Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 1 of 57 PageID #: 2986
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
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`v.
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`T-MOBILE USA, INC., et al.
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` CASE NO. 2:13-CV-886-JRG-RSP
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`
`
`
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`§§§§§§§
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`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`On October 21, 2014, the Court held a hearing to determine the proper construction of the
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`
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`disputed claim terms in United States Patents No. 5,590,403, 5,659,891, and 5,915,210. After
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`considering the arguments made by the parties at the hearing and in the parties’ claim
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`construction briefing (Dkt. Nos. 58, 62, and 64),1 the Court issues this Claim Construction
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`Memorandum and Order.
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`
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`1 Citations to documents (such as the parties’ briefs and exhibits) in this Claim Construction
`Memorandum and Order shall refer to the page numbers of the original documents rather than
`the page numbers assigned by the Court’s electronic docket.
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`Petitioners, Ex. 1005, Page 1
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 2 of 57 PageID #: 2987
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`Table of Contents
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`BACKGROUND ........................................................................................................................... 3 
`LEGAL PRINCIPLES ................................................................................................................. 3 
`THE PARTIES’ STIPULATED TERMS ................................................................................... 6 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENTS NO.
`5,590,403 AND 5,915,210 .............................................................................................................. 6 
`A. “transmitter[s]” and “base transmitter[s]” ............................................................................ 7 
`B. “set of transmitters” and “set of base transmitter[s]” .......................................................... 12 
`C. “transmit . . . in simulcast,” “transmitted . . . in simulcast,” and “transmitting . . . in
`simulcast” ............................................................................................................................ 17 
`D. “block of information” ........................................................................................................ 23 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,659,891 ................... 24 
`A. “single mask-defined, bandlimited channel” ...................................................................... 25 
`B. “independently receiving one of said plurality of carriers” ................................................ 30 
`C. “paging carriers” and “modulated carriers” ........................................................................ 34 
`D. “same location” ................................................................................................................... 37 
`E. “subchannel(s)” ................................................................................................................... 41 
`F. “spaced within the mask” .................................................................................................... 43 
`G. Preambles of Claims 1, 3, and 5 ......................................................................................... 47 
`H. “said plurality of carriers can be emanated from the same transmission source” .............. 48 
`I. “frequency difference between the center frequencies of each adjacent carrier” ................. 50 
`J. “adjacent carriers overlap” and “adjacent subchannels overlap” ......................................... 54 
`CONCLUSION ........................................................................................................................... 55 
`APPENDIX A .............................................................................................................................. 56 
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`Petitioners, Ex. 1005, Page 2
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 3 of 57 PageID #: 2988
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`BACKGROUND
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`
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`Plaintiff brings suit alleging infringement of United States Patents No. 5,590,403 (“the
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`‘403 Patent”), 5,659,891 (“the ‘891 Patent”), and 5,915,210 (“the ‘210 Patent”) (collectively, the
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`“patents-in-suit”). In general, the patents-in-suit relate to wireless messaging systems. Below,
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`the Court addresses the ‘403 Patent and the ‘210 Patent together and addresses the ‘891 Patent
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`separately, as the parties have done.
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`LEGAL PRINCIPLES
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`
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
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`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
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`by considering the intrinsic evidence. See id. at 1313; see also C.R. Bard, Inc. v. U.S. Surgical
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`Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns
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`Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
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`themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
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`Bard, 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
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`understood by one of ordinary skill in the art at the time of the invention in the context of the
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`entire patent. Phillips, 415 F.3d at 1312-13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d
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`1361, 1368 (Fed. Cir. 2003).
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`
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Petitioners, Ex. 1005, Page 3
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 4 of 57 PageID #: 2989
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314-15.
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`
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`at 1315 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en
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`banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis.
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`Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’” Phillips,
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`415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
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`1996)); accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This
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`is true because a patentee may define his own terms, give a claim term a different meaning than
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`the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d
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`at 1316. In these situations, the inventor’s lexicography governs. Id. The specification may also
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`resolve the meaning of ambiguous claim terms “where the ordinary and accustomed meaning of
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`the words used in the claims lack sufficient clarity to permit the scope of the claim to be
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`ascertained from the words alone.” Teleflex, 299 F.3d at 1325. But, “[a]lthough the
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`specification may aid the court in interpreting the meaning of disputed claim language, particular
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`embodiments and examples appearing in the specification will not generally be read into the
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`claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)
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`(quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988));
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`accord Phillips, 415 F.3d at 1323.
