Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 1 of 41 PageID #: 1903
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`Case No. 2:14-CV-0059-JRG-RSP
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`§§§§§
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`C-CATION TECHNOLOGIES, LLC,
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`
`
`v.
`
`TIME WARNER CABLE, INC., et al.
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`C-Cation Technologies, LLC (“C-Cation”) asserts U.S. Patent No. 5,563,883 (herein after
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`the “‘883 patent”)1 against Time Warner Cable, Inc., Time Warner Cable Enterprises LLC, Time
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`Warner Cable Texas LLC, ARRIS Group, Inc., Cisco Systems, Inc., and Casa Systems, Inc.
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`(collectively “Defendants”). On February 18, 2015, the Court held a hearing to determine the
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`proper construction of the disputed claim terms in the ‘883 patent. After considering the
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`arguments made by the parties at the hearing and in the parties’ claim construction briefing and
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`charts (Dkt. Nos. 80, 83, 85 and 87), the Court issues this Claim Construction Memorandum and
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`Order.
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`BACKGROUND
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`The ‘883 patent
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`is entitled “DYNAMIC CHANNEL MANAGEMENT AND
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`SIGNALLING METHOD AND APPARATUS” and is based upon an application filed July 18,
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`1994. Claims 1, 3 and 4 are asserted in the litigation. The parties present multiple claim
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`disputes. With regard to four of the claim disputes, Defendants assert the disputed term is
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`indefinite under 35 USC § 112, ¶ 2.
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` Some of the disputed claim terms have been previously
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`construed in a claim construction order issued by this Court in C-Cation Technologies, LLC v.
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`1 References to the ‘883 patent will be made in the format Col:Line
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`C-Cation 2004
`Unified Patents Inc. v. C-Cation Technologies, LLC
`IPR2015-01045
`1
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`

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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 2 of 41 PageID #: 1904
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`Comcast Corp., et al., case no. 2:11-cv-30-JRG-RSP, Dkt. 222, July 3, 2013 (hereinafter “C-
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`Cation v. Comcast Order”).
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`The ‘883 patent generally relates to the field of “two-way multi-media communication on
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`a shared transmission media such as coaxial cable-TV network, and more specifically to methods
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`and apparatus for signalling channel management and protocol.” 1:6-11. The Background of the
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`Invention describes the prior art as including a central controller, a shared transmission media
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`and a plurality of remote terminals dispersed geographically. Communication bandwidth is
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`divided into traffic-bearing channels and signalling channels that utilize signalling protocols to
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`resolve contention for access. 1:15-32. The ‘883 Patent generally states that the objects of the
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`disclosed invention relate to improvements in the signalling channel process. 2:35-62. One
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`independent claim is asserted, method claim 1. Claim 1 recites a variety of steps for
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`accomplishing the allocation and assignment of the signalling data channels between the central
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`controller and remote terminals and the assignment of the remote terminals to a signalling data
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`channel. 14:25-53.
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`A.
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`Claim Construction
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`APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
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`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
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`by considering the intrinsic evidence. See id. at 1313. C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group,
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`Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 3 of 41 PageID #: 1905
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`themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
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`Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
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`understood by one of ordinary skill in the art at the time of the invention in the context of the
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`entire patent. Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361,
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`1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
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`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
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`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
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`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
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`lexicography governs. Id. The specification may also resolve ambiguous claim terms “where
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`the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to
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`permit the scope of the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 4 of 41 PageID #: 1906
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`1325. But, “‘[a]lthough the specification may aid the court in interpreting the meaning of
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`disputed claim language, particular embodiments and examples appearing in the specification
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`will not generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d
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`1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560,
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`1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. The prosecution history is another
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`tool to supply the proper context for claim construction because a patent applicant may also
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`define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352,
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`1356 (Fed. Cir. 2004) (“As in the case of the specification, a patent applicant may define a term
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`in prosecuting a patent.”).
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`Although extrinsic evidence can be useful, it is “‘less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
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`testimony may aid a court in understanding the underlying technology and determining the
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`particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`B.
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`
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`Claim Indefiniteness
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`Patent claims must particularly point out and distinctly claim the subject matter regarded
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`as the invention. 35 U.S.C. § 112, ¶ 2. Whether a claim meets this definiteness requirement is a
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 5 of 41 PageID #: 1907
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`matter of law. Young v. Lumenis, Inc., 492 F.3d 1336, 1344 (Fed. Cir. 2007). A party
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`challenging the definiteness of a claim must show it is invalid by clear and convincing evidence.
