Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 1 of 31 PageID #: 8986
`
`IN THE UNITED STATES DISTRICT COURT
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`FOR THE DISTRICT OF DELA WARE
`
`TQDELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`COMCAST CABLE COMMUNICATIONS,
`COMCAST CABLE COMMUNICATIONS,
`LLC
`LLC
`
`Civil Action No.1 :15-cv-00611-RGA
`Civil Action No. 1: 15-cv-00611-RGA
`
`Defendant.
`Defendant.
`
`TQ DELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`COXCOM LLC and COX
`COXCOM LLC and COX
`COMMUNICATIONS INC.,
`COMMUNICATIONS INC.,
`
`Defendants.
`Defendants.
`
`TQ DELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`DIRECTV, LLC,
`DIRECTV, LLC,
`
`Defendant.
`Defendant.
`
`Civil Action No. 1:15-cv-00612-RGA
`Civil Action No. 1:15-cv-00612-RGA
`
`Civil Action No. 1:15-cv-00613-RGA
`Civil Action No.1: 15-cv-00613-RGA
`
`TQ Delta Exhibit 2007
`Cisco Systems, Inc. v. TQ Delta LLC
`IPR2016-01020
`
`1
`
`

`

`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 2 of 31 PageID #: 8987
`
`Civil Action No. 1:15-cv-00614-RGA
`Civil Action No. 1 :15-cv-00614-RGA
`
`TQ DELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`DISH NETWORK CORPORATION, DISH
`DISH NETWORK CORPORATION, DISH
`NETWORK LLC, DISH DBS
`NETWORK LLC, DISH DBS
`CORPORATION, ECHOSTAR
`CORPORATION, ECHOSTAR
`CORPORATION, and ECHOSTAR
`CORPORATION, and ECHOSTAR
`TECHNOLOGIES, LLC
`TECHNOLOGIES, LLC
`
`Defendants.
`Defendants.
`
`TQ DELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`TIME WARNER CABLE INC. and TIME
`TIME WARNER CABLE INC. and TIME
`WARNER CABLE ENTERPRISES LLC,
`WARNER CABLE ENTERPRISES LLC,
`
`Civil Action No. 1:15-cv-00615-RGA
`Civil Action No. 1:15-cv-00615-RGA
`
`Defendants.
`Defendants.
`
`TQ DELTA, LLC,
`TQ DELTA, LLC,
`
`Plaintiff,
`Plaintiff,
`
`v.
`v.
`
`VERIZON SERVICES CORP.,
`VERIZON SERVICES CORP.,
`
`Defendant.
`Defendant.
`
`Civil Action No. 1 :15-cv-00616-RGA
`Civil Action No. 1:15-cv-00616-RGA
`
`2
`2
`
`2
`
`

`

`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 3 of 31 PageID #: 8988
`
`MEMORANDUM OPINION
`MEMORANDUM OPINION
`
`Brian E. Farnan, Esq., FARNAN LLP, Wilmington, DE; Michael J. Farnan, Esq., FARNAN
`Brian E. Farnan, Esq., FARNAN LLP, Wilmington, DE; Michael J. Farnan, Esq., FARNAN
`LLP, Wilmington, DE; Peter J. McAndrews, Esq. (argued), MCANDREWS, HELD &
`LLP, Wilmington,DE; Peter J. McAndrews, Esq. (argued), MCANDREWS, HELD &
`MALLOY, LTD., Chicago, IL; Thomas J. Wimbiscus, Esq., MCANDREWS, HELD &
`MALLOY, LTD., Chicago, IL; Thomas J. Wimbiscus, Esq., MCANDREWS, HELD &
`MALLOY, LTD., Chicago, IL; Scott P. McBride, Esq., MCANDREWS, HELD & MALLOY,
`MALLOY, LTD., Chicago, IL; Scott P. McBride, Esq., MCANDREWS, HELD & MALLOY,
`LTD., Chicago, IL; Rajendra A. Chiplunkar, Esq., MCANDREWS, HELD & MALLOY, LTD.,
`LTD., Chicago, IL; Rajendra A. Chiplunkar, Esq., MCANDREWS, HELD & MALLOY, LTD.,
`Chicago, IL; James P. Murphy, Esq., MCANDREWS, HELD & MALLOY, LTD., Chicago, IL.
`Chicago, IL; James P. Murphy, Esq., MCANDREWS, HELD & MALLOY, LTD., Chicago, IL.
