Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 1 of 13 PageID #: 2184
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`
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`CHRIMAR SYSTEMS, INC., et al.,
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`Plaintiffs,
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`v.
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`Case No. 6:13-CV-880-JDL
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`ALCATEL-LUCENT, INC., et al.,
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`Defendants.
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`CHRIMAR SYSTEMS, INC., et al.,
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`v.
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`AMX, LLC,
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`Plaintiffs,
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`Defendant.
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`CHRIMAR SYSTEMS, INC., et al.,
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`Plaintiffs,
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`v.
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`
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`GRANDSTREAM NETWORKS, INC.,
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`Defendant.
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`CHRIMAR SYSTEMS, INC., et al.,
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` Plaintiffs,
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`Case No. 6:13-CV-881-JDL
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`Case No. 6:13-CV-882-JDL
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`v.
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`Case No. 6:13-CV-883-JDL
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`SAMSUNG ELECTRONICS, CO., et al.,
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` Defendants.
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`1
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`Page 1
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` Dell Inc.
` Exhibit 1018
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 2 of 13 PageID #: 2185
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` PLAINTIFFS CHRIMAR SYSTEMS, INC. D/B/A CMS TECHNOLOGIES AND
`CHRIMAR HOLDING COMPANY LLC’S OPPOSITION TO DEFENDANTS’ MOTION
`FOR SUMMARY JUDGMENT OF INVALIDITY DUE TO INDEFINITENESS
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` Defendants move for summary judgment on two grounds: (1) under Plaintiffs’ proposed
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`
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`construction1 of the phrases “distinguishing information about the piece of Ethernet data terminal
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`equipment” (claim 31) and “to distinguish the piece of terminal equipment” (claim 67), claims
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`31 and 67 are indefinite; and (2) the phrases “wherein distinguishing information about the piece
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`of Ethernet data terminal equipment is associated to impedance within the at least on path”
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`(claim 31) and “arranging impedance within the at least one path to distinguish the piece of
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`terminal equipment” (claim 67) render claims 31 and 67 indefinite. (Doc. No. 90, pp. 1-2).2 As
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`set forth in more detail below, both intrinsic evidence and the testimony of Plaintiffs’ expert, Les
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`Baxter (see Declaration of L. Baxter attached as Exhibit B), show that claims 31 and 67, read in
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`light of the specification delineating the patent, and the prosecution history, inform, with
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`reasonable certainty, those skilled in the art about the scope of the inventions recited in those
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`claims. Defendants fail to show that there is no genuine dispute as to any material fact that
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`claims 31 and 67 are invalid as indefinite. Thus, Plaintiffs respectfully request that the Court
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`deny Defendants’ Motion for Summary Judgment.
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`A. RESPONSE TO DEFENDANTS’ STATEMENT OF UNDISPUTED
`MATERIAL FACTS.
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`1 Defendants do not move for summary judgment under any other construction of these phrases.
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`2 Defendants state that “Asserted dependent claims 35, 42, 43, 49, 50, 55, 66, 72, 73, 77, 88, 89, and 106 also fail
`to provide additional information sufficient to provide reasonable certainty…Accordingly, all asserted claims are
`invalid due to indefiniteness.” (Doc. No. 90, p. 9). Defendants do not move for summary judgment that these
`dependent claims are invalid as indefinite apart from their independent claims 31 and 67. Therefore, while
`Plaintiffs maintain that these dependent claims are definite, Plaintiffs have not addressed any claims other than
`claims 31 and 67.
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 3 of 13 PageID #: 2186
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`1.
