THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`On March 18, 2015, 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. 54, 62 & 66),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 refer to the page numbers of the original documents rather than the
`page numbers assigned by the Court’s electronic docket unless otherwise indicated.
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`- 1 -
`
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
`
`v.
`
`LEAP WIRELESS INTERNATIONAL,
`INC., et al.
`
`
` CASE NO. 2:13-CV-885-JRG-RSP
`
`
`
`
`
`§§§§§§§
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
`
`Petitioners, Ex. 1007, Page 1
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`

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`Table of Contents
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`
`I. BACKGROUND ....................................................................................................................... 3 
`II. LEGAL PRINCIPLES ........................................................................................................... 3 
`III. THE PARTIES’ STIPULATED TERMS ........................................................................... 6 
`IV. DISPUTED TERMS IN U.S. PATENTS NO. 5,590,403 AND 5,915,210 ......................... 6 
`A. “transmitter[s]” and “base transmitter[s]” ............................................................................ 8 
`B. “set of transmitters” and “set of base transmitters” ............................................................ 10 
`C. “[first/second] set of transmitter[s]” .................................................................................... 12 
`D. “zone” and “second zone” .................................................................................................. 14 
`E. “[first/second/third] block of information” ......................................................................... 17 
`V. DISPUTED TERMS IN U.S. PATENT NO. 5,659,891 ..................................................... 20 
`A. “single mask-defined bandlimited channel” ....................................................................... 21 
`B. Preambles of Claims 1, 3, and 5 .......................................................................................... 22 
`VI. INDEFINITENESS ............................................................................................................. 25 
`A. “transmitting substantially simultaneously,” “representing a portion of the information
`signal substantially not represented by others of the first plurality of carrier signals,”
`and “corresponding to and representing substantially the same information as
`respective carrier signals of the first plurality of carrier signals” ....................................... 26 
`B. “same location,” “co-locating,” and “said plurality of carriers can be emanated from
`the same transmission source” ............................................................................................ 29 
`C. “the frequency difference between the center frequencies of each adjacent carrier,” “the
`frequency difference between the center frequency of the outer most of said carriers
`and the band edge of the mask defining said channel,” “the frequency difference
`between the center frequency of the outer most of said corresponding subchannels and
`the band edge of the mask defining said channel,” and “the frequency difference
`between the center frequency of the outer most carriers and the band edge of said
`mask” .................................................................................................................................. 30 
`VII. CONCLUSION .................................................................................................................. 37 
`APPENDIX A .............................................................................................................................. 39 
`
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`Petitioners, Ex. 1007, Page 2
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`I. 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.
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`
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`Below, the Court addresses the ‘403 Patent and the ‘210 Patent together and addresses
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`the ‘891 Patent separately, and the Court groups the terms as to which Defendants have argued
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`indefiniteness, as the parties have done.
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`
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`Shortly before the start of the March 18, 2015 hearing, the Court provided the parties
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`with the Court’s preliminary constructions of the disputed terms, based upon review of the
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`parties’ briefing, with the aim of focusing the parties’ arguments and facilitating discussion.
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`Those preliminary constructions are set forth within the discussion of each term, below.
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`II. 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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`Petitioners, Ex. 1007, Page 3
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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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`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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`Petitioners, Ex. 1007, Page 4
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`

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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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`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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`In general, prior claim construction proceedings involving the same patents-in-suit are
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`“entitled to reasoned deference under the broad principals of stare decisis and the goals
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`Petitioners, Ex. 1007, Page 5
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`articulated by the Supreme Court in Markman, even though stare decisis may not be applicable
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`per se.” Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779,
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`at *4 (E.D. Tex. June 21, 2006) (Davis, J.); see TQP Development, LLC v. Inuit Inc., No. 2:12-
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`CV-180, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014) (Bryson, J.) (“[P]revious claim
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`constructions in cases involving the same patent are entitled to substantial weight, and the Court
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`has determined that it will not depart from those constructions absent a strong reason for doing
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`so.”); see also Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 839-40 (2015) (“prior
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`cases will sometimes be binding because of issue preclusion and sometimes will serve as
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`persuasive authority”) (citation omitted).
