Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 1 of 41 PageID #: 2458
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`v.
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`DATAQUILL LIMITED,
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`
`
`HUAWEI TECHNOLOGIES CO. LTD.
`ET AL.
`
`
`
`
`
`
` §
` §
` §
` §
` §
` §
`§
`§
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`
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`Lead Case No. 2:13-cv-633-JRG-RSP
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`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`On November 4, 2014, the Court held an oral hearing to determine the proper
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`construction of the disputed claim terms in U.S. Patent Nos. 6,058,304 (“‘304 Patent”);
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`7,139,591 (“‘591 Patent”); 7,505,785 (“‘785 Patent”); 7,920,898 (“‘898 Patent”); and 8,290,538
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`(“‘538 Patent”). The claim construction disputes were raised between Plaintiff DataQuill
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`Limited and Defendants Huawei Technologies Co. Ltd., Huawei Device Co. Ltd., Huawei
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`Technologies USA, Inc., Huawei Device USA, Inc., Futurewei Technologies, Inc. and ZTE
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`(USA) Inc. After the claim construction briefing but before the claim construction oral hearing
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`the Huawei and Futurewei Defendants requested a stay as to those Defendants of all pending
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`deadlines pursuant to a settlement agreement. Dkt. 89 at 1. DataQuill and ZTE were the only
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`parties that participated in the oral hearing. After considering the arguments made by the parties
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`at the hearing and in the parties’ claim construction briefing (Dkt. Nos. 78, 79 and 80), the Court
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`issues this Claim Construction Memorandum and Order.
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`IRONBURG EX2030, Page 1
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`Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 2 of 41 PageID #: 2459
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`BACKGROUND
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`
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`The asserted patents result from a chain of continuation applications and share a
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`substantially similar specification. The ‘304 Patent is the original parent patent and claims a
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`foreign priority date of October 13, 1993.1 The ‘304 Patent, ‘591 Patent, and ‘785 Patent have
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`issued reexamination certificates. Fifty-six claims in total are asserted. There are nine basic
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`claim construction disputes. Terms in seven of those disputes have been addressed at least in
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`part in claim construction orders from other courts.2
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`The patents-in-suit relate to a hand held data entry system. The Abstract provides in full:
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`A data entry system includes a hand held data entry unit having a reading sensor
`for sensing commands and/or data, rewritable storage for storing information
`relating to selectable items, a controller (a microprocessor or other processing
`circuitry) and a display screen for displaying a user readable representation of the
`commands and/or stored information for a selected item, and a telecommunication
`interface for the telephonic transmission of information relating to a selected item
`or items from the storage to a remote processing center and for the telephonic
`information relating to selectable items from the remote processing center to the
`storage. Preferably a telecommunications interface is provided in the hand held
`unit for cellular or other wireless telephony systems. The hand held unit can be
`configured to combine the data entry functions with those of audio telephony.
`In one embodiment the hand held unit is substantially pen-shaped as shown in Figures 1A and
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`1B and is intended for one handed operation. ‘304 Figures 1A, 1B, 6:28-35. The hand held unit
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`may be utilized with a base unit that charges the unit and provides a connection to a standard
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`telephone line. ‘304 Figure 2, 7:29-55. In an alternative embodiment, the hand held data entry
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`1 Unless otherwise noted, citations to the patent specification are made to the ‘304 Patent and are
`in the form of “‘304 col xx:line yy.”
`2 DataQuill Ltd. v. Kyocera Wireless Corp., 01-cv-2302 (S.D. Cal. Oct. 25, 2005) (Dkt. 78 Ex. 1)
`(hereinafter “Kyocera”); Research in Motion Ltd., et al. v. DataQuill BVI Ltd., 3:06-cv-0973
`(N.D. Tex. Aug. 14, 2008) (Dkt. 78 Ex. 2) (hereinafter “RIM”); DataQuill Ltd. v. High Tech
`Computer Corp., 08-cv-543 (S.D. Cal. Mar. 9 2011) (Dkt. 78 Ex. 3) (hereinafter “HTC”);
`DataQuill Ltd. v. Handspring, Inc., et al., 01-cv-4653 (N.D. Ill. Feb. 28, 2003) (Dkt. 78 Ex. 4)
`(hereinafter “Handspring”).