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`
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`The prosecution history is another tool to supply the proper context for claim
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`construction because a patent applicant may also define a term in prosecuting the patent. Home
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`Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`Petitioners, Ex. 1005, Page 4
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 5 of 57 PageID #: 2990
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`specification, a patent applicant may define a term in prosecuting a patent.”). “[T]he prosecution
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`history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that
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`may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.”
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`Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
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`
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`Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
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`(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a
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`court understand the underlying technology and the manner in which one skilled in the art might
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`use claim terms, but technical dictionaries and treatises may provide definitions that are too
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`broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid a court in understanding the underlying technology and determining
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`the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`
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`The Supreme Court of the United States has recently “read [35 U.S.C.] § 112, ¶ 2 to
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`require that a patent’s claims, viewed in light of the specification and prosecution history, inform
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`those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc.
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`v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). “A determination of claim
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`indefiniteness is a legal conclusion that is drawn from the court’s performance of its duty as the
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`construer of patent claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347
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`(Fed. Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by
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`Nautilus, 134 S. Ct. 2120.
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`Petitioners, Ex. 1005, Page 5
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 6 of 57 PageID #: 2991
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`THE PARTIES’ STIPULATED TERMS
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`The parties have reached agreement on constructions for certain terms, as stated in their
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`Joint Claim Construction and Prehearing Statement (Dkt. No. 54 at Ex. A) and their briefing
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`(see, e.g., Dkt. No. 58 at 5). The parties’ agreements are set forth in Appendix A to this Claim
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`Construction Memorandum and Order.
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`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENTS NO.
`5,590,403 AND 5,915,210
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`
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`The ‘403 Patent is titled “Method and System for Efficiently Providing Two Way
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`Communication Between a Central Network and a Mobile Unit.” The ‘403 Patent issued on
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`December 31, 1996, and bears a filing date of November 12, 1992. In general, the ‘403 Patent
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`relates to dynamic reassignment of transmitters from one zone to another. The Abstract of the
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`‘403 Patent states:
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`A two-way communication system for communication between a system network
`and a mobile unit. The system network includes a plurality of base transmitters
`and base receivers included in the network. The base transmitters are divided into
`zonal assignments and broadcast in simulcast using multi-carrier modulation
`techniques. The system network controls the base transmitters to broadcast in
`simulcast during both systemwide and zonal time intervals. The system network
`dynamically alters zone boundaries to maximize information throughput. The
`preferred mobile unit includes a noise detector circuit to prevent unwanted
`transmissions. The system network further provides an adaptive registration
`feature for mobile units which controls the registration operations by the mobile
`units to maximize information throughput.
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`The ‘210 Patent is titled “Method and System for Providing Multicarrier Simulcast
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`
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`Transmission.” The ‘210 Patent issued on June 22, 1999, and bears a filing date of July 24,
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`1997. The ‘210 Patent is a continuation of a continuation of the ‘403 Patent. Because the ‘403
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`Patent and the ‘210 Patent therefore share a common written description and figures, the Court
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`herein cites the specification of only the ‘403 Patent. The Abstract of the ‘210 Patent states:
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`Petitioners, Ex. 1005, Page 6
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 7 of 57 PageID #: 2992
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`A two-way communication system for communication betw[]een a system
`network and a mobile unit. The system network includes a plurality of base
`transmitters and base receivers include[d] in the network. The base transmitters
`are divided into zonal assignments and broadcast in simulcast using multi-carrier
`modulation techniques. The system network controls the base transmitters to
`broadcast in s[]imulcast during both systemwide and zone boundaries to
`maximize information throughout [sic, throughput]. The preferred mobile unit
`in[cl]udes a noise detector circuit to prevent unwanted transmissions. The system
`network further provides an adaptive registration feature for mobile units which
`controls the registration operation by the mobile units to maximize information
`throughout [sic, throughput].
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`The Court previously addressed the ‘403 Patent in Mobile Telecommunications
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`
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`Technologies, LLC v. Clearwire Corp., et al., No. 2:12-CV-308-JRG-RSP, Dkt. No. 72, 2013
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`WL 3339050 (E.D. Tex. July 1, 2013) (referred to as the “Clearwire Order” or simply
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`“Clearwire”).
