Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`KeyCite Yellow Flag - Negative Treatment
`Distinguished by ContentGuard Holdings, Inc. v. DirecTV, LLC,
`E.D.Tex., August 6, 2015
`
`
`
`2013 WL 4630447
`United States District Court,
`E.D. Texas, Marshall Division.
`
`Personalized Media Communications LLC
`v.
`Zynga, Inc.
`
`Case No. 2:12–CV–68–JRG–RSP
`|
`Filed 08/28/2013
`
` Expand Construed Terms
`
`Attorneys and Law Firms
`
`Eric Brinn Hall, Jon C. Rice, Robert Stanford Harrell,
`Fulbright & Jaworski LLP, Houston, TX, Jack Wesley Hill,
`Thomas John Ward, Ward & Smith Law Firm, Longview,
`TX, Miriam Latorre Quinn, Brett Christopher Govett,
`Fulbright & Jaworski LLP, Dallas, TX, for Personalized
`Media Communications LLC.
`
`Gregory L. Lippetz, Heather Nicole Fugitt, Jacqueline
`Kimberly Lee, Jones Day, Palo Alto, CA, Henry Leon (Lon)
`Outland, III, Robert W. Kantner, Jones Day, Dallas, TX,
`Krista Sue Schwartz, Jones Day, Chicago, IL, Louis Touton,
`Jones Day, Los Angeles, CA, Melissa Richards Smith, Gillam
`& Smith, LLP, Marshall, TX, for Zynga, Inc.
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
`
`ROY S. PAYNE, UNITED STATES MAGISTRATE
`JUDGE
`
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`*1 BACKGROUND........................................................................................................
`
`APPLICABLE LAW..........................................................................................................
`
`CONSTRUCTION OF DISPUTED TERMS....................................................................
`
`A. “subscriber”.................................................................................................................
`
`B. “video” and “video image”..........................................................................................
`
`C. “processor” and “processing”.....................................................................................
`
`D. “complete programming,” “programming comprising a computer program and a
`portion to be completed by accessing prestored data at said station of a particular
`kind,” and “mass medium programming”........................................................................
`
`E. “control signal” and “instruct signals”.........................................................................
`
`F. “remote data source,” “remote video source,” and “remote station(s)”.......................
`
`G. “locally generated image” and “locally generated video image”.................................
`
`H. “said information content and said benefit datum explain a benefit of acquiring said
`product or service specific to said subscriber”...............................................................
`
`I. “combined medium presentation includes (i) at least one of an image and a sound
`received at said subscriber station from a remote transmitter station and (ii) a portion
`of said second data” and “combined medium presentation including (i) at least one of
`an image and a sound received at said subscriber station from a remote source and
`(ii) a portion of said second subscriber specific data”....................................................
`
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
`APPLE EX. 1018
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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
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`J. “commercial”................................................................................................................
`
`K. “remotely originated data to serve as a basis for displaying said video presentation”
`
`L. “receiving, at said audio receiver, audio which describes information displayed in
`said video presentation”..................................................................................................
`
`M. “said step of delivering is performed based on a schedule”......................................
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`N. “peripheral device”......................................................................................................
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`BACKGROUND
`
`Before the Court is the parties' claim construction briefing
`(Dkt. 77, 80 and 86). In addition, the Court heard oral
`arguments on April 17, 2013. There are four patents-in-suit:
`U.S. Patent No. 7,734,251 (the “ ′251 Patent”), U.S. Patent
`No. 7,797,717 (the “ ′717 Patent”), U.S. Patent No. 7,860,131
`(the “ ′131 Patent”), and U.S. Patent No. 7,908,638 (the “ ′638
`Patent”). 1
`
`The patents-in-suit are part of patent family which has
`extensive prosecution and litigation history. 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 U.S. Patent No.
