of light will travel through the backlight and emerge from it. Using those models, the components
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`of the backlight are carefully designed to best meet the purpose or application of the backlight. If
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`the purpose of the backlight is to illuminate an LCD, all of the components of the backlight are
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`engineered in consideration of that purpose. The trays are carefully designed to make sure that
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`they reflect as much light as possible back into the panel for transmission to the LCD. The panels
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`and films are carefully modeled, including the placement of their deformities, to cause their emitted
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`light to have the uniformity and distribution that best advances the goal of illuminating the LCD.
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`III. TERMS IN DISPUTE
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`A. “Pattern of Deformities” Terms
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`TERM
`“pattern of deformities”1
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`“pattern of light extracting
`deformities”2
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`IDT’S CONSTRUCTION
`“a pattern of deformities that can
`be an ordinary pattern, random
`placement pattern, or a variable
`pattern”
`“a pattern of deformities that can
`be an ordinary pattern, random
`placement pattern, or a variable
`pattern”
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`DEFENDANTS’ CONSTRUCTION
`plain and ordinary meaning
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`plain and ordinary meaning
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`1 ’547 patent, claim 1; ’660 patent, claims 1, 33. For instances in which a claim term first appears in an independent
`claim, that term’s respective dependent claims have been omitted from this footnote and others like it for brevity.
`Nonetheless, these terms and constructions should also be considered to apply to those respective dependent claims
`regardless of whether the term explicitly appears in the dependent claim. These terms and constructions also apply to
`asserted claims in which a respective term appears regardless of whether that claim is explicitly listed in these
`footnotes.
`2 ’974 patent, claims 1, 7, 13; ’370 patent, claims 1, 13, 29, 47; ’816 patent, claim 1.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000888
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 9 of 35 PageID #: 915
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`IDT’s proposed construction for these terms encompasses the explicit intent of the inventor
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`to use this term to include a broad variety of patterns. In contrast, Defendants’ argument for “plain
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`and ordinary” meaning is an attempt exclude certain “patterns of deformities” specifically
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`described in the preferred embodiments of the specification.
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`1. The preferred embodiments include “patterns of deformities” that are “variable
`patterns” and “random placement patterns.”
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`The specification of the patents-in-suit describes “variable” and “random placement”
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`patterns, indicating that the inventor intended to include those patterns in his definition of “pattern
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`of deformities.” The specification states, “The pattern of light extracting deformities 21 shown in
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`FIG. 4a includes a variable pattern which breaks up the light rays.” See, e.g., ’547 patent at col. 4,
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`ll. 46-48 (emphasis added). The specification further states, “Additionally, the deformities may
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`vary in shape and/or size along the length and/or width of the panel members. Also, a random
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`placement pattern of the deformities may be utilized throughout the length and/or width of the
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`panel members.” Id. at col. 5, ll. 51-55 (emphasis added). Those statements make it clear that the
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`inventor of the patents-in-suit intended a “pattern of deformities” to include “variable patterns”
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`and “random placement patterns.”
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`Figure 4a of the patents-in-suit further demonstrates the inventor’s intent to include a
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`“random placement pattern” within the scope of a “pattern.” Figure 4a graphically depicts a
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`“random placement pattern” as the “pattern of light extracting deformities or disruptions 21”
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`shown in the far left-hand circle 21 (green). See id. at Fig. 4a below and at col. 4, ll. 40-42 (“Figure
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`4a schematically shows [a] light surface area 20 on which a pattern of light extracting deformities
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`or disruptions 21 is provided.” Id. at col. 4, ll. 40-42 (emphasis added).
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000889
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 10 of 35 PageID #: 916
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`
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`The statements above from the specification that describe the “variable pattern,” the
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`“random placement pattern,” and Figure 4a occur in the section titled “Detailed Description of the
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`Preferred Embodiments.” Id. at col. 2, ll. 59-61 (emphasis added). It is “well established that a
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`claim construction that excludes a preferred embodiment is ‘rarely, if ever, correct.’” Dow Chem.
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`Co. v. Sumitomo Chem. Co., Ltd., 257 F.3d 1364, 1378 (Fed. Cir. 2001) (citing Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1583) (emphasis in Dow). If the Court construes this term as
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`“plain and ordinary meaning” it risks excluding the preferred embodiments of “variable pattern”
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`and “random placement pattern.” Instead the Court should adopt IDT’s construction, which
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`explicitly includes “variable patterns” and “random placement patterns” as well as “ordinary
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`patterns” of deformities.
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`2. The claims themselves show that a “pattern of deformities” includes deformities that
`randomly vary in placement.