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`“1. Claims 31 and 67 are the only independent claims asserted by Chrimar. Each
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`of the asserted independent claims includes one of the “distinguishing” limitations. All other
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`asserted claims depend on claim 31 or 67.” RESPONSE: Disputed, to the extent that
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`“’distinguishing’ limitations” refers to anything other than the exact phrases “distinguishing
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`information about the piece of Ethernet data terminal equipment” or “to distinguish the piece of
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`terminal equipment.” read in the context of the entire claim. U.S. Patent No. 8,155,012, Cls. 31
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`& 67, Col. 18, line 62 to Col. 19, line 5; Col. 21, lines 8 to 21, attached as Exhibit A. Otherwise,
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`Undisputed.
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`2.
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`“2. Asserted claims 31 and 67 use the terms “distinguish” and “distinguishing”
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`only in relation to the “piece of the Ethernet data terminal equipment” recited in the preambles.”
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`RESPONSE: Disputed. U.S. Patent No. 8,155,012, Cls. 31 & 67, Col. 18, line 62 to Col. 19,
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`line 5; Col. 21, lines 8 to 21, attached as Exhibit A.
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`3.
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`“3. The term “distinguish” is not used in the ‘012 patent specification other than
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`in the claims themselves.” RESPONSE: Undisputed, to the extent that this statement is
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`referring to the exact term “distinguish.” To the extent that this statement is referring to the
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`understanding of one of ordinary skill in the art and/or the phrases “distinguishing information
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`about the piece of Ethernet data terminal equipment” or “to distinguish the piece of terminal
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`equipment,” read in the context of the entire claim. Disputed. Exhibit A, Col. 4, lines 48-53;
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`Col. 2, lines 49-58; Col. 6, lines 33-41; Col. 15, line 67 to Col. 16, line 4; Declaration of Les
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`Baxter, Ex. B, ¶¶ 32-52.
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`B. STATEMENT OF THE LAW.
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`A claim is definite if it, read in light of the specification delineating the patent, and the
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`prosecution history, informs, with reasonable certainty, those skilled in the art about the scope of
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`Page 3
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 4 of 13 PageID #: 2187
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`the invention. Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2124 (2014). General
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`principles of claim construction apply to a determination of indefiniteness. Young v. Lumenis,
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`Inc., 492 F.3d 1336, 1346 (Fed. Cir. 2007). Indefiniteness must be shown by clear and
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`convincing evidence. Id. at 1344-45.
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`“The definiteness requirement . . .mandates clarity, while recognizing that absolute
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`precision is unattainable.” Nautilus, 134 S.Ct. at 2129. “ ‘[T]he certainty which the law requires
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`in patents is not greater than is reasonable, having regard to their subject-matter.’” Id. “[A]
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`patentee need not define his invention with mathematical precision in order to comply with the
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`definiteness requirement.” Oakley, Inc. v. Sunglass Hut Intern., 316 F.3d 1331, 1341 (Fed. Cir.
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`2003).
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`The Federal Circuit recently stated that “[w]e recognize that a patent which defines a
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`claim phrase through examples may satisfy the definiteness requirement.” Interval Licensing
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`LLC v. AOL, Inc., No. 2013-1282, 2014 WL 4435871, at *8 (Fed. Cir. Sept. 10, 2014). “[A]
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`patent applicant need not include in the specification that which is already known to and
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`available to a person of ordinary skill in the art.” Wellman, Inc. v. Eastman Chemical Co., 642
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`F.3d 1355, (Fed. Cir. 2011)(“Because a person of ordinary skill in the art would have followed
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`published industry standards, the asserted claims of the Wellman patents are not indefinite for
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`failing to specify moisture conditions.”).
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`C. DEFENDANTS FAILED TO SHOW THAT THERE IS NO GENUINE
`DISPUTE AS TO ANY MATERIAL FACT.
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`a. One of ordinary skill in the art knows the scope of “an Ethernet
`connector comprising a plurality of contacts.”
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`Claim 31 recites “an Ethernet connector comprising a plurality of contacts.” Ex. A, Cl.
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`31. Claim 67 recites “the Ethernet connector comprising the contact 1 through the contact 8.”
