Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 1 of 29 Page ID #:6604
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`Case No. 2:13-cv-07245-MRP-JEM
`
`CLAIM CONSTRUCTION
`ORDER
`
`The CALIFORNIA INSTITUTE OF
`TECHNOLOGY,
`Plaintiff,
`
` v.
`HUGHES COMMUNICATIONS
`INC., HUGHES NETWORK
`SYSTEMS LLC, DISH NETWORK
`CORPORATION, DISH NETWORK
`L.L.C., and DISHNET SATELLITE
`BROADBAND L.L.C.,
`Defendants.
`
`Introduction
`I.
` Plaintiff California Institute of Technology (“Caltech”) has asserted U.S. Patent
`No. 7,116,710 (“the ’710 patent”), U.S. Patent No. 7,421,032 (“the ’032 patent”),
`U.S. Patent No. 7,916,781 (“the ’781 patent”), and U.S. Patent No. 8,284,833 (“the
`’833 patent,”) against Defendants Hughes Communications, Inc., Hughes Network
`Systems, LLC, DISH Network Corporation, DISH Network L.L.C., and dishNET
`Satellite Broadband L.L.C. (collectively, “Hughes”). Hughes has asserted several
`
`-1-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Apple 1113
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 2 of 29 Page ID #:6605
`
`defenses, including the invalidity and non-infringement of the aforementioned
`patents. In this Order, the Court construes certain claim terms in dispute.
`II.
`Technical Background
`The asserted claims in the patents are method and apparatus claims relating to
`error correction. 1 In modern electronic systems, data are stored in the form of bits
`having the value “1” or “0.” In the process of transmitting data, a random or
`irregular fluctuation (noise) can occur in the signal and corrupt the data. For
`example, a transmitter may send a bit with the value “1,” but noise may corrupt it
`and cause the receiver to read the value as “0.” People using technology have a
`low tolerance for these kinds of errors. For example, we assume that when we e-
`mail a file, the recipient will receive it uncorrupted.
` To mitigate the problem of corruption, electronic systems use error correction.
`In general terms, error correction depends on redundancy. Redundancy refers to
`“extra” bits that are transmitted along with the original information bits. These
`extra bits are not necessary, in that the original information exists without them,
`but they serve an important purpose. The extra bits allow the receiver to ensure
`that the original information bits were not corrupted in transmission. The form of
`error correction in Caltech’s patents is an irregular repeat and accumulate (IRA)
`code. An IRA code can operate as follows: The code can introduce redundancy by
`repeating different original bits a different number of times. These information
`bits may then be randomly permuted and combined to form intermediate bits,
`which are accumulated to form parity bits. These parity bits reflect the values of a
`number of original information bits. These parity bits are transmitted along with
`the original information bits. The receiver can ensure that bits were not corrupted
`by summing the original information bits and parity bits. Assuming the sum of the
`bits is supposed to be odd, but the result is instead even, the receiver knows that an
`
`1 All four patents share a common specification and claim priority to the same patent application
`U.S. Serial Application No. 09/861,102.
`
`-2-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 3 of 29 Page ID #:6606
`
`error occurred and can perhaps correct the error by using other information it has
`received. IRA codes may utilize randomness to ensure a burst of noise does not
`affect a contiguous group of bits contributing to a parity bit. This is important,
`because the receiver uses these bits’ values to ensure the accuracy of other bits. If
`too many errors occur in the group of bits, the receiver may be unable to perform
`this task.
` The benefit of an IRA code is that not all bits are repeated the same number of
`times. The greater repetition of some bits provides more redundancy for error
`correction. Although greater repetition of every bit would allow for better error
`correction, it would also force the transmitter to send more bits, thereby increasing
`data transfer time.2 Greater redundancy may also result in increased coding
`complexity due to the creation of more parity bits. Coding complexity refers to the
`number of calculations performed in an error correction scheme: the more
`calculations, the greater the coding complexity. Complex schemes need more
`processing power. Therefore, a less complex coding scheme is more efficient and
`preferable. IRA codes attempt to balance two goals: data accuracy and efficiency.
