Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 1 of 49 PageID #: 6932
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
`
`
`
`Case No. 2:12-CV-68-JRG-RSP
`
`PERSONALIZED MEDIA
`COMMUNICATIONS LLC
`
`
`
`v.
`
`
`ZYNGA, INC.
`
`
`
`BACKGROUND ............................................................................................................................ 2 
`APPLICABLE LAW ...................................................................................................................... 3 
`CONSTRUCTION OF DISPUTED TERMS ................................................................................. 6 
`A. “subscriber” ........................................................................................................................................ 6 
`B. “video” and “video image” ............................................................................................................... 11 
`C. “processor” and “processing” ........................................................................................................... 14 
`D. “complete programming,” “programming comprising a computer program and a portion to be
`completed by accessing prestored data at said station of a particular kind,” and “mass medium
`programming” ......................................................................................................................................... 17 
`E. “control signal” and “instruct signals” ............................................................................................... 24 
`F. “remote data source,” “remote video source,” and “remote station(s)” ............................................ 27 
`G. “locally generated image” and “locally generated video image” ..................................................... 30 
`H. “said information content and said benefit datum explain a benefit of acquiring said product or
`service specific to said subscriber” ......................................................................................................... 33 
`I. “combined medium presentation includes (i) at least one of an image and a sound received at said
`subscriber station from a remote transmitter station and (ii) a portion of said second data” and
`“combined medium presentation including (i) at least one of an image and a sound received at said
`subscriber station from a remote source and (ii) a portion of said second subscriber specific data” ..... 36 
`J. “commercial” ..................................................................................................................................... 39 
`K. “remotely originated data to serve as a basis for displaying said video presentation” ..................... 41 
`L. “receiving, at said audio receiver, audio which describes information displayed in said video
`presentation” ........................................................................................................................................... 42 
`M. “said step of delivering is performed based on a schedule” ............................................................. 44 
`N. “peripheral device” ........................................................................................................................... 47 
`CONCLUSION ............................................................................................................................. 49 
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`Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 2 of 49 PageID #: 6933
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`BACKGROUND
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`Before the Court is the parties’ claim construction briefing (Dkt. 77, 80 and 86). In
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`addition, the Court heard oral arguments on April 17, 2013. There are four patents-in-suit: U.S.
`
`Patent No. 7,734,251 (the “‘251 Patent”), U.S. Patent No. 7,797,717 (the “‘717 Patent”), U.S.
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`Patent No. 7,860,131 (the “‘131 Patent”), and U.S. Patent No. 7,908,638 (the “‘638 Patent”).1
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`The patents-in-suit are part of patent family which has extensive prosecution and
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`litigation history. The parent application for the patents-in-suit was filed in 1981 and issued as
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`U.S. Patent No. 4,694,490 (the “‘490 Patent”). The ‘490 Patent was supplemented by a
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`continuation-in-part application in 1987, which issued as the U.S. Patent No. 4,965,825 Patent
`
`(the “‘825 Patent”). The patents in suit, filed in May and June 1995, are part of a chain of
`
`continuation applications filed from the ‘825 Patent. The family of patents has been the subject
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`of multiple infringement actions including District Court and ITC actions. The prior actions
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`include most recently Personalized Media Communication, LLC v. Motorola, Inc., et al., 2:08-
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`cv-70 (E.D. Tex.) in which a claim construction order was issued at Dkt. 271 (the “EchoStar
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`Order”).
`
`Fourteen groups of terms are presented by the parties for construction. Two of those
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`terms relate to constructions issued in EchoStar.
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`The patents in suit generally relate to the delivery of programming content to consumers.
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`More particularly the patents relate to the concept of delivering “personalized” programming.
`
`The patents in suit share a common Abstract:
`
`A unified system of programming communication. The system
`encompasses the prior art (television, radio, broadcast hardcopy,
`computer communications, etc.) and new user specific mass media.
`
`1 For convenience citations to rows and columns of the ‘XXX Patent are made as ‘XXX
`Col:Line.
