Case 1:00-cv-01020-GMS Document 715 Filed 05/15/13 Page 1 of 2 PageID #: 11161
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`PEGASUS DEVELOPMENT
`CORPORATION and PERSONALIZED
`MEDIA COMMUNICATIONS, L.L.C.
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`v.
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`Plaintiffs,
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`DIRECTV, INC., HUGHES
`ELECTRONICS CORPORATION,
`THOMSON CONSUMER
`ELECTRONICS, INC., and PHILIPS
`ELECTRONIS NORTH AMERICA
`CORPORATION,
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`Defendants.
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`C.A. No. 00-1020 (OMS)
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`At Wilmington this I r~ay of May 2013, having considered the plaintiffs' Motion for
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`ORDER
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`Reargument (D.L 707) and the defendants' responsive filing (D.L 711), IT IS HEREBY
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`ORDERED THAT the Motion for Reargument (D.I. 707) is GRANTED IN PART.
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`IT IS FURTHER ORDERED, ADJUDGED, and DECREED that, as used in the asserted
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`claims of U.S. Patent No. 4,965,825 (the "'825 Patent"), the term "decrypting [an encrypted
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`information transmission]" is construed to mean "using a digital key in conjunction with a set of
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`associated mathematical operations to decipher digital data. This term does not include mere
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`descrambling of an analog television transmission. The decrypting must be of the entire
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`information transmission that is recited in step (b) of claim 14."1
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`1 While motions for reconsideration or reargument are granted only "sparingly," Tristrata Tech., Inc. v.
`ICN Pharms., Inc., 313 F. Supp. 2d 405, 404 (D. Del. 2004); see also D. Del. LR 7.1.5, such requests are appropriate
`when the court has made an error not of reasoning, but of apprehension, see, e.g., Shering Corp. v. Amgen, Inc., 25
`F.Supp.2d 293, 295 (D. Del. 1998); Brambles USA, Inc. v. Blocker, 135 F. Supp. 1239, 1240 (D. Del. 1990). During
`claim construction briefing and oral argument, the plaintiffs failed to present their "digital only" construction of this
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`PMC Exhibit 2009
`Apple v. PMC
`IPR2016-01520
`Page 1
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`Case 1:00-cv-01020-GMS Document 715 Filed 05/15/13 Page 2 of 2 PageID #: 11162
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`term as a product of prosecution disclaimer. (D.I. 655 at 4-6; D.I. 664 at 3-4; D.I. 675 at 41-44, 59-62.) It has now
`been properly framed as such, and the court agrees with the plaintiffs that the patentee's statements before the Board
`of Patent Appeals and Interferences (the "BPAI") represent an unambiguous disavowal of claim scope. (D.I. 707 at
`8.) The Federal Circuit has observed that "(w]hen a patentee makes a 'clear and unmistakable disavowal of scope
`during prosecution,' a claim's scope may be narrowed under the doctrine of prosecution disclaimer," and has made
`clear that "[s]tatements made during reexamination can also be considered in accordance with this doctrine."
`Grober v. Mako Prods., Inc., 686 F.3d 1335, 1341 (Fed. Cir. 2012). Here, the court finds that the patentee explicitly
`disavowed the decryption of analog signals, (Reexam 90/006,536, Oct. 24, 2007 Reply Brief at 18-19; JAOO 1500-
`01), and the BPAI appears to have relied upon that disclaimer in reversing the rejection of Claims 15 and 17,
`(Reexam 90/006,536, Dec. 19, 2008 Decision on Appeal at 53-54; JA001592-93). As an aside, the court notes that
`the defendants' failure to directly address the plaintiffs' disclaimer argument is telling and only underscores the
`significance of the disavowing statements. (D.I. 711 at 4-5.)
`The court believes it correctly weighed the claim language, specification language, and the plaintiffs'
`earlier proposed construction in reaching its initial conclusion regarding this term. (D.I. 693 at 3 n.3.) Nevertheless,
`with its attention now properly directed to the disavowal argument discussed above, the court will grant in part the
`plaintiffs Motion for Reargument. See Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003)
`("[W]here the patentee has unequivocally disavowed a certain meaning ... the doctrine of prosecution disclaimer
`attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender.").
`The court, however, will deny the plaintiffs' request that it revisit the portion of its construction noting that
`"[t]he decrypting must be of the entire information transmission that is recited in step (b) of claim 14." (D.I. 693 at
`3.) Motions for reargument are granted only where it appears that the court has patently misunderstood a party, has
`made a decision outside the adversarial issues presented by the parties, or has made an error not of reasoning, but of
`apprehension. See, e.g., Shering Corp., 25 F.Supp.2d at 295. Such motions "should not be used to rehash arguments
`already briefed or to allow a 'never-ending polemic between the litigants and the Court."' Dentsply Int 'I, Inc. v.
`Kerr Mfg. Co., 42 F. Supp. 2d 385, 419 (D. Del. 1999) (quoting Oglesby v. Penn Mut. Life Ins. Co., 877 F. Supp.
`872, 892 (D. Del. 1995)). With respect to this latter portion of its construction, the court neither misunderstood nor
`misapprehended the parties' arguments, and it certainly did not render a decision outside the adversarial issues
`presented by the parties. Rather, the plaintiffs simply disagree with the court's reasoning. Even if such a
`disagreement were an appropriate basis for a motion for reargument, the court believes its analysis of the claim
`language, the patentee's reexamination statements, and the examiner's statements was correct and that this portion
`of its construction remains proper. (D.I. 693 at 3 n.3.)
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`2
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`PMC Exhibit 2009
`Apple v. PMC
`IPR2016-01520
`Page 2
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