`4,965,825 Patent (the “ ′825 Patent”). The patents in suit, filed
`in May and June 1995, are part of a chain of continuation
`applications filed from the ′825 Patent. The family of
`patents has been the subject of multiple infringement actions
`including District Court and ITC actions. The prior actions
`include most recently Personalized Media Communication,
`LLC v. Motorola, Inc., et al., 2:08–cv–70 (E.D. Tex.) in
`which a claim construction order was issued at Dkt. 271 (the
`“EchoStar Order”).
`
`Fourteen groups of terms are presented by the parties for
`construction. Two of those terms relate to constructions
`issued in EchoStar.
`
`The patents in suit generally relate to the delivery of
`programming content to consumers. More particularly the
`patents relate to the concept of delivering “personalized”
`programming. The patents in suit share a common Abstract:
`
`*2 A
`of
`system
`unified
`programming communication. The
`system encompasses the prior art
`
`(television, radio, broadcast hardcopy,
`computer communications, etc.) and
`new user
`specific mass media.
`Within the unified system, parallel
`processing computer systems, each
`having an input (e.g., 77) controlling
`a plurality of computers (e.g., 205),
`generate and output user information
`at receiver stations. Under broadcast
`control, local computers (73, 205),
`combine user information selectively
`into prior art communications
`to
`exhibit personalized mass media
`programming at video monitors (202),
`speakers (263), printers (221), etc.
`At intermediate transmission stations
`(e.g., cable television stations), signals
`in network broadcasts and from local
`inputs (74, 77, 97, 98) cause control
`processors (71) and computers (73)
`to selectively automate connection
`and operation of
`receivers
`(53),
`recorder/players (76), computers (73),
`generators (82), strippers (81), etc.
`At
`receiver
`stations,
`signals
`in
`received transmissions and from local
`inputs (225, 218, 22) cause control
`processors (200) and computers (205)
`to automate connection and operation
`of converters (201), tuners (215),
`decryptors
`(224),
`recorder/players
`(217), computers
`(205),
`furnaces
`(206), etc. Processors (71, 200) meter
`and monitor availability and usage of
`programming.
`
`′251 Abstract.
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
`2
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`APPLE EX. 1018
`Page 2
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`

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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`APPLICABLE LAW
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of
`a patent define the invention to which the patentee is entitled
`the right to exclude.’ ” Phillips v. AWH Corp., 415 F.3d
`1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure
`Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
`1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the
`claims, courts start by considering the intrinsic evidence. See
`id. at 1313. C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
`858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v.
`Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir.
`2001). The intrinsic evidence includes the claims themselves,
`the specification, and the prosecution history. See Phillips,
`415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. Courts
`give claim terms their ordinary and accustomed meaning as
`understood by one of ordinary skill in the art at the time of
`the invention in the context of the entire patent. Phillips, 415
`F.3d at 1312–13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d
`1361, 1368 (Fed. Cir. 2003).
`
`The claims themselves provide substantial guidance in
`determining the meaning of particular claim terms. Phillips,
`415 F.3d at 1314. First, a term's context in the asserted
`claim can be very instructive. Id. Other asserted or
`unasserted claims can also aid in determining the claim's
`meaning because claim terms are typically used consistently
`throughout the patent. Id. Differences among the claim terms
`can also assist in understanding a term's meaning. Id. For
`example, when a dependent claim adds a limitation to an
`independent claim, it is presumed that the independent claim
`does not include the limitation. Id. at 1314–15.
`
`“[C]laims ‘must be read in view of the specification, of
`which they are a part.’ ” Id. (quoting Markman v. Westview
`Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en
`banc)). “[T]he specification ‘is always highly relevant to the
`claim construction analysis. Usually, it is dispositive; it is
`the single best guide to the meaning of a disputed term.’ ”
`Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
`1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N.
`Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is
`true because a patentee may define his own terms, give a
`claim term a different meaning than the term would otherwise
`possess, or disclaim or disavow the claim scope. Phillips, 415
`F.3d at 1316. In these situations, the inventor's lexicography
`governs. Id. The specification may also resolve ambiguous
`claim terms “where the ordinary and accustomed meaning
`
`of the words used in the claims lack sufficient clarity to
`permit the scope of the claim to be ascertained from the words
`alone.” Teleflex, Inc., 299 F.3d at 1325. But, “ ‘[a]lthough the
`specification may aid the court in interpreting the meaning
`of disputed claim language, particular embodiments and
`examples appearing in the specification will not generally
`be read into the claims.’ ” Comark Commc'ns, Inc. v.
`Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting
`Constant v. Advanced Micro–Devices, Inc., 848 F.2d 1560,
`1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323.
`The prosecution history is another tool to supply the proper
`context for claim construction because a patent applicant
`may also define a term in prosecuting the patent. Home
`Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed.
`Cir. 2004) (“As in the case of the specification, a patent
`applicant may define a term in prosecuting a patent.”).
`
`*3 Although extrinsic evidence can be useful, it is “ ‘less
`significant than the intrinsic record in determining the legally
`operative meaning of claim language.’ ” Phillips, 415 F.3d at
`1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical
`dictionaries and treatises may help a court understand the
`underlying technology and the manner in which one skilled
`in the art might use claim terms, but technical dictionaries
`and treatises may provide definitions that are too broad or
`may not be indicative of how the term is used in the patent.
`Id. at 1318. Similarly, expert testimony may aid a court in
`understanding the underlying technology and determining the
`particular meaning of a term in the pertinent field, but an
`expert's conclusory, unsupported assertions as to a term's
`definition are entirely unhelpful to a court. Id. Generally,
`extrinsic evidence is “less reliable than the patent and its
`prosecution history in determining how to read claim terms.”
`Id.
`
`CONSTRUCTION OF DISPUTED TERMS
`
`A. “subscriber” 2
`The primary dispute relates to whether a “subscriber” is one
`who agrees to pay for content and whether subscriber merely
`equates to using information.
`
`PMC
`PMC asserts that the patents teach that “many different
`classes of subscriber will exist with different information
`demands.” ′251 272:64–67. PMC asserts that the patents
`teach that one class of subscribers is television viewers.
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
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`APPLE EX. 1018
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`

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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`At the station of Figs 7 and 7B,
`a subscriber decides
`to watch a
`particular television program the audio
`of which is stereo simulcast on a
`local radio station, in a fashion well
`known in the art. Said subscriber
`switches power on to TV set, 202, and
`manually selects the proper channel,
`which is, for example, channel 13, at
`the television tuner, 215, of said set,
`202, thereby display of the video and
`audio information of the transmission
`of said channel.
`
`′251 209:60–67.
`
`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.” ... From said program
`originating 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.
`
`′251 11:19–35. PMC cites to ′251 9:14–16 as an example
`that describes subscribers being “duly authorized” but where
`no payment requirement is mentioned. PMC asserts that
`charging a subscriber is only described in the patents as an
`“example.” Dkt. 77 at 7 (citing ′251 45:29–40). PMC also
`asserts that there are other examples in the specification where
`there is a payment required, but that the payment is not
`from the subscriber: “advertisers and others who pay for the
`transmission and performance of programming....” ′251 2:21–
`24. PMC also asserts that other examples describe payment
`as not the only option:
`
`Moreover, this system must have the
`capacity to ensure that programming
`
`for other
`for pay or
`supplied
`conditional use
`is used only
`in
`accordance with those conditions. For
`example, subscriber station apparatus
`must display the commercials that
`are transmitted in transmissions that
`advertisers pay for.
`
`*4 ′251 2:33–37.
`
`PMC asserts that for all the different types of subscribers,
`the commonality is that they are all viewers of programming.
`PMC cites the language: “Thus each viewer—including the
`subscriber of the station of FIGS. 7 and 7F, said second
`subscriber, and said third subscriber.” (′251 at 259:63–67)
`and the language “in the case of any programming that is
`outputted at any given output apparatus, thereby enabling a
`subscriber to view or hear or read” (′251 166:33–36; See also
`′251 201:16–20).