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`2
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`unit may be used without a base station. In such embodiments the hand held unit may contain a
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`standard telephone plug or alternatively be intended for use with a cellular telephone network.
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`‘304 Figure 9 (standard telephone line), Figure 10 (cellular telephone), 13:22-35, 14:6-14.
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`APPLICABLE LAW
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`1. Claim Construction
`“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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`“[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.”). “[T]he prosecution history (or file wrapper) limits the interpretation
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`of claims so as to exclude any interpretation that may have been disclaimed or disavowed during
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`prosecution in order to obtain claim allowance.” Standard Oil Co. v. Am. Cyanamid Co., 774
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`F.2d 448,452 (Fed. Cir. 1985).
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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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`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 are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`The definiteness standard of 35 U.S.C. § 112 ¶2 requires that
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`a patent’s claims, viewed in light of the specification and prosecution history,
`inform those skilled in the art about the scope of the invention with reasonable
`certainty. The definiteness requirement, so understood, mandates clarity, while
`recognizing that absolute precision is unattainable. The standard we adopt
`accords with opinions of this Court stating that “the certainty which the law
`requires in patents is not greater than is reasonable, having regard to their subject-
`matter.”
`
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`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129-30 (2014) (internal citations
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`omitted). “A determination of claim indefiniteness is a legal conclusion that is drawn from the
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`court’s performance of its duty as the construer of patent claims. Datamize, LLC v. Plumtree
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`Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) (citations and internal quotation marks
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`omitted), abrogated on other grounds by Nautilus, 134 S.Ct. 2120.
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`2. Means-Plus-Function Limitations
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`The asserted patents contain means-plus-function limitations that require construction.
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`Where a claim limitation is expressed in “means plus function” language and does not recite
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`definite structure in support of its function, the limitation is subject to 35 U.S.C. § 112, ¶ 6.
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`Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, 35
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`U.S.C. § 112, ¶ 6 mandates that “such a claim limitation ‘be construed to cover the
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`corresponding structure . . . described in the specification and equivalents thereof.’” Id. (citing 35
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`U.S.C. § 112, ¶ 6). Accordingly, when faced with means-plus-function limitations, courts “must
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`turn to the written description of the patent to find the structure that corresponds to the means
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`recited in the [limitations].” Id.
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`Construing a means-plus-function limitation involves multiple steps. “The first step in
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`construing [a means-plus-function] limitation is a determination of the function of the means-
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`plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303,
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`1311 (Fed. Cir. 2001). Once a court has determined the limitation’s function, “the next step is to
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`determine the corresponding structure disclosed in the specification and equivalents thereof.” Id.
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`A “structure disclosed in the specification is ‘corresponding’ structure only if the specification or
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`prosecution history clearly links or associates that structure to the function recited in the claim.”
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`Id. Moreover, the focus of the “corresponding structure” inquiry is not merely whether a
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`structure is capable of performing the recited function, but rather whether the corresponding
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`structure is “clearly linked or associated with the [recited] function.” Id.
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`For mean-plus-function limitations implemented by a programmed general purpose
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`computer or microprocessor, the corresponding structure described in the patent specification
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`must include an algorithm for performing the function. WMS Gaming Inc. v. Int’l Game Tech.,
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`184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not a general purpose
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`computer but rather the special purpose computer programmed to perform the disclosed
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`algorithm. Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir.
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`2008).
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`3. Effect of Prior Claim Constructions
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`Prior claim construction proceedings involving the same asserted patents are “entitled to
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`reasoned deference under the broad principals of stare decisis and the goals articulated by the
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`Supreme Court in Markman, even though stare decisis may not be applicable per se.” Maurice
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`Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779, at *4 (E.D. Tex.
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`June 21, 2006). The Court nonetheless conducts an independent evaluation during claim
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`construction proceedings. See, e.g., Texas Instruments, Inc. v. Linear Techs. Corp., 182 F. Supp.
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`2d 580, 589-90 (E.D. Tex. 2002); Burns, Morris & Stewart Ltd. P’ship v. Masonite Int’l Corp.,
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`401 F. Supp. 2d 692, 697 (E.D. Tex. 2005); Negotiated Data Solutions, Inc. v. Apple, Inc., No.
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`2:11-CV-390, 2012 WL 6494240 (E.D. Tex. Dec. 13, 2012).