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`The Court also addressed the ‘403 Patent, the ‘210 Patent, and the ‘891 Patent in Mobile
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`Telecommunications Technologies, LLC v. Sprint Nextel Corp., et al., Nos. 2:12-CV-832-JRG-
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`RSP, Dkt. No. 162 (E.D. Tex. May 2, 2014) (“Sprint Order” or simply “Sprint”); see Civil
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`Action Nos. 2:13-CV-258-JRG-RSP, 2:13-CV-259-JRG-RSP (consolidated with Sprint).
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`A. “transmitter[s]” and “base transmitter[s]”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`No construction necessary; plain and ordinary
`meaning
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`
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`plain and ordinary meaning, with the
`understanding that the Court has rejected
`[Plaintiff’s] implication that transmitting
`multiple signals or outputs from a single
`structural unit can suffice as multiple
`transmitters2
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`2 Defendants previously proposed: “plain and ordinary meaning, with the understanding that
`transmitting multiple signals or outputs from a single structural unit cannot suffice as multiple
`transmitters.” Dkt. No. 54, Ex. B at 1.
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`Petitioners, Ex. 1005, Page 7
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 8 of 57 PageID #: 2993
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`Dkt. No. 58 at 7; Dkt. No. 62 at 5. The parties submit that these disputed terms appear in
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`Claims 1, 10, and 11 of the ‘403 Patent and Claims 1 and 10 of the ‘210 Patent. Dkt. No. 54,
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`Ex. B at 1.
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`
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`In Clearwire, the Court construed the terms “transmitter” and “base transmitter” in the
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`‘403 Patent to have their plain and ordinary meaning. Clearwire, 2013 WL 3339050, at *2. The
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`Court also found:
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`Although the Court recognizes that claims 1 and 10 are method claims, a person
`of ordinary skill in the art would understand the terms “transmitter” and “base
`transmitter” to refer to a structural unit, and thus, the number of transmitters in a
`given system or method is dependent on structure, not function. . . . [T]he Court
`rejects [Plaintiff’s] implication that transmitting multiple signals or outputs from a
`single structural unit can suffice as multiple transmitters.
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`Id. (citing ‘403 Patent at 15:42-44). Nonetheless, the Court also “reject[ed] Clearwire’s
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`proposition that a ‘transmitter’ must be spatially separated or geographically dispersed from
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`other transmitters, because Clearwire has provided no evidence to support reading such a
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`limitation into the claims.” Id., at *3.
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`
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`In Sprint, shortly before the March 7, 2014 claim construction hearing, the Court
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`provided the parties with the following preliminary construction for these disputed terms: “Plain
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`[meaning] ([e]xpressly adopt the Clearwire findings but do not provide them to the jury as part
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`of a constr[uction].” Sprint at 10. During the March 7, 2014 hearing, all parties in Sprint agreed
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`to the Court adopting its preliminary construction. Id.
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`Shortly before the start of the October 21, 2014 hearing, the Court provided the parties
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`with the following preliminary construction: “Plain meaning (Expressly adopt the Clearwire
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`findings but do not provide them to the jury as part of a construction).”
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`Petitioners, Ex. 1005, Page 8
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 9 of 57 PageID #: 2994
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`(1) The Parties’ Positions
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`Plaintiff argues that “[Defendants’] additional limitation imports out-of-context dicta
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`from the Clearwire Order that is not applicable in this case. Here, neither party has proposed
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`that transmitting multiple signals or outputs from a single transmitter can suffice as multiple
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`transmitters.” Dkt. No. 58 at 7 (footnote omitted). Plaintiff nonetheless cites Claim 2 of the
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`‘210 Patent, as well as disclosure in the ‘891 Patent regarding “co-located transmitter” systems,
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`to argue against any suggestion that “an entire accused device” must be deemed “a single
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`structural unit.” Id. at 7-8.
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`
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`Defendants respond that the Court should reach the same conclusion that it reached in
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`Clearwire and that the Court preliminarily proposed—and that the parties, including Plaintiff,
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`agreed to accept—in Sprint.3 Dkt. No. 62 at 5-6. Defendants urge that “it is imperative that the
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`Court integrate its finding into its formal construction for the jury. Failing to do so threatens to
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`degrade the trial process into a sideshow where [Plaintiff] tests the Court’s limits on arguing its
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`incorrect implication while [Defendants are] prevented from articulating the correct construction
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`to the jury. The jury will be confused and the Court’s interpretation will be lost in the mix.”