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`III. THE PARTIES’ STIPULATED TERMS
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`
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`The parties have reached agreement on constructions for certain terms, as stated in their
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`P.R. 4-3 Joint Claim Construction and Prehearing Statement (Dkt. No. 49 at Ex. A) and in their
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`P.R. 4-5(d) Joint Claim Construction Chart (Dkt. No. 67 at Ex. A). The parties’ agreements are
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`set forth in Appendix A to this Claim Construction Memorandum and Order.
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`IV. DISPUTED TERMS IN U.S. PATENTS NO. 5,590,403 AND 5,915,210
`
`
`
`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:
`
`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
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`Petitioners, Ex. 1007, Page 6
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`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.
`
`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 unless otherwise indicated.
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`
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`The Court previously addressed the ’403 Patent in Mobile Telecommunications
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`Technologies, LLC v. Clearwire Corp., et al., No. 2:12-CV-308, Dkt. No. 72 (E.D. Tex. July 1,
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`2013) (“Clearwire”) (attached to Defendants’ response brief as Exhibit E).
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`
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`The Court also addressed the ’403 Patent and the ’210 Patent in Mobile
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`Telecommunications Technologies, LLC v. Sprint Nextel Corp., et al., Nos. 2:12-CV-832, Dkt.
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`No. 162 (E.D. Tex. May 2, 2014) (“Sprint”) (attached to Defendants’ response brief as
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`Exhibit F); see Civil Action Nos. 2:13-CV-258, 2:13-CV-259 (consolidated with Sprint).
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`
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`The Court further addressed the ’403 Patent and the ’210 Patent in Mobile
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`Telecommunications Technologies, LLC v. T-Mobile USA, Inc., et al., No. 2:13-CV-886, Dkt.
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`No. 108 (E.D. Tex. Jan. 23, 2015) (“T-Mobile”) (attached to Defendants’ response brief as
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`Exhibit G).
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`
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`Relevant findings from Clearwire, Sprint, and T-Mobile are set forth as to particular
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`disputed terms below.
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`Petitioners, Ex. 1007, Page 7
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`
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`Finally, although Defendants’ response brief mentions “principles of collateral estoppel”
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`(Dkt. No. 62 at 13), Defendants have not identified the elements of any estoppel, let alone
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`demonstrated that any such elements have been met here as to any disputed term.
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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
`
`No construction necessary; plain and ordinary
`meaning
`
`“plain and ordinary meaning with the
`understanding that transmitting multiple
`signals or outputs from a single structural unit
`cannot suffice as multiple [base] transmitters”
`
`
`Dkt. No. 54 at 6; Dkt. No. 62 at 12. The parties submit that these terms appear in Claims 1, 10,
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`and 11 of the ’403 Patent and Claims 1 and 10 of the ’210 Patent.
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`
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`Shortly before the start of the March 18, 2015 hearing, the Court provided the parties
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`with the following preliminary construction: “Plain meaning.”
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`
`
`
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`(1) The Parties’ Positions
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`Plaintiff submits: “The remaining dispute is that [Defendants] propose[] an additional,
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`negative limitation imported from dicta in the Clearwire Order. This Court rejected the exact
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`same construction when it was proposed by T-Mobile, and should likewise reject [Defendants’]
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`proposal.” Dkt. No. 54 at 7. Plaintiff emphasizes that, “[h]ere, neither party has proposed that
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`transmitting multiple signals or outputs from a single transmitter can suffice as multiple
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`transmitters.” Id. Nonetheless, Plaintiff argues, “the asserted patents disclose that a single
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`device can comprise multiple structural units.” Id.
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`
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`Defendants respond that “[t]he Court’s opinion on this issue is not dicta,” and Plaintiff’s
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`“two-sentence rehash of its previously failed arguments” should be rejected. Dkt. No. 62 at 13.
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`Defendants urge that “[Plaintiff’s] continued advancement of its repeatedly rejected claim
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`construction arguments underscores the necessity of expressly integrating the Court’s ‘single-
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`Petitioners, Ex. 1007, Page 8
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`unit’ finding into its formal claim construction order.” Id. at 14. “At a minimum,” Defendants
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`argue, “the Court should do as it did in the Apple [(Sprint)] case, namely by ‘[e]xpressly
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`adopt[ing] the Clearwire findings’ so as to prohibit [Plaintiff] from making arguments contrary
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`to the Court’s findings. The Court reached a similar conclusion in the T-Mobile case.” Id. at 15
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`n.15 (citations omitted).