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`Courts “look to the words of the claims themselves, both asserted and nonasserted, to
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`define the scope of the patented invention.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed. Cir. 1996). Claim 1 of the ’547 patent includes the term “a pattern of deformities.” Its
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`dependent claim 19 states, “The assembly of claim 1 wherein the deformities randomly vary in
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`placement on the sheet or film.” (emphasis added). That language from claim 19 indisputably
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`shows that the inventor intended the “pattern of deformities” in claim 1 to encompass deformities
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000890
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 11 of 35 PageID #: 917
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`that “randomly vary in placement.” Nevertheless, Defendants’ “plain and ordinary meaning”
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`construction would exclude random placement patterns. Accordingly, the Court should reject
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`Defendants’ construction and instead enter IDT’s construction, which follows the claim language
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`and includes all preferred embodiments.
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`B. “Continuous Side Walls”
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`DEFENDANTS’ CONSTRUCTION
`“uninterrupted walls that are free
`of breaks on the side of the tray”
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`IDT’S CONSTRUCTION
`TERM
`“continuous side walls”3 plain and ordinary meaning
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`In the alternative only, if the
`Court determines that this
`term should be construed
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`“side walls that completely
`surround”
`IDT proposes “plain and ordinary meaning” for this term as well as an alternative that
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`tracks the claim language. Defendants’ construction adds three improper and confusing limitations
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`to the term. Thus, the Court should adopt IDT’s construction.
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`Defendants’ propose to construe the term “continuous side walls” as “uninterrupted walls
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`that are free of breaks on the side of the tray.” But there is no support in the claims, specification,
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`or prosecution history for that construction. Without any support, Defendants’ construction takes
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`the simple term “continuous side walls” and redefines it by making it include these three
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`limitations: (1) “uninterrupted walls”; (2) “that are free of breaks”; and (3) “on the side of the
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`tray.” As the Federal Circuit has stated, “We do not read limitations from the specification into
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`claims; we do not redefine words. Only the patentee can do that.” Thorner v. Sony Computer
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`Entm’t Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012). There is no evidence in the specification
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`or prosecution history that the patentee meant to redefine “continuous side walls” to include the
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`3 ’177 patent, claims 1 and 15.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000891
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 12 of 35 PageID #: 918
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`three separate limitations suggested by Defendants, and thus the Court should reject Defendants’
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`proposal to redefine this term.
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`Moreover, the part of Defendants’ construction requiring that the uninterrupted walls “are
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`free of breaks on the side of the tray” adds even more confusion to the term. That part of the
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`construction implies that there is one “side of the tray” on which no breaks can occur, but that the
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`“uninterrupted walls” may have breaks on other sections of the tray. Defendants should not be
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`allowed to introduce such unwarranted confusion into a simple, three-word phrase.
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` In contrast, IDT proposes that the “plain and ordinary meaning” of this term suffices as
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`its construction, especially since both of the claims of the ’177 patent at issue here (claims 1 and
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`15) explain “continuous side wall” in context, when they state that they “form a hollow cavity or
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`recess completely surrounded by the side walls.” (emphasis added). Should the Court deem that
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`further construction is necessary, IDT’s straightforward alternative construction tracks the above
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`claim language to explain that the side walls “completely surround.” “The starting point for any
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`claim construction must be the claims themselves.” Pitney Bowes, Inc. v. Hewlett-Packard Co.,
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`182 F.3d 1298, 1305 (Fed. Cir. 1999) (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed. Cir. 1996)). Unlike Defendants’ construction, IDT’s constructions do not add confusion
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`to the term and do not import unsupported limitations into the term.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000892
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 13 of 35 PageID #: 919
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`C. “Transition Region”
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`TERM
`“transition region”4
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`DEFENDANTS’ CONSTRUCTION
`“a region that spreads and
`transmits light”
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`IDT’S CONSTRUCTION
`plain and ordinary meaning
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`In the alternative only, if the Court
`determines that this term should be
`construed:
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`“an area used to make the transition
`from the light source to the light
`emitting area of the panel member
`[’370 patent] / optical conductor
`[’660 patent]”
`IDT proposes a “plain and ordinary meaning” construction of “transition region,” while
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`Defendants propose an unsupported, narrow construction. The Federal Circuit has stated, “We
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`only deviate from the plain and ordinary meaning in instances of lexicography or disavowal.”
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`Novatek, Inc. v. Sollami Co., No. 2013-1389, 2014 WL 1229547, *14 (Fed. Cir. Mar. 26, 2014)
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`(citing Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)).
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`Without any proof of the inventor acting as his own lexicographer or disavowing claim scope, the
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`Defendants nonetheless propose that the Court construe “transition region” as this limiting phrase:
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`“a region that spreads and transmits light.”