`
`Attorneys for Plaintiff
`Attorneys for Plaintiff
`
`Jack B. Blumenfeld, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE;
`Jack B. Blumenfeld, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE;
`Jennifer Ying, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; L.
`Jennifer Ying, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; L.
`Norwood Jameson, Esq., DUANE MORRIS LLP, Atlanta, GA; Matthew C. Gaudet, Esq.
`Norwood Jameson, Esq., DUANE MORRIS LLP, Atlanta, GA; Matthew C. Gaudet, Esq.
`(argued), DUANE MORRIS LLP, Atlanta, GA; Corey J. Manley, Esq., DUANE MORRIS LLP,
`(argued), DUANE MORRIS LLP, Atlanta, GA; Corey J. Manley, Esq., DUANE MORRIS LLP,
`Atlanta, GA; David C. Dotson, Esq., DUANE MORRIS LLP, Atlanta, GA; S. Neil Anderson,
`Atlanta, GA; David C. Dotson, Esq., DUANE MORRIS LLP, Atlanta, GA; S. Neil Anderson,
`Esq., DUANE MORRIS LLP, Atlanta, GA; Alice E. Snedeker, Esq., DUANE MORRIS LLP,
`Esq., DUANE MORRIS LLP, Atlanta, GA; Alice E. Snedeker, Esq., DUANE MORRIS LLP,
`Atlanta, GA; John M. Baird, Esq., DUANE MORRIS LLP, Washington, DC.
`Atlanta, GA; John M. Baird, Esq., DUANE MORRIS LLP, Washington, DC.
`
`Attorneys for Defendants Com cast Cable Communications LLC, Cox Com LLC, Cox
`Attorneys for Defendants Comcast Cable Communications LLC, CoxCom LLC, Cox
`Communications Inc., DIRECTV, LLC, Time Warner Cable Inc., and Time Warner
`Communications Inc., DIRECTV, LLC, Time Warner Cable Inc., and Time Warner
`Cable Enterprises LLC
`Cable Enterprises LLC
`
`Alex V. Chachkes, Esq. (argued), ORRICK, HERRINGTON & SUTCLIFFE LLP, New York,
`Alex V. Chachkes, Esq. (argued), ORRICK, HERRINGTON & SUTCLIFFE LLP, New York,
`NY.
`NY.
`
`Attorney for Defendant DIRECTV, LLC.
`Attorney for Defendant DIRECTV, LLC.
`
`Rodger D. Smith, II, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE;
`Rodger D. Smith, II, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE;
`Eleanor G. Tennyson, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington,
`Eleanor G. Tennyson, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington,
`DE; Heidi L. Keefe, Esq. (argued), COOLEY LLP, Palo Alto, CA; Stephen P. McBride,
`DE; Heidi L. Keefe, Esq. (argued), COOLEY LLP, Palo Alto, CA; Stephen P. McBride,
`COOLEY LLP, Palo Alto, CA;.
`COOLEY LLP, Palo Alto, CA;.
`
`Attorneys for Defendants Dish Network Corporation, Dish Network LLC, Dish DBS
`Attorneys for Defendants Dish Network Corporation, Dish Network LLC, Dish DBS
`Corporation, Echostar Corporation and Echostar Technologies, LLC.
`Corporation, Echostar Corporation and Echostar Technologies, LLC.
`
`Benjamin J. Schladweiler, Esq., ROSS ARONSTAM & MORITZ, Wilmington, DE.
`Benjamin J. Schladweiler, Esq., ROSS ARONSTAM & MORITZ, Wilmington, DE.
`
`Attorney for Defendant Verizon Services Corp.
`Attorney for Defendant Verizon Services Corp.
`
`NovemberJO, 2016
`November)' ,2016
`
`3
`3
`
`3
`
`

`

`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 4 of 31 PageID #: 8989
`
`~~~
`~~~
`
`Presently before the Court is the issue of claim construction of multiple terms in U.S.
`Presently before the Court is the issue of claim construction of multiple terms in U.S.
