Case 2:12-cv-00068-JRG-RSP Document 86 Filed 03/26/13 Page 1 of 15 PageID #: 4960
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`Plaintiff,
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`Civil Action No. 2:12-cv-68
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`JURY DEMANDED
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`Personalized Media
`Communications, LLC,
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`
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`v.
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`Zynga, Inc.,
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
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`PLAINTIFF PERSONALIZED MEDIA COMMUNICATIONS, LLC’S
`CLAIM CONSTRUCTION REPLY BRIEF
`
`
`Defendant.
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`
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`PMC Exhibit 2029
`Apple v. PMC
`IPR2016-00754
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`Case 2:12-cv-00068-JRG-RSP Document 86 Filed 03/26/13 Page 2 of 15 PageID #: 4961
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`Table of Contents
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`
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`Introduction .................................................................................................................. 1
`I.
`“Subscriber” .................................................................................................................. 1
`II.
`“Video” and “Video Image” ....................................................................................... 3
`III.
`“Processor” and “Processing” ................................................................................. 3
`IV.
`The “Programming” Terms ...................................................................................... 3
`V.
`“Control Signal” and “Instruct Signals” ................................................................ 5
`VI.
`VII. The “Remote” Terms .................................................................................................. 6
`VIII. The “Locally Generated” Terms ............................................................................. 7
`IX.
`The “Benefit Datum” Term ...................................................................................... 8
`X.
`The “Combined Medium Presentation” Elements ........................................... 8
`XI.
`“Commercial” ................................................................................................................ 9
`XII. The “Remotely Originated Data” Term ................................................................ 9
`XIII. The “Audio Which Describes” Term ................................................................... 10
`XIV. The “Schedule” Term ............................................................................................... 10
`XV.
`“Peripheral Device” .................................................................................................. 10
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`Apple v. PMC
`IPR2016-00754
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`Table of Authorities
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`Bid For Positions, LLC v. AOL, LLC, 601 F.3d 1311 (Fed. Cir. 2010)...........................................2
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`Civix-DDI, LLC v. Hotels.com, L.P., No. 05-C-06869, 2010 WL 4386475 (N.D.
`Ill. Oct 25, 2010) ..................................................................................................................3
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`DSW, Inc. v. Shoe Pavilion, Inc., 537 F.3d 1342 (Fed. Cir. 2008) .................................................6
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010) ......................................1
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`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) .................................................4
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`V-Formation, Inc. v. Benetton Group SPA, 401 F.3d 1307 (Fed. Cir. 2005) ..................................7
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`PMC Exhibit 2029
`Apple v. PMC
`IPR2016-00754
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`I.
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`Introduction
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`While all agree that the Court has an obligation to resolve fundamental disputes regarding
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`the scope of claim terms, Zynga argues for constructions that require the Court to engage in an
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`exercise in redundancy by redrafting claim language that needs no construction. In so doing,
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`Zynga seeks to improperly saddle the claim terms with limitations from preferred embodiments
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`and elsewhere. Under Zynga’s proposals, subscriber becomes paying subscriber, programming
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`becomes simultaneously broadcast programming, complete becomes truly complete in its final
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`form, data becomes factual data, station becomes stationary station, commercial becomes
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`simultaneously broadcast advertisement, audio becomes audible words, and schedule becomes
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`predetermined schedule.
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`Instead, this Court should resolve these claim disputes simply by rejecting Zynga’s over-
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`ly narrow limitations and relying instead on the plain and ordinary meaning of the terms. See
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010) (“Unlike O2
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`Micro, where the court failed to resolve the parties’ quarrel, the district court rejected Defend-
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`ants’ construction, which required an IP address. … In this situation, the district court was not
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`obligated to provide additional guidance to the jury.”). Zynga’s constructions should be rejected.
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`II.
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`“Subscriber”
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`Zynga complains that PMC’s proposal would have the term “subscriber” mean “any type
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`of user.” Zynga’s Responsive Claim Construction Br. (“Zynga Br.”) 3, ECF No. 80 (emphasis
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`original). Yet Zynga’s proposal would improperly limit the term to just one type – ignoring the
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`“many different classes of subscriber” discussed in the patent and in PMC’s opening brief. See
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`PMC’s Opening Claim Construction Br. (“PMC Br.”) 5-9, ECF No. 77; PMC Br. Ex. 2 at
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`272:64-67, ECF No. 77-2 (“Ex. 2”).