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`Id. at 1345. “A determination of claim indefiniteness is a legal conclusion that is drawn from the
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`court’s performance of its duty as the construer of patent claims. Datamize, LLC v. Plumtree
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`Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) (citations and internal quotation marks
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`omitted), abrogated on other grounds by Nautilus v. Biosig Instruments, Inc., 134 S. Ct. 2120
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`(2014).
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`
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`The definiteness standard of 35 U.S.C. § 112 ¶2 requires that:
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`a patent’s claims, viewed in light of the specification and prosecution history,
`inform those skilled in the art about the scope of the invention with reasonable
`certainty. The definiteness requirement, so understood, mandates clarity, while
`recognizing that absolute precision is unattainable. The standard we adopt
`accords with opinions of this Court stating that “the certainty which the law
`requires in patents is not greater than is reasonable, having regard to their subject-
`matter.
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`Nautilus, Inc., 134 S. Ct. at 2129-30 (internal citations omitted).
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`AGREED TERMS
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`The parties have agreed to the following terms prior to the hearing. Dkt. 87-1 at 1.
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`Term
`signalling data (claim 1)
`
`Agreed Construction
`information concerned with the control of
`communications
`remote terminals (claims 1, 3 and 4) communication devices at a location remote from the
`central controller
`a forward signalling data channel and a reverse
`signalling data channel determined prior to
`establishing communications
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`pair of predetermined signalling
`data channels (claims 1 and 4)
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`
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`With regard to one term the parties presented competing positions prior to the hearing but
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`at the oral hearing the parties reached an understanding as to the issue in dispute. In particular,
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 6 of 41 PageID #: 1908
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`the parties previously disputed the meaning of the term “establishing communications between
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`said central controller and said plurality of remote terminals.” C-Cation proposed that the phrase
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`should be given its ordinary meaning and does not require additional construction other than the
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`agreed term “remote terminals.” Defendants proposed “establishing two-way connections
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`between the central controller and two or more remote terminals so that user information can be
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`transmitted and received.” Dkt. 87-1 at 3. In the briefing and the oral hearing, C-Cation’s
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`primary objection focused on the inclusion of Defendants’ language “so that user information
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`can be transmitted and received” as part of establishing communications. At the oral hearing
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`Defendants emphasized that “establishing communications” must be something more than
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`merely one side of the system attempting to communicate and Defendants stated that it did not
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`mean to require user information to be actually sent. Dkt. 89 Oral Hearing Tr. at 100-102. C-
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`Cation agreed that “establishing communication” required more than merely the controller
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`sending a poll request but rather further required a response. Dkt. 89 Oral Hearing Tr. at 109-
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`110. In this manner the parties agreed that merely sending a poll from a controller was not
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`“establishing communication” but that a response was also required. Dkt. 89 Oral Hearing Tr. at
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`110. Based on the agreements at the oral hearing the court accepts the construction of
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`“establishing communications” to mean “sending information and receiving a response.”
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 7 of 41 PageID #: 1909
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`DISPUTED TERMS
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`A. Preamble Terms
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`“a shared transmission means for signalling data and user information” (claim 1 preamble)
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`C-Cation’s Construction
`As part of the preamble, term is non-
`limiting and needs no further construction.
`
`To the extent construction is deemed
`necessary:
`“a medium for transmitting signalling data
`and user information between a plurality of
`remote terminals and a central controller”
`
`Phrase should not be construed under 35
`U.S.C. §112(6). If, however, construction
`under 35 U.S.C. §112(6) is deemed
`appropriate:
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`Function: carry signalling data and user
`information
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`Structure: includes: (1) airwaves: (2) coaxial
`cable; (3) fibre optic cable; or (4) wires
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`“user information” (claim 1 preamble)
`C-Cation’s Construction
`As part of the preamble, term is non-
`limiting and needs no further construction.
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`To the extent construction is deemed
`necessary, term should be given its ordinary
`meaning.
