Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 1 of 12 PageID #: 1117
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`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
`§
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`§
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`§
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`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`Case No. 2:12-cv-308-JRG-RSP
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`v.
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`CLEARWIRE CORP., et al.
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`On June 7, 2013, the Court held a claim construction hearing concerning U.S. Patent No.
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`5,590,403 (the “‘403 Patent”). Having considered the arguments and evidence presented by the
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`parties at the hearing and in their briefing (Dkt. Nos. 60, 61, and 64), the Court issues this Claim
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`Construction Order.
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`The ‘403 Patent generally relates to a system for providing two-way communication
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`between a plurality of transmitters and mobile units. ‘403 Patent at Abstract. The patent
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`addresses techniques in which improved communication is provided over a relatively large area.
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`‘403 Patent at 1:8-14. The patent includes two independent claims. Claim 1 is directed toward
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`concepts in which the transmitters are divided into a first and second set of transmitters. During
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`a first time period a first block of information is transmitted by the first and second sets of
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`transmitters in simulcast. During a second time period the first set of transmitters transmits a
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`second block of information and the second set of transmitters transmits a third block of
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`information. Independent claim 10 relates to a concept in which a region of space is divided
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`into a plurality of zones, each zone having at least one base transmitter. A first set of
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`transmitters assigned to a first zone transmits a first information signal in simulcast and a second
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`set of transmitters assigned to a second zone transmits a second information signal in simulcast.
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`Petitioners, Ex. 1011, Page 1
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 2 of 12 PageID #: 1118
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`At least one transmitter assigned to the first set of transmitters may by dynamically reassigned
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`from the first zone to the second zone.
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`APPLICABLE LAW
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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. C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group,
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`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, Inc., 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; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361,
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`1368 (Fed. Cir. 2003).
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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 also 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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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
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`Petitioners, Ex. 1011, Page 2
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 3 of 12 PageID #: 1119
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`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
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`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
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`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
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`lexicography governs. Id. The specification may also resolve ambiguous claim terms “where
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`the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to
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`permit the scope of the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at
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`1325. But, “‘[a]lthough the specification may aid the court in interpreting the meaning of
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`disputed claim language, particular embodiments and examples appearing in the specification
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`will not generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d
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`1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560,
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`1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. The prosecution history is another
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`tool to supply the proper context for claim construction because a patent applicant may also
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`define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352,
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`1356 (Fed. Cir. 2004) (“As in the case of the specification, a patent applicant may define a term
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`in prosecuting a patent.”).
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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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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`Petitioners, Ex. 1011, Page 3
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 4 of 12 PageID #: 1120
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
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`testimony may aid a court in understanding the underlying technology and determining the
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`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 is 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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`CONSTRUCTION OF DISPUTED TERMS
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`Clearwire Proposed Construction
`communications device having a data input, a
`control logic, modulators, a combiner, power
`amplifier(s), and antenna(e)
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`A. “transmitter” / “base transmitter”
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`MTEL Proposed Construction
`No construction necessary
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`The parties first dispute the meaning of the terms “transmitter” and “base transmitter.”
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`The Court finds that the terms “transmitter” and “base transmitter” should be given their plain
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`and ordinary meaning.
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`Clearwire argues that the terms “transmitter” and “base transmitter” should be limited to
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`the structure disclosed in Figures 13 and 14:
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`Petitioners, Ex. 1011, Page 4
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 5 of 12 PageID #: 1121
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`The Court rejects this position. The specification clearly identifies Figure 13, for example, as
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`“show[ing] a first preferred embodiment of a base transmitter 1300.” ‘403 Patent at 15:44-46.