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`Requiring that the “transition region” both spread and transmit light is an apparent attempt
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`to read a limitation from the abstract of the ’660 patent into the claims. See ’660 patent at abstract
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`(“A transition region is disposed between the light source and output region that is configured to
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`spread and transmit the light by the light source to the output region.”). But, because “[w]e do not
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`read limitations from the specification into claims,” (Toshiba Corp. v. Imation Corp., 681 F.3d
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`1358, 1369 (Fed. Cir. 2012)), the Court should not read “spreading and transmitting light” into this
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`term.
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`4 ’660 patent, claims 1, 3, 10 and 33; ’370 patent, claims 13 and 47.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`SONY_000893
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 14 of 35 PageID #: 920
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`In addition to improperly reading limitations into claims, Defendants’ construction
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`contradicts the terms of the claims themselves. The claims confirm that a “transition region” should
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`not be required to both “spread and transmit” light. Claim 1 of the ’660 patent recites “a transition
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`region disposed between the light source and the output region.” Claim 2, which depends from
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`claim 1, further recites “wherein the transition region is configured to spread and transmit the light
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`generated by the light sources to the output region.” (emphasis added). Because claim 2 adds the
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`limitation that the “transition region is configured to spread and transmit the light,” the court should
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`presume that the “transition region” of claim 1 does not include that limitation. Phillips v. AWH
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`Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (citing Liebel–Flarsheim Co. v. Medrad, Inc., 358
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`F.3d 898, 910 (Fed. Cir. 2004)) (“The presence of a dependent claim that adds a particular
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`limitation gives rise to a presumption that the limitation in question is not present in the
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`independent claim.”). “Where . . . the sole difference between the independent claim and the
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`dependent claims is the limitation that one party is trying to read into the independent claim, ‘the
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`doctrine of claim differentiation is at its strongest.’” SanDisk Corp. v. Kingston Tech. Co., Inc.,
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`695 F.3d 1348, 1361 (Fed. Cir. 2012).
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`Additionally, Defendants’ construction ignores the primary statement in the specification
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`in which the inventor describes a “transition region.” In that statement, the inventor describes the
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`“transition region” of Fig. 1 of the patents-in-suit as “a light transition member or area 4 used to
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`make the transition from the light source 3 to the light emitting panel 2.” ’660 patent at col. 2, ll.
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`64-65. Nothing it that statement requires a “transition region” to both “spread and transmit” light.
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`Because the claims themselves and the specification both show that the inventor did not
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`intend to limit a “transition region” to “a region that spreads and transmits light,” the Court should
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`reject Defendants’ proposed construction and instead accept IDT’s “plain and ordinary meaning”
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`SONY_000894
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 15 of 35 PageID #: 921
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`construction. If the Court decides that further construction is required to explain the “plain and
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`ordinary meaning” of the term to a jury, it should construe the term as “an area used to make the
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`transition from the light source to the light emitting area of the panel member [’370 patent] / optical
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`conductor [’660 patent].” That construction tracks the specification of the patents-in-suit, while
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`avoiding Defendants’ attempt to read improper limitations into the claims.
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`D. “Deformities … of a Different Type”
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`IDT’S CONSTRUCTION
`plain and ordinary meaning
`
`DEFENDANTS’ CONSTRUCTION
`TERM
`“at least some of the
`“at least some of the light
`deformities on or in one
`extracting deformities on
`side of the panel member
`or in one of the sides are
`are different than the
`of a different type than the
`deformities on or in the
`light extracting
`other side of the panel
`deformities on or in the
`member in characteristics
`other side of the panel
`member”5
`other than shape”
`IDT proposes a “plain and ordinary meaning” construction of this term, while Defendants
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`
`
`NO.
`2
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`again propose an unsupported, narrow construction. Specifically, Defendants impermissibly seek
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`to narrow the term so that deformities of “different type” must mean deformities “different … in
`
`characteristics other than shape.”
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`Defendants’ proposed construction appears to rest on an incorrect interpretation of the
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`prosecution history that “type” and “shape” are mutually exclusive. But that interpretation ignores
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`the plain reading of the claims, which shows that “type” encompasses “shape.” Consider dependent
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`claims 16 and 17 from the ’370 patent:
`
`
`5 ’370 patent, claims 1, 13.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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` PAGE 12
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`SONY_000895
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 16 of 35 PageID #: 922
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`
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`Claim 16 requires that the type of deformities is “prismatic,” i.e., in the shape of prism.
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`The specification confirms the obvious conclusion that prismatic means in the shape of a prism.