`III. Legal Standards
`
`A. Claim Construction
`“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.” Innova/Pure
`Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1115 (Fed. Cir. 2004).
`The purpose of claim construction is to determine the meaning and scope of the
`patent claims alleged to be infringed. O2 Micro Int’l Ltd. v. Beyond Innovation
`Tech. Co., Ltd., 521 F.3d 1351, 1360 (Fed. Cir. 2008). Claim construction is a
`question of law. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 372
`
`2 Extra bits are reflected in the coding rate. Coding rate is calculated through the following
`equation: coding rate = (original information bits) / (original information bits + extra bits). The
`closer the coding rate is to 1, the more efficient it is.
`-3-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 4 of 29 Page ID #:6607
`
`(1996); see generally Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp.,
`744 F.3d 1272 (Fed. Cir. 2014).
`“The words of a claim are generally given their ordinary and customary
`meaning as understood by a person of ordinary skill in the art when read in the
`context of the specification and prosecution history.”3 Thorner v. Sony Computer
`Entm’t LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Phillips v. AWH Corp.,
`415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)).
` “[T]he claims themselves provide substantial guidance as to the meaning of
`particular claim terms.” Phillips, 415 F.3d at 1314. Claims “must be construed in
`light of the appropriate context in which the claim term is used.” Aventis Pharm.
`Inc. v. Amino Chems. Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013). “[T]he usage of
`a term in one claim can often illuminate the meaning of the same term in other
`claims.” Phillips, 415 F.3d at 1314. Similarly, “the presence of a dependent claim
`that adds a particular limitation gives rise to a presumption that the limitation in
`question is not present in the independent claim” under the doctrine of claim
`differentiation. Id. at 1315.
`The specification is “highly relevant” in claim construction and is the “single
`best guide” for construing ambiguous claim terms. Phillips, 415 F.3d at 1315. But
`the Court must be wary of “improperly importing a limitation from the
`specification into the claims.” Retractable Techs., Inc. v. Becton, 653 F.3d 1296,
`1305 (Fed. Cir. 2011). A patent’s prosecution history is also relevant in claim
`construction, but it “often lacks the clarity of the specification and thus is less
`useful for claim construction purposes.” Phillips, 415 F.3d at 1317.
`The Court may consider extrinsic evidence in claim construction. Id. at 1317.
`Dictionaries, especially technical dictionaries, may aid the Court “in determining
`the meaning of particular terminology to those of skill in the art.” Id. at 1318.
`
`3 The Court uses “plain meaning” as shorthand for “ordinary and customary meaning as
`understood by a person of ordinary skill in the art when read in the context of the specification
`and prosecution history.”
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-4-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 5 of 29 Page ID #:6608
`
`While extrinsic evidence can shed light on claim meaning, it is “less significant
`than the intrinsic record in determining the legally operative meaning of claim
`language.” Id. (internal quotation marks omitted). “Extrinsic evidence . . . may be
`useful in claim construction, but it should be considered in the context of the
`intrinsic evidence.” Biagro W. Sales, Inc. v. Grow More, Inc., 423 F.3d 1296,
`1302 (Fed. Cir. 2005).
`The Court will not give a term its plain meaning under two circumstances.
`First, a patentee can depart from the plain and ordinary meaning by acting as its
`own lexicographer. To be its own lexicographer, the patentee “must clearly set
`forth a definition of the disputed claim term other than its plain and ordinary
`meaning.” Thorner, 669 F.3d at 1365 (internal quotation marks omitted). “It is
`not enough for a patentee to simply disclose a single embodiment or use a word in
`the same manner in all embodiments, the patentee must clearly express an intent to
`redefine the term.” Id. (internal quotation marks omitted). An “‘implied’
`redefinition must be so clear that it equates to an explicit one.” Id. at 1368.
`Second, a patentee can depart from the plain and ordinary meaning by clearly
`“disavow[ing] the full scope of a claim term either in the specification or during
`prosecution.” Id. at 1365. “The patentee may demonstrate intent to deviate from
`the ordinary and accustomed meaning of a claim term by including in the
`specification expressions of manifest exclusion or restriction, representing a clear
`disavowal of claim scope.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313,
`1325 (Fed. Cir. 2002).
