Personalized Media Communication, LLC v. Motorola, Inc., Not Reported in F.Supp.2d...
`2011 WL 4591898, 2011 Markman 4591898
`
`2011 WL 4591898
`Only the Westlaw citation is currently available.
`United States District Court,
`E.D. Texas,
`Marshall Division.
`
`PERSONALIZED MEDIA COMMUNICATION, LLC
`v.
`MOTOROLA, INC., et al.
`
`No. 2:08–CV–70–CE.
`|
`Sept. 30, 2011.
`
` Expand Construed Terms
`
`Attorneys and Law Firms
`
`Stephen D. Susman, Chanler Ashton Langham, Sandeep Seth,
`Susman Godfrey LLP, Houston, TX, Arun S. Subramanian,
`Susman Godrey LLP, New York, NY, Ce Li, Eleanor
`Martha Yost, Jacob Randall Osborn, Stephen Schreiner,
`Goodwin Procter, LLP, Washington, DC, Charles Ainsworth,
`Robert Christopher Bunt, Tyler, TX, Daniel J. Shih, Susman
`Godfrey, LLP, Seattle, WA, Daymon Jeffrey Rambin,
`Elizabeth L. Derieux, Sidney Calvin Capshaw, III, Capshaw
`Derieux LLP, Gladewater, TX, Franklin Jones, Jr., Jones &
`Jones, Marshall, TX, Terrell W. Oxford, Susman Godfrey
`LLP, Dallas, TX, for Personalized Media Communication,
`LLC.
`
`Otis W. Carroll, Jr., Deborah J. Race, Ireland Carroll &
`Kelley, Tyler, TX, Diana B. Kruze, Jason A. Crotty, Jason
`D. Hall, Matthew A. Chivvis, Rachel Krevans, Wesley E.
`Overson, Morrison & Foerster LLP, San Francisco, CA,
`Jonathan M. Redgrave, Redgrave LLP, Washington, DC,
`Scott F. Llewellyn, Morrison & Foerster, Denver, CO, Arun
`S. Subramanian, Susman Godrey LLP, New York, NY, for
`Motorola, Inc., et al.
`
`MEMORANDUM OPINION AND ORDER
`
`CHARLES EVERINGHAM IV, United States Magistrate
`Judge.
`
`I. INTRODUCTION
`*1 On February 19, 2008, plaintiff Personalized Media
`Communication, LLC (“PMC”) filed suit against defendants
`Motorola Incorporated, EchoStar Corporation, and DISH
`Network Corporation, alleging infringement of U.S. Patent
`Nos. 4,965,825 (the “#825 Patent”); 5,109,414 (the “#414
`Patent”); 5,233,654 (the “#654 Patent”; 5,335,277 (the “#277
`Patent”); and 5,887,243 (the “#243 Patent”). Just prior to the
`Markman hearing, defendant Motorola and PMC settled their
`dispute. Therefore, this claim construction order will address
`only defendant EchoStar Corporation and DISH Network
`Corporation's (collectively “Defendants”) claim construction
`arguments.
`
`The patents-in-suit disclose a number of inventions that
`relate, among other things, to the delivery of programming
`content
`to consumers. This
`includes
`the concept of
`delivering “personalized” broadcast programming. The
`parent application for the patents-in-suit was filed in 1981
`and issued as U.S. Patent No. 4,694,490 (the “#490 Patent”).
`The ′490 Patent was supplemented by a continuation-in-
`part application in 1987, which issued as the ′825 Patent.
`The asserted patents all share the same specification. For
`convenience, all specification citations herein are to the ′825
`Patent unless otherwise noted.
`
`The asserted patents have an extensive litigation history.
`PMC has filed four prior lawsuits asserting some or all
`of the patents-in-suit in this case. Three of those cases
`involved substantive rulings on the patents, including claim
`construction. In 1996, PMC litigated against DIRECTV and
`Thomson Consumer Electronics in the U.S. International
`Trade Commission (the “ITC litigation”). In the Matter
`of Certain Digital Satellite System (DSS) Receivers and
`Components Thereof, Inv. No. 337–TA–392 (U.S. Int'l
`Trade Comm'n). The Administrative Law Judge in that
`matter issued an Initial Determination, including a claim
`construction. After the ITC found no violation of PMC's
`patents, the Federal Circuit affirmed the ITC findings of non-
`infringement and invalidity but vacated and remanded other
`aspects of the decision. See Personalized Media Commc'ns,
`LLC v. Int'l Trade Comm'n, 161 F.3d 696 (Fed.Cir.1998).