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`Dkt. No. 62 at 6. Alternatively, Defendants argue that “[a]t a minimum the Court should do as it
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`did in the [Sprint] case, namely by ‘[e]xpressly adopt[ing] the Clearwire findings’ so as to
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`prohibit [Plaintiff] from making arguments contrary to the Court’s findings.” Id. at 7 n.7.
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`Plaintiff replies by reiterating that “[t]he Federal Circuit has held that dictum of a prior
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`case which ‘involved a different dispute concerning the claim terms’ has no bearing on
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`3 Defendants also argue that because the Court rejected Plaintiff’s arguments in Clearwire and
`Sprint, the Court should reject Plaintiff’s arguments here “[u]nder principles of res judicata.”
`Dkt. No. 62 at 6 n.5. Defendants have not submitted any authority demonstrating that any
`doctrine of res judicata or estoppel is applicable, and the Court hereby expressly rejects any such
`argument by Defendants.
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`Petitioners, Ex. 1005, Page 9
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 10 of 57 PageID #: 2995
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`construction of the term absent that dispute.” Dkt. No. 64 at 1 (quoting Sandisk Corp. v.
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`Memorex Prods., Inc., 415 F.3d 1278, 1290-1291 (Fed. Cir. 2005)). Plaintiff also argues that
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`“[i]nsertion of the phrase ‘the Court has rejected [Plaintiff’s] implication’” would “inject explicit
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`bias against [Plaintiff].” Id. at 2.
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`
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`At the October 21, 2014 hearing, Defendants presented an alternative proposed
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`construction: “separate structural units each transmitting at least one signal.”
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`(2) Analysis
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`Claim 1 of the ‘210 Patent, which is representative for purposes of the present disputed
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`terms, recites (emphasis added):
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`1. A multi-carrier simulcast transmission system for transmitting in a desired
`frequency band at least one message contained in an information signal, the
`system comprising:
`a first transmitter configured to transmit a first plurality of carrier signals
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`within the desired frequency band, each of the first plurality of carrier signals
`representing a portion of the information signal substantially not represented by
`others of the first plurality of carrier signals; and
`a second transmitter, spatially separated from the first transmitter,
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`configured to transmit a second plurality of carrier signals in simulcast with the
`first plurality of carrier signals, each of the second plurality of carrier signals
`corresponding to and representing substantially the same information as a
`respective carrier signal of the first plurality of carrier signals.
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`As Plaintiff has noted, Claim 2 of the ‘210 Patent recites a “first transmitter” and a
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`
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`“second transmitter,” each of which comprises multiple transmitters:
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`2. The multi-carrier simulcast transmission system of claim 1, wherein the first
`transmitter comprises a plurality of transmitters located in a first area, and the
`second transmitter comprises a plurality of transmitters located in a second area.
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`Plaintiff has also cited the ‘891 Patent, which discloses:
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`Alternative embodiments of co-located transmitter systems are also possible. For
`example, the co-located transmitter configurations discussed above can be
`expanded to support more than two data sources and transmit more than two
`carriers in the bandlimited channel.
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`Petitioners, Ex. 1005, Page 10
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 11 of 57 PageID #: 2996
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`’891 Patent at 4:7-11. Defendants properly point out, however, that the ‘891 Patent is not related
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`to the ‘210 Patent. Dkt. No. 62 at 6 n.5. Moreover, as Defendants have argued, “that the
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`reference needs to specify ‘co-located’ transmitters again only reinforces the Court’s prior ruling
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`that transmitting multiple signals from a single structural unit does not constitute multiple
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`transmitters.” Id.
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`
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`At the October 21, 2014 hearing, Defendants argued that these disputed terms require that
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`transmitters are geographically separated from one another. As noted above, Clearwire rejected
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`such an argument. Moreover, Defendants in the present case did not present this argument in
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`their brief. See Dkt. No. 62 at 5-7; see, e.g., CardSoft, LLC v. VeriFone, Inc., --- F.3d ----, 2014
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`WL 5303000 (Fed. Cir. Oct. 17, 2014) (“Arguments that are not appropriately developed in a
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`party’s briefing may be deemed waived.”). Defendants’ proposal of requiring geographic
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`separation is therefore rejected.