`B. Section 112(b) (Indefiniteness)
`The Patent Act provides that “[t]he specification shall conclude with one or
`more claims particularly pointing out and distinctly claiming the subject matter
`which the inventor or a joint inventor regards as the invention.” 35 U.S.C.
`§ 112(b). Recently, in Nautilus Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120
`(2014), the Supreme Court interpreted Section 112(b) “to require that a patent’s
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-5-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 6 of 29 Page ID #:6609
`
`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.” Id. at
`2129. Failure to do so renders a claim indefinite and, therefore, invalid. 35 U.S.C.
`§ 282(b)(3). The Supreme Court observed that Section 112 strikes a careful
`balance. On the one hand, “[s]ome modicum of uncertainty . . . is the price of
`ensuring the appropriate incentives for innovation.” Id. at 2128 (internal quotation
`marks omitted). It is important to remember that “patents are not addressed to
`lawyers, or even to the public generally, but rather to those skilled in the relevant
`art.” Id. (internal quotation marks omitted). On the other hand, “a patent must be
`precise enough to afford clear notice of what is claimed” in order to inform “the
`public of what is still open to them.” Id. at 2129 (citing Markman, 517 U.S. at
`373). These purposes inform the “reasonable certainty” standard.
`Before Nautilus, the Federal Circuit had held that a claim was indefinite if it
`was “not amenable to construction or insolubly ambiguous.” Biosig Instruments,
`Inc. v. Nautilus, Inc., 715 F.3d 891, 898 (Fed. Cir. 2013) (internal quotation marks
`omitted), rev’d, 134 S. Ct. 2120 (2014). Under this standard, claim construction
`and indefiniteness were essentially one and the same: The district court would
`ascertain whether a term was “amenable to construction” by attempting to construe
`the claim, and if it could construe the claim, the court would ask whether its
`construction was insolubly ambiguous. Post-Nautilus, a district court must
`undertake a slightly different analysis. First, the court should attempt to construe a
`claim. If the claim is not amenable to construction, then the claim is indefinite. A
`claim that is not amenable to construction cannot inform a person of ordinary skill
`of the scope of the invention with reasonable certainty. Cf. Nautilus, 134 S. Ct. at
`2130 (“It cannot be sufficient that a court can ascribe some meaning to a patent’s
`claims.”). Second, the court must ask whether a person of ordinary skill, after
`reading the specification and prosecution history, would be reasonably certain of
`the correct scope of the claim. A claim would fail this standard if a person of
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-6-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 7 of 29 Page ID #:6610
`
`ordinary skill would not be reasonably certain of the correct construction of a term.
`For example, if a person of ordinary skill would determine that there are multiple
`equally plausible but materially dissimilar constructions of a claim term, the claim
`would fail the “reasonable certainty” standard, even if none of the competing
`constructions are “insolubly ambiguous.” Even if a person of ordinary skill could
`determine a term’s correct construction, a court must undertake a second step of
`analysis. If the correct construction is ambiguous such that it does not inform a
`person of ordinary skill of the scope of the invention with reasonable certainty, the
`term is indefinite.
`Like claim construction, indefiniteness is a question of law. Takeda Pharm.
`Co. v. Zydus Pharm. USA, Inc., 743 F.3d 1359, 1366 (Fed. Cir. 2014). At the same
`time, “[a]ny fact critical to a holding on indefiniteness . . . must be proven by the
`challenger by clear and convincing evidence.” Intel Corp. v. VIA Techs., 319 F.3d
`1357, 1366 (Fed. Cir. 2003).4
`IV. Claim Construction
`A. “transmitting” / “transmission”
`The Court finds that “transmitting” means “sending over a channel.” Hughes
`argues that the proper construction of “transmitting” is “sending over a physical
`channel.” In Hughes’ view, the term “transmitting” encompasses only “sending
`bits between a transmitter and receiver (i.e., over a ‘physical channel’).”