`PMC dismissed the ITC action and a parallel patent suit
`against these defendants in May 1999.
`
`On December 4, 2000, PMC filed a suit against DIRECTV
`and Thomson asserting different claims in the District
`of Delaware. Pegasus Dev. Corp. v. DirecTV Inc., No.
`00–10200–GMS (D.Del.) (the “Delaware litigation”). On
`
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`March 28, 2002, PMC filed suit in the Northern District
`of Georgia against certain cable television set-top box
`manufacturers, including Scientific–Atlanta. Personalized
`Media Communications, LLC v. Scientific–Atlanta, Inc. .,
`No. 1:02–cv–824–CAP (N.D.Ga.) (the “Atlanta litigation”).
`In both cases, the courts addressed claim construction using
`special masters, and a report was issued on claim construction
`in each action. Defendants were not parties to these prior
`actions.
`
`*2 The court held a Markman hearing on May 6, 2011.
`Thereafter, PMC filed a motion sever and stay eight asserted
`claims, including ′825 Patent, Claim 3; ′414 Patent, Claim 13;
`′654 Patent; Claim 59; and ′277 Patent, Claims 24, 25, 41,
`42 and 43 (Dkt. No. 230). The court granted PMC's motion
`to stay the eight asserted claims identified in its motion. As
`such, the following terms that appear exclusively in the stayed
`claims will not be addressed in this claim construction order:
`(1) carrier receiving means; (2) carrier transmission receiving
`means; (3) demodulating means; (4) instruct-to-generate-and-
`transmit signal; (5) instruct-to-generate signal; (6) means for
`demodulating; (7) predetermined time interval; (8) recorder
`means; and (9) unit identification information signal. After
`considering the submissions and the arguments of counsel,
`the court issues the following order concerning the claim
`construction issues.
`
`II. GENERAL PRINCIPLES GOVERNING CLAIM
`CONSTRUCTION
`“A claim in a patent provides the metes and bounds of the
`right which the patent confers on the patentee to exclude
`others from making, using or selling the protected invention.”
`Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334,
`1340 (Fed.Cir.1999). Claim construction is an issue of law for
`the court to decide. Markman v. Westview Instruments, Inc.,
`52 F.3d 967, 970–71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S.
`370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
`
`To ascertain the meaning of claims, the court looks to
`three primary sources: the claims, the specification, and
`the prosecution history. Markman, 52 F.3d at 979. The
`specification must contain a written description of the
`invention that enables one of ordinary skill in the art to make
`and use the invention. Id. A patent's claims must be read in
`view of the specification, of which they are a part. Id. For
`claim construction purposes, the description may act as a sort
`of dictionary, which explains the invention and may define
`terms used in the claims. Id. “One purpose for examining the
`specification is to determine if the patentee has limited the
`
`scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882
`(Fed.Cir.2000).
`
`Nonetheless, it is the function of the claims, not the
`specification, to set forth the limits of the patentee's
`invention. Otherwise, there would be no need for claims.
`SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121
`(Fed.Cir.1985) (en banc). The patentee is free to be his
`own lexicographer, but any special definition given to
`a word must be clearly set forth in the specification.
`Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388
`(Fed.Cir.1992). Although the specification may indicate that
`certain embodiments are preferred, particular embodiments
`appearing in the specification will not be read into the claims
`when the claim language is broader than the embodiments.
`Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc., 34 F.3d
`1048, 1054 (Fed.Cir.1994).
`
`*3 This court's claim construction decision must be
`informed by the Federal Circuit's decision in Phillips v. AWH
`Corporation, 415 F.3d 1303 (Fed.Cir.2005) (en banc). In
`Phillips, the court set forth several guideposts that courts
`should follow when construing claims. In particular, the court
`reiterated that “the claims of a patent define the invention to
`which the patentee is entitled the right to exclude.” 415 F.3d
`at 1312 (emphasis added) (quoting Innova/Pure Water, Inc.
`v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115
`(Fed.Cir.2004)). To that end, the words used in a claim are
`generally given their ordinary and customary meaning. Id.