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`Zynga incorrectly argues that PMC did not cite to any part of the specification that uses
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`1
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`the term “subscriber” to refer to one who has not agreed to pay for content. One example cited
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`by PMC was the use of “subscribers” to refer to the millions of people who view “Wall Street
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`Week” from a “conventional television network.” Ex. 2 at 11:19-35. Another example cited by
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`PMC was the “subscriber” who “decides to watch a particular television program.” Ex. 2 at
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`209:60-67. In neither case is there an obligation to pay. See id. at 1:31 (“television is easy for
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`subscribers to use”); 14:51-52 (“unlike conventional television where each subscriber views only
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`programming viewed by every other subscriber”).
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`Zynga’s citations from the prosecution history simply establish a point that is not in dis-
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`pute – there is a class of subscribers to which information is offered on condition of payment.
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`See Ex. 2 at 15:16-18. The issue is not whether such a class of subscribers exists, but rather is
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`whether other classes of subscribers also exist – and they do. See PMC Br. 5-9.
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`Zynga argues that “subscriber” cannot mean “user” because the claims use both terms.
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`However, the claims also use both “data” and “information,” and the parties have agreed that
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`those terms have the same meaning. See PMC Br. 4 (agreed construction of “user specific
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`data”). Further, claim terms that are used interchangeably in a patent can be assigned the same
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`meaning. See Bid For Positions, LLC v. AOL, LLC, 601 F.3d 1311, 1317-18 (Fed. Cir. 2010).
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`Such is the case with “user” and “subscriber:”1
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`For example, only at subscriber stations where user specific stock data is main-
`tained systematically and up-to-date can the program instruction set of the first
`message of the “Wall Street Week” example generate FIG. 1A images that actual-
`ly show the performance of the portfolios of the subscribers of said stations.
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`PMC Br. Ex. 4 at 231:4-9, ECF No. 77-4 (“Ex. 4”); see id. at 9:31-33 (referring to FIG. 1A as a
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`“user specific graphic”); Ex. 2 at 288:60-63 (“user specific subscriber datum”).
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`1 All emphasis is added unless indicated otherwise.
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`2
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`Apple v. PMC
`IPR2016-00754
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`III.
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`“Video” and “Video Image”
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`Zynga’s proposed construction of “video” requires images “intended to be displayed in
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`sequence to allow for the appearance of movement.” Zynga now abandons its “intent”
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`requirement in favor of a construction in which the images are merely “capable of showing
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`motion.” Zynga Br. 5. Zynga cites the prosecution history in an attempt to distinguish “video”
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`from “graphics,” yet Zynga’s citation shows just the opposite. See Zynga Br. 6. Rather than
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`distinguishing “video” from “graphics,” the citation distinguishes “normal video information
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`alone in a conventional manner” from “graphics information [alone]” – and provides “video
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`games” as an example of “graphic information.” Id. The claims do not limit “video” to “normal
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`video information” or to video “alone in a conventional manner.”2
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`IV.
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`“Processor” and “Processing”
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`PMC’s position is not that these terms “require computers that execute instructions,” as
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`Zynga incorrectly suggests. Instead, PMC’s position is that the meaning of these terms is clear
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`from their context and that they need no construction. Zynga’s proposal creates confusion, as,
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`for example, when it is applied to the claim phrase “executing processor instructions” in ‘251
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`Claim 17. Ex. 2 at 288:30-33. Zynga agrees that this processor “of course must of course [sic]
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`be able to execute instructions” – and Zynga supports that conclusion by looking at the context
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`of the term, something that the jury is equally capable of doing. Zynga Br. 10.
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`V.