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`
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`On balance, the Court reaches the same conclusions here as in Clearwire. Those
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`conclusions, however, need not be set forth in an explicit claim construction. Defendants’
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`proposal in that regard would tend to confuse rather than clarify the scope of the claims and is
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`therefore hereby expressly rejected. Instead, the Court directs that at trial the parties cannot
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`present any arguments inconsistent with the above-quoted conclusions reached in Clearwire.
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`
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`The Court therefore hereby construes “transmitter[s]” and “base transmitter[s]” to
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`have their plain meaning. The Court further hereby adopts the above-quoted conclusions
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`reached in Clearwire and orders that at trial the parties shall not present any arguments
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`inconsistent with those conclusions.
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`Petitioners, Ex. 1005, Page 11
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 12 of 57 PageID #: 2997
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`B. “set of transmitters” and “set of base transmitter[s]”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“one or more [base] transmitters”
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`Dkt. No. 58 at 8; Dkt. No. 62 at 7. The parties submit that these disputed terms appear in
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`“set of at least two [base] transmitters”
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`Claims 1 and 10 of the ‘403 Patent. Dkt. No. 54, Ex. B at 1.
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`
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`Clearwire construed “set of transmitters” to mean “a set of at least two transmitters” and
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`“set of base transmitters” to mean “a set of at least two base transmitters.” 2013 WL 3339050,
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`at *3.
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`
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`In Sprint, the Court found that “the use of the plural form of ‘transmitters’ demonstrates
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`that a ‘set of transmitters’ requires two or more transmitters.” Sprint at 14 (citing Leggett &
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`Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353, 1357 (Fed. Cir. 2002)). The Court “thus
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`reache[d] the same conclusion [in Sprint] as in Clearwire.” Sprint at 14.
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`
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`Shortly before the start of the October 21, 2014 hearing, the Court provided the parties
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`with the following preliminary constructions: “set of transmitters” means “set[] of at least two
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`transmitters” and “set of base transmitters” means “set of at least two base transmitters.”
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`(1) The Parties’ Positions
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`Plaintiff argues that Defendants’ proposal should be rejected because “th[e] preferred
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`embodiment of FIGS. 6 & 7 of the ’403 Patent describes a simple system using only two
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`transmitters, one in a first set, and one in a second set, where the two sets are transmitting in
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`simulcast during the first time period.” Dkt. No. 58 at 8. Further, Plaintiff argues, “Defendants’
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`construction requiring a particular number of transmitters in a set[] is contrary to [the] plain
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`language of Claim 1, which does not require simulcast transmission among transmitters in a
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`single set (hereafter, ‘intra-set simulcasting’), but rather only simulcast transmission among a
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`Petitioners, Ex. 1005, Page 12
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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 13 of 57 PageID #: 2998
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`first and second set (hereafter, ‘inter-set simulcasting’).” Id. at 10. Claim 10, by contrast,
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`Plaintiff submits, expressly requires intra-set simulcasting. Id.
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`Defendants respond that because the Court in Sprint rejected the same arguments that
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`Plaintiff presents again here, the Court should adopt its prior constructions. Dkt. No. 62 at 8.4
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`Plaintiff replies that “grammatical formalism should not trump preferred embodiment
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`disclosure in the specification. The plural object of a prepositional phrase does not always
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`indicate two or more; for example, a ‘pair of pants’ is only one.” Dkt. No. 64 at 2.
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`At the October 21, 2014 hearing, the parties presented no oral argument on these disputed
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`terms and instead rested on their briefing.
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`(2) Analysis
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`Claims 1 and 10 of the ‘403 Patent recite (emphasis added):
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`1. A method for information transmission by a plurality of transmitters to provide
`broad communication capability over a region of space, the information
`transmission occurring during at least both a first time period and a second time
`period and the plurality of transmitters being divided into at least a first and
`second set of transmitters, the method comprising the steps of:
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`(a) generating a system information signal which includes a plurality of
`blocks of information;
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`(b) transmitting the system information signal to the plurality of
`transmitters;
`(c) transmitting by the first and second sets of transmitters a first block of
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`information in simulcast during the first time period;
`(d) transmitting by the first set of transmitters a second block of
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`information during the second time period; and
`(e) transmitting by the second set of transmitters a third block of
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`information during the second time period.