`The ordinary and customary meaning of a claim term “is the
`meaning that the term would have to a person of ordinary
`skill in the art in question at the time of the invention, i.e.,
`as of the effective filing date of the patent application.” Id.
`at 1313. This principle of patent law flows naturally from the
`recognition that inventors are usually persons who are skilled
`in the field of the invention and that patents are addressed to
`and intended to be read by others skilled in the particular art.
`Id.
`
`The primacy of claim terms notwithstanding, Phillips made
`clear that “the person of ordinary skill in the art is deemed
`to read the claim term not only in the context of the
`particular claim in which the disputed term appears, but in
`the context of the entire patent, including the specification.”
`Id. Although the claims themselves may provide guidance
`as to the meaning of particular terms, those terms are
`part of “a fully integrated written instrument.” Id. at 1315
`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court
`emphasized the specification as being the primary basis for
`
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`construing the claims. Id. at 1314–17. As the Supreme Court
`stated long ago, “in case of doubt or ambiguity it is proper
`in all cases to refer back to the descriptive portions of the
`specification to aid in solving the doubt or in ascertaining
`the true intent and meaning of the language employed in the
`claims.” Bates v. Coe, 98 U.S. 31, 38, 25 L.Ed. 68 (1878).
`In addressing the role of the specification, the Phillips court
`quoted with approval its earlier observations from Renishaw
`PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250
`(Fed.Cir.1998):
`
`to
`interpretation
`the
`Ultimately,
`be given a
`term can only be
`determined and confirmed with a
`full understanding of what
`the
`inventors
`actually
`invented
`and
`intended to envelop with the claim.
`The construction that stays true to
`the claim language and most naturally
`aligns with the patent's description of
`the invention will be, in the end, the
`correct construction.
`
`Phillips, 415 F.3d at 1316. Consequently, Phillips
`emphasized the important role the specification plays in the
`claim construction process.
`
`The prosecution history also continues to play an important
`role in claim interpretation. Like the specification, the
`prosecution history helps to demonstrate how the inventor and
`the PTO understood the patent. Id. at 1317. Because the file
`history, however, “represents an ongoing negotiation between
`the PTO and the applicant,” it may lack the clarity of the
`specification and thus be less useful in claim construction
`proceedings. Id. Nevertheless, the prosecution history is
`intrinsic evidence that is relevant to the determination of
`how the inventor understood the invention and whether
`the inventor limited the invention during prosecution by
`narrowing the scope of the claims. Id.
`
`*4 Phillips rejected any claim construction approach that
`sacrificed the intrinsic record in favor of extrinsic evidence,
`such as dictionary definitions or expert testimony. The
`en banc court condemned the suggestion made by Texas
`Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
`(Fed.Cir.2002), that a court should discern the ordinary
`meaning of the claim terms (through dictionaries or
`otherwise) before resorting to the specification for certain
`limited purposes. Phillips, 415 F.3d at 1319–24. The
`approach suggested by Texas Digital—the assignment of a
`
`limited role to the specification—was rejected as inconsistent
`with decisions holding the specification to be the best guide
`to the meaning of a disputed term. Id. at 1320–21. According
`to Phillips, reliance on dictionary definitions at the expense
`of the specification had the effect of “focus[ing] the inquiry
`on the abstract meaning of words rather than on the meaning
`of claim terms within the context of the patent.” Id. at
`1321. Phillips emphasized that the patent system is based
`on the proposition that the claims cover only the invented
`subject matter. Id. What is described in the claims flows
`from the statutory requirement imposed on the patentee to
`describe and particularly claim what he or she has invented.
`Id. The definitions found in dictionaries, however, often flow
`from the editors' objective of assembling all of the possible
`definitions for a word. Id. at 1321–22.
`
`Phillips does not preclude all uses of dictionaries in
`claim construction proceedings. Instead, the court assigned
`dictionaries a role subordinate to the intrinsic record. In doing
`so, the court emphasized that claim construction issues are
`not resolved by any magic formula. The court did not impose
`any particular sequence of steps for a court to follow when
`it considers disputed claim language. Id. at 1323–25. Rather,
`Phillips held that a court must attach the appropriate weight
`to the intrinsic sources offered in support of a proposed claim
`construction, bearing in mind the general rule that the claims
`measure the scope of the patent grant.
