UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:14-cv-0911-JRG-RSP
`(lead)
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`Case No. 2:14-cv-0912-JRG-RSP
`(consolidated)
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`MEMORANDUM OPINION AND ORDER REGARDING THE
`GROUP 3 PATENTS
`
` On September 3, 2015, the Court held a hearing to determine the construction of
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`disputed terms in the five United States Patents: Patent Nos. 5,907,823 (“the ’823 Patent”),
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`7,072,667 (“the ’667 Patent”), 8,434,020 (“the ’020 Patent”), 8,498,671 (“the ’671 Patent”), and
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`8,713,476 (“the ’476 Patent”) (collectively the “Asserted Patents”). The Court, having
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`considered the parties’ claim construction briefing (Dkt. Nos. 120, 140 and 146)1 and their
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`arguments at the hearing, issues this Memorandum Opinion and Order Regarding Group 3
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`Patents construing the disputed terms.
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`
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`BACKGROUND AND THE ASSERTED PATENTS
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`Core Wireless Licensing S.A.R.L. (“Core”) brings two actions against LG Electronics,
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`Inc. and LG Electronics Mobilecomm U.S.A., Inc. (collectively “Defendants”). 2 The disputed
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`1 Citations to docket numbers reference the docket numbers in Case No. 2:14-cv-0911.
`2 Originally four actions were consolidated for claim construction purposes. The other two actions were
`Core Wireless Licensing S.A.R.L. v. Apple Inc., Case No. 6:14-cv-751 and Core Wireless Licensing
`S.A.R.L. v. Apple Inc., Case No. 6:14-cv-752. The LG Defendants and Apple filed consolidated claim
`construction briefs. After the briefing, but prior to the claim construction hearing, the Apple actions were
`transferred out of this district.
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`
`
`1
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`
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`CORE WIRELESS LICENSING
`S.A.R.L.,
`
`vs.
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`LG ELECTRONICS, INC., AND LG
`ELECTRONICS MOBILECOMM
`U.S.A., INC.
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`terms in the two actions were grouped into three consolidated patent groupings for claim
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`construction briefing and argument purposes. The patents in Group 3 are asserted by Core to not
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`be standard-essential patents. This opinion and order relates to the Group 3 patents.
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`
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`The Asserted Patents relate to cellular communication systems. In general, the ’823
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`Patent relates to techniques for reducing the effects of noise on the quality of an audio signal. For
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`example, the ’823 Patent abstract recites:
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`The invention relates to a method and a circuit arrangement for adjusting the level
`and/or dynamic range of an audio signal in a transmission system and particularly
`in a mobile station. According to the invention, the level of acoustic noise in the
`environment of a terminal (10, 12) and the level and noise level of a received
`signal are measured (123) and the level and/or dynamic range of the reproduced
`signal are adjusted (121, 122) according to the results from said measurements.
`The solution according to the invention helps reduce the effect of noise in the
`signal transmitted on the transmission channel (11) and of the acoustic noise in
`the environment of the terminal (12) on the intelligibility of the reproduced
`information.
`
`
`’823 Patent Abstract.
`
`In general, the ’667 Patent relates to a location finding technique that is part of the
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`cellular network rather than requiring registration with a third party location service. For
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`example, the ’667 Patent abstract recites:
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`A cellular telecommunications network provides a location information service. A
`landmark location server (11) has an associated data store (12) of data concerning
`location information associated with individual cells of the network. The server
`(11) is responsive to a request for location information from a mobile station
`(MS1). The request is sent as a SMS through the network (PLMN1). The server
`(11) obtains location information from the data store (12) based on the cell (C1)
`occupied by MS1 or another mobile station (MS2). The network is configured to
`send the location information as a SMS to the mobile station (MS1) that requested
`the information, without having to pre-register the mobile station for the location
`information service.
`
`
`’667 Patent Abstract.
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`2
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`In general, the ’020 Patent and its continuation ‘476 Patent relate to user interface
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`techniques for accessing various functions of a mobile device application. An application
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`summary window for an application may be selected which allows for selection of commonly
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`used functions without the need for launching the application. For example, the ’020 Patent
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`abstract recites:
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`The present invention offers a snap-shot view which brings together, in one
`summary window, a limited list of common functions and commonly accessed
`stored data which itself can be reached directly from the main menu listing some
`or all applications. This yields many advantages in ease and speed of navigation,
`particularly on small screen devices.