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`
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`Plaintiff replies: “All parties here acknowledge that simulcasting requires two or more
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`transmitters. [Defendants’] proposal would confuse the jury and create a new question about the
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`meaning of a ‘single structural unit.’” Dkt. No. 66 at 5.
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`
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`
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`(2) Analysis
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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. See Clearwire at 4-5. The Court also
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`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.
`
`Id. at 5 (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 6.
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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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`Petitioners, Ex. 1007, Page 9
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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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`
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`In T-Mobile, the parties disputed the proper construction, but the Court again adopted the
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`Clearwire findings. See T-Mobile at 11.
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`
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`Having considered the arguments presented in the present case, the Court reaches the
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`same conclusions here as in Clearwire. Those conclusions, however, need not be set forth in an
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`explicit claim construction. Defendants’ proposal in that regard would tend to confuse rather
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`than clarify the scope of the claims and is therefore hereby expressly rejected.
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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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`B. “set of transmitters” and “set of base transmitters”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“one or more [base] transmitter[s]”
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`Dkt. No. 54 at 8; Dkt. No. 62 at 15. The parties submit that these terms appear in Claims 1
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`“a set of at least two [base] transmitters”
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`and 10 of the ’403 Patent.
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`
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`Shortly before the start of the March 18, 2015 hearing, the Court provided the parties
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`with the following preliminary constructions: “set[s] of at least two transmitters” and “set of at
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`least two base transmitters.”
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`
`
`
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`(1) The Parties’ Positions
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`Plaintiff re-urges its arguments from the prior claim construction proceedings, such as
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`that the specification discloses an embodiment in which a “set” of transmitters for a particular
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`Petitioners, Ex. 1007, Page 10
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`zone could include only one transmitter. See Dkt. No. 54 at 8-11. Plaintiff explains: “In order to
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`meet the intra-set simulcast requirement of Claim 10, a single set must have two transmitters.
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`Unlike Claim 10, the inter-set simulcast requirement of Claim 1 can be met with only a single
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`transmitter in each set, as explicitly disclosed in the description of the preferred embodiment of
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`FIGS. 6 & 7.” Id. at 10.
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`
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`Defendants respond that the Court has previously rejected Plaintiff’s arguments multiple
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`times and should do so again here. Dkt. No. 62 at 15.
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`
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`Plaintiff replies that “[b]ecause the specification discloses a single transmitter meeting
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`the limitation of ‘transmitting by a set of transmitters,’ [Plaintiff] maintains that the proper
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`course most consistent with the intrinsic record would be to remove the numerosity requirement
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`from the set of transmitter element, recognize that ‘set’ simply implies shared characteristics, and
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`decline to construe the term which is non-technical and will not confuse the jury.” Dkt. No. 66
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`at 6.
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`
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`At the March 18, 2015 hearing, the parties agreed to rest on their briefing without oral
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`argument.
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`
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`
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`(2) Analysis
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`For the same reasons set forth in T-Mobile, the Court finds that the use of the plural form
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`of “transmitters” demonstrates that a “set of transmitters” requires two or more transmitters. See
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`T-Mobile at 13-17; see, e.g., Leggett & Platt, Inc. v. Hickory Springs Mfg. Co., 285 F.3d 1353,
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`1357 (Fed. Cir. 2002) (“At the outset, the claim recites ‘support wires’ in the plural, thus
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`requiring more than one welded ‘support wire.’”). The Court thus reaches the same conclusion
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`here as in T-Mobile.
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`Petitioners, Ex. 1007, Page 11
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`
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`The Court accordingly hereby construes the disputed terms as set forth in the following
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`chart:
`
`Term
`
`Construction
`
`“set of transmitters”
`
`“set of at least two transmitters”
`
`“set of base transmitters”
`
`“set of at least two base transmitters”
`
`
`C. “[first/second] set of transmitters”
`
`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
`
`No construction necessary; plain and ordinary
`meaning
`
`“first set of at least two transmitters assigned to
`a portion of a geographic area”
`
`“second set of at least two transmitters
`assigned to a different portion of a geographic
`area than that to which the first set of
`transmitters is assigned”
`
`
`Dkt. No. 54 at 11; Dkt. No. 62 at 16. The parties submit that these terms appear in Claim 1 of
`
`the ’403 Patent.