`Defendants’ Opening Claim Construction Brief at 9, Dkt. No. 65. Hughes seeks to
`
`4 The Supreme Court recently left open the question whether the “clear and convincing
`evidence” standard applies in indefiniteness inquiries. See Nautilus, 134 S. Ct. at 2130 n.10
`(“The parties nonetheless dispute whether factual findings subsidiary to the ultimate issue of
`definiteness trigger the clear-and-convincing-evidence standard and, relatedly, whether deference
`is due to the PTO’s resolution of disputed issues of fact. We leave these questions for another
`day.”). Other courts have observed the uncertainty around this issue. See In re MyKey Tech.
`Patent Litig., MDL 13-02461, 2014 U.S. Dist. LEXIS 83147, *15–16 n.1 (C.D. Cal. June 17,
`2014). Despite these acknowledgements, this Court will continue applying binding Federal
`Circuit precedent. Separately, the Court notes that the parties have identified no disputed issues
`of underlying fact with regard to the indefiniteness challenges. They dispute only the legal
`conclusions drawn from those facts.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-7-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 8 of 29 Page ID #:6611
`
`exclude internal data transfers within a device from the scope of the claims. In
`doing so, Hughes attempts to impermissibly read a limitation into the term
`“transmitting.”
`The plain meaning of “transmitting” does not require bits to be sent over a
`physical channel. The specification consistently describes transmissions
`generically as occurring over a “channel,” and the specification never explicitly
`limits transmissions to external data transfers. See, e.g., ’032 Patent, 2:8–10 (“The
`encoded data output from the inner coder may be transmitted on a channel . . . .”);
`’032 Patent, 7:1–3 (“The selection of a degree profile for use in a particular
`transmission channel is a design parameter, which may be affected by various
`attributes of the channel.”). The word “physical” never appears in the patent,
`either.
`Faced with these facts, Hughes relies on carefully selected lines in the
`specification and claims to argue that “transmitting” implicitly contains a physical
`channel limitation. Hughes’ arguments are unpersuasive. First, it is true that claim
`18 of the ’032 patent recites a “decoder configured to decode a received data
`stream,” but one must suspend logic to conclude that this entirely separate phrase
`requires the Court to impose a physical channel requirement on all uses of
`“transmitting.” Second, Hughes cannot point to anywhere in the specification that
`shows a clear disavowal or redefinition of “transmitting.” Hughes cites to a
`sentence in the specification that notes a turbo coder can overcome corruption
`caused by a noisy channel. Def. Op. Brief at 10. But this sentence describes a
`general purpose that neither implicitly nor explicitly changes the meaning of
`“transmitting.” Hughes also observes that the specification clarifies that
`transmissions “may be transmitted on a channel and decoded . . . at a destination,”
`’032 Patent, 2:8–10 (emphasis added), and that the specification uses the words
`“input” and “output” when explaining particular transfers within the coding
`system. Def. Op. Brief at 11. Such statements are neither a clear disavowal of
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-8-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 9 of 29 Page ID #:6612
`
`scope nor a clear redefinition of the term. See Thorner, 669 F.3d at 1365. As
`such, the Court cannot depart from the plain meaning of “transmitting.”
`B. “codeword”
`The Court finds that “codeword” means “a discrete encoded sequence of data
`elements.” Once again, Hughes attempts to improperly inject a limitation into a
`clear term. This time, Hughes does so by arguing that to constitute a “codeword,”
`data elements must be encoded for transmission. But the plain meaning of
`“codeword” does not require data elements to be encoded for transmission, and the
`specification never clearly redefines or disavows the plain meaning of “codeword.”
`The specification notes only that “encoded data output from the inner coder may be
`transmitted” and that “[t]he coder may be used to format blocks of data for
`transmission.” ’781 patent, 2:11–12, 2:41–42 (emphasis added). These examples
`show only that it is possible to transmit encoded or formatted data. They do not
`even weakly suggest that a codeword must be transmitted.
