Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 1 of 20 PageID #: 6211
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`KONINKLIJKE PHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
`
`Plaintiffs,
`
`v.
`
`ASUSTeK COMPUTER INC. and
`ASUS COMPUTER INTERNATIONAL,
`
`Defendants.
`
`KONINKLIJKE PHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
`
`Plaintiffs,
`
`v.
`
`HTC CORP. and
`HTC AMERICA, INC.
`
`Defendants.
`
`KONINKLIJKE PHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
`
`Plaintiffs,
`
`V.
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`VISUAL LAND, INC.,
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`Defendant.
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`U.S. PHILIPS CORPORATION,
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`Plaintiffs,
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`v.
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`SOUTHERN TELECOM INC.,
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`C.A. No. 15-1125-GMS
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`C.A. No. 15-1126-GMS
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`C.A. No. 15-1127-GMS
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`C.A. No. 15-1128-GMS
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`Page 1 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 2 of 20 PageID #: 6212
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`Defendant.
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`KONINKLIJKEPHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
`
`Plaintiffs,
`
`v.
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`DOUBLE POWER TECHNOLOGY, INC.,
`ZOWEE MARKETING CO., LTD., and
`SHENZEN ZOWEE TECH. CO., LTD.,
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`Defendants.
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`KONINKLIJKE PHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
`
`Plaintiffs,
`
`v.
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`YIF ANG USA, INC., d/b/a
`E-FUN, INC.,
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`Defendant.
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`KONINKLIJKE PHILIPS N.V. and
`U.S. PHILIPS CORPORATION,
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`Plaintiffs,
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`v.
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`ACER INC. and
`ACER AMERICA CORPORATION,
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`Defendants.
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`C.A. No. 15-1130-GMS
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`C.A. No.15-1131-GMS
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`C.A. No. 15-1170-GMS
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`Page 2 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 3 of 20 PageID #: 6213
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`ORDER CONSTRUING THE TERMS OF U.S. PATENT NOs. RE44,913, 6,690,387,
`7,184,064, 7,529,806, 5,910,797, 6,522,695, 8.;543,819, 9.436,809, 6,772,114, RE43,564 1
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`After having considered the submissions of the parties and hearing oral argument on the
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`matter, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that, as used in the asserted
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`claims ofU.S. Patent Nos. RE 44,913 ("the '913 patent"), 6,690,387 ("the '387 patent"), 7,184,064
`
`("the '064 patent"); 7,529,806 ("the '806 patent"), 5,910,797 ("the 797 patent"), 6,522,695 ("the
`
`'695 patent"), 8,543,819 ("the '819 patent"), 9,436,809 ("the '809 patent"), 6,772,114 ("the '114
`
`patent"), & RE43,564 ("the '564 patent"):2
`
`The '913 Patent
`
`1.
`
`The court adopts the parties' proposed construction for the term "display area" to
`
`mean "region of an electronic screen."3
`
`2.
`
`The term "keypad" is construed in accordance with its plain and ordinary
`
`meaning.4
`
`1 All docket citations refer to Civil Action NO. 15-1125-GMS. The abbreviation "Tr." refers to the transcript
`from the Markman Hearing on May 3, 2017, D.I. 143.
`
`2 The court does not address indefiniteness contentions at this time.
`
`3 The parties' agreed upon the construction of the term "display area" in the Joint Claim Chart. (D.I. 111-2.)
`In the absence of a genuine dispute, the court will not construe this term. See 02 Micro International Ltd. v. Beyond
`Innovation Technology Co., Ltd., 521F.3d1351, 1360 (Fed. Cir. 2008); US. Surgical Corp. v. Ethicon, Inc., 103 F.3d
`1554, 1568 (Fed. Cir. 1997).
`
`4 Defendants propose a construction that limits the claimed "keypad" to "a plurality of keys arranged to
`resemble a numeric entry or phone dialing interface:" The Defendants' citations to the specification are not persuasive.
`(D.I. 118 at 11.) The patentee provided no definition of"keypad" in the specification and no disavowal of QWERTY
`or other non-numeric keypads.
`(D.I. 117 at 2.) Accordingly, the court will not limit the term to a particular
`embodiment disclosed in the specification. Instead, the court construes the term consistent with its plain and, ordinary
`meaning.
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 4 of 20 PageID #: 6214
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`3.
`
`The term "means for switching to a second state responsive to a first key
`
`-selection of the at least one key for a period longer than the predetermined
`
`time period" is construed pursuant to 35 U.S.C § 112, iJ 6. The claimed function
`
`is: "switching to a second state responsive to a first key selection of the at least one
`
`key for a period longer than the predetermined time period." The corresponding
`
`structure is: "a touchscreen and either: (1) a microprocessor in conjunction with a
`
`computer readable storage medium running a computer program to perform the
`
`function, such as the algorithm disclosed at 4:45-6:6, Figures 4, 5; or (2) dedicated
`
`logic circuits, PICmicro chips, or application specific integrated circuits (ASIC)
`
`that work with or without such a computerprogram to perform the function, such
`
`as the algorithm disclosed at 4:45-6:6, Figures 4, 5."5
`
`4.