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`The “Programming” Terms
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`Zynga points to the following statement from a reexamination of a related patent to sup-
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`2 Zynga relies in part on a claim construction of “video” from an unrelated case. See
`Zynga Br. 6 n.7. The court in that case simply rejected a construction supported “by reference
`only to a single piece of extrinsic evidence” in favor of a construction supported by the intrinsic
`evidence. Civix-DDI, LLC v. Hotels.com, L.P., No. 05-C-06869, 2010 WL 4386475, at *17
`(N.D. Ill. Oct 25, 2010). Here, the same focus on the intrinsic evidence shows why Zynga’s
`construction is wrong. See PMC Br. 9-12.
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`3
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`port its argument that “programming” must be broadcast programming: “it is clear that
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`‘programming’ can most broadly be defined as content designed for broadcast from one-to-
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`many.” Zynga Br. 12 (citing Zynga Br. Ex. 20, at 3-4, ECF No. 83-5). Yet Zynga’s proposed
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`construction goes far beyond what the Examiner stated.3 Where the Examiner said “designed for
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`broadcast,” Zynga has substituted “that is simultaneously broadcast.” While the Examiner was
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`focused on the content of the programming, Zynga is focused on how the programming is
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`transmitted. Content designed for broadcast may ultimately be transmitted some other way, but
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`Zynga’s construction would require a broadcast transmission. See Ex 4. at 5:5-9 (“many means
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`and methods exist in the prior art for recording television or audio programming and/or data on
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`magnetic, optical or other recording media and for retransmitting prerecorded program-
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`ming”). The issue before the Examiner was whether “programming” described content designed
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`for a one-to-one transmission (such as a telephone call) or whether it included content designed
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`for a one-to-many transmission (such as a television program). The Examiner correctly
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`determined that it was the latter. As for how “programming” can be transmitted, the only
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`limitation suggested by the patent is that it be transmitted “electronically.” Ex. 4 at 6:32-35; see
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`id. at 175:31-33 (“all forms of electronically transmitted programming”).
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`Not satisfied with adding a “broadcast” limitation to the claims, Zynga’s construction
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`goes even further by requiring a particular type of “broadcast” – a simultaneous broadcast. The
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`word “simultaneous” occurs nowhere in the reexamination document on which Zynga relies. See
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`Zynga Br. Ex. 20, ECF No. 83-5. Further, the specification describes embodiments in which
`
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`3 Zynga’s argument reverses the proper procedure laid out in Phillips. See Phillips v.
`AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc) (“[t]he best source for understand-
`ing a technical term is the specification from which it arose, informed, as needed, by the
`prosecution history”); id. at 1317 (“[the prosecution history] often lacks the clarity of the
`specification and thus is less useful for claim construction purposes”).
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`4
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`transmissions are not simultaneous: “a remote distribution station can transmit to a plurality of
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`intermediate transmission stations programming that is scheduled for delayed transmission,
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`cause each station of said plurality automatically to select and retransmit programming
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`according to its own specific schedule.” Ex. 4 at 176:10-15; see id. at 231:57-67.
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`Zynga argues that its proposed construction of “complete programming” requires that the
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`programming be “truly complete” and accuses PMC of misleading the Court by replacing four
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`words in the claim with an ellipsis – but Zynga offers no explanation for how those four words
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`are relevant to the meaning of “complete.” Zynga Br. 12-13. Instead, in the very next sentence
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`(which begins with the phrase “read in full”), Zynga omits the four words “by accessing
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`prestored data,” which provide the context required to determine the meaning of “complete.” Id.
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`Completeness is determined by context because something complete in one context may
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`be incomplete in another context. For example, this sentence is a complete sentence, but it is not
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`a complete reply brief. One must likewise consider the context in determining whether
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`programming is complete, and the claim provides that context – “a portion to be completed by
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`accessing prestored data.” PMC Br. Ex. 1 at 286:61-62, ECF No. 77-1 (“Ex. 1”). The claim
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`defines what is missing, and when that missing portion is completed, the programming is
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`complete. Zynga’s requirements that the programming be “truly complete” and “in its intended
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`final form” have no support.
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`VI.