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`Within the unified system, parallel processing computer systems,
`each having an input (e.g., 77) controlling a plurality of computers
`(e.g., 205), generate and output user information at receiver
`stations. Under broadcast control, local computers (73, 205),
`combine
`user
`information
`selectively
`into
`prior
`art
`communications to exhibit personalized mass media programming
`at video monitors (202), speakers (263), printers (221), etc. At
`intermediate transmission stations (e.g., cable television stations),
`signals in network broadcasts and from local inputs (74, 77, 97, 98)
`cause control processors (71) and computers (73) to selectively
`automate
`connection
`and operation of
`receivers
`(53),
`recorder/players (76), computers (73), generators (82), strippers
`(81), etc. At receiver stations, signals in received transmissions and
`from local inputs (225, 218, 22) cause control processors (200) and
`computers (205)
`to automate connection and operation of
`converters (201), tuners (215), decryptors (224), recorder/players
`(217), computers (205), furnaces (206), etc. Processors (71, 200)
`meter and monitor availability and usage of programming.
`
`‘251 Abstract.
`
`APPLICABLE LAW
`
`“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,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
`
`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
`
`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,
`
`Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
`
`themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
`
`Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
`
`understood by one of ordinary skill in the art at the time of the invention in the context of the
`
`entire patent. Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361,
`
`1368 (Fed. Cir. 2003).
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`Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 4 of 49 PageID #: 6935
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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
`
`can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the
`
`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
`
`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
`
`the independent claim does not include the limitation. Id. at 1314–15.
`
`“[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
`
`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
`
`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
`
`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
`
`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
`
`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
`
`lexicography governs. Id. The specification may also resolve ambiguous claim terms “where
`
`the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to
`
`permit the scope of the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at
`
`1325. But, “‘[a]lthough the specification may aid the court in interpreting the meaning of
`
`disputed claim language, particular embodiments and examples appearing in the specification
`
`will not generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d
`
`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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`Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 5 of 49 PageID #: 6936
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`tool to supply the proper context for claim construction because a patent applicant may also
`
`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
`
`in prosecuting a patent.”).
`
`Although extrinsic evidence can be useful, it is “‘less significant than the intrinsic record
`
`in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
`
`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
`
`understand the underlying technology and the manner in which one skilled in the art might use
`
`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
`
`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
`
`claim terms.” Id.
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`CONSTRUCTION OF DISPUTED TERMS
`
`A. “subscriber”2
`
`PMC’s Proposed Construction
`This term does not require construction.
`
`However, if a construction for this term is
`entered, it should be:
`“a subscriber to information is one who views,
`hears, reads, or in some other way perceives
`the information.”
`
`Zynga’s Proposed Construction
`“a person or company that has agreed to pay
`for access to a publication or service that is
`unavailable to non-subscribers.”
`
`The primary dispute relates to whether a “subscriber” is one who agrees to pay for
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`content and whether subscriber merely equates to using information.
`
`PMC
`
`PMC asserts that the patents teach that “many different classes of subscriber will exist
`
`with different information demands.” ‘251 272:64-67. PMC asserts that the patents teach that
`
`one class of subscribers is television viewers.
`
`At the station of Figs 7 and 7B, a subscriber decides to watch a
`particular television program the audio of which is stereo simulcast
`on a local radio station, in a fashion well known in the art. Said
`subscriber switches power on to TV set, 202, and manually selects
`the proper channel, which is, for example, channel 13, at the
`television tuner, 215, of said set, 202, thereby display of the video
`and audio information of the transmission of said channel.
`
`‘251 209:60-67.
`In the example, the subscriber station of Fig. 1 is in New York City
`and is tuned to the conventional broadcast television transmission
`frequency of channel 13 at 8:30 PM on a Friday evening when the
`broadcast station of said
`frequency, WNET, commences
`transmitting a television program about stock market investing,
`“Wall Street Week.”… From said program originating studio said
`program is transmitted by conventional television network feed
`transmission means, well known in the art, to a large number of
`geographically dispersed intermediate transmission stations that
`
`2 ‘251 Claims 18, 22, 23 and 28‘717 Claims 1, 2, 3, and 9; ‘131 Claim 3; and ‘638 Claims
`1, 6, 11, 12, 13 and 15.