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`Similarly, the specification describes Figure 14 as “show[ing] a second preferred embodiment of
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`a base transmitter 1400.” Id. at 16:7-8. “‘Although the specification may aid the court in
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`interpreting the meaning of disputed claim language, particular embodiments and examples
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`appearing in the specification will not generally be read into the claims.’” Comark Commc’ns,
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`156 F.3d at 1187. Although a person of ordinary skill in the art might understand the structure
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`shown in Figures 13 and 14 to be a transmitter, it would be inappropriate to limit the term
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`“transmitter” to only that structure, especially in light of the qualifying language of the
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`specification. Thus, the Court declines to import the precise structure shown in Figures 13 and
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`14 into the claims.
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`MTEL argues that no construction is necessary for the terms “transmitter” and “base
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`transmitter,” but at the hearing, declined to provide an explanation as to how these terms would
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`be understood by a person of ordinary skill in the art. MTEL did imply, however, that a single
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`unit transmitting multiple signals might be considered multiple transmitters. MTEL further
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`argued that because both independent claims at issue are method claims, the infringement lies in
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`a device’s ability to “transmit” rather than its specific structure. Although the Court recognizes
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`that claims 1 and 10 are method claims, a person of ordinary skill in the art would understand the
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`terms “transmitter” and “base transmitter” to refer to a structural unit, and thus, the number of
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`transmitters in a given system or method is dependent on structure, not function. The
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`specification supports such an interpretation: “[e]ach base transmitter unit . . . receives
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`transmitter control data and message data transmitted from satellite 606.” ‘403 Pat. at 15:42-44.
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`Petitioners, Ex. 1011, Page 5
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 6 of 12 PageID #: 1122
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`(Emphasis added.) For this reason, the Court rejects MTEL’s implication that transmitting
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`multiple signals or outputs from a single structural unit can suffice as multiple transmitters.
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`Finally, as discussed in further detail below, the Court rejects Clearwire’s proposition that
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`a “transmitter” must be spatially separated or geographically dispersed from other transmitters,
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`because Clearwire has provided no evidence to support reading such a limitation into the claims.
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`B. “plurality of transmitters” (claims 1, 10) / “plurality of zones” (claim 10)
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`MTEL Proposed Construction
`No construction necessary
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`In the alternative: “more than one
`transmitter”
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`In the alternative: “more than one zone”
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`Clearwire Proposed Construction
`at least two transmitters
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`at least two zones
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`The primary dispute with regard to “plurality” relates to whether a “plurality” of a
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`particular item requires two of those items or would include one plus some fraction of the item.
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`As Clearwire notes, the Federal Circuit has found on multiple occasions that “plurality”
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`ordinarily means “at least two.” Apple Inc. v. Samsung Elec. Co., 695 F.3d 1370, 1378 (Fed. Cir.
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`2012); Bilstad v. Wakalopulos, 386 F.3d 1116, 119 (Fed. Cir. 2004); ResQNet.com, Inc. v.
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`Lansa, Inc., 346 F.3d 1374, 1384 (Fed. Cir. 2003). The text of the ‘403 patent provides no
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`reason to deviate from this general rule. See, e.g., claim 10 (specifying both a “first zone” and
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`“second zone,” and a “first set” and “second set” of transmitters). The Court also notes that,
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`when given the opportunity at the claim construction hearing, MTEL did not object to the
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`Court’s proposed construction of “at least two “transmitters” and “at least two zones.” The
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`Court finds that a “plurality of transmitters” means “at least two transmitters,” and a “plurality of
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`zones” means “at least two zones.”
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`Petitioners, Ex. 1011, Page 6
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 7 of 12 PageID #: 1123
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`Clearwire Proposed Construction
`transmitters the network operations center
`assigns to the same region of space, the
`boundary of which is roughly defined by
`the coverage areas of a set of transmitters
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`C. “zone[s]”
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`MTEL Proposed Construction
`No construction necessary
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`The Court finds that a “zone” is a “portion of a region of space,” as the claim context
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`requires such a construction. For example, claim 10 states “a region of space divided into a
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`plurality of zones.” In this way, the claims themselves define a zone as a portion of a region of
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`space. The specification also supports this construction: “[g]enerally, the communication system
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`of the present invention roughly divides various regions of space into portions called zones.”