`
`Patent Nos. 8,718,158 (''the '158 patent"), 9,014,243 ("the '243 patent"), 8,61-1,404 ("the '404
`Patent Nos. 8,718,158 (''the '158 patent"), 9,014,243 ("the '243 patent"), 8,61-1,404 ("the '404
`
`patent"), 9,094,268 ("the '268 patent"), 7,835,430 ("the '430 patent"), and 8,238,412 (''the '412
`patent"), 9,094,268 ("the '268 patent"), 7,835,430 ("the '430 patent"), and 8,238,412 ("the '412
`
`patent"). The Court has considered the Parties' Joint Claim Construction Brief. (Civ. Act. No.
`patent"). The Court has considered the Parties' Joint Claim Construction Brief. (Civ. Act. No.
`
`15-611-RGA, D.L 144; Civ. Act. No. 15-612-RGA, D.L 141; Civ. Act. No. 15-613-RGA, D.L
`15-611-RGA, D.I. 144; Civ. Act. No. 15-612-RGA, D.I. 141; Civ. Act. No. 15-613-RGA, D.I.
`
`141; Civ. Act. No. 15-614-RGA, D.l. 135; Civ. Act. No. 15-615-RGA, D.L 141; Civ. Act. No.
`141; Civ. Act. No. 15-614-RGA, D.I. 135; Civ. Act. No. 15-615-RGA, D.I. 141; Civ. Act. No.
`
`15-616-RGA; D.I. 146). 1 The Court heard oral argument on October 18, 2016. (D.I. 158).
`15-616-RGA; D.L 146).1 The Court heard oral argument on October 18, 2016. (D.!. 158).
`
`I.
`I.
`
`BACKGROUND
`BACKGROUND
`
`Plaintiff filed these actions on July 17,2015, alleging infringement of eight patents. (D.L
`Plaintiff filed these actions on July 17, 2015, alleging infringement of eight patents. (D.I.
`
`1). On July 14,2016, Plaintiff dismissed two of these patents with prejudice. (D.L 102). The
`1). On July 14, 2016, Plaintiff dismissed two of these patents with prejudice. (D.I. 102). The
`
`parties divide the remaining contested patents into three groupings: the phase scrambling patents,
`parties divide the remaining contested patents into three groupings: the phase scrambling patents,
`
`the low power mode patents, and the diagnostic mode patents. The phase scrambling patents,
`the low power mode patents, and the diagnostic mode patents. The phase scrambling patents,
`
`which include the '158 and '243 patents, claim methods for reducing the peak to average power
`which include the '158 and '243 patents, claim methods for reducing the peak to average power
`
`ratio of a multicarrier transmission system. The low power mode patents, which include the' 404
`ratio of a multicarrier transmission system. The low power mode patents, which include the '404
`
`and '268 patents, claim methods for causing a multicarrier communications system to enter a low
`and '268 patents, claim methods for causing a multicarrier communications system to enter a low
`
`power mode while storing state information for full power mode to enable a rapid start up
`power mode while storing state information for full power mode to enable a rapid start up
`
`without the need for reinitialization. The diagnostic mode patents, which include the '430 and
`without the need for reinitialization. The diagnostic mode patents, which include the '430 and
`
`'412 patents, claim both an apparatus and method for the reliable exchange of diagnostic and test
`'412 patents, claim both an apparatus and method for the reliable exchange of diagnostic and test
`
`information over a multicarrier communications system.
`information over a multicarrier communications system.
`
`1 Unless otherwise specifically noted, all references to the docket refer to Civil Action No. 15-611-RGA.
`1 Unless otherwise specifically noted, all references to the docket refer to Civil Action No. 15-611-RGA.
`
`4
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`

`

`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 5 of 31 PageID #: 8990
`
`I f.
`
`f
`t
`
`II.
`II.
`
`LEGALSTANDARD
`LEGAL STANDARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`
`which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312
`which the patentee is entitled the right to exclude." Phillips v. A WH Corp., 415 F.3d 1303, 1312
`
`(Fed. Cir. 2005) (en bane) (internal quotation marks omitted). '"[T]here is no magic formula or
`(Fed. Cir. 2005) (en banc) (internal quotation marks omitted). '" [T]here is no magic formula or
`
`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
`catechism for conducting claim construction.' Instead, the court is free to attach the appropriate
`
`weight to appropriate sources 'in light of the statutes and policies that inform patent law."'
`weight to appropriate sources 'in light of the statutes and policies that inform patent law. ",
`
`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
`SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips,
`
`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
`415 F.3d at 1324) (alteration in original). When construing patent claims, a court considers the
`
`literal language of the claim, the patent specification, and the prosecution history. Markman v.