`
`’020 Patent Abstract.
`
`In general, the ’671 Patent relates to techniques for utilizing a mobile device’s idle screen
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`to display desired information. Displaying the information on the idle screen minimizes the need
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`to engage in multiple navigation steps to obtain the desired information. For example, the ’671
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`Patent abstract recites:
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`The idle screen of a mobile telephone device is used to show updated information
`of a kind or from a source selected by a user (e.g. financial information, news,
`traffic etc.). Previously, the idle screen has been used to display the name of the
`network operator and alerting messages, such as ‘2 missed calls’. Placing
`information of interest to the user in the idle screen makes that information
`instantly accessible without the user having to navigate to the required function
`(e.g. a micro-browser) and select it.
`
`
`’671 Patent Abstract.
`
`
`
`APPLICABLE LAW
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`1. Claim Construction
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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. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388
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`F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc.,
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`262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
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`861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
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`term is construed according to its ordinary and accustomed meaning as understood by one of
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`ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
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`at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); CCS
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`Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (“Generally speaking, we
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`indulge a ‘heavy presumption’ that a claim term carries its ordinary and customary meaning.”)
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`The claims themselves provide substantial guidance in determining the ordinary meaning
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`of claim terms. Phillips, 415 F.3d at 1314. “The claim construction inquiry . . . begins and ends
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`in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni,
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`158 F.3d 1243, 1248 (Fed. Cir. 1998). First, a term’s context in the asserted claim can be
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`instructive. Id. Other asserted or unasserted claims can also aid in determining the claim’s
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`meaning, because claim terms are typically used consistently throughout the patent. Phillips, 415
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`F.3d at 1314. Differences among the claim terms can also assist in understanding a term’s
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`meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it
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`is presumed that 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). But, “‘[a]lthough the specification may aid the
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`court in interpreting the meaning of disputed claim language, particular embodiments and
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`examples appearing in the specification will not generally be read into the claims.’” Comark
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`Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v.
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`Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415
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`F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment described in the
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`specification—even if it is the only embodiment—into the claims absent a clear indication in the
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`intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v.
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`Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`The prosecution history is another tool to supply the proper context for claim
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`construction because, like the specification, the prosecution history provides evidence of how the
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`PTO and the inventor understood the patent. Id. at 1317. However, “because the prosecution
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`history represents an ongoing negotiation between the PTO and the applicant, rather than the
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`final product of that negotiation, it often lacks the clarity of the specification and thus is less
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`useful for claim construction purposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince
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`Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as
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`an interpretive resource”).
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`Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic
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`record in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at
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`1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a
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`court understand the underlying technology and the manner in which one skilled in the art might
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`use claim terms, but technical dictionaries and treatises may provide definitions that are too
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`broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid a court in understanding the underlying technology and determining
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`the 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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`2. Departing from the Ordinary Meaning
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`There are “only two exceptions to [the] general rule”3 that claim terms are construed
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`according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts
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`as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term
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`either in the specification or during prosecution.” Golden Bridge Tech., Inc. v. Apple Inc., 758
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`F.3d 1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d
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`1362, 1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d
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`1304, 1309 (Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure
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`from the plain meaning in two instances: lexicography and disavowal.”). The standards for
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`finding lexicography or disavowal are “exacting.” Id.
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`To act as his own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner,
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`669 F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must
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`appear “with reasonable clarity, deliberateness, and precision.” Id.
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`3 Some cases have characterized other principles of claim construction as “exceptions” to the general rule,
`such as the statutory requirement that a means-plus-function term is construed to cover the corresponding
`structure disclosed in the specification. See, e.g., CCS Fitness, 288 F.3d at 1367.
`6
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`To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
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`specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
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`Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at
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`1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed
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`meaning of a claim term by including in the specification expressions of manifest exclusion or
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`restriction, representing a clear disavowal of claim scope.”) “Where an applicant’s statements are
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`amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.”