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`‘403 Pat. at 9:40-43.
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`The Court rejects Clearwire’s contention that a zone consists of its assigned
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`transmitters, and notes that such a construction would directly conflict with the claim language.
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`Claim 10 recites “a first set of base transmitters assigned to a first zone” and “a second set of
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`base transmitters assigned to second zone.” Thus, the assignment of transmitters to a zone is
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`defined itself by the claim language, and grouping that assignment into the definition of the term
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`“zone” would be both redundant and confusing to a jury.
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`D. “set of transmitters” (claim 1) / “set of base transmitters” (claims 10, 11)
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`MTEL Proposed Construction
`No construction necessary
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`Clearwire Proposed Construction
`transmitters spatially dispersed throughout a
`geographic region
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`The primary dispute relates to whether the transmitters must be spatially dispersed. A
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`dispute also is presented as to whether the term requires multiple transmitters. The Court finds
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`Petitioners, Ex. 1011, Page 7
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 8 of 12 PageID #: 1124
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`that “set of transmitters” means “a set of at least two transmitters” and “set of base transmitters”
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`means “a set of at least two base transmitters.”
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`The Court rejects Clearwire’s contention that a “set” of transmitters must be
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`geographically dispersed. The claims merely recite a set of transmitters. Clearwire attempts to
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`read into the claims the particular embodiments of the specification but does not point to
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`language of disavowal in the specification or the prosecution history. In fact, the claims
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`themselves include their own geographical limitations (with regard to regions of space divided
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`into zones), further counseling against reading the features of the preferred embodiments into the
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`definition of the terms “set of transmitters” and “set of base transmitters.”
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`Similarly, the Court rejects MTEL’s contention that a “set of transmitters” can be a single
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`transmitter. The plain plural language of the claim (“transmitters”) requires at least two
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`transmitters. Further, as conceded by MTEL at the hearing, the remaining limitations of claim
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`10 clearly shows that if a “set” contained just one transmitter, the method and system claimed
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`would be incapable of functioning in the manner recited.
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`E. “transmitting in simulcast” (claim 1) / “transmitted in simulcast” (claim 10)
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`MTEL Proposed Construction
`transmitting information over two or more
`channels or modes
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`Clearwire Proposed Construction
`broadcasting identical signals
`simultaneously
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`The Court finds that a person of ordinary skill in the art would understand “transmitting
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`in simulcast” to mean “transmitting the same information at the same time.” At the hearing, each
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`party largely agreed with this language, but each proposed minor modifications.
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`Clearwire proposes that the construction should require that the same signal be
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`transmitted, rather than the same information. Clearwire provides no rationale for requiring that
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`Petitioners, Ex. 1011, Page 8
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 9 of 12 PageID #: 1125
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`the signals be identical, and in fact cites to the specification’s recitation that “simulcast
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`technology provides multiple transmitters . . . transmitting the same information.” ‘403 Pat. at
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`1:50-53; see also (Dkt. No. 61 at 21). Further, as MTEL correctly notes, the patent explicitly
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`states that “good simulcast practice” has differing signals:
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`It should also be understood that in accordance with good simulcast practice, the
`respective carrier frequencies between adjacent based transmitters, such as base
`transmitter 612 and base transmitter 614 in Figure 6, should be slightly offset….
`This frequency offset is preferably on the order of 10-20 hertz.
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`See ‘403 Pat. at 13:39-46. Thus, the “identical signal” requirement is not only absent from the
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`claims, but the specification specifically envisions a simulcasting embodiment that broadcasts
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`the same information without the use of identical signals. Thus, including such language in the
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`Court’s construction would be directly contrary to the specification.
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`MTEL proposes that the construction be adopted with the addition of “. . . over two or
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`more channels or modes.” In support of this proposal, MTEL cites to the specification’s
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`discussion of multi-carrier modulation. See (Dkt. No. 60 at 15); ‘403 Pat. at 13:3-15:40. The
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`Court first notes that MTEL provides no support for its assertion that the limitation of “. . . over
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`two or more channels or modes” should be read into the claims, and thus, the Court declines to
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`import that limitation from the specification.