`literal language of the claim, the patent specification, and the prosecution history. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370
`Westview Instruments, Inc., 52 F.3d 967,977-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370
`
`· (1996). Of these sources, "the specification is always highly relevant to the claim construction
`. (1996). Ofthese sources, "the specification is always highly relevant to the claim construction
`
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term."
`
`Phillips, 415 F.3d at 1315 (internal quotation marks omitted).
`Phillips, 415 F .3d at 1315 (internal quotation marks omitted).
`
`"[T]he words of a claim are generally given their ordinary and customary meaning ....
`"[T]he words of a claim are generally given their ordinary and customary meaning ....
`
`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
`[Which is] the meaning that the term would have to a person of ordinary skill in the art in
`
`question at the time of the invention, i.e., as of the effective filing date of the patent application."
`question at the time of the invention, i.e., as of the effective filing date of the patent application."
`
`Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a
`Id. at 1312-13 (citations and internal quotation marks omitted). "[T]he ordinary meaning of a
`
`claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
`claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321
`
`(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
`(internal quotation marks omitted). "In some cases, the ordinary meaning of claim language as
`
`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
`
`construction in such cases involves little more than the application of the widely accepted
`construction in such cases involves little more than the application of the widely accepted
`
`meaning of commonly understood words." Id. at 1314.
`meaning of commonly understood words." Id. at 1314.
`
`2
`2
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`5
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`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 6 of 31 PageID #: 8991
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`When a court relies solely upon the intrinsic evidence--the patent claims, the
`When a court relies solely upon the intrinsic evidence-the patent claims, the
`
`specification, and the prosecution history-the court's construction is a determination oflaw.
`specification, and the prosecution history-the court's construction is a determination oflaw.
`
`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also
`See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also
`
`make factual findings based upon consideration of extrinsic evidence, which "consists of all
`make factual findings based upon consideration of extrinsic evidence, which "consists of all
`
`evidence external to the patent and prosecution history, including expert and inventor testimony,
`evidence external to the patent and prosecution history, including expert and inventor testimony,
`
`dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19 (internal quotation marks
`dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19 (internal quotation marks
`
`omitted). Extrinsic evidence may assist the court in understanding the underlying technology,
`omitted). Extrinsic evidence may assist the court in understanding the underlying technology,
`
`the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic
`the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic
`
`evidence, however, is less reliable and less useful in claim construction than the patent and its
`evidence, however, is less reliable and less useful in claim construction than the patent and its
`
`prosecution history. Id.
`prosecution history. Id.
`
`"A claim construction is persuasive, not because it follows a certain rule, but because it
`"A claim construction is persuasive, not because it follows a certain rule, but because it
`
`defines terms in the context ofthe whole patent." Renishaw PLC v. Marposs Societa' per
`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per
`
`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
`Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
`
`exclude the inventor's device is rarely the correct interpretation:" Osram GMBH v. Int 'l Trade
`exclude the inventor's device is rarely the correct interpretation:" Osram GMBH v. Int'l Trade
`
`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation and internal quotation marks omitted).
`Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation and internal quotation marks omitted).
`
`III. CONSTRUCTION OF DISPUTED TERMS
`III. CONSTRUCTION OF DISPUTED TERMS
`
`A.
`A.
`
`The Phase Scrambling Patents
`The Phase Scrambling Patents
`
`The' 158 patent is directed to a method for scrambling the phase characteristics of carrier
`The '158 patent is directed to a method for scrambling the phase characteristics of carrier
`
`signals in a multicarrier communications system. Claim 1 is representative and reads as follows:
`signals in a multicarrier communications system. Claim 1 is representative and reads as follows:
`
`In a multicarrier modulation system including a first transceiver in
`1.
`In a multicarrier modulation system including a first transceiver in
`1.