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`retransmit said program to millions of subscriber stations where
`subscribers view said program.
`
`‘251 11:19-35. PMC cites to ‘251 9:14-16 as an example that describes subscribers being “duly
`
`authorized” but where no payment requirement is mentioned. PMC asserts that charging a
`
`subscriber is only described in the patents as an “example.” Dkt. 77 at 7 (citing ‘251 45:29-40).
`
`PMC also asserts that there are other examples in the specification where there is a payment
`
`required, but that the payment is not from the subscriber: “advertisers and others who pay for the
`
`transmission and performance of programming….” ‘251 2:21-24. PMC also asserts that other
`
`examples describe payment as not the only option:
`
`Moreover, this system must have the capacity to ensure that
`programming supplied for pay or for other conditional use is used
`only in accordance with those conditions. For example, subscriber
`station apparatus must display the commercials that are transmitted
`in transmissions that advertisers pay for.
`
`‘251 2:33-37.
`
`PMC asserts that for all the different types of subscribers, the commonality is that they
`
`are all viewers of programming. PMC cites the language: “Thus each viewer – including the
`
`subscriber of the station of FIGS. 7 and 7F, said second subscriber, and said third subscriber.”
`
`(‘251 at 259:63-67) and the language “in the case of any programming that is outputted at any
`
`given output apparatus, thereby enabling a subscriber to view or hear or read” (‘251 166:33-36;
`
`See also ‘251 201:16-20).
`
`PMC asserts that the asserted claims say nothing about payment. PMC asserts that
`
`construing the term to require payment would exclude embodiments in the specification in which
`
`no payments occur. Dkt. 77 at 9.
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`Zynga
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`Zynga asserts that the claims, specification and prosecution history support its position.
`
`With regard to the claims, Zynga asserts that the claims include both “user” and “subscriber”
`
`(“subscriber specific data,” “user specific data,” “user specific subscriber datum,” “subscriber
`
`data”). Dkt. 80 at 3 (citing numerous claims). Zynga asserts that PMC’s construction of
`
`“subscriber” merely reduces to the same as “user.” Zynga asserts its construction recognizes the
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`differences between “user” and “subscriber.” Dkt. 80 at 3.
`
`Zynga asserts that the specification citations PMC relies on with regard to conventional
`
`broadcast television relate to a system where even broadcast television is subscription based:
`
`The prior art includes so-called “addressable” systems … Such
`systems enable broadcasters
`to
`turn off subscriber station
`decoder/decryptor apparatus of subscribers who do not pay their
`bills and turn them back on when the bills are paid.
`
`‘717 5:32-38. Zynga asserts that its construction does not require payment upfront, but rather
`
`merely an agreement to pay. Zynga asserts that PMC does not cite to any portion of the
`
`specification in which a subscriber has not so agreed. Dkt. 80 at 4.
`
`Zynga also asserts that the Examiner understood the term to requirement payment citing
`
`the Examiner’s statements:
`
`Zworykin has been cited to evidence the fact that it was
`notoriously well known in the TV distribution arts to have
`scrambled certain TV signals so to have prevented unauthorized
`reception by unauthorized viewers (i.e. those who have not paid for
`the programming)…
`
`In such situations it was known to have been desirable, if not
`necessary, to have scrambled the TV programming to prevent
`unauthorized use/reception by people who have not subscribed…
`
`Dkt. 80 Ex. 5 at 72 (‘251 Final rejection dated 4/28/04). Additionally Zynga cites to the
`
`Examiner statement that:
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`a) At the time of applicant’s alleged invention, it was known to
`have used conventional TV distribution networks to convey
`“premium” TV programming to users who subscribe to, and pay a
`fee for, the premium TV service;…’
`
`b) It is also noted that CATV distribution networks were inherently
`subscription based systems…Thus, CATV system
`typically
`included subscription fees to be paid by the subscribers for the
`“premium” CATV service.
`
`Dkt. 80 Ex. 6 at 27-28 (‘251 Advisory Action dated 11/24/04).