`
`The patents-in-suit include claim limitations that fall within
`the scope of 35 U.S.C. § 112, ¶ 6. “An element in a claim
`for a combination may be expressed as a means or step
`for performing a specified function without the recital of
`structure ... in support thereof, and such claim shall be
`construed to cover the corresponding structure ... described
`in the specification and equivalents thereof.” 35 U.S.C. §
`112, ¶ 6. The first step in construing a means-plus-function
`limitation is to identify the recited function. See Micro
`Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258
`(Fed.Cir.1999). The second step in the analysis is to identify
`in the specification the structure corresponding to the recited
`function. Id. The “structure disclosed in the specification
`is ‘corresponding’ structure only if the specification or
`prosecution history clearly links or associates that structure
`to the function recited in the claim.” Medical Instrumentation
`and Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1210
`(Fed.Cir.2003) (citing B. Braun v. Abbott Labs., 124 F.3d
`1419, 1424 (Fed.Cir.1997)). The patentee must clearly link
`or associate structure with the claimed function as part of
`the quid pro quo for allowing the patentee to express the
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`“[A] challenge to a claim containing a means-plus-function
`limitation as lacking structural support requires a finding, by
`clear and convincing evidence, that the specification lacks
`disclosure of structure sufficient to be understood by one
`skilled in the art as being adequate to perform the recited
`function.” Budde, 250 F.3d at 1376–77.
`
`III. TERMS IN DISPUTE
`
`a. “Transmission” Terms
`*5 The following terms will be addressed in this
`section of the court's claim construction order: “information
`transmission” ('825 Patent, Claims 3 and 14–17); “broadcast
`transmission” ('654 Patent, Claims 7, 10, 59); “selected
`broadcast or cablecast transmission” ('277 Patent, Claim 43);
`“programming transmission” ('277 Patent, Claims 24–26.);
`“television program transmission” ('277 Patent, Claims 11,
`14, 19, 20, 22, 23, 41, 42); “separately defined television
`program transmission” ('277 Patent, Claim 20.).
`
`i. “Transmission”
`
`Defendants' Proposed
`Construction
`
`
`
`“Transmission” means
`“sequential transfer of
`uncompressed content for a
`single program.”
`
`transmission means”); ′490 Patent at 10:28–30 (“The means
`for and method of transmission of programing [sic] described
`here is well known in the art.”). Defendants argue that a
`person of ordinary skill in the art reading the patents in
`1987 1 would have understood that “transmissions” were
`limited to the conventional television and radio transmissions
`available at the time. According to Defendants, in 1987 a
`person of ordinary skill in the art would have understood
`that a conventional television transmission was an NTSC
`transmission, which uses a process called uniform linear
`scanning that requires the use of transmissions that are
`sequential, uncompressed, and limited to a single program.
`
`Defendants further point out that the patents recognize
`that the Federal Communications Commission (“FCC”)
`regulates television transmissions. See ′ 825 Patent at 7:36–40
`(describing methods for maintaining the logs mandated by the
`
`claim in terms of function pursuant to § 112, ¶ 6. See
`id. at 1211; see also Budde v. Harley–Davidson, Inc., 250
`F.3d 1369, 1377 (Fed.Cir.2001). The “price that must be
`paid” for use of means-plus-function claim language is the
`limitation of the claim to the means specified in the written
`description and equivalents thereof. See O.I. Corp. v. Tekmar
`Co., 115 F.3d 1576, 1583 (Fed.Cir.1997). “If the specification
`does not contain an adequate disclosure of the structure
`that corresponds to the claimed function, the patentee will
`have ‘failed to particularly point out and distinctly claim
`the invention as required by the second paragraph of section
`112,’ which renders the claim invalid for indefiniteness.”
`Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371,
`1382 (Fed.Cir.2009) (quoting In re Donaldson Co., 16 F.3d
`1189, 1195 (Fed.Cir.1994) (en banc)). It is important to
`determine whether one of skill in the art would understand
`the specification itself to disclose the structure, not simply
`whether that person would be capable of implementing the
`structure. See Atmel Corp. v. Info. Storage Devices, Inc., 198
`F.3d 1374, 1382 (Fed.Cir.1999); Biomedino, 490 F.3d at 953.
`Fundamentally, it is improper to look to the knowledge of one
`skilled in the art separate and apart from the disclosure of the
`patent. See Medical Instrumentation, 344 F.3d at 1211–12.