`
`Defendants’ Construction
`Function: carrying and transmitting
`information on signaling data and user
`information channels
`
`Structure: communication media common
`to a plurality of remote terminals having
`forward and reverse bandwidth onto
`which separate signaling data and traffic
`bearer channels are multiplexed in both
`the forward and reverse directions
`
`Defendants’ Construction
`“information other than signalling data
`transmitted to or from users of the
`system”
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`
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`The parties dispute whether the terms are preamble terms that do not require
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`construction.2
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`2 If the terms are found to be a claim limitation, the parties also dispute the appropriate
`construction. As the Court finds that the terms are preamble limitations that are not claim
`limitations, the arguments regarding the appropriate construction are not reached.
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 8 of 41 PageID #: 1910
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`Position of the Parties
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`
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`C-Cation asserts that the preamble does not affect the steps of the claimed invention, the
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`body of the claim describes the complete invention, and the preamble does not set out any aspect
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`of the claim limitations. C-Cation asserts that in such circumstances the preamble is not
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`regarded as limiting. Dkt. 80 at 8 (citing Am. Med. Sys., Inc. v. Biolitec, Inc., 618 F.3d 1354,
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`1358-59 (Fed. Cir. 2010) and Schumur v. Lab. Computer Sys., Inc., 308 F. 3d 1304, 1310 (Fed.
`
`Cir. 2002)).
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`
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`Defendants assert that the claim begins “In a multiple access communication system
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`comprising….” Defendants assert that the limitation in question is recited after the “comprising”
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`term and thus the limitation is not part of the preamble but rather part of the body of the claim
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`and thus a limitation. Dkt. 83 at 20. At the Oral Hearing, Defendants emphasized that when a
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`claim uses the term “comprising” twice the preamble ends with the first use of “comprising.”
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`Defendants cited Microprocessor Enhancement Corp. v. Tex. Instruments, Inc., 520 F.3d 1367,
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`1375-76 (Fed. Cir. 2008) as holding that the first use of “comprising” ends the preamble.
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`
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`Defendants assert that even if the terms were considered part of the preamble, the
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`preamble is limiting because it provides antecedent basis for multiple other terms (“central
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`controller,” “remote terminals” and “data channels”) in the body of the claim. Dkt. 83 at 20-21
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`(citing C.W. Zumbiel Co., Inc. v. Kappos, 702 F.3d 1371, 1385 (Fed. Cir. 2012)). Defendants
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`assert that this thus is not a situation where “deletion of the preamble” would not affect the steps
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`of the claimed invention. Defendants assert that in such circumstances the preamble is not
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`superfluous. Dkt. 83 at 21.
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`
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`Defendants assert that the ‘883 patent repeatedly emphasizes the importance of forward
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`and reverse signalling data channels and traffic channels. 2:65-3:13, 5:8-24, 5:58-62.
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 9 of 41 PageID #: 1911
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`Defendants assert that the “shared transmission means” carries all four of these channels.
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`Defendants thus assert that the “shared transmission means” is the hardware recited in the ‘883
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`patent as necessary to perform the claimed method. Dkt. 83 at 21.
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`
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`C-Cation cites to Schumer, 308 F.3d at 1310 and Apple Computer, Inc. v. Articulate Sys.,
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`Inc., 234 F.3d 14, 17-18 (Fed. Cir. 2000) as finding that multiple uses of transitional phrases in a
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`preamble does not mean the preamble ends after the first transitional phrase. Dkt. 85 at 1-2 (also
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`citing Enpat, Inc. v. Shannon, 6:11-cv-00084-GAP-KRS, 2011 WL 6010441, at *6-9 (M.D. Fla.
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`Nov. 30, 2011)).
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`C-Cation asserts that Defendants improperly assert that the entirety of a preamble must
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`be limiting if any terms find an antecedent basis in the preamble. C-Cation asserts that such a
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`theory has been rejected in other cases. Dkt. 85 at 2 (citing LBS Innovations LLC v. BP Am.
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`LLC, Nos. 2:11-cv-00407-JRG and 2:12-cv-0735-JRG, 2013 WL 3187167 at 56-58 (E.D. Tex.
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`Jun. 19, 2013) (Gilstrap, J.) (finding preamble not limiting even where it provided antecedent
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`basis for some claim terms); RMail Ltd. v. Amazon.com, Inc., No. 2:10-cv-258-JRG, 2013 WL
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`968246, at 99-103 (E.D. Tex. Mar. 11, 2013)(Gilstrap, J.).
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`
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`In response to Defendants’ argument that the four types of channels described in the
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`specification must be used, C-Cation notes that in C-Cation v. Comcast the Court found that the
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`“[c]laim steps never recite nor rely on what particular medium is used to connect the controller
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`and the terminals” and that “the vast majority of the specification focuses on aspects of
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`managing signalling data channels.” C-Cation v. Comcast Order at 15-16.