`
`PMC asserts that the asserted claims say nothing about
`payment. PMC asserts that construing the term to require
`payment would exclude embodiments in the specification in
`which no payments occur. Dkt. 77 at 9.
`
`Zynga
`Zynga asserts that the claims, specification and prosecution
`history support its position. With regard to the claims,
`Zynga asserts that the claims include both “user” and
`“subscriber” (“subscriber specific data,” “user specific data,”
`“user specific subscriber datum,” “subscriber data”). Dkt.
`80 at 3 (citing numerous claims). Zynga asserts that PMC's
`construction of “subscriber” merely reduces to the same
`as “user.” Zynga asserts its construction recognizes the
`differences between “user” and “subscriber.” Dkt. 80 at 3.
`
`Zynga asserts that the specification citations PMC relies on
`with regard to conventional broadcast television relate to a
`system where even broadcast television is subscription based:
`
`includes so-called
`The prior art
`systems
`... Such
`“addressable”
`systems enable broadcasters to turn off
`subscriber station decoder/decryptor
`apparatus of subscribers who do not
`pay their bills and turn them back on
`when the bills are paid.
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
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`APPLE EX. 1018
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`

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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`′717 5:32–38. Zynga asserts that its construction does not
`require payment upfront, but rather merely an agreement to
`pay. Zynga asserts that PMC does not cite to any portion of
`the specification in which a subscriber has not so agreed. Dkt.
`80 at 4.
`
`Zynga also asserts that the Examiner understood the term to
`requirement payment citing the Examiner's statements:
`
`Zworykin has been cited to evidence the fact that it was
`notoriously well known in the TV distribution arts to
`have scrambled certain TV signals so to have prevented
`unauthorized reception by unauthorized viewers (i.e. those
`who have not paid for the programming) ...
`
`In such situations it was known to have been desirable, if
`not necessary, to have scrambled the TV programming to
`prevent unauthorized use/reception by people who have not
`subscribed ...
`
`Dkt. 80 Ex. 5 at 72 (′251 Final rejection dated 4/28/04).
`Additionally Zynga cites to the Examiner statement that:
`
`a) At the time of applicant's alleged invention, it was
`known to have used conventional TV distribution networks
`to convey “premium” TV programming to users who
`subscribe to, and pay a fee for, the premium TV service; ...'
`
`b) It is also noted that CATV distribution networks were
`inherently subscription based systems ... Thus, CATV
`system typically included subscription fees to be paid by
`the subscribers for the “premium” CATV service.
`
`*5 Dkt. 80 Ex. 6 at 27–28 (′251 Advisory Action dated
`11/24/04).
`
`PMC's Reply
`PMC asserts that Zynga limits “subscriber” to just one class of
`subscribers (paying subscribers), ignoring the specifications
`statement of “many different classes of subscribers.” Dkt.
`86 at 1. PMC asserts that examples of non-payers are the
`millions of viewers of the “Wall Street Week” program that
`are described as “subscribers.” Dkt. 86 at 2 (citing ′251 11:19–
`35). PMC asserts that Zynga's file history citations merely
`establish that one class of subscribers is paying subscribers.
`PMC asserts that the term “user” and “subscriber” is utilized
`interchangeably such as in the specification where it states
`“[f]or example, only at subscriber stations where user specific
`stock data is maintained....” Dkt 86 at 2 (quoting ′717 231:4–
`
`9). PMC notes that the parties have agreed other terms may
`share a common meaning, for example the parties have agreed
`that “data” and “information” have the same meaning. Dkt.
`86 at 2.
`
`Analysis
`Zynga has pointed to examples in the specification and
`file history in which a subscriber has paid for services.
`However, Zynga has not pointed to a disclaimer or
`disavowal in the specification in which a “subscriber”
`must be a “paying subscriber.” In contrast, as noted in
`the specification, “many different classes of subscriber will
`exist with different information demands.” ′251 272:64–67.