`Hughes argues that the preamble of claims in the ’781 patent clarifies that a
`codeword must be encoded for transmission. The preamble in relevant claims,
`except claim 21, recites “[a] method of encoding a signal.” See, e.g., ’781 Patent,
`7:25. But this preamble does not clearly redefine “codeword.” Hughes is
`implicitly arguing for a different contention: namely, that the preamble is acting as
`a claim limitation. The Federal Circuit has recognized this possibility. See Bicon,
`Inc. v. Straumann Co., 441 F.3d 945, 952 (Fed. Cir. 2006) (“[T]he preamble is
`regarded as limiting if it recites essential structure that is important to the invention
`or necessary to give meaning to the claim.”). This issue is not before the Court,
`and the Court expresses no opinion on its merits. It is plain, however, that the
`proper way to resolve this dispute is by determining whether the preamble is a
`limitation, not by importing the preamble’s language into “codeword.”
`Hughes also contends that the use of “L transformed bits” in claim 1 in the ’781
`patent indicates that a codeword is more than a discrete encoded sequence of data
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-9-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 10 of 29 Page ID
` #:6613
`
`elements. The gravamen of Hughes’ argument is this: the L transformed bits are a
`discrete encoded sequence of data elements. Because the claim uses the phrase “L
`transformed bits” instead of “codeword,” “codeword” cannot merely mean a
`discrete encoded sequence of data elements. This argument is a distraction tactic.
`The use of the phrase does not change the meaning of “codeword.” Hughes is
`correct that “different terms in the claims connote[] different meanings.” CAE
`Screenplates Inc. v. Heinrich Fiedler Gmbh & Co. Kg, 224 F.3d 1308, 1317 (Fed.
`Cir. 2000). But this principle is consistent with the Court’s construction of
`“codeword.” The Court’s construction does not render the claim’s use of the
`phrase “L transformed bits” superfluous. Even if “codeword” encompasses the L
`transformed bits, a patentee is allowed to use different language to refer to an
`example of a broader term. In fact, the claims have a good reason for
`differentiating between the specific L transformed bits and the broader
`“codeword.” The claim language uses the phrase “L transformed bits” to describe
`the creation of codeword within the context of this particular claim. The claim
`notes that the second encoding operation accumulates the L transformed bits and
`produces at least a portion of a codeword “wherein L is two or more.” ’781 Patent,
`7:37–38. Using the phrase “L transformed bits” helps explain how a codeword is
`produced in the claimed invention. Hughes’ argument rests on a flimsy
`implication, and it does not refute the plain meaning of “codeword” supported by
`the specification. The Court declines Hughes’ invitation to read a transmission
`limitation into “codeword.”
`C. “repeat”
`The Court adopts the plain meaning of “repeat.” In this section, the Court seeks
`to explain in detail the scope of “repeat.”
`First, the plain meaning of “repeat” requires the creation of new bits
`corresponding to or reflecting the value of the original bits. In other words,
`repeating a bit with the value 0 will produce another bit with the value 0. The
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-10-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 11 of 29 Page ID
` #:6614
`
`Court will refer to this concept as duplication. Caltech argues that “repeat” can
`also refer to the re-use of a bit, but the patent’s claims and specification support the
`Court’s construction.
`To begin with, the claim language of the patents-in-suit supports this
`construction. Claim 13 of the ’032 Patent refers to a low-density generator matrix
`(LDGM) coder “configured to perform an irregular repeat on message bits having
`a first sequence in a source data stream to output a random sequence of repeats of
`the message bits.” ’032 Patent, 9:39–42. The claim goes on to describe an
`accumulator that exclusive-OR sums a predecessor parity bit and “‘a’ bits of the
`random sequence of repeats of the message bits.” ’032 Patent, 9:43–45. This
`claim clarifies that performing a repeat on message bits outputs “repeats of the
`message bits.” A person of ordinary skill would not interpret this phrase to mean
`“bits that reflect the re-use of the incoming message bits.” See Plaintiff’s
`Responsive Claim Construction Brief at 6, Dkt. No. 74. Nothing in the claim
`language or specification suggests this meaning for the phrase. A person of
`ordinary skill would likely interpret the phrase according to its evident meaning:
`duplicates of the message bits on which the LDGM coder performed an irregular
`repeat. See also ’710 Patent, Claim 1, 7:19–23 (referring to “repeating the data
`elements” resulting in “repeated data elements”).