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`“Control Signal” and “Instruct Signals”
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`As with the “video” terms, Zynga’s construction of these terms is a moving target. Orig-
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`inally, Zynga argued that the signals must trigger the receiving device to act; now Zynga argues
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`that the signals must cause an “immediate execution” rather than a “delayed execution.” Zynga
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`Br. 15-16. Zynga also now argues that the signals must not be afforded a characteristic of
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`computer programs, while simultaneously conceding that the signals “can contain an embedded
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`5
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`computer program.” Id.4 Zynga further now argues that these terms “should be construed to
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`included [sic] the limitations of a SPAM signal.” Zynga Br. 16. PMC asserts that these terms do
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`not require construction, as this court previously held.5 PMC Br. 18.
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`VII.
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`The “Remote” Terms
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`Zynga argues that the data in “remote data source” must be “factual information” such as
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`“stock price data, a recipe, or farm plan data.” 6 Zynga Br. 17-18. Zynga also expresses its
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`conviction that “[t]he jury will understand the difference between fact and fiction.” Id.7 But
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`what the jury will likely not understand is why it would ever be asked to make such a distinction
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`simply to determine whether something is “data.” “[W]hen claim language is broader than the
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`preferred embodiment, it is well-settled that claims are not to be confined to that embodiment.”
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`DSW, Inc. v. Shoe Pavilion, Inc., 537 F.3d 1342, 1348 (Fed. Cir. 2008). The claims make no
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`distinction between fact and fiction, and neither should the jury. Further, the specification
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`discusses entertainment – which would certainly include more than just “factual” information
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`as Zynga appears to define “fact.” Ex. 4 at 2:1.
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`Zynga also argues that a “station” must be “stationary.” For support, Zynga points to the
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`4 Zynga tries without basis to draw a line between an instruct signal containing a software
`module and an instruct signal that is a software module. See Zynga Br. 16 n.19. The instruct
`signals in ‘683 Claim 2 can include “one or more of a software module and a data module.” In
`situations where the instruct signal includes only one software module, then there is nothing to
`prevent the instruct signal from being the software module – nothing else need be included.
`5 PMC’s proposed construction for “signal” in EchoStar was not limited to an “impulse,”
`as Zynga suggests. Zynga Br. 14 n.18. PMC proposed “a detectable physical quantity or
`impulse by which messages or information can be transmitted.” PMC Br. Ex. 5 at 21.
`6 The Modern Dictionary of Electronics (cited by Zynga for other terms) defines “data”
`as: “A general term used to denote any or all facts, numbers, letters, and symbols, or facts that
`refer to or describe an object, idea, condition, situation, or other factors. It connotes basic
`elements of information which can be processed or produced by a computer.” RUDOLF F. GRAF,
`MODERN DICTIONARY OF ELECTRONICS 171 (5th ed. 1977), attached as Ex. 9; see also Zynga Br.
`Ex. 16, ECF No. 83-1 (defining “data” as “any representations such as characters or analog
`quantities to which meaning might be assigned”).
`7 Zynga’s fact/fiction distinction would only confuse the jury. For example, is the score
`of a baseball game fact or fiction? What if the baseball game is a video game?
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`6
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`specification and argues that it envisioned user stations only “in fixed establishments such as ‘a
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`home, an office, a theater, a hotel, or any other station.’” Zynga Br. at 19 (quoting Ex. 4 at
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`201:56-57). Yet Zynga offers no basis for its apparent conclusion that “any other station” must
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`be a “fixed establishment.” Zynga also cites extrinsic evidence, pointing to the third definition
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`of “station” in a data processing glossary. Zynga Br. at 19 n. 24 (citing Zynga Br. Ex. 18, ECF
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`No. 83-3). It is clear why Zynga skipped over the first definition: “One of the input or output
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`points of a system that uses communication facilities: for example, the telephone set in the
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`telephone system… .” Zynga Br. Ex. 18. It is likewise clear why Zynga did not cite the Modern
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`Dictionary of Electronics (which it cites for other terms): “1. One or more transmitters,
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`receivers, and accessory equipment required to carry on a definite radio communication service.
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`… 2. An input or output point in a communications system, such as the telephone set in a
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`telephone system…” Ex. 9. These extrinsic definitions include no “stationary” requirements,
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`and they agree with the ordinary meaning of “station” as simply a terminal point.
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`If Zynga’s construction of “station” were correct, one would not expect to find “portable
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`station” or “mobile station” in the intrinsic evidence, and yet both terms are used. See U.S.