`Further, there are examples describing television subscribers
`with no clear disclaimer that such television subscribers
`are limited to “premium TV service” paying subscribers. ′
`251 11:19–35, 209:60–67. In addition, the statement that
`“advertisers and others may pay for the transmission and
`performance of programming” (′ 251 2:22–24) further implies
`that the programming may be paid for by persons other
`than subscribers, thus indicative of the potential of free
`subscriptions. Viewing the intrinsic record as a whole there is
`not a disclaimer or disavowal limiting subscribers to paying
`subscribers.
`
`PMC, however, attempts to merely equate the term
`“subscriber” with “user.” PMC has not established that
`the two terms carry the same ordinary meaning and has
`not pointed to evidence in the intrinsic record establishing
`that the patentee disavowed the ordinary meaning of
`“subscriber.” Though PMC may be correct that one may
`be a “free subscriber” or a “paid subscriber,” PMC has not
`established that a mere user equates to a subscriber. The
`conventional meaning of “subscriber” means something more
`than a “user.” Similarly, as used in the specification, for
`example, any and all television viewers are not described as
`subscribers, rather subscribers are described in association of
`those specially configured stations disclosed with reference
`for example to Figures 1, 3, and 7. At the hearing, PMC
`agreed that a subscriber is more than a mere user, but rather
`someone arranges to receive information such as for example
`through a request or agreement. Such an interpretation is in
`conformance with the claims and in conformance with the
`specification, which includes general television descriptions
`(as opposed to mandating “premium” television) and includes
`advertiser payment. The intrinsic record as a whole does not
`teach that payment is required to be a subscriber.
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
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`*6 The Court construes“subscriber” to mean “one who
`arranges to receive information.”
`
`B. “video” 3 and “video image” 4
`The primary dispute between the parties is whether “video” is
`limited to images that convey movement, and whether “video
`image” is a still image of the video.
`
`PMC
`PMC asserts that the patents generally describe audio
`information and video
`information and
`that “video”
`information is merely picture information quoting:
`
`Said output could be audio and/or
`video information out-putted to a
`monitor, 202M, and caused to be
`emitted as sound and/or displayed as
`picture information.
`
`′251 258:15–18. PMC also notes that the patents refer to “the
`picture screen of the monitor 202M” and “to the video screen
`of TV monitor 202M.” Dkt. 77 at 10 (quoting ′251 252:53;
`13:67). PMC also cites to the example of the graph shown in
`′251 Figure 1A. PMC asserts that this graph is described as
`formed from “digital bit information at the video RAM of the
`graphics card in a particular pattern” and “the information at
`video RAM at the end of these steps were to be transmitted
`alone to the video screen of a TV monitor.” Dkt. 77 at 11
`(quoting ′251 13:36–50). PMC asserts that this graphic of the
`Figure 1A graph is stored in video RAM which demonstrates
`that “video” is broader than Zynga's construction. PMC also
`cites to examples in which video refers to “binary video
`image information of several telephone numbers” and dollar
`amounts that are placed in bit locations of the “video RAM
`that produce video image information in the upper left hand
`of a video screen.” Dkt. 77 at 11 (quoting ′251 188:39–
`40, 250:25–29). PMC asserts that the claims do not require
`movement and video is used in the patents in the context
`of static pictures such as Figure 1A, telephone numbers and
`dollar amounts, and thus, Zynga's construction is improper.
`
`the appearance of movement. Dkt. 80 at 6. Zynga cites to the
`prosecution history in which it asserts the Board of Patent
`Appeals distinguished between “video” and other visually
`perceived information such as “graphics”:
`
`*7 Likewise, Bart teaches that a “color television
`receiver, for example, can be arranged to display either
`normal video information alone in a conventional manner,
`graphics
`information along [sic:alone] (e.g., ‘video
`games' or alphanumeric data displays), or mixed video
`and graphics information (e.g., superimposed subtitles,
`weather, sports or road traffic information”...
`
`Dkt. 80 Ex G at 73 (BPAI Decision dated 3/23/09).