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`3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`3. Means-Plus-Function Limitations
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`The parties’ disputed terms include alleged means-plus-function limitations. Where a
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`claim limitation is expressed in “means-plus-function” language and does not recite definite
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`structure in support of its function, the limitation is subject to 35 U.S.C. § 112, ¶ 6. Braun Med.,
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`Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, 35 U.S.C. § 112, ¶ 6
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`mandates that “such a claim limitation ‘be construed to cover the corresponding structure . . .
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`described in the specification and equivalents thereof.’” Id. (citing 35 U.S.C. § 112, ¶ 6). When
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`faced with a means-plus-function limitation, courts “must turn to the written description of the
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`patent to find the structure that corresponds to the means recited in the [limitation].” Id.
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`Construing a means-plus-function limitation involves multiple steps. “The first step . . . is
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`a determination of the function of the means-plus-function limitation.” Medtronic, Inc. v.
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`Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). “[T]he next step is
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`to determine the corresponding structure disclosed in the specification and equivalents thereof.”
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`Id. A “structure disclosed in the specification is ‘corresponding’ structure only if the
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`specification or prosecution history clearly links or associates that structure to the function
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`recited in the claim.” Id. The focus of the “corresponding structure” inquiry is not merely
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`whether a structure is capable of performing the recited function, but rather whether the
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`corresponding structure is “clearly linked or associated with the [recited] function.” Id. The
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`corresponding structure “must include all structure that actually performs the recited function.”
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`Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir.
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`2005). However, § 112 does not permit “incorporation of structure from the written description
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`beyond that necessary to perform the claimed function.” Micro Chem., Inc. v. Great Plains
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`Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).
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`For mean-plus-function limitations implemented by a programmed general purpose
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`computer or microprocessor, the corresponding structure described in the patent specification
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`must include an algorithm for performing the function. WMS Gaming Inc. v. Int’l Game Tech.,
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`184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not a general purpose
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`computer but rather the special purpose computer programmed to perform the disclosed
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`algorithm. Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir.
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`2008).
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`4. Claim Indefiniteness
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`
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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. “[I]ndefiniteness is a question of law and in effect part of
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`claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012). A
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`party challenging the definiteness of a claim must show it is invalid by clear and convincing
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`evidence. Young v. Lumenis, Inc., 492 F.3d 1336, 1345 (Fed. Cir. 2007).
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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
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`8
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`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. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129–30 (2014) (internal citations
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`omitted).
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`AGREED TERMS
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`The parties agreed to the following constructions prior to the oral hearing. Dkt. No. 162-1
`
`
`
`
`
`at 1.
`
`’823 Patent Term
`“first audio signal (s1a)” / “first input signal
`(s1a)”
`(claims 1-3, 16-17, 20-21)
`
`Agreed Upon Construction
`audio signal from a far-end terminal
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`TERMS NOT BEFORE THE COURT
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`After the September 3, 2015 hearing, Core provided an updated notice of asserted claims.
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`
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`
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`As a result of such notice, certain terms that were subject to briefing and/or oral hearing are no
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`longer contained in any asserted claim. The Group 3 terms that are no longer at issue are Term
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`Numbers 5, 6, 7, 9, 10, 11, 28, 20, and 24.4 Dkt. No. 178 at 4. This Order does not address those
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`terms.5
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`
`
`I.
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`‘823 Patent
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`DISPUTED TERMS
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`1.
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`Claim 20 Means Plus Function Terms (Terms 1-4)
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`“means (303) for measuring the level of the first audio signal (sla) to obtain a first
`measured value (p1)” (Term 1)
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`4 As used herein, the term numbers reference the term numbers as used in the parties’ claim construction
`briefing.
`5 The parties also no longer seek construction for Terms 16 and 17. Dkt. No. 140-9 at 6-9.