`communication with a second transceiver using a transmission signal having a
`communication with a second transceiver using a transmission signal having a
`plurality of carrier signals for modulating a plurality of data bits, each carrier
`plurality of carrier signals for modulating a plurality of data bits, each carrier
`signal having a phase characteristic associated with at least one bit of the plurality
`signal having a phase characteristic associated with at least one bit of the plurality
`of data bits, a method for scrambling the phase characteristics of the carrier signals
`of data bits, a method for scrambling the phase characteristics of the carrier signals
`comprising:
`comprising:
`transmitting the plurality of data bits from the first transceiver to the second
`transmitting the plurality of data bits from the first transceiver to the second
`transceiver;
`transceiver;
`
`3
`3
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`6
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`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 7 of 31 PageID #: 8992
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`associating a carrier signal with a value detennined independently of any
`associating a carrier signal with a value determined independently of any
`bit of the plurality of data bits carried by the carrier signal, the value associated
`bit of the plurality of data bits carried by the carrier signal, the value associated
`with the carrier signal detennined by a pseudo-random number generator;
`with the carrier signal determined by a pseudo-random number generator;
`determining a phase shift for the carrier signal at least based on the value
`determining a phase shift for the carrier signal at least based on the value
`associated with the carrier signal;
`associated with the carrier signal;
`modulating at least one bit of the plurality of data bits on the carrier signal;
`modulating at least one bit of the plurality of data bits on the carrier signal;
`modulating the at least one bit on a second carrier signal of the plurality of
`modulating the at least one bit on a second carrier signal of the plurality of
`carrier signals.
`carrier signals.
`
`('158 patent, claim 1) (disputed tenns italicized).
`(' 158 patent, claim 1) (disputed terms italicized).
`
`The '243 patent is also directed to a method for scrambling the phase characteristics of
`The '243 patent is also directed to a method for scrambling the phase characteristics of
`
`carrier signals in a multi carrier communications system. Claim 1 is representative and reads as
`carrier signals in a multicarrier communications system. Claim 1 is representative and reads as
`
`follows:
`follows:
`
`1. A method, in a multicarrier communications transceiver comprising a bit
`1. A method, in a multicarrier communications transceiver comprising a bit
`scrambler followed by a phase scrambler, comprising:
`scrambler followed by a phase scrambler, comprising:
`scrambling, using the bit scrambler, a plurality of input bits to generate a
`scrambling, using the bit scrambler, a plurality of input bits to generate a
`plurality of scrambled output bits, wherein at least one scrambled output bit is
`plurality of scrambled output bits, wherein at least one scrambled output bit is
`different than a corresponding input bit;
`different than a corresponding input bit;
`scrambling, using the phase scrambler, a plurality of carrier phases
`scrambling, using the phase scrambler, a plurality of carrier phases
`associated with the plurality of scrambled output bits;
`associated with the plurality of scrambled output bits;
`transmitting at least one scrambled output bit on a first carrier; and
`transmitting at least one scrambled output bit on a first carrier; and
`transmitting the at least one scrambled output bit on a second carrier.
`transmitting the at least one scrambled output bit on a second carrier.
`
`('243 patent, claim 1) (disputed terms italicized).
`('243 patent, claim 1) (disputed tenns italicized).
`
`1.
`1.
`
`"carrier signal" and "carrier"
`"carrier signal" and "carrier"
`
`a.
`a.
`
`b.
`b.
`
`c.
`c.
`
`Plaintiff's proposed construction: "plain meaning"
`Plaintiff's proposed construction: "plain meaning"
`
`Defendants 'proposed construction: "wave that can be modulated to carry data"
`Defendants' proposed construction: "wave that can be modulated to carry data"
`
`Court's construction: "signal that can be modulated to carry data"
`Court's construction: "signal that can be modulated to carry data"
`
`The parties agree that "carrier signal" and "carrier" should have the same construction.
`The parties agree that "carrier signal" and "carrier" should have the same construction.
`
`(D.I. 144 at 36). Defendants argue strenuously that the proper construction for this term requires
`(D.I. 144 at 36). Defendants argue strenuously that the proper construction for this tenn requires
`
`that the carrier signal be a wave and that this cOnstruction is supported by the specification itself
`that the carrier signal be a wave and that this construction is supported by the specification itself.
`
`(Id. at 33). Contrary to Defendants' assertion, however, neither "wave" nor "waveform" appear
`(ld. at 33). Contrary to Defendants' assertion, however, neither "wave" nor "wavefonn" appear
`
`anywhere in the specification. To require that the carrier be a wave, therefore, would be to import
`anywhere in the specification. To require that the carrier be a wave, therefore, would be to import
`
`4
`4
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`7
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`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 8 of 31 PageID #: 8993
`
`a term that itself requires construction. Plaintiff argues that the wave Defendants refer to
`a term that itself requires construction. Plaintiff argues that the wave Defendants refer to
`
`throughout their briefing and during oral argument is simply the time domain representation of a
`throughout their briefing and during oral argument is simply the time domain representation of a
`
`signal that exists only after the carrier signals are modulated and combined. (ld. at 21,33,35; D.l.