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`Patent 3,896,266, attached as Ex. 10 at 15:5 (“portable station”); U.S. Patent 4,411,017, attached
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`as Ex. 11 at 1:21 (“mobile station”).8
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`VIII.
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`The “Locally Generated” Terms
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`Zynga incorrectly argues that the combination shown in Figure 1C is never described in
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`the patents as having been “generated.” First, with Figure 1A being a component of Figure 1C, it
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`is unclear how Zynga can agree that Figure 1A is generated while disagreeing that Figure 1C is
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`generated. See PMC Br. 22. Second, despite Zynga’s assertion to the contrary, the patents state
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`8 Each of these patents is cited on the faces of the Asserted Patents. See Ex. 12; Ex. 13.
`Prior art cited in a patent is intrinsic evidence. See V-Formation, Inc. v. Benetton Group SPA,
`401 F.3d 1307, 1311 (Fed. Cir. 2005).
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`7
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`that Figure 1C is “generated.” In particular, the “Wall Street Week” portfolio example is called
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`an example of “combined medium programming,” and the patents later describe “the generating
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`and combining of combined medium programming.” Ex. 4 at 15:10-12; 22:15-16. Thus, there is
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`no basis for Zynga’s proposed construction that “combining multiple images for display does not
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`constitute generating a new image.”
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`IX.
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`The “Benefit Datum” Term
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`Zynga’s proposed construction for “explain a benefit” would improperly limit the claim
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`to a particular type of explanation. Zynga provides a quote (with ellipses) from the specification
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`in support of its construction. Zynga Br. 22. Yet, when Zynga’s ellipses are filled in, the quote
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`illustrates why Zynga’s proposal is too narrow:
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`None has any capacity to explain automatically why any given information might
`be of particular interest to any subscriber or why any subscriber might wish to se-
`lect information that is not selected or how any subscriber might wish to change
`the way selected information is processed.
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`Ex. 4 at 3:9-14. The complete quotation illustrates three different examples in which a benefit
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`(or any information) can be explained. The second example (“why any subscriber might wish to
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`select information that is not selected”) would include the type of explanation that Zynga’s
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`construction would exclude: stating the existence of the benefit, and thereby explaining why it
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`should be selected. Only one of the three examples uses the word “how,” yet Zynga’s proposal
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`would impose that limitation on all explanations.
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`X.
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`The “Combined Medium Presentation” Elements
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`Zynga is clear in its intention to limit a “combined medium presentation” to “a particular
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`type of combination.” Zynga Br. 23 (emphasis original). Zynga incorrectly argues that the
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`following excerpt from the patents defines the term to require broadcast content:
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`Today great potential exists for combining the capacity of broadcast communica-
`tions media to convey ideas with the capacity of computers to process and output
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`8
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`user specific information. One such combination would provide a new radio-
`based or broadcast print medium with the capacity for conveying general infor-
`mation to large audiences—e.g., “Stock prices rose today in heavy trading,”—
`with information of specific relevance to each particular user in the audience—
`e.g., “but the value of your stock portfolio went down.” (Hereinafter, the new me-
`dia that result from such combinations are called “combined” media.)
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`Ex. 4 at 1:55-65. The natural antecedent for the phrase “such combinations” in the final sentence
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`is the “[o]ne such combination” in the previous sentence. The key feature of that combination is
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`not the source of the information being combined (radio or broadcast print for the general
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`information) but rather is the type of information being combined (general information being
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`conveyed to large audiences combined with information of specific relevance to each particular
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`user). The immediately preceding discussion makes the same distinction: content that “is the
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`same for every viewer” versus “user specific information.” Ex. 4 at 1:39, 46-47. The “great
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`potential” envisioned by the inventors involves the type of information that is combined, not the
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`source of the information that is combined. Ex. 4 at 1:55-58.
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`XI.
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`“Commercial”
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`Claim 1 of the ‘717 patent includes a step of “receiving information content,” and de-
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`pendent Claim 4 further specifies that the “information content comprises a commercial.” Ex. 4
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`at 287:18-21, 39-40. Zynga’s proposal would limit a “commercial” to a particular type of
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`advertisement – yet the patents use the terms interchangeably. See, e.g., Ex. 4 at 3:42 (“‘local
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`spot’ advertisements”); 283:60-61 (“spot commercials”).