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`AGREED TERM
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` In their briefing the parties sought construction of three related terms: “said reading
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`sensor, controller and display comprise a unitary assembly” (‘304 claims 64, 97 and 98); “said
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`display screen, sensor, antenna, one or more mechanical switches, speaker, power supply, and
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`wireless communications interface are part of a unitary assembly” (‘898 claim 66); and “said
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`display screen, sensor, antenna, one or more mechanical switches, speaker, antenna, power
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`supply and wireless communications interface are part of a unitary assembly” (‘538 claim 3).
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`Prior to the oral hearing the parties agreed to resolve the disputes as to these terms by agreeing
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`that the term “unitary assembly” means “an assembly of parts which has the nature of a unit or
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`whole.” Dkt. 87 at 1.
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`DISPUTED TERMS
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`1. “hand holdable” and “hand held” (‘304 claims 32, 60, 64, 113, 114, 116 and 117; ‘591
`claims 1, 32, 33, 35, 38, 42 and 44; ‘785 claims 43, 47, and 49; ‘898 claims 1, 18, 20, 22,
`26, 27, 29 and 56; ‘538 claims 1, 2, 4, 5, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 23)
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`DATAQUILL’S CONSTRUCTION
`“can be held by one hand in normal use”
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`DEFENDANTS’ CONSTRUCTION
`Indefinite. In the alternative, plain and
`ordinary meaning
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`The Parties’ Positions
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`
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`DataQuill asserts that its construction matches the Kyocera court’s construction and the
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`construction agreed to by the RIM litigation parties. Dkt. 78 at 5. DataQuill also asserts that the
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`specification described prior art units that required two handed operation as being inconvenient.
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`‘304 1:23-26, 2:1-10. DataQuill asserts that the specification describes a unit that can be held in
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`one hand. ‘304 3:66-4:4, 6:28-35, Figures 1A and 1B. DataQuill asserts that in the ‘304 Patent
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`reexamination DataQuill explicitly argued for its construction. Dkt. 78 Ex. 11 at 134 (“The
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`language ‘hand holdable’ means ‘can be held by one hand in normal use’”). DataQuill asserts
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`that it further distinguished in the reexamination devices that were not hand holdable because the
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`operator had to grip the device with one hand and write on it with another hand. Dkt. 78 at 5.
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`
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`DataQuill asserts that the term is reasonably certain as the prior court was able to
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`construe the term. DataQuill further asserts that one skilled in the art would know with
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`reasonable certainty that a device which is normally capable of one handed operation (such as a
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`mobile phone) would fall within the claim scope while devices not so capable (for example a
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`laptop or tablet computer), it is not covered. Dkt. 78 at 6. DataQuill objects to “plain and
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`ordinary meaning” because both the specification and reexamination distinguished the invention
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`by describing “hand holdable” with regard to use of only one hand. Dkt. 78 at 7.
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`
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`Defendants assert that Kyocera was decided before the Supreme Court’s Nautilus ruling.
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`Defendants assert that the specification and prosecution history provide arbitrary distinctions as
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`to what is hand holdable. In particular, Defendants argue that DataQuill’s construction conflicts
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`with DataQuill’s characterization of the prior art. First, Defendants note that the background
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`portion of the patent describes the PTC-620 prior art unit as suitable for one-handed operation
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`but nevertheless describes the PTC-620 as being bulky and cumbersome. ‘304 2:4-10.
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`Defendants assert that the extrinsic evidence clearly indicates that the PTC-620 was intended for
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`one handed operation. Dkt. 79 at 5. Defendants thus assert that “hand holdable” must mean
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`something more than merely being operable in one hand. Dkt. 79 at 6.
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`
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`Defendants also assert that the specification provides no objective measure to determine
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`when a device is hand holdable. Defendants assert that the specification implies that a device
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`would have to be smaller than the PTC-620. However, Defendants assert that DataQuill has
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`accused products that approximate or exceed the PTC-620 size. Dkt. 79 at 6. Defendants assert
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`that the only description of size in the specification is with regard to the device of Figures 1A
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`and 1B which is described as “substantially pen-shaped.” ‘304 6:28-35. Defendants assert that
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`the prosecution history adds further ambiguity as DataQuill dismissed a list of devices as
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`“clearly . . . not meet[ing] the limitation of ‘hand holdable’” by listing the dimensions and
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`weights of the devices, including some dimensions similar to the accused devices. Dkt. 79 at 7
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`(quoting Ex. 2 at 134). Defendants assert that DataQuill never provided, however, any
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`clarification as to what devices are “hand holdable.” Defendants assert that the entire record
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`leaves one skilled in the art as only knowing that “hand holdable” can mean shaped thicker than
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`a normal pen but must be smaller in some undefined way than the PTC-620 and the devices
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`listed in reexamination. Dkt. 79 at 7.