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`
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`As to user information, C-Cation asserts that the term “user information” only appears in
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`the preamble in the longer phrase “a shared transmission means for signalling data and user
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 10 of 41 PageID #: 1912
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`information.” As to whether “user information” is a preamble term requiring construction, both
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`parties rely on the arguments regarding the longer phrase to support their respective positions.
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`Analysis
`
`A preamble is properly considered a limitation of a claim:
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`if it recites essential structure or steps, or if it is ‘necessary to give life, meaning,
`and vitality’ to the claim. Conversely, a preamble is not limiting “where a
`patentee defines a structurally complete invention in the claim body and uses the
`preamble only to state a purpose or intended use for the invention.
`
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 239 F.3d 801, 808 (Fed. Cir. 2001). The
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`Court’s analysis provided in the C-Cation v. Comcast Order is applicable:
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`…Where the deletion of the preamble phrase in question does not affect
`the structure or steps of the claimed invention, the phrase is not limiting. Am.
`Med. Sys., 618 F.3d at 1358-59.
`When the body of the ‘883 Patent claims in question are analyzed, the
`transmission means phrases do not affect the steps of the claimed methods. Here,
`the preamble merely recites the system environment in which the method steps
`may occur. A central controller, remote terminals and transmission means (the
`physical medium between the controller and terminals) are recited in the
`preamble. Notably, the claim steps never recite nor rely on what particular
`medium is used to connect the controller and the terminals. The claim then
`focuses entirely on the allocation of signalling data channels between the
`controller and the terminals. Thus, for instance claim 1 step (a) merely calls out
`establishing communication between the controller and the terminals such that
`signalling data channels are created between the controller and terminals, notably
`not including any limitations as to the particular physical medium used for the
`connection. The remaining portions of the claims focus on the assignment of,
`monitoring of, reassignment determination of and reassigning of signalling data
`channels….
`…The transmission means in not included in the claim body, is not needed
`to give “life or vitality” to the claimed steps, and the claimed steps are drafted
`without including any limitations as to the particular physical transmission means.
`Contrary to Defendants assertions, the specification does not underscore
`the importance of a transmission medium having separate user traffic and
`signalling channels. Though Defendants point to several citations to shared
`transmissions, the vast majority of the specification focuses on aspects of
`managing the signalling channels. Figures 3-15 and associated text. In addition,
`the described “objects of the invention” and the described “benefits” focus on the
`signalling channels. 2:35-61; 4:1-14.
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 11 of 41 PageID #: 1913
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`C-Cation v. Comcast Order at 15-16.
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`Defendants provide several additional arguments not previously considered by this Court.
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`Defendants’ first additional argument is that the preamble is merely: “In a multiple access
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`communication system.” Though Defendants assert that Microprocessor Enhancement Corp.
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`holds that the first use of “comprising” in a claim must be the end of a preamble, Defendants
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`overstate the holding of Microprocessor Enhancement Corp. as that court did not address the
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`specific implication of two uses of “comprising” and whether the preamble must end as a matter
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`of law after the first “comprising.” Microprocessor Enhancement Corp., 520 F.3d at 1374-76.
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`Rather, the holding of Microprocessor Enhancement Corp. related to a specific claim and to
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`whether that claim impermissibly mixed apparatus and method limitations (which the Federal
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`Circuit answered no). First Microprocessor Enhancement Corp. focused on the particular
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`preamble in question which the Court characterized as “unconventional” for a method claim:
`
`The drafting structure of claim 1 may be generally described as follows:
`1. A method of executing instructions in a pipelined processor
`comprising:
`[structural limitations of the pipelined processor];
`the method further comprising:
`[method steps implemented in the pipelined processor].
`
`Id. at 1374. In contrast, the Federal Circuit noted that “method claim preambles often recite the
`
`physical structures of a system in which the claimed method is practiced.” Id. Such preambles
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`“state a purpose or intended use for the invention.” See Catalina Mktg., 289 F.3d at 808. The
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`preamble of the ‘883 patent conforms with the more conventional method claim. First, there is
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`no doubt that ‘883 patent claim 1 is a method claim. Defendants repeatedly characterized the
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`claim as a method claim both in the briefing and at the oral hearing. Such characterization is not
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`unexpected as the claim 1 structure makes this clear:
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 12 of 41 PageID #: 1914
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`1. In a multiple access communication system comprising a controller, a shared
`transmission means for signalling data and user information , and a plurality of
`remote terminals, a method of allocating…comprising the steps of:
`(a)…
`(b)…
`(c)…
`(d)…
`(e)…
`
`Claim 1. The claim structure makes clear that what is recited is a method claim and the
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`transitional phrase between the “purpose or intended use for the invention” and the
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`claimed invention elements is the “a method of allocating…comprising the steps of.”