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`XII.
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`The “Remotely Originated Data” Term
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`In addition to its needless redrafting of this claim element, Zynga once again asks the
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`Court to limit “data” to only factual data. Such a construction is improper for the reasons
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`discussed above in Section VII regarding the “remote” terms.
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`9
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`XIII.
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`The “Audio Which Describes” Term
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`Zynga argues that the claimed descriptive audio must be audible words because the speci-
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`fication examples use audible words. Although descriptions may often be conveyed with words,
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`there is no basis for limiting the claim to such descriptions. Also, Zynga is wrong when it argues
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`that “program theme music” cannot describe a video presentation. The theme music for “Wall
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`Street Week,” for example, includes the sound of a stock ticker. See PMC’s Technical Tutorial.
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`Further, the BPAI “agree[d] with the Examiner that the audio portion of a television program
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`often, although not always, describes (at least indirectly) what is happening in the video” – with
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`no restriction to audible words. PMC Br. Ex. 6 at 81, ECF No. 77-6.
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`XIV.
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`The “Schedule” Term
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`Zynga’s proposal effectively changes “schedule” in ‘717 Claim 7 to “predetermined
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`schedule.” If all Zynga means by “predetermined” is that the schedule must exist before it is
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`used, then there is no need to add such a requirement. If, instead, Zynga means that the schedule
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`cannot be created in response to user specific data, then Zynga’s proposal should again be
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`rejected because it is counter to the disclosure in the specification. See PMC Br. 28.
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`XV.
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`“Peripheral Device”
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`Zynga asserts that memory units, disk drives, and modems would “typically” have been
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`physically external at the time of the invention. Zynga Br. 30 n.29. However, the “IBM PC
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`MICRO COMPUTER” in Figure 8 of the patents included built-in disk drives and internal
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`expansion slots for built-in memory and a built-in modem.9 Further, even if Zynga were correct
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`that such devices were “typically” external devices at the time, “typically” is not “always” – and
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`Zynga’s proposed construction would require that the devices always be physically external.
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`9 IBM 5150 PERSONAL COMPUTER, http://oldcomputers.net/ibm5150.html, attached as Ex.
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`14.
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`10
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`Apple v. PMC
`IPR2016-00754
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`Case 2:12-cv-00068-JRG-RSP Document 86 Filed 03/26/13 Page 14 of 15 PageID #: 4973
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`Respectfully submitted,
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`/s/ Eric B. Hall
`Robert S. Harrell
`Texas Bar No. 9041350
`Email: rharrell@fulbright.com
`Eric B. Hall
`Texas Bar No. 24012767
`Email: ehall@fulbright.com
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`FULBRIGHT & JAWORSKI L.L.P.
`1301 McKinney, Suite 5100
`Houston, TX 77010-3095
`Telephone: (713) 651-5151
`Facsimile: (713) 651-5246
`
`Brett C. Govett
`Texas Bar No. 08235900
`Email: bgovett@fulbright.com
`Lead Attorney
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`FULBRIGHT & JAWORSKI L.L.P.
`2200 Ross Avenue, Suite 2800
`Dallas, Texas 75201-2784
`Telephone: (214) 855-8000
`Facsimile: (214) 855-8200
`
`ATTORNEYS FOR PLAINTIFF
`PERSONALIZED MEDIA
`COMMUNICATIONS, LLC
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`Dated: March 26, 2013
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`PMC Exhibit 2029
`Apple v. PMC
`IPR2016-00754
`Page 14
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`Case 2:12-cv-00068-JRG-RSP Document 86 Filed 03/26/13 Page 15 of 15 PageID #: 4974
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`Certificate of Service
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`I hereby certify that a true and correct copy of the foregoing was served on March 26, 2013, in
`compliance with the Federal Rules of Civil Procedure via electronic transmission and the Court’s
`CM/ECF system per Local Rule CV-5(a)(3) on counsel of record in this matter.
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` /s/ Eric Hall
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` Eric Hall
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`PMC Exhibit 2029
`Apple v. PMC
`IPR2016-00754
`Page 15
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