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`
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`In reply, DataQuill asserts that Defendants are over-reading the passage at 2:4-10:
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`One model PTC-620 has the same basic format as the other terminals, but is
`described as being for simple applications and features a snap-on reversible head
`for one-handed operation with either the left or the right hand. However, this
`terminal is still relatively bulky and cumbersome and in use it is easy
`inadvertently to operate one or more keys in the array of keys.
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`‘304 2:4-10. DataQuill asserts that this passage makes clear that the PTC-620 is hand holdable.
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`DataQuill asserts that the passage merely criticizes the PTC-620 as being limited to simple
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`applications and being bulky such that it is easy to inadvertently operate a key. Dkt. 80 at 1.
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`DataQuill asserts that the accidental pressing of keys is a concern that the patent solved via the
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`use of a reading sensor. ‘304 3:28-46. DataQuill asserts that the intrinsic record never suggests
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`that the PTC-620 was not hand holdable. Dkt. 80 at 2.
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`Analysis
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`Defendants in effect seek an exact quantitative dimension to determine what is “hand
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`holdable.” However, in the overall context of the specification the distinction between two
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`handed devices from one handed devices is what is emphasized with regard to “hand holdable.”
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`‘304 1:23-25, 2:4-8, 6:28-35. This also conforms to the reexamination statement. Dkt. 78 Ex. 11
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`at 134. Though the PTC-620 was asserted in the specification to be relatively bulky and
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`cumbersome, the passage at 2:1-10 explicitly makes clear that the device is for one handed
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`operation and the specification never asserts that the PTC-620 is not hand holdable. ‘304 2:1-10.
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`Moreover, the file history statement cited by Defendants does not make an unambiguous
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`disavowal limiting the hand held concept. Statements will constitute disclaimer of scope only if
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`they are “clear and unmistakable statements of disavowal.” See Cordis Corp. v. Medtronic Ave,
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`Inc., 339 F.3d 1352, 1358 (Fed. Cir. 2003). An “ambiguous disavowal” will not suffice.
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`Schindler Elevator Corp. v. Otis Elevator Co., 593 F.3d 1275, 1285 (Fed. Cir. 2010) (citation
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`omitted). Because the file history “represents an ongoing negotiation between the PTO and the
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`applicant, rather than the final product of that negotiation, it often lacks the clarity of the
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`specification and thus is less useful in claim construction proceedings.” Phillips, 415 F.3d at
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`1317.
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`In context of the specification as a whole, the term “hand holdable” is described as being
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`holdable in one hand as opposed to requiring two hands. Thus, when viewed in the context of
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`the intrinsic evidence one skilled in the art could ascertain the scope of the invention with the
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`reasonable certainty required under Nautilus. See Nautilus, 134 S.Ct. at 2129. The Court
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`therefore agrees with the Kyocera court’s construction and the construction agreed to by the RIM
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`litigation parties.
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`
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`The Court construes “hand holdable” and “hand held” to mean “can be held by one
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`hand in normal use.”
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`2. “reading sensor,” “sensor,” and “a first sensor”
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`“reading sensor” (‘304 claims 9, 40, 64, 97, 98, 113, 114, 116 and 117; ‘591 claim 1;
`‘898 claim 18)
`DATAQUILL’S CONSTRUCTION
`“a sensor capable of detecting and reporting
`commands or data”
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`“sensor” (‘591 claim 35; ‘785 claim 43, 47, and 49; ‘898 claim 1, 26, 56, 65, 66, and 67;
`‘538 claim 1, 2, 3, 4, 5, 13, and 23)
`DATAQUILL’S CONSTRUCTION
`“a structure capable of detecting a stimulus and
`transmitting a resulting signal”
`
`
`DEFENDANTS’ CONSTRUCTION
`“a sensor for reading”
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`DEFENDANTS’ CONSTRUCTION
`“a sensor for reading”
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`“a first sensor” (’785 claim 49; ‘898 claim 26)
`DATAQUILL’S CONSTRUCTION
`DEFENDANTS’ CONSTRUCTION
`“No construction necessary; plain and ordinary
`“a first sensor for reading”
`meaning applies; only need to construe “sensor”
`
`The Parties’ Positions
`
`At the oral hearing and in the briefing the parties all acknowledged that the fundamental
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`dispute as to the sensor terms revolves around whether a sensor encompasses a touch screen. See
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`Dkt. 79 at 9. In addition, the parties’ dispute whether “reading sensor” and “sensor” have the
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`same meaning.