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 5 of 13 PageID #: 2188
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`Ex. A, Cl. 67. Dependent claims provide that the Ethernet connector could be an RJ45 Jack. Ex.
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`A, Cl. 34, Col. 19, lines 15-18, Cl. 92, Col. 22, lines 45-47. Ethernet connectors were also
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`explained during the prosecution of the ‘012 Patent. See ‘012 File History, 12/6/2011
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`Amendment and Petition for Extension of Time, CMS001221-001226, attached as Exhibit C.
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`Below is an example of a Ethernet Connector with multiple contacts:
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`Baxter Decl., Ex B, ¶ 59. There is no dispute that Ethernet connectors were known in the art at
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`the time the ‘012 patent was filed. (Doc. No. 90-1, ¶ 6). Thus, the “Ethernet connector” phrases
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`above inform, with reasonable certainty, those skilled in the art about the scope of the inventions
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`recited in claims 31 and 67. Baxter Decl., Ex. B, ¶¶ 53-60;See Power-One, Inc. v. Artesyn
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`Techs., Inc., 599 F.3d 1343, 1350 (Fed. Cir. 2010)(“ Because a person having ordinary skill in
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`the art would know where to place the POL regulator and how to use it, we find that the claim
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`term “POL regulator” is not indefinite and does not render the claims of the ′125 patent
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`indefinite.”).
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`b. One of ordinary skill in the art knows the scope of an “at least one path
`coupled across selected contacts.”
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`Claim 31 recites “at least one path coupled across selected contacts.” Ex. A, Cl. 31.
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`Claim 31 further explains that “the selected contacts comprising at least one of the plurality of
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`contacts of the Ethernet connector and at least another one of the plurality of contacts of the
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`Ethernet connector.” Id. Claim 67 recites “coupling at least one path across specific contacts of
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 6 of 13 PageID #: 2189
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`the Ethernet connector.” Ex. A, Cl. 67. One of ordinary skill in the art would understand this to
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`mean that a path is coupled between the contacts. Baxter Decl., Ex. B, ¶¶ 61-63.
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`Below is an example of an Ethernet Connector with a path coupled across its contacts:
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`Baxter Decl., Ex. B, ¶ 64. Thus, the “at least one path” phrases above inform, with reasonable
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`certainty, those skilled in the art about the scope of the inventions recited in claims 31 and 67.
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`Baxter Decl., Ex. B, ¶¶ 61-65.
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`c. One of ordinary skill in the art knows the scope of “impedance.”
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`“Impedance” is recited on both Claims 31 and 67. Ex. A, Cls. 31 & 67. According to the
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`Federal Circuit, “Our cases establish that ‘prior art cited in a patent or cited in the prosecution
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`history of the patent constitutes intrinsic evidence.’” Powell v. Home Depot U.S.A., Inc., 663
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`F.3d 1221, 1231 (Fed. Cir. 2011). In this case, intrinsic evidence shows that there can be no
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`dispute that impedance was well known in the art at the time the ‘012 patent was filed. U.S.
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`Patent No. 4,670,902, issued in 1987 and cited on the face of the ‘012 patent, provides: “Thus it
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`is possible to independently select the direct current impedance and the alternating current
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`impedance of the circuitry.” Exhibit D, Col. 2, lines 19-21.
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`This is also supported by extrinsic evidence:
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`• Oxford Concise Science Dictionary, pp. 362-363 (1996), attached as Exhibit E:
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`“impedance Symbol Z. The quantity that measures the opposition of a circuit to
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 7 of 13 PageID #: 2190
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`the passage of a current and therefore determines the amplitude of the current. In
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`a d.c. circuit this is the resistance (R) alone…”
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`• T. O’Conor Sloane, The Standard Electrical Dictionary, attached as Exhibit F, p.
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`297 (2nd ed. 1899): “Impedance. The ratio of any impressed electro-motive force
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`to the current which it produces in a conductor. For steady currents it is only the
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`resistance. ..”