`Plaintiff's Proposed
`Construction
`
`
`Any attempt to construe this
`simple and straightforward
`phrases is more likely to confuse,
`not assist, the jury.
`
`The parties' primary dispute with regard to “transmission”
`is whether the patents-in-suit are limited to the dominant
`American TV standard in 1987—analog NTSC—or cover
`digital transmissions as well. Defendants argue that the
`patents are so limited and, therefore, urge the court to
`construe the term “transmission” to mean “sequential transfer
`of uncompressed content for a single program.” Defendants
`note that the various transmissions and the equipment
`for processing these transmissions are often described in
`the patents-in-suit as “conventional” and “well known in
`the art.” See, e.g., ′ 825 Patent at 7:11–17 (the purpose
`of the invention is “combining [ ] relevant user specific
`information and conventional broadcast programming”); id.
`at 11:8–16 (the Wall Street Week embodiment “receives
`a conventional television broadcast transmission”); id. at
`11:62–68; id. at 12:5–13 (the Wall Street Week program
`“is transmitted by conventional television network feed
`
`
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`FCC). In 1987, the FCC required television transmissions to
`comply with the NTSC standards—no other type of television
`transmission was permitted in the United States. Thus,
`Defendants argue that, even assuming arguendo that other
`types of transmissions existed, they would not have been
`understood as conventional in 1987. As such, Defendants
`argue that the patents-in-suit are limited to analog NTSC and,
`therefore, the court must construe “transmission” in a manner
`that reflects this limitation.
`
`*6 Defendants rely on Kopykake Enters., Inc. v. Lucks Co.,
`264 F.3d 1377, 1382–83 (Fed.Cir.2001), for its contention
`that the use of the words “conventional” and “well known
`in the art” in the specification demonstrates the patentee's
`intention to limit the transmission-related claim elements to
`analog NTSC transmissions. In Kopykake, the limitation at
`issue required “screen printing” of images on foodstuffs and
`the accused product used “ink jet printing.” Id. at 1380. The
`issue was, therefore, whether the claimed “screen printing”
`literally covered ink jet printing. Id. The specification
`explicitly defined the term “screen printing” to “encompasses
`not only conventional screen printing, but also includes
`any other conventional printing process and any other
`conventional means.' ” Id. Although ink jet systems were well
`known in the field of paper printing, it was not a conventional
`printing process for applying images to foodstuffs. Id. at
`1383–84. The court therefore held that ink jet printing was
`not covered by the claim term at issue. Id. at 1384.
`
`In this case, however, Defendants have failed to identify
`any definition of “transmission” that expressly limits the
`scope of the term to “conventional” transmission systems
`known in 1987. As such, this case more closely mirrors
`the circumstances presented in Superguide Corp. v. DirecTV
`Enters., Inc., 358 F.3d 870, 878–81 (Fed.Cir.2004). There, the
`federal circuit held that where the patentee does not clearly
`limit his invention to what was “conventional” at the time
`of the invention, the claims are not so limited. Id. at 879.
`Although the patents-in-suit disclose several embodiments in
`which certain transmissions, programming, or broadcasting
`are described as “conventional” or “well known in the art,”
`these are only examples showing how the inventions could be
`implemented using conventional technology. In fact, there are
`instances in the specification where the “conventional” and
`“well known in the art” qualifiers are not used. See, e.g., ′825
`Patent at 216:50–66 (describing receiver stations displaying
`“any form of electronically transmitted programming” that
`“may be received via any electronic transmission means
`including wireless or cable means”) (emphasis added); id.
`
`at 188:58–61 (concepts of invention “apply to all forms
`of electronically transmitted programming” ) (emphasis
`added).
`
`that digital
`Furthermore, although Defendants argue
`television technology was in its nascent stage in 1987, they
`concede that it was, at the least, known by persons of ordinary
`skill in the art as early as 1981. In fact, the Federal Circuit in
`Superguide observed that “the first digital television standard
`was created in 1981” and that they had “little doubt that those
`skilled in the art knew of the existence of digital video data”
`as of 1985. Superguide, 358 F.3d at 877. Most importantly,
`the Federal Circuit explained that:
`
`*7 Had the patentees intended to
`limit the disputed claim terms to
`‘analog’ technology, they could have
`easily done so by explicitly modifying
`the disputed claim language with the
`term ‘analog.’ ... The law ‘does not
`require that an applicant describe
`in his specification every conceivable
`and possible future embodiment of
`his invention.’ ... We find no reason
`here to limit the scope of the claimed
`invention to analog technology, when
`‘regularly received television signals,’
`i.e., video data, is broad enough to
`encompass both formats and those
`skilled in the art knew both formats
`could be used for video.