`
`PMC’s Reply
`
`PMC asserts that Zynga limits “subscriber” to just one class of subscribers (paying
`
`subscribers), ignoring the specifications statement of “many different classes of subscribers.”
`
`Dkt. 86 at 1. PMC asserts that examples of non-payers are the millions of viewers of the “Wall
`
`Street Week” program that are described as “subscribers.” Dkt. 86 at 2 (citing ‘251 11:19-35).
`
`PMC asserts that Zynga’s file history citations merely establish that one class of subscribers is
`
`paying subscribers.
`
` PMC asserts that the term “user” and “subscriber” is utilized
`
`interchangeably such as in the specification where it states “[f]or example, only at subscriber
`
`stations where user specific stock data is maintained….” Dkt 86 at 2 (quoting ‘717 231:4-9).
`
`PMC notes that the parties have agreed other terms may share a common meaning, for example
`
`the parties have agreed that “data” and “information” have the same meaning. Dkt. 86 at 2.
`
`Analysis
`
`Zynga has pointed to examples in the specification and file history in which a subscriber
`
`has paid for services. However, Zynga has not pointed to a disclaimer or disavowal in the
`
`specification in which a “subscriber” must be a “paying subscriber.” In contrast, as noted in the
`
`specification, “many different classes of subscriber will exist with different information
`
`demands.” ‘251 272:64-67. Further, there are examples describing television subscribers with
`
`no clear disclaimer that such television subscribers are limited to “premium TV service” paying
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`subscribers. ‘251 11:19-35, 209:60-67. In addition, the statement that “advertisers and others
`
`may pay for the transmission and performance of programming” (‘251 2:22-24) further implies
`
`that the programming may be paid for by persons other than subscribers, thus indicative of the
`
`potential of free subscriptions. Viewing the intrinsic record as a whole there is not a disclaimer
`
`or disavowal limiting subscribers to paying subscribers.
`
`PMC, however, attempts to merely equate the term “subscriber” with “user.” PMC has
`
`not established that the two terms carry the same ordinary meaning and has not pointed to
`
`evidence in the intrinsic record establishing that the patentee disavowed the ordinary meaning of
`
`“subscriber.” Though PMC may be correct that one may be a “free subscriber” or a “paid
`
`subscriber,” PMC has not established that a mere user equates to a subscriber. The conventional
`
`meaning of “subscriber” means something more than a “user.” Similarly, as used in the
`
`specification, for example, any and all television viewers are not described as subscribers, rather
`
`subscribers are described in association of those specially configured stations disclosed with
`
`reference for example to Figures 1, 3, and 7. At the hearing, PMC agreed that a subscriber is
`
`more than a mere user, but rather someone arranges to receive information such as for example
`
`through a request or agreement. Such an interpretation is in conformance with the claims and in
`
`conformance with the specification, which includes general television descriptions (as opposed
`
`to mandating “premium” television) and includes advertiser payment. The intrinsic record as a
`
`whole does not teach that payment is required to be a subscriber.
`
`The Court construes “subscriber”
`
`to mean “one who arranges to receive
`
`information.”
`
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`B. “video”3 and “video image”4
`
`PMC’s Proposed Construction
`“Video”: This term does not require
`construction. However, if a construction for
`this term is entered, it should be: “information
`that represents a visually perceivable
`presentation, such as graphics, images, or text”
`
`“Video image”: This term does not require
`construction.
`
`Zynga’s Proposed Construction
`“Video”: “a series of still images intended to
`be displayed in sequence to allow for the
`appearance of movement.”
`
`“Video image”: “still visual representation,
`which could include textual information, that
`is part of a series of still visual representations
`intended to be displayed in sequence to allow
`for the appearance of movement.”
`
`The primary dispute between the parties is whether “video” is limited to images that
`
`convey movement, and whether “video image” is a still image of the video.
`
`PMC
`
`PMC asserts that the patents generally describe audio information and video information
`
`and that “video” information is merely picture information quoting:
`
`Said output could be audio and/or video information out-putted to
`a monitor, 202M, and caused to be emitted as sound and/or
`displayed as picture information.