`9
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`Defendants’ Construction
`Function: measuring the level of the first
`audio signal (s1a) to obtain a first measured
`value (p1)
`
`
`
`Structure: weighting filter 302 as described
`in 4:50-58 and Figure 3; and power measuring
`unit 303 as described in 4:50-52, 4:59-64, and
`Figure 3
`
`
`
`Core Wireless’s Construction
`Function: measuring the level of the first
`audio signal to obtain a first measured value
`
`Structure: power measuring unit 303 as
`shown in Fig. 3, and statutory equivalents
`thereof
`
`“means (303) for measuring the noise level in the first audio signal (sla) to obtain a
`second measured value (p2)” (Term 2)
`
`Defendants’ Construction
`Function: measuring the noise level in the
`first audio signal (s1a) to obtain a second
`measured value (p2)
`
`Structure: weighting filter 302 as described
`in 4:50-58 and Figure 3; power measuring
`unit 303 as described in 4:50-52, 4:59-64, and
`Figure 3; and known voice activity detector
`(VAD) unit 301 as described in 4:50-52, 4:64-
`5:7, and Figure 3.
`
`Core Wireless’s Construction
`Function: measuring the noise level in the
`first audio signal to obtain a second measured
`value
`
`Structure: power measuring unit 303 as
`shown in Fig. 3, and statutory equivalents
`thereof
`
`
`
`
`
`
`
`
`“means (313) for measuring the noise level in said space to obtain a third measured
`value (p3)” (Term 3)
`
`
`Core Wireless’s Construction
`Function: measuring the noise level in said
`space to obtain a third measured value
`Structure: power measuring unit 313 as
`shown in Fig. 3, and statutory equivalents
`thereof
`
`Defendants’ Construction
`Function: measuring the noise level in said
`space to obtain a third measured value (p3)
`
`Structure: weighting unit 312 as described in
`4:50-58, 5:10-13, 5:60-66, and Figure 3;
`power measuring unit 313 as described in
`4:50-52, 4:59-64, 5:10-13, 5:60-66, and
`Figure 3; and VAD unit 311 as described in
`4:63-5:7, 5:10-15, 5:60-6:3, and Figure 3
`
`“means (304, 306) for adjusting the level and/or dynamic range of the first audio
`signal (sla) in accordance with said first, second, and third measured values (p1, p2,
`p3)” (Term 4)
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`Core Wireless’s Construction
`Function: adjusting the level and/or dynamic
`range of the first audio signal in accordance
`with said first, second and third measured
`values
`
`Structure: adjusting unit 304 and multiplier
`306 as shown in Fig. 3, and statutory
`equivalents thereof
`
`
`
`The parties dispute whether the reference numbers should be included in the functions.
`
`The parties also have conflicting positions for the structure for each term.
`
`Positions of the Parties
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`
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`As to the functions, Core objects to the inclusion of reference numbers. Core notes the
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`MPEP states that the use of reference characters in a claim is considered to have no effect on the
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`scope of the claim. Dkt. No. 120 at 5. Core cites to three district court cases that have rejected
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`the use of reference characters to limit claims. Id. at 5, n.28. Core asserts that the reference
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`numbers will confuse the jury into believing the reference numbers are limiting.
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`Defendants assert that the functions of means-plus-function terms are the explicitly
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`recited functions in the claims. Dkt. No. 140 at 3 (citing Micro Chem., Inc. v. Great Plains
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`Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999) (Section 112(f) “does not permit limitation of a
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`means-plus-function claim by adopting a function different from that explicitly recited in the
`
`claims)). Defendants assert the recited functions include the reference characters. Defendants
`
`assert that none of Core’s citations relate to the use of reference characters in a means-plus-
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`function term, and that, in any case, the MPEP is not binding on Courts. Dkt. No. 140 at 3, n.5.
`
`
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`11
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`Defendants’ Construction
`Function: adjusting the level and/or dynamic
`range of the first audio signal (s1a) in
`accordance with said first, second and third
`measured values (p1, p2, p3)
`
`
`
`Structure: adjusting unit 304 as described in
`5:2-9, 5:15-20, 5:36-48 (“a processor,” “a
`memory,” and “a parameter table,” “whereby
`the memory permanently stores the parameter
`table”), and Figure 3; delay unit 305 as
`described in 5:29-30 (“a shift register”) and
`Figure 3; and multiplier 306 as described in
`5:21-24 and Figure 3
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`As to the Term 1 and 2 structures, Core objects to Defendants’ inclusion of the weighting
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`filter 302. Core asserts that the weighting filter does not perform the claimed function. Core
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`asserts that the weighting filter function is performed prior to power measurements (’823 Patent
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`4:52-55, claim 21). Id. Core also objects to Defendants’ inclusion of the VAD in Term 2. Core
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`asserts that the VAD is used to determine when to measure the noise level (’823 Patent 4:62-66).