`
`Id. (emphasis added). Defendants' offer no arguments as
`to why the court should ignore the Federal Circuit's
`well reasoned analysis, which concludes that digital data
`transmission was known as early as 1981. Considering this,
`the court rejects Defendants' contention that the patentee's use
`of the terms “conventional” and “well known in the art” limit
`the scope of the invention to analog NTSC.
`
`The other dispute regarding the Defendants' proposed
`construction of “transmission” is whether the “transmission”
`must be limited to a single program. This “single program”
`limitation arises from Defendants' rejected argument that the
`claims are limited to analog NTSC. Even if Defendants'
`analog NTSC argument had not been rejected, there is no
`support in the specification for the proposed “single program”
`limitation. Defendants argue there is no support in the patents-
`in-suit for the proposition that a transmission may include
`more than one program on a single channel. The patents,
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`In conclusion, the court rejects Defendants' proposed
`construction of “transmission.” The court agrees with
`Plaintiffs' that this term needs no construction as it is readily
`understandable by those ordinary skill in the art when read in
`conjunction with the patent specification.
`
`ii. “Broadcast Transmission” / “Selected Broadcast or
`Cablecast Transmission”
`Defendants' Proposed
`Construction
`
`
`
`“Transmission” means
`“sequential transfer of
`uncompressed content for a
`single program.”
`
`
`
`“Broadcast” means
`“transmission over the air directly
`from one terrestrial location to
`many terrestrial locations.”
`
`
`The parties' primary dispute regarding Defendants' proposed
`construction of “broadcast” is whether “broadcast” requires
`that the transmission be “over the air,” thereby excluding
`cable and other forms of transmission. Defendants argue that
`the term “broadcast” is expressly defined in the patents-in-
`suit to mean “over-the-air” as opposed to “over hard-wire” or
`cablecast. The specification explains that:
`
`The programming may be delivered
`by any means
`including over-
`the-air,
`hard-wire,
`and manual
`means.
`The
`stations
`may
`transmit programming over-the-air
`(hereinafter, “broadcast”) or over
`hardwire (hereinafter, “cablecast”).
`
`′825 Patent at 7:31–40 (emphasis added). Considering this,
`Defendants argue that the patents-in-suit clearly limit the term
`“broadcast” to over-the-air transmissions.
`
`In response, PMC argues that although the specification at
`times refers to over-the-air transmissions as “broadcast” and
`to cable transmissions as “cablecast,” two embodiments in the
`
`however, expressly state that a transmission may be a “multi-
`channel” transmission and, thus, comprised of multiple
`programs being transmitted at the same time. See, e.g.,
`′490 Patent at 10:24–29 (mentioning multiple channels being
`cablecast); id. at l:30–33 (also mentioning local delivery
`of many channels of programming); ′825 Patent at Fig. 2
`(identifying input as “multichannel cable transmission”). As
`such, the court rejects Defendants' proposed “single program”
`limitation.
`Plaintiff's Proposed
`Construction
`
`
`
`
`Any attempt to construe these
`simple and straightforward
`phrases is more likely to confuse,
`not assist, the jury.
`
`
`
`
`To the extent a definition
`is required, “broadcast
`transmission” means “a
`transmission of information
`from one location to multiple
`locations.”
`
`*8 The term “broadcast transmission” is found in Claim
`43 of the ′277 Patent and Claims 7, 10 and 59 of the ′654
`Patent. PMC contends that the term need not be construed
`or, in the alternative, that “broadcast transmission” should
`be construed to mean “a transmission of information from
`one location to multiple locations.” Defendants, on the other
`hand, argue that the term “broadcast” should be construed to
`mean a “transmission over the air directly from one terrestrial
`location to many terrestrial locations” and that “transmission”
`should be construed as explained above.