`The specification supports this construction as well. The specification describes
`an outer coder embodiment in which the outer coder is “a repeater that repeats the
`k bits in a block a number of times q to produce a block with n bits, where n=qk.”
`’710 Patent, 2:50–52. Thus, if bits with the values 0 and 1, respectively (the k
`bits), are repeated two times (q), then the resulting block will have two bits with
`the value 0 and two bits with the value 1 for a total of four bits (n). This use of
`“repeat” strongly supports its plain meaning.
`Caltech argues that this sentence does not support construing “repeat” to mean
`duplicating bits. Caltech correctly notes that courts should not import limitations
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-11-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 12 of 29 Page ID
` #:6615
`
`from the embodiment into the claims. See Retractable, 653 F.3d at 1305. This
`principle has a limited effect in this instance, however. An embodiment is simply
`an example of an invention encompassed by the patent. See Black’s Law
`Dictionary 599 (9th ed. 2009) (defining “embodiment” as a “tangible manifestation
`of an invention”). The Court generally should not limit the claims to the
`exemplary aspects of an embodiment. See Phillips, 415 F.3d at 1323 (“[A]lthough
`the specification often describes very specific embodiments of the invention, we
`have repeatedly warned against confining the claims to those embodiments.”). On
`the other hand, the specification may describe the embodiment by using a claim
`term that is not the exemplary aspect of the embodiment. See id. at 1323 (“[T]he
`line between construing terms and importing limitations can be discerned with
`reasonable certainty and predictability if the court’s focus remains on
`understanding how a person of ordinary skill in the art would understand the claim
`terms.”). In that case, the embodiment’s use of the claim term may suggest its
`meaning. If the exemplary aspect of the cited embodiment is the meaning of
`“repeat,” then Caltech’s point may be valid. However, if the exemplary aspect of
`the embodiment is some other element, then the embodiment’s use of “repeat” is
`highly probative of its meaning.
`Caltech essentially argues that the “exemplary” aspect of the first embodiment
`is the meaning of “repeat” as duplication. The “exemplary” aspect of the LDGM
`embodiment, Caltech also argues, is the use of “repeat” as re-use. See ’710 Patent,
`3:51–59 (describing LDGM embodiment). This explanation is plausible, but
`barely. No language in the specification differentiates these embodiments based
`on different meanings of “repeat.” Instead, the specification differentiates them by
`the structure of their outer coders. The first embodiment describes repetition of
`bits using non-matrix multiplication. The second embodiment describes repetition
`of bits using matrix multiplication. These structures are the exemplary aspects of
`the embodiments, not the meaning of “repeat.”
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`-12-
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 13 of 29 Page ID
` #:6616
`
`Admittedly, “there is sometimes a fine line between reading a claim in light of
`the specification, and reading a limitation into the claim from the specification.”
`Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998).
`But Caltech cannot point anywhere in the specification or prosecution history
`where “repeat” means re-use. Caltech argues that the LDGM embodiment repeats
`bits by re-using bits, but the specification does not explicitly or implicitly suggest
`this redefinition. Caltech cannot point to any technical or non-technical dictionary
`definition that defines “repeat” as re-use, either. Caltech claims that dictionary
`definitions such as “to say or do again” and “to undergo again” indicate that “re-
`use” is a definition for “repeat.” But the phrases “to do a bit again” or “to undergo
`a bit again” hardly convey Caltech’s construction: “re-use a bit.” A reasonable
`person could as easily interpret “doing a bit again” to mean duplicating a bit.