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`
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`Shortly before the start of the March 18, 2015 hearing, the Court provided the parties
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`with the following preliminary constructions: “a set of transmitters that is not identical to the
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`‘second set of transmitters’” and “a set of transmitters that is not identical to the ‘first set of
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`transmitters.’”
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`
`
`
`
`(1) The Parties’ Positions
`
`Plaintiff argues that the claims contain no geographic limitations, and “the specification
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`itself discloses that transmitters may cover overlapping areas.” Dkt. No. 54 at 12 (citing ’403
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`Patent at 4:65-5:3).
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`
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`Defendants respond that although “transmitters may cover overlapping areas,”
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`Defendants’ proposed construction “clarifies that the claimed sets of transmitters cannot be
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`- 12 -
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`Petitioners, Ex. 1007, Page 12
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`assigned to the exact same geographic area.” Dkt. No. 62 at 16. Defendants explain that “[i]f
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`the coverage areas of the claimed ‘first set of base transmitters’ and ‘second set of base
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`transmitters’ are identical, that frustrates the purpose of the alleged invention in the ’403 patent”
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`because “[r]equiring transmission exclusively in simulcast . . . restricts or even eliminates the
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`purported efficiency gain of the ’403 patent’s alleged invention.” Id. at 17.
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`
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`Plaintiff replies that “[w]hile certain embodiments disclose spatial dispersement,
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`importing limitations from embodiments into patent claims is erroneous.” Dkt. No. 66 at 6.
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`Plaintiff also submits that “[e]ven if a mobile unit is located in an overlapping coverage area,
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`transmitting different information during the same time period can increase throughput and
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`efficiency.” Id. at 7.
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`
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`At the March 18, 2015 hearing, both sides were agreeable to the Court’s preliminary
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`construction. Plaintiff, however, qualified its agreement by noting that Plaintiff would disagree
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`with any requirement of different geographic coverage areas.
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`
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`
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`(2) Analysis
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`As the parties appeared to agree at the March 18, 2015 hearing, construction is
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`appropriate to clarify that the “first” and “second” sets of transmitters are not identical groups of
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`transmitters. This finding is further supported by the recital of distinct “first” and “second” sets.
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`See 3M Innovative Props. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1371 (Fed. Cir. 2003)
`
`(“The use of the terms ‘first’ and ‘second’ is a common patent-law convention to distinguish
`
`between repeated instances of an element or limitation.”). In other words, the “first” and
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`“second” sets must be distinct in order to give meaning to all of the words of the claim. See
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`Merck & Co., Inc. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A claim
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`Petitioners, Ex. 1007, Page 13
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`construction that gives meaning to all the terms of the claim is preferred over one that does not
`
`do so.”).
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`
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`To whatever extent Defendants are maintaining that these disputed terms require
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`geographic limitations, however, Defendants’ argument is hereby expressly rejected. Of note,
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`the Court rejected a similar proposal in Clearwire:
`
`The Court rejects Clearwire’s contention that a “set” of transmitters must be
`geographically dispersed. The claims merely recite a set of transmitters.
`Clearwire attempts to read into the claims the particular embodiments of the
`specification but does not point to language of disavowal in the specification or
`the prosecution history. In fact, the claims themselves include their own
`geographical limitations (with regard to regions of space divided into zones),
`further counseling against reading the features of the preferred embodiments into
`the definition of the terms “set of transmitters” and “set of base transmitters.”
`
`Clearwire at 8.
`
`
`
`The Court accordingly hereby construes the disputed terms as set forth in the following
`
`chart:
`
`Term
`
`“first set of transmitters”
`
`“second set of transmitters”
`
`
`D. “zone” and “second zone”
`
`
`
`
`Plaintiff’s Proposed Construction
`
`“portion of a region of space”
`
`
`Construction
`
`“a set of transmitters that is not identical to
`the ‘second set of transmitters’”
`
`“a set of transmitters that is not identical to
`the ‘first set of transmitters’”
`
`
`“zone”
`
`Defendants’ Proposed Construction
`
`“portion of a geographic area”
`
`
`
`
`- 14 -
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`Petitioners, Ex. 1007, Page 14
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`

`
`
`
`
`Plaintiff’s Proposed Construction
`
`“second zone”
`
`Defendants’ Proposed Construction
`
`No construction necessary; plain and ordinary
`meaning
`
`
`Dkt. No. 54 at 13; Dkt. No. 62 at 17 & 18. The parties submit that these terms appear in
`
`“second zone that covers a different portion of
`a geographic area than the first zone”
`
`Claim 10 of the ’403 Patent.