`
`Considering that the court has rejected Defendants' proposed
`construction of “transmission,” the only issue left to be
`decided with regard to the term “broadcast transmission”
`is the appropriate construction of “broadcast.” Both parties
`agree that a “broadcast” must occur from one location to many
`locations. PMC, however, argues that no further construction
`is required and notes that the special master in Delaware
`litigation agreed with this contention. The special master
`defined “broadcast transmission” as a means for “transmitting
`information from one location to multiple locations.” Ex. H
`at 37, attached to Plaintiff's Claim Construction Brief, Dkt.
`No. 136.
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
`6
`
`APPLE EX. 1017
`Page 6
`
`

`
`Personalized Media Communication, LLC v. Motorola, Inc., Not Reported in F.Supp.2d...
`2011 WL 4591898, 2011 Markman 4591898
`
`specification demonstrate that the patentees did not disclaim
`cablecast as a form of broadcast transmission. First, PMC
`argues that the patent's disclosures with regard to the WNBC
`program demonstrate a broader usage of “broadcast.” See
`′825 Patent at 178:6–13. The section of the specification on
`which PMC relies states:
`
`For example, a subscriber might
`instruct video recorder/player, 217,
`automatically
`to record
`the NBC
`Network Nightly News as broadcast
`over station WNBC in New York
`City. Recorder, 217, might receive
`the programming over Manhattan
`Cable TV channel and record the
`programming at the time of original
`broadcast transmission-from 7:00 PM
`to 7:30 PM on the evening of July 15,
`1985.
`
`*9 Id. (emphasis added). The plain reading of this passage,
`however, demonstrates that the reference to “broadcast”
`is a reference to the content originator, WNBC, who
`broadcasts its programs over-the-air. The quoted passage
`merely describes how over-the-air broadcast television was
`retransmitted over cable. It does not represent a broader
`interpretation of “broadcast.”
`
`Second, PMC relies on the WNET embodiment, which
`recites:
`
`In the example, the subscriber station
`of FIG. 1 is in New York City
`and is tuned to the conventional
`broadcast
`television
`transmission
`frequency of channel 13 at 8:30
`PM on a Friday evening when the
`broadcast station of said frequency,
`WNET, commences transmitting a
`television program about stock market
`investing, “Wall Street Week.” Said
`WNET station is an intermediate
`transmission station for said program
`which
`actually originates
`at
`a
`remote television studio in Owings
`Mills, Md. (Hereinafter, a studio or
`station that originates the broadcast
`transmission of programming is called
`the “program originating studio.”)
`Plaintiff's Proposed
`Construction
`
`said program originating
`From
`studio said program is transmitted
`by conventional television network
`feed
`transmission means, well
`known
`in
`the art,
`to a
`large
`number of geographically dispersed
`intermediate
`transmission stations
`that retransmit said program
`to
`millions of subscriber stations where
`subscribers
`view
`said program.
`Said network
`transmission means
`may
`include
`so-called
`landlines,
`microwave transmissions, a satellite
`transponder, or other means.
`
`Id. at 11:62–12:14. PMC argues that this embodiment
`discloses that a “broadcast” using “conventional television
`network” to “a large number of geographically dispersed”
`intermediate stations and “millions” of subscriber stations
`may be accomplished through “network transmission means”
`including “so-called landlines, microwave transmissions, a
`satellite transponder, or other means.” That is not, however,
`what this embodiment discloses. The embodiment starts
`with the “subscriber station of FIG. 1,” which through a
`“conventional antenna, receives a conventional television
`broadcast transmission.” Id. The transmission received by
`that subscriber station is over-the-air, and originates from
`WNET in Maryland. The language relied upon by PMC
`simply explains that as an intermediate transmission station
`WNET can transmit the program using other means besides
`conventional broadcast television. Thus, the list of “network
`transmission means” does not define or expand “broadcast.”
`
`Considering that neither of the embodiments relied on by
`PMC broaden the scope of the patentees' explicit definition
`of “broadcast” as being programming transmitted “over-
`the air,” the court rejects PMC's proposed construction of
`“broadcast.” Defendants, however, provided no support for
`their “terrestrial location” limitation, and as such, the court
`rejects that proposed limitation. The court concludes that
`the appropriate construction of “broadcast” is “an over-the-
`air transmission from one location to many locations.” This
`construction captures the express definition provided for
`the term in the specification without importing unsupported