`Construing “repeat” to require duplication does not exclude the LDGM
`embodiment. Although an LDGM does not necessarily duplicate bits, it is beyond
`
`the following matrix:
`
`dispute that an LDGM can duplicate bits. Imagine the vector (cid:4670)(cid:883)(cid:3)(cid:882)(cid:3)(cid:883)(cid:4671)(cid:3)multiplied by
`(cid:883)(cid:3)(cid:882)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)(cid:882)(cid:3)(cid:882)(cid:3)
`(cid:882)(cid:3)(cid:883)(cid:3)(cid:882)(cid:3)(cid:882)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)
`(cid:882)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)(cid:882)(cid:3)
`The result of the multiplication would be [(cid:883)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)(cid:883)(cid:3)(cid:883)(cid:3)(cid:882)], with each bit repeated
`(cid:4670)(cid:883) (cid:882) (cid:882) (cid:883) (cid:883) (cid:883)(cid:4671)(cid:1743)(cid:1742)(cid:1742)(cid:1742)(cid:1742)(cid:1741)(cid:883) (cid:882) (cid:883) (cid:882) (cid:882)
`(cid:882) (cid:882) (cid:883)(cid:1746)(cid:1745)(cid:1745)(cid:1745)(cid:1745)(cid:1744)
`(cid:883) (cid:882) (cid:882) (cid:882) (cid:882)
`(cid:882) (cid:882) (cid:883)
`(cid:883)(cid:882)(cid:882)(cid:882)
`(cid:883)(cid:882)(cid:882)(cid:882)
`(cid:882) (cid:882) (cid:882)
`(cid:882) (cid:883) (cid:882)
`
`twice, in this example corresponding to the number of “1”s in each row. The key
`point is that the multiplication must result in new bits corresponding to or
`reflecting the value of the input bits.5
`
`5 To illustrate the difference between this construction and Caltech’s proposed construction,
`consider the following matrix multiplication:
`
` = (cid:4670)(cid:883) (cid:882) (cid:883) (cid:883) (cid:883)(cid:4671).
`
`-13-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:13-cv-07245-MRP-JEM Document 105 Filed 08/06/14 Page 14 of 29 Page ID
` #:6617
`
` Caltech is correct that an LDGM can create parity bits through re-using bits.
`Caltech is also correct that it is efficient and valuable to re-use bits. Caltech is
`incorrect that the patents-in-suit express this concept through the term “repeat.”
`One can imagine a specification or claims that clarified that “repeat” meant “re-
`use,” either explicitly, or implicitly by an example. It would not have been
`difficult. These patents do not do so. They instead suggest that “repeat,”
`consistent with its plain meaning, requires duplication. “It is well-settled that an
`inventor may act as his own lexicographer to define a patent term . . . . It is
`likewise well-settled that courts generally may not re-draft claims; we must
`construe the claims as written.” Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1344
`(Fed. Cir. 2009). This Court will not redefine “repeat” to encompass “re-use” even
`though the patentees could have, and perhaps should have, done it themselves.
`The Court’s construction does not exclude the Tanner graph representation. The
`Tanner graph does not unequivocally demonstrate a re-use of bits. In fact, the
`specification indicates that the lines exiting the information nodes represent a
`duplication of bits. See ’710 Patent, 3:39–43 (describing Tanner Graph
`demonstrating a “repeat of q=2,” where the specification previously defined “q” as
`the number of times a bit is duplicated). Technical literature uses Tanner graphs to
`express the duplication of bits. See, e.g., Sarah J. Johnson, Iterative Error
`Correction: Turbo, Low-Density Parity-Check and Repeat-Accumulate Codes
`
`(cid:4670)(cid:883)(cid:3)(cid:882)(cid:3)(cid:882)(cid:3)(cid:883)(cid:3)(cid:883)(cid:3)(cid:883)(cid:4671) corresponds to (cid:4670)(cid:132)(cid:883)(cid:3)(cid:132)(cid:884)(cid:3)(cid:132)(cid:885)(cid:3)(cid:132)(cid:886)(cid:3)(cid:132)(cid:887)(cid:3)(cid:132)(cid:888)(cid:4671). This vector is multiplied by the matrix. Take
`
`The first vector represents the information bits and corresponds to bits 1 through 6—that is,
`
`the first item in the result: a bit with the value 1. This bit with the value 1 corresponds to “b1.”
`Even though this result incorporates the use of b2 and b3, because both were multiplied by 1,
`neither bit is actually reflected in the result because their values are 0. Thus, these bits have not
`been repeated, even though they were used. A bit is repeated when the result corresponds to or
`reflects the value of the original bit.
`
`-14-
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:13-cv-07245-M