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`Dependent claims 51 and 79 provide that the impedance could be between 10k Ohms and 15 k
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`Ohms. Ex. A, Cl. 51, Col. 20, lines 25-27, Cl. 79, Col. 22, lines 1-4. Thus, “impedance”
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`informs, with reasonable certainty, those skilled in the art about the scope of the inventions
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`recited in claims 31 and 67. Baxter Decl., Ex. B, ¶¶ 66-72.
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`d. One of ordinary skill in the art would understand the bounds of
`“distinguishing information…”/“to distinguish...”
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`Plaintiffs’ proposed construction of “distinguishing information…” in claim 31 is:
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`“Information to distinguish the piece of Ethernet data terminal equipment from at least one other
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`piece of Ethernet data terminal equipment.” Plaintiffs’ proposed construction of “to
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`distinguish…” in claim 67 is: “to distinguish the piece of terminal equipment having an Ethernet
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`connector from at least one other piece of terminal equipment having an Ethernet connector.”
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`Dependent claims further define the “distinguishing information”/“to distinguish”
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`phrases. Baxter Decl., Ex. B, ¶¶ 28-31; See, Enzo Biochem, Inc. v. Applera Corp., 599 F.3d
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`1325, 1334 (Fed. Cir. 2010)(“ Thus, it may be presumed that the term “not interfering
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`substantially” in the independent claims allows for at least as much interference as that exhibited
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`when the linkage group has the structure specified in the dependent claims.”). For example,
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`dependent claims 48 and 49 provide that the “distinguishing information” could be general
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`information related to an electrical or physical aspect of the piece of equipment. Ex. A, Cls. 48,
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`49, Col. 20, lines 10-17. Dependent claim 33 provides that the “distinguishing information”
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`could be “identifying information” about the piece of equipment. Ex. A, Cl. 33, Col. 19, lines 9-
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`14. Dependent claims 69 and 71 show that the “distinguishing information” could also be very
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`specific information to “uniquely distinguish” or “uniquely identify” the piece of equipment. Ex.
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`A, Cls. 69, 71, Col. 21, lines 24-28, lines 34-38.
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`The specification provides numerous examples of distinguishing information. See
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`Thomas Swan & Co. Ltd. v. Finisar Corp., No. 2:13cv00178, 2014 WL 2885296, at *10
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`(E.D.Tex. June 25, 2014) (“all of these examples inform, with reasonable certainty, those skilled
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`in the art about the scope of the invention because they indicate that the hologram is used to
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`control light incident upon the SLM.”). Examples include: equipment processor type, hard drive
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`capacity, authorization information, physical attributes, physical configuration, electronic
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`attributes, software configuration, network attributes, and date of entry. Ex. A, Col. 4, lines 48-
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`53; Col. 2, lines 49-58; Col. 6, lines 33-41; Col. 15, line 67 to Col. 16, line 4.
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`According to Plaintiffs’ proposed construction, to be “distinguishing information” or “to
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`distinguish,” the information must distinguish the piece of equipment from “at least one other”
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`piece of equipment. One of ordinary skill in the art knows that certain information about a piece
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`of equipment varies among pieces of equipment. Baxter Decl., Ex. B, ¶ 43. For example, one of
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`ordinary skill in the art knows that not every piece of equipment has the same processor type. Id.
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`Thus, one of ordinary skill in the art does not need to have a specific piece of equipment for
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`comparison to know whether certain information (e.g. processor type) distinguishes a piece of
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`equipment from at least one other piece of equipment. Id. In sum, Defendants are incorrect
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`when they state “Chrimar’s proposal requires a comparison of the Ethernet data terminal
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`equipment to ‘at least’ a second, unspecified device, which is outside the claimed subject
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`matter.” Baxter Decl., Ex. B, ¶¶ 28-52.
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`e. “arranging impedance within the at least one path” and “impedance
`within the at least one path” informs with reasonable certainty those
`skilled in the art about the scope of the invention.