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`DataQuill asserts that its constructions follow the constructions of the RIM and HTC
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`courts. Dkt. 78 Ex. 2 at 6-7, Ex. 3 at 3, 5. DataQuill assert that Defendants seek to exclude
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`touch screens but the previous courts have repeatedly rejected such an exclusion. Dkt. 78 Ex. 2
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`at 7-8 (RIM), Ex. 3 at 4-5 (HTC), Ex. 4 at 12-13 (Handspring).
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`DataQuill asserts that “sensor” has an understood plain and ordinary meaning that
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`matches its construction and also asserts that its construction tracks the constructions issued in
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`the HTC and RIM cases (with the omission of the exemplary “light, temperature, radiation level,
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`or the like” language). Dkt. 78 Ex. 2 at 6 (RIM), Ex. 3 at 3 (HTC). DataQuill asserts that the
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`surrounding claim language specifies what the “sensor” senses. DataQuill notes that claims such
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`as ‘785 claim 47 state “a sensor to sense commands and/or data for producing input signals” and
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`do not use “reading.” DataQuill asserts there is no reason to add “reading” to such claims.
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`As to “reading sensor,” DataQuill asserts that the specification states that a “reading
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`sensor” is a sensor for “sensing commands and/or data and for producing input signals in
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`response to the sensed commands and/or data.” ‘304 2:15-17, claim 113 (“a reading sensor for
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`Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 13 of 41 PageID #: 2470
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`sensing commands and/or data and for producing input signals in response to said sensed
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`commands and/or data”), ‘591 claim 1 (same), ‘898 claim 18 (same). DataQuill asserts that
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`“sensor” has its own independent and plain meaning and that Defendants have not pointed to any
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`expressions of manifest exclusion or restriction requiring “reading sensor” and “sensor” to carry
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`the same definition. Dkt. 80 at 3.
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`DataQuill asserts that although the specification describes a bar code reader in one
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`reading sensor embodiment, the specification expressly states that a “touch sensitive screen”
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`“can be used in place of . . . the entry of commands by scanning the bar codes on the command
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`bar code card.” ‘304 12:65-13:21. DataQuill notes that in Handspring the court stated that a
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`“reading sensor” includes “touch sensitive screens.” Dkt. 78 Ex. 4 at 12-13. DataQuill further
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`cites to a number of claims: ‘304 dependent claims 9 and 40 “a touch sensitive screen forming a
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`said reading sensor;” ‘591 claim 60 “said sensor is comprised of said display interface
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`comprising a touch sensitive screen for sensing input;” ‘785 claim 39 “wherein said sensor is a
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`touch sensitive screen.”
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`As to Figure 8 embodiment, DataQuill notes that the specification states that the touch
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`screen need not just be “in addition” but rather can be used in place of or in addition to the
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`reading sensor: “touch screen entry can be used in place of or in addition to the entry of
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`commands by scanning bar codes on the command bar code card.” ‘304 13:19-21. Moreover,
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`DataQuill points to the specification as contradicting Defendants assertion that the touch screen
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`is only relevant to command bar codes since the touch screen may be used “for the entry of
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`commands and/or the selection of displayed items.” ‘304 13:12-14. DataQuill also notes that
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`“data sensed” at the touch screen can be communicated. ‘304 13:3.
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`IRONBURG EX2030, Page 13
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`Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 14 of 41 PageID #: 2471
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`Defendants assert that the prior court rulings are overly broad. Defendants assert that the
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`scope of the patents relates to a pen shaped data entry unit used as a reading sensor to order
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`merchandise off a bar code list. Defendants assert that DataQuill now seeks to cover cellular
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`phones that do not employ anything like a reading sensor. Dkt. 79 at 8. Defendants further
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`assert that the terms “reading sensor” and “sensor” are used interchangeably throughout the
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`specification. ‘304 2:13-22, 3:47-54, 3:56-61.