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`Claim 1
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`thus falls squarely within what Microprocessor Enhancement Corp.
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`characterized as “method claim preambles often recite the physical structures of a system
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`in which the claimed method is practiced.” Microprocessor Enhancement Corp., 520
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`F.3d at 1374. This is in contrast to the “unconventional” method claim of
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`Microprocessor Enhancement Corp. in which a first “comprising” referenced the method
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`(“A method of executing instructions in a pipelined processor comprising:”) followed by
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`a paragraph break and the body of the claim later included “the method further
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`comprising the steps of….” A review of the totality of claim 1 of the‘882 patent makes
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`clear that the claim is a method claim with the method steps following the “comprising
`
`the steps of:” portion of the claim.
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`Defendants also cite to C.W. Zumbiel Co., as supporting the proposition that if any terms
`
`find antecedent basis in the preamble then the entire preamble is a limitation. However, the court
`
`in C.W. Zumbiel Co. did not make such a ruling. C.W. Zumbiel Co., 702 F.3d at 1385. In C.W.
`
`Zumbiel Co. the court found that “a plurality of containers” described in the preamble was
`
`referenced in the body of the claims as “the containers.” The Court thus found that the container
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`limitations of the preamble were limitations of the claims. Id. That is not the case here. “Shared
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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 13 of 41 PageID #: 1915
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`transmission means” is not recited in the body of the asserted claims. The ‘883 patent preamble
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`presents a very different situation. Though certain elements of the preamble may be limitations
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`found within the body of the claim, the “shared transmission means” phrase is separate from
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`those elements and is not “necessary to give life, meaning, and vitality” to the claim. See
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`Catalina Mktg., 239 F.3d at 808; See also LBS Innovations, 2013 WL 3187167 at 56-58 (entire
`
`preamble not limiting even where it provided antecedent basis only for some claim terms);
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`RMail, 2013 WL 968246, at 99-103.
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`The Court finds that the terms “a shared transmission means for signalling data
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`and user information” and “user information” are preamble terms that are not claim
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`limitations and do not require construction.
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`
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`B. “signalling data channel(s)” (Claims 1, 3 and 4)
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`C-Cation’s Construction
`“channels used for carrying signalling data;
`the channels may also carry user traffic”
`
`Defendants’ Construction
`“channels used for carrying signalling
`data; the channels may also carry user
`data”
`
`The parties dispute whether “user traffic” or “user data” may also be carried by the
`
`channel(s).
`
`Position of the Parties
`
`C-Cation asserts that the specification teaches that signalling data and traffic bearer
`
`channels are two types of channels that may be used to support forward and reverse direction
`
`communications between the central controller and remote terminals. C-Cation asserts that the
`
`specification states that:
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`13
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`

`
`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 14 of 41 PageID #: 1916
`
`As depicted in FIG. 2, the bandwidth is channelized for carrying traffic in the
`forward and the reverse direction. Data channels are used for carrying signalling
`or data traffic while bearer channels are used for carrying user traffic similar to
`circuits in telephony.
`5:58-62.
`
`
`
`Defendants assert that the specification states that signalling data channels may carry
`
`“sporadic user data.” 3:52-55, 7:32-49, 13:59-63. Defendants assert that the specification
`
`distinguishes “user data,” which is carried on a data channel such as a signalling data channel,
`
`from “user traffic,” which is carried on traffic bearer channels. 3:4-16, 5:15-26, 5:58-62, 13:59-
`
`63. Defendants assert that the specification passage cited by C-Cation supports this: “Data
`
`channels are used for carrying signalling or data traffic while bearer channels are used for
`
`carrying user traffic similar to circuits in telephony.” 5:58-62. Defendants assert that thus the
`
`‘883 patent specification confirms that data channels do not carry user traffic. Defendants assert
`
`that this is an important distinction as C-Cation has emphasized that claim 1 is limited to
`
`signalling data channels. Dkt. 83 at 27 (citing C-Cation Brief, Dkt. 80 at 11).