`signal that exists only after the carrier signals are modulated and combined. (Id. at 21, 33, 35; D.I.
`
`158 at 70:12-18). The specification supports Plaintiffs position, describing the carrier signals as
`158 at 70:12-18). The specification supports Plaintiffs position, describing the carrier signals as
`
`being modulated in the frequency domain prior to being combined into the time domain
`being modulated in the frequency domain prior to being combined into the time domain
`
`transmission signal. ('158 patent at 4:12-24). While I find support for Plaintiffs opposition to
`transmission signal. ('158 patent at 4:12-24). While I find support for Plaintiffs opposition to
`
`using the word "wave" in the construction of this term, I agree with Defendants that some
`using the word "wave" in the construction of this term, I agree with Defendants that some
`
`construction is needed, so I will adopt Defendants' construction modified as follows: "signal that
`construction is needed, so I will adopt Defendants' construction modified as follows: "signal that
`
`can be modulated to carry data."
`can be modulated to carry data."
`
`2.
`2.
`
`"determin[ e/ing] a phase shift for the carrier signal"
`"determin[ e/ing] a phase shift for the carrier signal"
`
`a.
`a.
`
`b.
`b.
`
`c.
`c.
`
`Plaintiff's proposed construction: "plain meaning"
`Plaintiff's proposed construction: "plain meaning"
`
`Defendants' proposed construction: "use/using an equation to compute the
`Defendants' proposed construction: "use/using an equation to compute the
`degrees or radians that the phase of the carrier signal can be shifted"
`degrees or radians that the phase of the carrier signal can be shifted"
`
`Court's construction: "comput[ e/ing] an amount by which the phase of the carrier
`Court's construction: "comput[ e/ing] an amount by which the phase of the carrier
`signal will be shifted"
`signal will be shifted"
`
`As an initial matter, the parties disagree as to whether the phase shift must be determined
`As an initial matter, the parties disagree as to whether the phase shift must be determined
`
`in units of degrees or radians. There is no support in the intrinsic record for Defendants' attempt
`in units of degrees or radians. There is no support in the intrinsic record for Defendants' attempt
`
`to import these terms into the claim. Degrees and radians are merely units of measure, akin to feet
`to import these terms into the claim. Degrees and radians are merely units of measure, akin to feet
`
`or meters. I see no reason to limit this claim term to require specific units of measure for the phase
`or meters. I see no reason to limit this claim term to require specific units of measure for the phase
`
`shift.
`shift.
`
`Defendants next argue that this term should be construed to limit the meaning of
`Defendants next argue that this term should be construed to limit the meanmg of
`
`"determine" to mean compute. Defendants cite the invention as described in the "Summary of the
`"determine" to mean compute. Defendants cite the invention as described in the "Summary of the
`
`Invention" section of the specification as support and argue that the invention as a whole is
`Invention" section of the specification as support and argue that the invention as a whole is
`
`described using the word "compute" with respect to how the phase shift is determined. (D.l. 144
`described using the word "compute" with respect to how the phase shift is determined. (D.I. 144
`
`5
`5
`
`8
`
`

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`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 9 of 31 PageID #: 8994
`
`at 38). I agree with Defendants. The specification, in describing the "present invention," states
`at 38). I agree with Defendants. The specification, in describing the "present invention," states
`
`that "[a] phase shift is computed for each carrier signal." ('158 patent at 2:39-40). Every reference
`that "[a] phase shift is computed for each carrier signal." ('158 patent at 2:39-40). Every reference
`
`to the phase shift in the Summary of the Invention section reflects that the shift is "computed."
`to the phase shift in the Summary of the Invention section reflects that the shift is "computed."
`
`See id. at 2:43, 2:58-59, 2:63-64. "When a patent thus describes the features of the 'present
`See id. at 2:43, 2:58-59, 2:63-64. "When a patent thus describes the features of the 'present
`
`invention' as a whole, this description limits the scope of the invention." Verizon Servs. Corp. v.
`invention' as a whole, this description limits the scope ofthe invention." Verizon Servs. Corp. v.
`
`Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007).
`Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007).