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` *
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` * *
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`4 Defendants also argue that collateral estoppel should bar Plaintiff from re-litigating the
`construction of these disputed terms. Dkt. No. 62 at 8 (citing Dynacore Holdings Corp. v. U.S.
`Philips Corp., 243 F. Supp. 2d 31, 35 (S.D.N.Y. 2003), aff’d, 363 F.3d 1263 (Fed. Cir. 2004)).
`Defendants have not shown that collateral estoppel should apply, however, because Defendants
`have not demonstrated that the prior claim construction was “necessary to support a valid and
`final judgment on merits.” See, e.g., Dynacore, 243 F. Supp. 2d at 35.
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`- 13 -
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`Petitioners, Ex. 1005, Page 13
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`

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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 14 of 57 PageID #: 2999
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`10. A method of communicating messages between a plurality of base
`transmitters and mobile receivers within a region of space divided into a plurality
`of zones with each zone having at least one base transmitter assigned thereto, the
`communication method comprising the steps of:
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`(a) transmitting substantially simultaneously a first information signal and
`a second information signal to communicate messages to the mobile receivers, the
`first information signal being transmitted in simulcast by a first set of base
`transmitters assigned to a first zone, and the second information signal being
`transmitted in simulcast by a second set of base transmitters assigned to a second
`zone;
`(b) dynamically reassigning one or more of the base transmitters in the
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`first set of base transmitter [sic, transmitters] assigned to the first zone to the
`second set of base transmitters assigned to the second zone as a function of the
`messages to be communicated in an area, thereby creating an updated first set of
`base transmitters and an updated second set of base transmitters; and
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`(c) transmitting substantially simultaneously a third information signal and
`a fourth information signal, the third information signal being transmitted in
`simulcast by the updated first set of base transmitters, and the fourth information
`signal being transmitted in simulcast by the updated second set of base
`transmitters to communicate additional messages to said mobile receivers.
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`The specification discloses that “FIG. 6 shows an overview of the major elements of a
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`
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`preferred communication system according to the present invention.” ’403 Patent at 8:50-51
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`(emphasis added). Figure 6 is reproduced here:
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`- 14 -
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`Petitioners, Ex. 1005, Page 14
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`

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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 15 of 57 PageID #: 3000
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`The specification further discloses:
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`
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`[T]he exemplary communication system shown in FIG. 6 may transfer the
`message to the mobile unit during one of two time intervals. In the first time
`interval, both base transmitter 612 and base transmitter 614 transmit data via
`antenna 620 and antenna 622, respectively, in simulcast to be received by mobile
`unit 624, which corresponds to step 706 in FIG. 7. This first alternative may be
`useful to deliver the message if, for example, the location of mobile unit 624 in
`zone 1 or zone 2 is unknown and broad coverage is desired.
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`In the second time interval, base transmitter 614 transmits a block of information
`including the message data to mobile unit 624 and base transmitter 612 transmits
`another block of information, which corresponds to steps 708 and 710 of FIG. 7.
`This second alternative may be useful if, for example, the mobile unit 624 is
`known to be located in zone 1 and out of range of base transmitter 612. Delivery
`of the message to mobile unit 624 during the second time interval is advantageous
`because during message delivery to the mobile unit 624 by base transmitter 614,
`base transmitter 612 could be delivering a different message to a different mobile
`unit (not shown). As can be seen, this second alternative would increase
`information throughput and system efficiency.
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`- 15 -
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`Petitioners, Ex. 1005, Page 15
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`

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`Case 2:13-cv-00886-JRG-RSP Document 108 Filed 01/23/15 Page 16 of 57 PageID #: 3001
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`’403 Patent at 10:40-62; see id. at 6:2-3 (“with each zone having at least one base transmitter
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`assigned thereto”); see also id. at 9:42-43 (“Each zone must have one or preferably more
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`transmitters assigned to it.”).
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`
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`As to extrinsic evidence, Plaintiff has cited a dictionary that defines “set” as meaning a
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`“number of things of the same kind that belong or are used together.” Dkt. No. 58 at 9 (citing
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`“Webster’s Dictionary”).
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`
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`On one hand, “[a]bsent a clear disavowal in the specification or the prosecution history,
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`the patentee is entitled to the