`
`‘251 258:15-18. PMC also notes that the patents refer to “the picture screen of the monitor
`
`202M” and “to the video screen of TV monitor 202M.” Dkt. 77 at 10 (quoting ‘251 252:53;
`
`13:67). PMC also cites to the example of the graph shown in ‘251 Figure 1A. PMC asserts that
`
`this graph is described as formed from “digital bit information at the video RAM of the graphics
`
`card in a particular pattern” and “the information at video RAM at the end of these steps were to
`
`be transmitted alone to the video screen of a TV monitor.” Dkt. 77 at 11 (quoting ‘251 13:36-
`
`50). PMC asserts that this graphic of the Figure 1A graph is stored in video RAM which
`
`demonstrates that “video” is broader than Zynga’s construction. PMC also cites to examples in
`
`3 ‘251 Claims 17, 18, 19, 24 and 28.
`
`4 ‘251 Claims 17, 18, and 24.
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`which video refers to “binary video image information of several telephone numbers” and dollar
`
`amounts that are placed in bit locations of the “video RAM that produce video image
`
`information in the upper left hand of a video screen.” Dkt. 77 at 11 (quoting ‘251 188:39-40,
`
`250:25-29). PMC asserts that the claims do not require movement and video is used in the
`
`patents in the context of static pictures such as Figure 1A, telephone numbers and dollar
`
`amounts, and thus, Zynga’s construction is improper.
`
`Zynga
`
`Zynga says that its construction does not require actual movement, only a series of
`
`images that allows for appearance of movement when viewed in series. Dkt. 80 at 6. Zynga
`
`asserts that thus the example of several telephone numbers is part of a series of images, which in
`
`sequence, allows for the appearance of movement. Dkt. 80 at 6. Zynga cites to the prosecution
`
`history in which it asserts the Board of Patent Appeals distinguished between “video” and other
`
`visually perceived information such as “graphics”:
`
`Likewise, Bart teaches that a “color television receiver, for
`example, can be arranged
`to display either normal video
`information alone in a conventional manner, graphics information
`along [sic:alone] (e.g., ‘video games’ or alphanumeric data
`displays), or mixed video and graphics
`information (e.g.,
`superimposed
`subtitles, weather,
`sports or
`road
`traffic
`information”…
`
`Dkt. 80 Ex G at 73 (BPAI Decision dated 3/23/09).
`
`Zynga asserts that the patents describe “video” (such as a television program) combined
`
`with a microprocessor generated visual display (“video image”) that are displayed together.
`
`Zynga cites to the specification:
`
`Automatically, microcomputer, 205, clears video RAM; causes the
`background color of video RAM to a color such as black that is
`transparent when combined with transmitted video by the PC-
`MicroKey System; causes binary
`image
`information of
`‘$1,071.32” to be placed at bit locations of video RAM that 50
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`produce video image information in the upper left hand of a video
`screen when video RAM information is transmitted to said screen.
`
`‘717 at 250:44-52.
`
`PMC’s Reply
`
`PMC asserts that the file history quotation supports its position because rather than
`
`distinguishing “video” and “graphics” the quotation describes “normal video” and “graphics
`
`information” is also video such as is “video games.”
`
`Analysis
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`The specification provides examples of video that are not limited to a series of still
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`images to provide the appearance of movement. Thus for example video information may be
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`“displayed as picture information.” ‘251 258:15-18. As an example, the video described in the
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`specification may include the graph shown in ‘251 Figure 1A. ‘251 Figure 1A, 13:36-50.
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`Similarly, video image information may include the telephone numbers and dollar amounts
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`displayed on the screen. ‘251 188:39-40, 250:25-29. Thus, as taught in the specification, not all
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`video is intended to provide the appearance of movement. In the context of the claims, for
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`example as with ‘251 Claim 17, such information may be the “locally generated video image”
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`that is simultaneously displayed with the image from “the remote video source.”