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`Intrinsic evidence shows that one of ordinary skill in the art would understand that
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`“arranging impedance within the at least one path” means that the impedance is placed in a path
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`between contacts of the Ethernet connector. U.S. Patent No. 4,723,267 (1988), Abstract (“place
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`a low impedance d.c. load across the tip and ring conductors…”), attached as Exhibit G. Baxter
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`Decl., Ex. B, ¶¶ 73-74. This understanding is further supported by the dictionary definition of
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`“arrange” as “to put into a proper order or into a correct or suitable sequence, relationship, or
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`adjustment.” Merriam Webster Collegiate Dictionary (1998), attached as Ex. H. Similarly,
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`Claim 31 requires “impedance within the at least one path,” where the path is coupled across
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`contacts of an Ethernet Connector. Below is an example of an Ethernet Connector with a path
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`coupled across its contacts and an impedance within the path:
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`Baxter Decl., Ex. B, ¶ 77. Thus, “arranging impedance within the at least one path” and
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`“impedance within the at least one path” inform, with reasonable certainty, those skilled in the
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`art about the scope of the inventions recited in claims 31 and 67. Baxter Decl., Ex. B, ¶¶ 66-78.
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`f. “arranging impedance within the at least one path to distinguish the piece
`of terminal equipment” and “wherein distinguishing information about
`the piece of Ethernet data terminal equipment is associated to impedance
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 10 of 13 PageID #: 2193
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`within the at least one path” inform with reasonable certainty those
`skilled in the art about the scope of the invention.
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`One of ordinary skill in the art would understand that “arranging impedance within the at
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`least one path to distinguish the piece of terminal equipment” means that the impedance is placed
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`in the path for the purpose of making the piece of terminal equipment distinguishable. Baxter
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`Decl., Ex. B, ¶ 81. One of ordinary skill in the art would understand that “wherein
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`distinguishing information… is associated to impedance within the at least one path” means that
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`the impedance is placed in the path for the purpose of providing distinguishing information
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`about the piece of terminal equipment. For example, PoE terminal equipment manufacturers
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`purposely place a 25 k Ohm resistor within a path across contacts of an Ethernet connector. It is
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`no accident. Therefore, contrary to Defendants’ argument, one of ordinary skill in the art can
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`determine when a piece of Ethernet data terminal equipment includes the element of “wherein
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`distinguishing information about the piece of Ethernet data terminal equipment is associated to
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`impedance within the at least one path” (claim 31) and when one performs the step of “arranging
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`impedance within the at least one path to distinguish the piece of terminal equipment” (claim
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`67). Baxter Decl, Ex. B, ¶¶ 66-85.
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`Further, as noted above, Claim 31 does not include an active step by a user. Alexsam,
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`Inc. v. Best Buy Stores L.P., No. 2:10-cv93, 2012 WL 4891619, at * 3 (E.D.Tex.,2012) (“IPXL
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`does not apply here because the claim does not recite a method step performed by a user and
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`does not create confusion as to when infringement occurs. Accordingly, the Court is of the
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`opinion the disputed claims are not hybrid claims under IPXL and are not invalid as being
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`indefinite”). Thus, Defendants are incorrect when they state that “[t]he act by which
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`distinguishing information is/was associated to impedance constitutes a method step that happens
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`by some actor at some unspecified time.” (Doc. No. 90, p. 8); Baxter Decl., Ex. B, ¶ 82; see,
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 11 of 13 PageID #: 2194
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`e.g., Lectec Corp. v. Chattem, Inc., No. 5:08cv130, 2010 WL 10861324, at *11 (E.D.Tex. May
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`20, 2010)( The claims at issue do not recite “curing” but rather recite “is cured,” which is fairly
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`read to recite a physical property rather than a method step. The Court rejects Defendants'
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`proposal that this limitation is an “active step.”). In sum, “wherein distinguishing
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`information…is associated to impedance….” and “arranging impedance within the at least one
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`path to distinguish the piece of terminal equipment” inform, with reasonable certainty, those
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`skilled in the art about the scope of the inventions recited in claims 31 and 67. Baxter Decl., Ex.