`
`Zynga asserts that the patents describe “video” (such as
`a television program) combined with a microprocessor
`generated visual display (“video image”) that are displayed
`together. Zynga cites to the specification:
`
`Automatically, microcomputer, 205,
`clears video RAM; causes
`the
`background color of video RAM to a
`color such as black that is transparent
`when combined with
`transmitted
`video by the PC–MicroKey System;
`causes binary image information of
`‘$1,071.32”
`to be placed at bit
`locations of video RAM that 50
`produce video image information in
`the upper left hand of a video screen
`when video RAM
`information
`is
`transmitted to said screen.
`
`′717 at 250:44–52.
`
`PMC's Reply
`PMC asserts that the file history quotation supports its
`position because rather than distinguishing “video” and
`“graphics” the quotation describes “normal video” and
`“graphics information” is also video such as is “video games.”
`
`Zynga
`Zynga says that its construction does not require actual
`movement, only a series of images that allows for appearance
`of movement when viewed in series. Dkt. 80 at 6. Zynga
`asserts that thus the example of several telephone numbers
`is part of a series of images, which in sequence, allows for
`
`Analysis
`The specification provides examples of video that are not
`limited to a series of still images to provide the appearance
`of movement. Thus for example video information may
`be “displayed as picture information.” ′251 258:15–18. As
`an example, the video described in the specification may
`include the graph shown in ′251 Figure 1A. ′251 Figure 1A,
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
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`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`13:36–50. Similarly, video image information may include
`the telephone numbers and dollar amounts displayed on
`the screen. ′251 188:39–40, 250:25–29. Thus, as taught in
`the specification, not all video is intended to provide the
`appearance of movement. In the context of the claims, for
`example as with ′251 Claim 17, such information may be
`the “locally generated video image” that is simultaneously
`displayed with the image from “the remote video source.”
`
`PMC's construction, however, is missing the context of the
`specification in which the video is capable of showing change
`or movement. Thus, not all video shows such change or
`movement, but as used in the specification there is a capability
`of such. At the hearing, the Court proposed a construction
`of “video” to mean “visual presentation that is capable of
`showing change or movement.” Such a construction allows
`for graphics, such as described above with reference to the
`′251 specification, to be an image. At the hearing, PMC
`agreed to the Court's construction.
`
`The Court construes “video” to mean “visual presentation
`that is capable of showing change or movement.” The
`Court finds that no additional construction of “video image”
`is necessary. A video image may include a single graphic.
`
`C. “processor” 5 and “processing” 6
`Zynga expresses concern that “processing” will be construed
`to be limited to executing instructions (as opposed to devices
`that are hardwired to process). In its Reply, PMC appears to
`agree that the terms are not limited to executing instructions
`(except to the extent any particular claim explicitly includes
`executing).
`
`PMC
`PMC asserts the terms are used more than 1,600 times in
`a wide variety of contexts in the patents. PMC provides
`an extensive list of the different types of “processing” in
`the specification and the claims in its brief (Dkt. 77 at 13).
`PMC asserts that a single construction that encompasses
`all uses would be impossible. PMC objects to Zynga's
`construction (“executing instructions” and “other means”) as
`being potentially confusing because in some claims the claim
`language is explicitly limited to “executing instructions.”
`Dkt. 77 at 14. PMC asserts that processing in the asserted
`claims is performed on data, control signals, video signals
`and information. PMC asserts that processors receive signals,
`deliver images, select data and execute instructions. Dkt.
`77 at 14. PMC asserts that the claims in each case provide
`
`the necessary context and that no construction is needed.
`PMC also objects to Zynga's use of “operate.” In its reply
`brief, PMC asserts that it is not limiting the terms to require
`computers that execute instructions. PMC asserts that terms
`are clear in the claim context and require no construction. Dkt.
`86 at 3.
`
`Zynga
`Zynga asserts that it believes PMC's offer of no construction
`is an attempt to limit the terms narrowly to require computers
`that execute instructions. Zynga asserts that the terms
`should be construed more broadly to also cover devices
`not executing instructions, such as hardwired logic devices.