`
`
`
`In reply, C-Cation asserts that the term “user traffic” does not appear in the claims and
`
`there is no need to change the Court’s previous construction. Dkt. 85 at 3. C-Cation asserts that
`
`Defendants make a false assumption that signalling data channels “do not carry user traffic.” C-
`
`Cation asserts that the specification does not distinguish “user data” from “user traffic.” Rather
`
`C-Cation asserts that the specification passages relied on by Defendants (3:4-16, 5:15-26, 5:58-
`
`62, 13:59-63) merely distinguish signalling data on one hand from user data or user traffic on the
`
`other hand. Dkt. 85 at 3-4.
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`14
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`

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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 15 of 41 PageID #: 1917
`
`Analysis
`
`
`
`The specification does not create the distinction between “user data” and “user traffic” as
`
`sought by Defendants. The specification does include “[d]ata channels are used for carrying
`
`signalling or data traffic while bearer channels are used for carrying user traffic similar to
`
`circuits in telephony.” 5:58-62 (emphasis added). Also, some of the claims reference
`
`“transmitting user traffic or signalling data on said communication channels.” However,
`
`elsewhere the specification refers to the addition information carried on the signalling data
`
`channels as “user data:”
`
`The controlled multiple access method is used, on each forward signalling data
`channel in parallel, for sporadic user data transfer or signalling purposes. 3:52-55,
`See also 7:41-43.
`
`The signalling information or sporadic user data… . 13:8-13; 13:17-19.
`
`Sporadic user data shares the RF data modulator and demodulator with signalling
`information… . 13:59-63.
`
`The specification does not provide a distinction between what Defendants allege are two
`
`different types of information: “user data” and “user traffic.” Defendants argue that there are
`
`differences in what is done with the user information (carried on different channels), but as to
`
`what is the actual meaning of “data” vs. “traffic”, Defendants have not identified any difference
`
`in the information. The specification provides no distinction between the content of “user data”
`
`and “user traffic.” Furthermore, the parties have not pointed to any ordinary meaning that
`
`establishes a difference between the terms. In the context of the specification, one skilled in the
`
`art would recognize that the terms are used interchangeably.
`
`The Court construes “signalling data channel(s)” to mean “channels used for
`
`carrying signalling data; the channels may also carry user traffic.”
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`15
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`

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`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 16 of 41 PageID #: 1918
`
`C. “is available” (Claim 1, step (e))
`C-Cation’s Construction
`Phrase should be given its ordinary meaning
`and does not require additional construction.
`
`Defendants’ Construction
` “capable of carrying signaling data”
`
`
`
`The term “is available” is part of a longer phrase for which the parties also assert
`
`competing constructions: “determining whether a different and suitable signalling data channel is
`
`available.” As to “is available,” the dispute focuses on whether the term refers to a channel
`
`having particular characteristics being in existence or whether the term relates to a channel being
`
`capable of carrying data.
`
`Position of the Parties
`
`
`
`C-Cation asserts that the term “is available” is clear on its face. C-Cation asserts that
`
`Defendants’ construction would limit the term to a determination as to whether a channel has
`
`failed or not. C-Cation asserts that this would render meaningless other claim limitations, in
`
`particular the “suitable” claim limitation. C-Cation asserts that as the conditions monitored
`
`include more than mere failure, Defendants’ construction is improperly limiting and should be
`
`rejected. Dkt. 80 at 25. C-Cation asserts that in context of the larger phrase, whether a different
`
`and suitable channel is “available” merely means whether a different and suitable channel is in
`
`existence. Dkt. 85 at 8.
`
`Defendants assert that “is available” is a highly subjective term that different persons
`
`skilled in the art may come to different conclusions about whether a particular channel “is
`
`available.” Dkt. 83 at 17-18. Defendants assert that the ‘883 patent specification however
`
`- 16 -
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`16
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`

`
`Case 2:14-cv-00059-JRG-RSP Document 102 Filed 04/20/15 Page 17 of 41 PageID #: 1919
`
`provides a definition: whether the signalling data channel is capable of carrying signalling data.
`
`8:35-41, claim 5.
`
`Analysis
`
`
`
`The claim and the specification passage by Defendants do not support Defendants’
`
`construction. Defendants’ construction limits “available” to