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`PMC’s construction, however, is missing the context of the specification in which the
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`video is capable of showing change or movement. Thus, not all video shows such change or
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`movement, but as used in the specification there is a capability of such. At the hearing. the Court
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`proposed a construction of “video” to mean “visual presentation that is capable of showing
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`change or movement.” Such a construction allows for graphics, such as described above with
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`reference to the ‘251 specification, to be an image. At the hearing, PMC agreed to the Court’s
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`construction.
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`VIZIO, Inc. Exhibit 1018
`13 of 49
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`Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 14 of 49 PageID #: 6945
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`The Court construes “video” to mean “visual presentation that is capable of showing
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`change or movement.” The Court finds that no additional construction of “video image” is
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`necessary. A video image may include a single graphic.
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`C. “processor”5 and “processing”6
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`PMC’s Proposed Construction
`These terms do not require
`construction.
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`Zynga’s Proposed Construction
`“Processor”: “any device capable of performing operations
`on data. This includes devices that operate by executing
`instructions as well as devices that operate by other
`means.”
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`“Processing”: “performing operations on data or a signal.
`This includes operations done by executing instructions as
`well as operations done without executing instructions.”
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`Zynga expresses concern that “processing” will be construed to be limited to executing
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`instructions (as opposed to devices that are hardwired to process). In its Reply, PMC appears to
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`agree that the terms are not limited to executing instructions (except to the extent any particular
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`claim explicitly includes executing).
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`PMC
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`PMC asserts the terms are used more than 1,600 times in a wide variety of contexts in the
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`patents. PMC provides an extensive list of the different types of “processing” in the
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`specification and the claims in its brief (Dkt. 77 at 13). PMC asserts that a single construction
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`that encompasses all uses would be impossible. PMC objects to Zynga’s construction
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`(“executing instructions” and “other means”) as being potentially confusing because in some
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`claims the claim language is explicitly limited to “executing instructions.” Dkt. 77 at 14. PMC
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`5 ‘251 Claims 17, 18, and 28; and ‘131 Claim 1.
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`6 ‘251 Claims 17, 18, and 28; ‘131 Claim 1; ‘717 Claim 1; and ‘638 Claims 1, 6 and 11.
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`VIZIO, Inc. Exhibit 1018
`14 of 49
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`Case 2:12-cv-00068-JRG-RSP Document 150 Filed 08/28/13 Page 15 of 49 PageID #: 6946
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`asserts that processing in the asserted claims is performed on data, control signals, video signals
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`and information. PMC asserts that processors receive signals, deliver images, select data and
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`execute instructions. Dkt. 77 at 14. PMC asserts that the claims in each case provide the
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`necessary context and that no construction is needed. PMC also objects to Zynga’s use of
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`“operate.” In its reply brief, PMC asserts that it is not limiting the terms to require computers
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`that execute instructions. PMC asserts that terms are clear in the claim context and require no
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`construction. Dkt. 86 at 3.
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`Zynga
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`Zynga asserts that it believes PMC’s offer of no construction is an attempt to limit the
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`terms narrowly to require computers that execute instructions. Zynga asserts that the terms
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`should be construed more broadly to also cover devices not executing instructions, such as
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`hardwired logic devices. Dkt. 80 at 8. Zynga asserts that its construction accurately includes
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`devices, whether or not the devices execute program instructions as would be appropriate at the
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`time of the patent filings. Zynga also points to claims that use both “processor” and “computer”
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`as indicating that the words are not merely the same but have a presumption of different
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`meanings. Dkt. 80 at 8. Zynga points to a number of passages in the specification describing
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`hardwired devices processing. Dkt. 80 at 8 (citing ‘717 51:61-63, 76:12-14, 135:52-56). Zynga
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`also points to the prosecution history in which PMC discussed prior art teletext decoders as
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`processing. Dkt. 80 at 9 (citing Dkt. 80 Ex. 10 Substitute Appeal Brief at 63-65). Zynga asserts
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`that extrinsic evidence also makes clear that processing does not require execution of instructions
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`as done in computers. Dkt. 80 at 9, n. 12. Zynga asserts that its construction does not cause
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`confusion for claims that are limited to executing instructions.
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