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`MTEL also implicitly argues that, by using multi-carrier modulation, a single transmitter
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`may operate in simulcast with itself. The Court notes that there is no support in the specification
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`or prosecution history for the suggestion that this meets the definition of “simulcast” as defined
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`by the ‘403 Patent. In fact, the specification only envisions “multi-carrier simulcast” with two
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`transmitters, which directly contradicts MTEL’s implication:
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`In another embodiment, the invention is directed to a multi-carrier
`simulcast transmission system for transmitting in a desired frequency band
`a message contained in an information signal, the system comprising a
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`Petitioners, Ex. 1011, Page 9
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 10 of 12 PageID #: 1126
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`first transmitter means for transmitting an information signal by
`generating a first plurality of carrier signals within the desired frequency
`band and by modulating the first plurality of carrier signals to convey the
`information signal, and a second transmitter means, spatially separated
`from the first transmitter, for transmitting the information signal in
`simulcast with the first transmitter by generating a second plurality of
`carrier signals at substantially the same frequencies as the first plurality of
`carrier signals and by modulating the second plurality of carrier signals to
`convey the information signal.
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`‘403 Pat. at 5:30-43. Thus, the Court rejects MTEL’s proposal to add “. . . over two or more
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`channels or modes” to the Court’s construction, and in doing so, rejects MTEL’s implicit
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`argument that a single transmitter can operate in simulcast with itself by using multi-carrier
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`modulation.
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`The Court finds that “dynamically reassigning” should be given its plain and ordinary
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`meaning.
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`Neither party objected to this construction at the hearing, but in its brief, Clearwire
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`asserts that the specification describes the dynamic changing of zone assignments by
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`“reassign[ing] base transmitters to new zones based upon the volume of messages.” 23:45-41.
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`Clearwire also cites to the passage “in this instance, the zonal boundaries are changed to remove
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`this high traffic region from a zonal overlap area.” 24:21-22. Clearwire asserts that the altering
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`of the zone boundaries improves performance. (Dkt. No. 61 at 19.) As to “regions of space,”
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`Clearwire asserts that the specification contains multiple descriptions as to how the zone
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`boundaries are changed. (Dkt. No. 61 at 19-20 (citing ‘403 Pat. at 24:21-22, 34:35-35:3)).
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`F. “dynamically reassigning” claims 10, 11
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`MTEL Proposed Construction
`No construction necessary
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`Clearwire Proposed Construction
`redefining zonal boundaries by the network
`operations center reassigning transmitter(s)
`to a different region of space
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`Petitioners, Ex. 1011, Page 10
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`Case 2:12-cv-00308-JRG-RSP Document 72 Filed 07/01/13 Page 11 of 12 PageID #: 1127
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`Clearwire’s assertion that the specification states that zonal boundaries are redefined may be
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`true, but the claims clearly do not recite such a limitation – in other words, the claim does not
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`include language specifying what the result of that reassignment must be. To include the
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`additional language sought by Clearwire would be an improper re-writing of the claim language
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`that is on its face clear and understandable. That the specification describes an embodiment in
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`which reassignment of the transmitters causes the zone boundaries to change does not dictate that
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`such limitations should be added to the claim.
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` CONCLUSION
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` The Court adopts the above constructions. The parties are ordered that they may not refer,
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`directly or indirectly, to each other’s claim construction positions in the presence of the jury. Like-
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`wise, the parties are ordered to refrain from mentioning any portion of this opinion, other than the
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`actual definitions adopted by the Court, in the presence of the jury. Any reference to claim construc-
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`tion proceedings is limited to informing the jury of the definitions adopted by the Court.
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`Petitioners, Ex. 1011, Page 11
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`Petitioners, Ex. 1011, Page 12