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`See ’370 patent at Fig. 4b below; see also col 5, ll. 63-65 (“FIGS. 4b and 4c show panel areas 22
`
`on which prismatic surfaces 23 or depressions 24 are formed in the panel areas.”).
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`
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`Claim 17 requires that the type of deformities is “lenticular,” i.e., in the shape of a specific
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`lens. Because the claims themselves recite a “type of deformity” as “prismatic” and “lenticular,”
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`Defendants are incorrect that “type” cannot include “shape.” The inventor explicitly claimed
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`specific shapes as “types of deformities.”
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`Defendants’ P.R. 4-3 disclosures point to the prosecution history of the ’370 patent to
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`support their construction. But for prosecution history disclaimer to apply, the Defendants must
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`show that the inventor made a clear and unmistakable disavowal of claim scope during prosecution
`
`of the patent. Purdue Pharma L.P. v. Endo Pharm. Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006)
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`(“Under the doctrine of prosecution disclaimer, a patentee may limit the meaning of a claim term
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`by making a clear and unmistakable disavowal of scope during prosecution.”). Defendants have
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`not identified a “clear and unmistakable disavowal” statement in their P.R. 4-3 disclosures. Instead,
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`Defendants show that the claims once included the phrase “type or shape” but that the inventor
`
`deleted “shape” from the claims. See Dkt. No. 61 at pp. 27-28. But Defendants’ construction is
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 17 of 35 PageID #: 923
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`contradicted by the details of those deletions from the prosecution of claim 16 (formerly claim 18)
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`and claim 17 (formerly claim 19) as shown in this excerpt:
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`
`
`
`
`’370 patent, prosecution history, January 15, 2009, Amendment at p. 6. By making those
`
`amendments, the inventor showed his intent that a deformity “type” could still include its “shape,”
`
`because he intentionally kept the shape terms, “prismatic” and “lenticular” and associated them
`
`with the “type” of deformity. If the inventor thought “type” did not encompass “shape,” he would
`
`have also removed the shape adjectives, “prismatic” and “lenticular” from these claims.
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`
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`The prosecution history of the ’370 patent cited by Defendants fails to show that the
`
`inventor made an explicit disavowal necessary to exclude the species “shapes” from the genus
`
`“types.” Without the disavowal advanced by Defendants, this term falls in the territory of “plain
`
`an ordinary meaning.” It is simple and easily understood by one of ordinary skill in the art.
`
`DEFENDANTS’ CONSTRUCTION
`“a continuous layer of air
`between the separate transparent
`sheet or film and the light
`emitting area such that they have
`no direct physical contact”
`“a continuous layer of air
`between the sheet, film, plate or
`substrate and the panel member
`such that they have no direct
`physical contact”
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` PAGE 14
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`E. “Air Gap” Terms
`
`IDT’S CONSTRUCTION
`TERM
`“an air gap therebetween”6 plain and ordinary meaning
`
`
`
`“an air gap between the
`film, sheet, plate or
`substrate and the panel
`member”7
`
`plain and ordinary meaning
`
`
`
`6 ’547 patent, claim 1.
`7 ’194 patent, claim 1.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 18 of 35 PageID #: 924
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`IDT proposes a “plain and ordinary meaning” construction for these term, while
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`Defendants continue to propose constructions with unsupported, additional limitations.
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`Defendants ask the Court to take basic terms that only recite an air gap between two things, e.g.,
`
`an air gap between a film and panel member, and require that the air gap must be a “continuous
`
`layer of air between” that film and panel member. The Defendants’ construction further requires
`
`that the film and panel member can have “no direct physical contact” because of the air gap. Those
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`extraneous limitations are not supported by the claims, specification, or prosecution history.
`
`Defendants propose the unsupported limitation that an “an air gap between the film … and
`
`the panel member” requires “a continuous layer of air between the film … and the panel member”
`
`(emphasis added).8 But the intrinsic evidence cited by Defendants’ P.R. 3-4 statement does not
`
`show that the inventor sought to explicitly define an “air gap therebetween” as a “continuous layer
`
`of air between the film … and the panel member.” The illustration from IDT’s Technology
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`Tutorial below shows how air gaps can exist between the diffuser film and the collimator film as
`
`well as between the diffuser film and the panel, without needing a continuous layer of air between:
`
`
`
`
`8 Defendants’ proposal for “an air gap between the film, sheet, plate or substrate and the panel member” mirrors their
`construction for “air gap therebetween.” Accordingly, the analysis between the two is the same, and IDT’s arguments
`in this section apply to both terms.
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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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` PAGE 15
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`SONY_000898
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`Case 2:13-cv-00522-JRG Document 69 Filed 06/16/14 Page 19 of 35 PageID #: 925