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`Defendants assert that the specification describes a reading head that includes a reading
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`sensor. ‘304 3:56-57. Defendants assert the reading sensor is for reading bar codes. ‘304 6:39-
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`42. Defendants assert that the touch screen embodiment of Figure 8 does not support DataQuill
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`and to the contrary highlights why a reading sensor should not include touch screens. Dkt. 79 at
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`9-10. Specifically, Defendants quote the statement that Figure 8 “is substantially the same as the
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`pen 10 described with reference to FIGS 1 and 3, apart from the addition of a touch sensitive
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`screen 90 for the display 20.” ‘304 12:66-13:2. Defendants assert that a touch screen 90 is used
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`in addition to the reading head 14 in Figure 8 and that the reading sensor is repeatedly described
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`in the reading head. ‘304 Figure 8, 4:43-45, 4:52-56 (emphasis added). Defendants assert that
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`therefore the touch screen 90 cannot be the reading sensor.
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`Defendants assert the disclosed touch screen is a component distinct from the reading
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`sensor and used to facilitate entry of user commands. Defendants assert that the specification
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`describes two types of bar codes: one set associated with merchandisable items and a second set
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`used for controlling operation of the pen. Dkt. 79 at 10 (citing ‘304 6:39-42, 1:8-10, 9:60-65).
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`Defendants assert that the touch screen of Figure 8 was used with reference to the command bar
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`codes, not the reading sensor function: “touch screen entry can be used in place of or in addition
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`to the entry of commands by scanning the bar codes on the command bar code card.” ‘304
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`IRONBURG EX2030, Page 14
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`Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 15 of 41 PageID #: 2472
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`13:19-21. Defendants assert that just because a touch screen may be used to enter data does not
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`transform the touch screen into the reading sensor. Defendants assert that this is consistent with
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`the claims which recognize the distinction between sensing commands and sensing data.
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`Defendants also assert that the specification provides alternatives to the bar code reader: a
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`camera or other scanning sensor. ‘304 5:36-41. Defendants assert that although the specification
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`describes the use of a touch screen in addition to the reading sensor, the specification does not
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`describe the touch screen as a potential type of reading sensor. Dkt. 79 at 11.
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`As to dependent claims 9 and 40, Defendants assert that these claims were not part of the
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`original disclosure and were only added later, thus diminishing any weight given to those claims.
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`Defendants also note that the doctrine of claim differentiation does not trump the specification.
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`Dkt. 79 at 11.
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`Analysis
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`The Court finds DataQuill’s arguments more persuasive. The specification makes clear
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`that a touch screen may be a “sensor.” The embodiment described with regard to Figure 8 and at
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`12:65-13:21 makes this clear. As described, a touch screen 90 may be provided. This touch
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`screen 90 may be separate or integral with the display screen. ‘304 13:5-10. Further, the “touch
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`sensitive areas” of the touch screen can be used for “the entry of commands and/or the selection
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`of displayed items.” ‘304 13:10-14. Thus, the touch screen is used “so that data sensed by the
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`touch sensitive screen can be communicated to the processor.” ‘304 13:3-4. More importantly,
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`the touch screen may be “used in place of or in addition to the entry of commands by scanning
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`the bar codes on the command bar code card.” ‘304 13:19-21 (emphasis added). In the context
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`of the specification it is thus clear that a touch screen is included within the scope of the sensor
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`IRONBURG EX2030, Page 15
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`Case 2:13-cv-00633-RSP Document 105 Filed 01/27/15 Page 16 of 41 PageID #: 2473
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`which senses the commands and/or data. Dkt. 79 at 9. The language of various dependent
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`claims also matches the specification with regard to the touch screen: “a touch sensitive screen
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`forming a said reading sensor” (‘304 dependent claims 9 and 40); “said sensor is comprised of
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`said display interface comprising a touch sensitive screen for sensing input” (‘591 claim 60) and
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`“wherein said sensor is a touch sensitive screen device” (‘785 claim 39). Though Defendants
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`point out that dependent claims cannot “trump” the remainder of the specification, here the
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`dependent claims conform to the specification. The Court’s finding that a touch screen may be a
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`sensor is also in accordance with the