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`
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`As to Term 3, Core asserts its construction includes the sole structure that performs the
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`claimed function of measuring the noise level in a space (the power measuring unit 313). Core
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`argues that neither the weighting unit 312 nor VAD unit 311 actually performs this function.
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`Core notes the specification states that a combination of structures might be used for “producing
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`measurement result” (’823 Patent 5:10-14) but not for the measurement itself. Core asserts that
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`the specification further references the “the measurement result from the power measuring unit
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`313.” ’823 Patent 6:1-3. Core asserts that Defendants acknowledge that the weighting filter (at
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`issue in Terms 1-3) performs a weighting function separate from the “power measurement”
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`function because Defendants’ brief stated that the weighting function “is done prior to the power
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`measurement.” Dkt. No. 146 at 1, n.7 (quoting Dkt. No. 140 at 2).
`
`
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`As to Term 4, Core objects to Defendants’ inclusion of delay unit 305. Core asserts that
`
`the adjusting unit 304 and the multiplier 306 are the only structures that perform the function of
`
`adjusting the level and/or dynamic range of a first audio signal. Dkt. No. 120 at 7 (citing ’823
`
`Patent 5:43-47). Core argues that the adjusting unit 304 chooses dynamic range and level
`
`adjusting parameters based on various near- and far-end measurements to determine a control
`
`value and that the multiplier 306 applies that control value to the signal. Id. (citing ’823 Patent
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`5:15-19, 5:42-44, 5:20-24). Core asserts that the delay unit 305 only corrects the timing signal, it
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`does not adjust it. Further, Core argues that the delay unit is optional, as the specification states
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`that adjustment of the signal “can be performed” using the delay unit. Id. at 8 (citing ’823 Patent
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`5:20-24). Core contends that if the delay unit 305 was mandatory, it would have been included in
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`the claim itself.
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`As to terms 1 and 2, Defendants assert that Figure 3 shows that the signal s1a is never fed
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`directly into the power measuring unit 303 to perform the claimed function. Defendants assert
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`that s1a is first fed into a weighting filter 302 to produce “frequency-weighted signal s1f” and
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`that s1f is then fed into unit 302. Dkt. No. 140 at 1-2 (citing ’823 Patent Figure 3, 4:50-62).
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`Defendants thus conclude that the weighting filter is required structure as it produces s1f, which
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`is the signal that is measured. Defendants also assert that the power measuring unit performs a
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`specific type of measurement on s1f: a “running average calculation;” therefore, this description
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`must also be included in the construction. Id. at 2.
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`As to Term 2, Defendants also assert that the voice activity detector (VAD) is integral to
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`the measurement of p2, which can only take place when the VAD detects “silent moments, i.e.
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`when the signal contains no speech.” ’823 Patent 4:63-64. Defendants assert the VAD is, thus,
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`also required structure. Dkt. No. 140 at 2.
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`As to Term 3, Defendants assert that the measurement result p3 is obtained as follows:
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`“corresponding noise level power measurement is performed for the signal s2a picked up at the
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`near-end, using the weighting unit 312, power measuring unit 313 and VAD 311, thereby
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`producing measurement result p3.” ’823 Patent 5:10-13.
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`Defendants assert that for each of Terms 1-3, the additional structure is required for
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`performing the “measuring” functions as merely generic power measuring units are incapable of
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`performing the functions alone. Dkt. No. 140 at 4. Defendants also assert that Core’s
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`constructions would encompass any measuring circuits, beyond the specific measurement
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`techniques disclosed. Id.