`
`Defendants further argue that "by definition, to 'compute' is to use an equation." (D.I. 144
`Defendants further argue that "by definition, to 'compute' is to use an equation." (D.I. 144
`
`at 39). Plaintiff counters that the definition of compute is broader and that Defendants are
`at 39). Plaintiff counters that the definition of compute is broader and that Defendants are
`
`"attempting to import a limitation from an example embodiment." (Id. at 39-40). On this point I
`"attempting to import a limitation from an example embodiment." (Id. at 39-40). On this point I
`
`agree with Plaintiff. Although the example embodiments do employ an equation to compute the
`agree with Plaintiff. Although the example embodiments do employ an equation to compute the
`
`phase shifts, the specification disclaims reliance on any particular method, stating that "additional
`phase shifts, the specification disclaims reliance on any particular method, stating that "additional
`
`and/or different phase shifting techniques can be used by the phase scrambler." ('158 patent at
`and/or different phase shifting techniques can be used by the phase scrambler." ('158 patent at
`
`8:14-15). Defendants also cite to the provisional application as further support for their argument;
`8: 14-15). Defendants also cite to the provisional application as further support for their argument;
`
`however, the provisional application also disclaims reliance on any particular method for
`however, the provisional application also disclaims reliance on any particular method for
`
`determining the phase shifts, stating that "[t]he fundamental principle used in this invention is to
`determining the phase shifts, stating that "[t]he fundamental principle used in this invention is to
`
`use known parameters at the transmitter and the receiver to randomize the phase of the tones in a
`use known parameters at the transmitter and the receiver to randomize the phase of the tones in a
`
`multicarrier system." (D.I. 146 at A355).
`multicarrier system." (D.I. 146 at A355).
`
`Therefore, I decline to adopt either Plaintiffs or Defendants' proposed constructions.
`Therefore, I decline to adopt either Plaintiff's or Defendants' proposed constructions.
`
`Instead I construe the term "determin[ e/ing] a phase shift for the carrier signal" to mean
`Instead I construe the term "determin[ e/ing] a phase shift for the carrier signal" to mean
`
`"comput[e/ing] an amount by which the phase ofthe carrier signal will be shifted."
`"comput[e/ing] an amount by which the phase of the carrier signal will be shifted."
`
`3.
`3.
`
`"phase scrambler"
`"phase scrambler"
`
`a.
`a.
`
`Plaintiff's proposed construction: "a component operable to adjust the phases of
`Plaintiffs proposed construction: "a component operable to adjust the phases of
`the carriers, by pseudo-randomly varying amounts"
`the carriers, by pseudo-randomly varying amounts"
`
`6
`6
`
`9
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`

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`Case 1:15-cv-00611-RGA Document 214 Filed 11/30/16 Page 10 of 31 PageID #: 8995
`
`b.
`b.
`
`c.
`c.
`
`Defendants' proposed construction: "component that adjusts the phases of
`Defendants' proposed construction: "component that adjusts the phases of
`modulated carrier signals by pseudo-randomly varying amounts"
`modulated carrier signals by pseudo-randomly varying amounts"
`
`Court's construction: "component operable to adjust the phases of the carrier
`Court's construction: "component operable to adjust the phases of the carrier
`signals, by pseudo-randomly varying amounts"
`signals, by pseudo-randomly varying amounts"
`
`"scrambling the phase characteristics of the carrier signals"
`"scrambling the phase characteristics of the carrier signals"
`
`a.
`a.
`
`b.
`b.
`
`c.
`c.
`
`Plaintiff's proposed construction: "adjusting the phase characteristics ofthe
`Plaintiff's proposed construction: "adjusting the phase characteristics of the
`carrier signals by pseudo-randomly varying amounts"
`carrier signals by pseudo-randomly varying amounts"
`
`Defendants' proposed construction: "adjusting the phases of the modulated
`Defendants 'proposed construction: "adjusting the phases of the modulated
`carrier signals by pseudo-randomly varying amounts"
`carrier signals by pseudo-randomly varying amounts"
`
`Court's construction: "adjusting the phase characteristics of the carrier signals by
`Court's construction: "adjusting the phase characteristics of the carrier signals by
`pseudo-randomly varying amounts"
`pseudo-randomly varying amounts"
`
`The parties' only dispute with respect to these two claim terms is whether the carrier signals
`The parties' only dispute with respect to these two claim terms is whether the carrier signals
`
`are modulated before or after phase scrambling occurs. Plaintiff argues that in every embodiment
`are modulated before or after phase scrambling occurs. Plaintiff argues that in ev