`
`
`
`Shortly before the start of the March 18, 2015 hearing, the Court provided the parties
`
`with the following preliminary constructions: “portion of a region of space” and “portion of a
`
`region of space that is not identical to the ‘first zone.’”
`
`
`
`
`
`(1) The Parties’ Positions
`
`Plaintiff argues that the Court should apply its prior construction of “zone” as meaning
`
`“portion of a region of space.” Dkt. No. 54 at 13-14. Plaintiff also argues that Defendants’
`
`proposal as to “second zone” should be rejected because “the patent specification itself discloses
`
`overlapping zones.” Id. at 14 (citing ’403 Patent at 4:65-5:3).
`
`
`
`As to “second zone,” Defendants respond that their proposed construction “ensures that
`
`the claimed zones cannot be the exact same geographic area.” Dkt. No. 62 at 18. For example,
`
`Defendants argue that the disclosed concept of “zonal dithering” “makes no sense if the claimed
`
`zones are allowed to completely overlap such that coverage areas of the claimed ‘first set of base
`
`transmitters’ and ‘second set of base transmitters’ are identical.” Id. at 18-19.
`
`
`
`Plaintiff replies: “Defendants observe that the embodiments in the specification discuss
`
`zones that do not completely overlap and argue that therefore the claims must also be so limited.
`
`That is not the law.” Dkt. No. 66 at 8. Plaintiff also argues that the claimed invention may be
`
`applied with completely overlapping zones for purposes of load balancing. Id.
`
`- 15 -
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`
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`Petitioners, Ex. 1007, Page 15
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`

`
`
`
`At the March 18, 2015 hearing, the parties agreed to the Court’s preliminary construction
`
`for “zone” but did not agree to the preliminary construction for “second zone.” Plaintiff urged
`
`that under some circumstances, such as through what the specification refers to as “zonal
`
`dithering” (see ’403 Patent at 23:53 & Fig. 25), the “second zone” could end up occupying the
`
`same space as the first zone.
`
`
`
`
`
`
`
`(2) Analysis
`
`Claim 10 of the ’403 Patent recites (emphasis added):
`
`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:
`
`(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
`
`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
`
`(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.
`
`In Clearwire, the Court noted that: “claim 10 states ‘a region of space divided into a
`
`plurality of zones.’ In this way, the claims themselves define a zone as a portion of a region of
`
`space.” Clearwire at 7. The Court also “reject[ed] Clearwire’s contention that a zone consists of
`
`its assigned transmitters.” Id.
`
`
`
`The specification discloses: “Generally, the communication system of the present
`
`invention roughly divides various regions of space into portions called zones.” ’403 Patent
`
`- 16 -
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`
`
`Petitioners, Ex. 1007, Page 16
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`

`
`at 9:40-43; see id. at 4:65-5:3 (referring to “overlap areas between two or more zones”); see also
`
`id. at Fig. 25.
`
`
`
`Construction is appropriate to clarify that the “first” and “second” zones are not identical
`
`regions of space. This finding is supported by the recital of distinct “first” and “second” zones.
`
`See 3M, 350 F.3d at 1371 (“The use of the terms ‘first’ and ‘second’ is a common patent-law
`
`convention to distinguish between repeated instances of an element or limitation.”); See Merck,
`
`395 F.3d at 1372 (“A claim construction that gives meaning to all the terms of the claim is
`
`preferred over one that does not do so.”).
`
`
`
`The Court accordingly hereby construes the disputed terms as set forth in the following
`
`Term
`
`chart:
`
`“zone”
`
`“second zone”
`
`
`
`E. “[first/second/third] block of information”
`
`Construction
`
`“portion of a region of space”
`
`“portion of a region of s