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`B, ¶¶ 66-85.
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`g. Defendants mischaracterize Plaintiffs’ position and misapply anticipation
`arguments to the issue of indefiniteness.
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`Defendants argue that “Chrimar contends that prior art Ethernet devices fall within the
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`scope of the claim (as construed by Chrimar), when they are distinguished against PoE-
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`compatible Ethernet devices” and “This inability to distinguish the claimed invention from the
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`admitted prior art (non-PoE device), renders the claims indefinite.” (Doc. No. 90, p. 7).
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`Plaintiffs have not “admitted” any product is prior art or that any prior art product satisfies all the
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`elements of any asserted claim.
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`Whether a piece of terminal equipment is not a PoE device does not determine if it
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`infringes. As the Court is aware, infringement is determined if all of the claim elements are met.
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`Depending on the aspects of the device, it may or may not infringe. Also, the test for
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`indefiniteness is not whether a prior art device would infringe. The test is instead is whether the
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`claim read in light of the specification delineating the patent, and the prosecution history,
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`informs, with reasonable certainty, those skilled in the art about the scope of the invention.
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`Nautilus, 134 S.Ct. at 2124. Whether the claim would be infringed by certain prior art and
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`thereby be invalid under 102 or 103 is a separate issue from indefiniteness. See, e.g., Scott
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`Environmental Services, Inc. v. A to Z Mud Co., Inc., No. 2:13cv701, 2014 WL 4226770, at * 16
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`(E.D.Tex. Aug. 26, 2014) (“the Parties dispute the proper specific test a person of ordinary skill
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`would use to determine whether a particular embodiment meets the limitation. From a review of
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`the briefing, the Parties' arguments as to this limitation appear to be infringement or enablement
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`arguments—not indefiniteness arguments.”).
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`D. CONCLUSION.
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`For the reasons set forth above and in the Declaration of Plaintiffs’ expert Les Baxter
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`submitted with this Opposition, asserted claims 31, 35, 42, 43, 49, 50, 55, 66, 67, 72, 73, 77, 88,
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`89, and 106 are definite and Plaintiffs respectfully request that the Court deny Defendants’
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`Motion for Summary Judgment of Invalidity Due to Indefiniteness.
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`DATED: October 20, 2014
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`Respectfully submitted,
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`
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`THE SIMON LAW FIRM, P.C.
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`/s/ Timothy D. Krieger
`Anthony G. Simon
`asimon@simonlawpc.com
`Timothy D. Krieger
`tkrieger@simonlawpc.com
`Benjamin R. Askew
`baskew@simonlawpc.com
`Michael P. Kella
`mkella@simonlawpc.com
`800 Market Street, Suite 1700
`St. Louis, MO 63101
`Phone: (314) 241-2929
`Fax: (314) 241-2029
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`J. Wesley Hill
`Texas State Bar No. 24032294
`WARD & SMITH LAW FIRM
`P.O. Box 1231
`1127 Judson Road, Ste. 220
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`Case 6:13-cv-00880-JDL Document 90 Filed 10/20/14 Page 13 of 13 PageID #: 2196
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`Longview, Texas 75606-1231
`(903) 757-6400
`(903) 757-2323 (fax)
`jw@wsfirm.com
`wh@wsfirm.com
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`ATTORNEYS FOR PLAINTIFFS
`CHRIMAR SYSTEMS, INC. d/b/a CMS
`TECHNOLOGIES and CHRIMAR HOLDING
`COMPANY, LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing was served upon all counsel of record this
`20th day of October, 2014 via the Court’s CM/ECF system.
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`
`/s/ Timothy D. Krieger
`Timothy D. Krieger
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