`Dkt. 80 at 8. Zynga asserts that its construction accurately
`includes devices, whether or not the devices execute program
`instructions as would be appropriate at the time of the patent
`filings. Zynga also points to claims that use both “processor”
`and “computer” as indicating that the words are not merely the
`same but have a presumption of different meanings. Dkt. 80
`at 8. Zynga points to a number of passages in the specification
`describing hardwired devices processing. Dkt. 80 at 8 (citing
`′717 51:61–63, 76:12–14, 135:52–56). Zynga also points to
`the prosecution history in which PMC discussed prior art
`teletext decoders as processing. Dkt. 80 at 9 (citing Dkt.
`80 Ex. 10 Substitute Appeal Brief at 63–65). Zynga asserts
`that extrinsic evidence also makes clear that processing does
`not require execution of instructions as done in computers.
`Dkt. 80 at 9, n. 12. Zynga asserts that its construction does
`not cause confusion for claims that are limited to executing
`instructions.
`
`Analysis
`Zynga's position is supported by the specification in that
`processing is not limited in the specification to executing
`program instructions. The Court finds that processing is not
`limited to executing instructions. However, the additional
`language sought by Defendants is unnecessary and may cause
`confusion. Furthermore, as noted in the briefing, PMC has
`agreed that the terms are not limited to executing instructions.
`As such, there is no longer a dispute as to this issue. At
`the hearing, the Court proposed a construction for processor:
`“any device capable of performing operations on data.” The
`parties expressed agreement with the proposed construction.
`Defendants also agreed to the removal of “or signal” from the
`construction of “processing.”
`
` © 2016 Thomson Reuters. No claim to original U.S. Government Works.
`
`7
`
`APPLE EX. 1018
`Page 7
`
`

`
`Personalized Media Communications LLC v. Zynga, Inc., Not Reported in F.Supp.2d...
`2013 WL 4630447, 2013 Markman 4630447
`
`*9 The Court construes “processor” to mean “any
`device capable of performing operations on data” and
`“processing” to mean “performing operations on data.”
`
`D. “complete programming,” 7 “programming
`comprising a computer program and a portion to
`be completed by accessing prestored data at said
`station of a particular kind,” 8 and “mass medium
`programming” 9
`The parties' primary dispute relates to the basic meaning
`of programming. The parties also dispute the meaning of
`“complete” and “mass medium.”
`
`PMC
`PMC asserts that Zynga adds three unsupported limitations
`to “programming”: (1) a predefined presentation, (2)
`simultaneously broadcast, and (3) multiple recipients. PMC
`asserts that the patent provides a definition of programming:
`
`refers
`term “programming”
`The
`to everything
`that
`is
`transmitted
`electronically to entertain, instruct
`or
`inform,
`including
`television,
`radio, broadcast print, and computer
`programming as well as combined
`medium programming.
`
`′131 6:29–34. PMC asserts this definition does not include
`the three limitations sought by Zynga but rather covers
`“everything” “transmitted electronically.” PMC asserts that
`the patent also describes “programming” with regard to a
`single subscriber:
`
`The programming he views is his own
`—in the example, his own portfolio
`performance—and his programming is
`not viewed by any other subscriber
`nor is it available at the program
`originating studio.
`
`′131 14:58–61. PMC asserts such “programming” cannot
`be “predefined” because it includes a user's portfolio
`performance.
`
`As to “complete” programming, PMC asserts that the claim
`itself defines “complete programming” when in the first
`element it is stated “programming comprising ... a portion
`to be completed by accessing prestored data.” ′131 Claim 1.
`
`PMC asserts that the claim states nothing regarding “every
`component necessary for it to be in its intended form for
`presentation.” PMC asserts the word “complete” needs no
`construction. Dkt. 77 at 16.
`
`*10 As to “mass medium,” PMC asserts the specification's
`usage of the term agrees w