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`As to Term 4, Defendants contend that “adjusting the level and/or dynamic range” is
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`accomplished by “multiplying, in a multiplier 306 the delayed signal s1b by value d1 determined
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`by the adjusting unit.” ’823 Patent 5:22-24. Defendants assert the delayed signal s1b is produced
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`by the delay unit 305. Dkt. No. 140 at 2. Defendants argue that Core’s construction leaves out
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`the required delay unit and claims any adjusting unit and multiplier. Id. at 4.
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`Analysis
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`
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`Courts that have considered the implications of the use of reference numbers in a claim
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`have followed the general rule that reference numbers do not limit the claims. Relume Corp. v.
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`Dialight Corp. et al., 63 F. Supp. 2d 788, 796, n. 6 (E.D. Mich. 1999) (“A reference numeral is
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`simply a convenient tool for directing the reader to an example of the element the patentee has
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`claimed. Had the drafter wanted to incorporate the limitations of the preferred embodiment into
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`the language of claim 1, he or she could have done so quite easily with words.”); EasyCare, Inc.
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`v. Lander Industry, No. 4:08-cv-665, 2011 U.S. Dist. LEXIS 130241, *28 (D. Ariz., Nov. 8,
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`2011); KEG Kanalreinigigungstechnick GmbH v. Laimer, No. 1:11-cv-1948, 2013 U.S. Dist.
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`LEXIS 188220, *74-78 (N.D. Ga., Jan. 11, 2013). The MPEP similarly states that reference
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`numbers are “considered as having no effect on the scope of the claims:”
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`Reference characters corresponding to elements recited in the detailed description
`and the drawings may be used in conjunction with the recitation of the same
`element or group of elements in the claims. The reference characters, however,
`should be enclosed within parentheses so as to avoid confusion with other
`numbers or characters which may appear in the claims. The use of reference
`characters is to be considered as having no effect on the scope of the claims.
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` MPEP §608.01(m) (9th ed., March 2014). Though Defendants are correct that none of the prior
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`courts have specifically addressed reference numbers within means-plus-function terms, the
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`rationale for excluding such numbers is equally applicable to means-plus-function terms. The
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`Court finds that the function does not include the reference numbers.6
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`
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` As to Terms 1 and 2, the stated functions are merely measuring the level of the audio
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`signal to obtain a first/second measured value. Defendants would have the functions of Terms 1
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`and 2 include weighting a signal and then measuring a weighted signal. The specification states
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`that:
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`Prior to power measurement, a frequency weighting with a weighting filter 302 is
`performed for the digital signal s1a received from the far-end to achieve even
`loudness perception at various frequencies.
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`
`’823 Patent 4:52-55. The claimed function for Term 1 is merely related to measuring the level of
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`the first audio signal to obtain a measured value. The weighting filter is described as adjusting
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`the signal to achieve even loudness perception at various frequencies. This is a different function.
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`The additional weighting filter structure Defendants add is, thus, directed toward an additional
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`unclaimed function. The corresponding structure is limited to only the structure that is linked to
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`the recited function. Omega Engineering, Inc. v. Rayteck Corp., 334 F.3d 1314, 1321 (Fed. Cir.
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`2003). Thus, the corresponding structure includes the power measuring unit 303 shown and
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`described in the specification but does not include the weighting filter 302.
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`
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`As to Term 2, the weighting filter discussion above is equally applicable. However, the
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`dispute regarding the voice activity detector (VAD) is different. The function for claim 2 is
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`“measuring the noise level in the first audio signal to obtain a second measured value.” The
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`technique to measure the noise level in the input signal is described in the patent as requiring
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`more than just the power measuring unit 303. In particular, the ’823 Patent describes a structure
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`6 The Court notes that even if the reference numbers were included, the analysis of the corresponding
`structure would remain the same as the Court’s conclusions are not based upon inclusion or exclusion of
`the reference numbers.
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`that enables the circuitry to detect when the speech signal level is silent, thus the remaining
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`signal being the noise:
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`The received signal level p1 is measured continuously and the noise level p2 is
`measured at silent moments, i.e. when the signal contains no speech. Detection of
`such silent moments is performed with a known voice activity detector (VAD)
`unit 301. The output signal v1 of the VAD unit has two states depending on
`whether the input signal measured by the VAD unit is substantially speech or
`noise/interference. When the output signal v1 of the