`
`The term "means for returning -the keypad to ihe default state" is construed
`
`pursuant to 35 U.S.C. § 112, if 6. The claimed function is: "returning the keypad
`
`to the default state." The corresponding structure is: "a touch a screen and either:
`
`5 The parties agree that this phrase should be construed under 35 U.S.C § 112, ii 6, and agree as to the claimed
`function. The only remaining dispute is over what constitutes the adequate corresponding structure.
`Defendants' proposed structure goes beyond what is necessary to perform this function. Specifically,
`Defendants propose a corresponding structure directed to "displaying keys and characters in each state," when the
`(D.I. 117 at 4.) The Defendants' citations to the
`disputed term function "[is] directed to changing states."
`specification are not persuasive. (D.I. 118 at 13-14.) As Plaintiffs maintain, the "means for displaying in the second
`state each of the secondary characters" is a wholly distinct function. Markman Hr' g Tr. 22: 16-22. Because other
`claim limitations relate to actual "display" in each state as a separate and distinct function, the doctrine of claim
`differentiation supports the conclusion that these limitations presumptively differ in scope. See Wenger Mfg. v.
`Coating Mach. Sys., Inc., 239 F.3d 1225, 1234-35 (Fed. Cir. 2001).
`Furthermore, the specification precisely teaches Plaintiffs' proposed corresponding structure. See, e.g., '913
`patent, col. 4 11. 38-44 ("It is noted ... that other suitable forms of processing means such as dedicated logic circuits,
`PICmicro chips, or application specific integrated circuits (ASIC) operating with or without a computer program can
`be employed in alternative embodiments."). The court therefore adopts Plaintiffs' proposed corresponding structure.
`
`4
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 5 of 20 PageID #: 6215
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`(1) a microprocessor in conjunction with a computer readable storage medium
`
`running a computer program to perform the function, such as the algorithm
`
`disclosed at 4:45-5:14, 5:48-67, Figure 5; or (2) dedicated logic circuits, PICmicro
`
`chips, or application specific integrated circuits (ASIC) that work with or without
`
`such a computer program to perform the function, such as the algorithm disclosed
`
`at 4:45-5:15, 5:47-67, Figure 5."6
`
`The '387 Patent
`
`1.
`
`The term "terminating said scrolling motion when one of the conditions
`
`comprising the following group of conditions is sensed: (a) a substantially
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`stationary finger touch having a finite duration is sensed; (b) .an end-of-scroll
`
`signal is sensed" is construed in accordance with its plain and ordinary meaning. 7
`
`6 The parties agree that this phrase should be construed under 35 U.S.C § 112, ~ 6, and agree as to the claimed
`function. The only remaining dispute is what constitutes adequate corresponding structure. Plaintiffs propose "a
`touch a screen and either: (1) a microprocessor in conjunction with a computer readable storage medium running a
`computer program to perform the function, such as the algorithm disclosed at 4:45-5:14, 5:48-67, Figure 5; or (2)
`dedicated logic circuits, PICmicro chips, or application specific integrated circuits (ASIC) that works [sic] with or
`without such a computer program to perform the function, such as the algorithm disclosed at 4:45-5:15, 5:47-67,
`Figure 5" as the corresponding structure. The Plaintiffs' citations to the specification provide sufficient structure for
`this function. In contrast, Defendants' construction contains structure-related to displaying-that is not necessary
`for performing the function. (D.1. 131 at 4.) The court therefore adopts Plaintiffs' proposed corresponding structure.
`
`7 The parties primarily dispute is whether this term requires "sensing" for both conditions (a) and (b) of the
`claims, or simply one. Markman Hr'g Tr. 42: 1-5; 63:3-5. Plaintiffs' proposed construction largely relies on claim 9,
`which discloses that the sensing is done for a "group of conditions" and that scrolling is terminated when of those
`conditions occurs. (D.I. 117 at 5.) Plaintiffs also rely on the language of dependent claim 10, which states "wherein
`said group of conditions to be sensed for terminating said scrolling motion." '3 87 patent, col. 8 11. 45-46. Defendants
`contend that the plain language of this claim requires performance of only one of these conditions: "terminating said
`scrolling motion when one of the conditions comprising the following group of conditions is sensed." (D .I. 118 at 7)
`(emphasis added). In light of the intrinsic evidence, the court sees no reason to unnecessarily modify the scope of the
`claim by adding the extra step of"sensing for." Thus, the court adopts Defendants' proposed construction.
`
`5
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`Page 5 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 6 of 20 PageID #: 6216
`
`The '064 Patent
`
`1.
`
`The
`
`term "finger
`
`touch program
`
`instructions associated with said
`
`microprocessor for sensing speed, direction, and time duration of a finger
`
`touch contact with said display screen" is construed in accordance with its plain
`
`and ordinarymeaning. 8
`
`2.
`
`The term "timer means associated with said microprocessor to provide timing
`
`·capacity therefor" is construed in accordance with its plain and ordinary
`
`meaning. 9
`
`8 The parties dispute whether this term should be construed pursuant to § 35 U.S.C. 112, if 6. There is a
`presumption that a term falls outside § 112, ii 6 where the claim does not employ the word "means." Williamson v.
`Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015). While this presumption may be overcome when the claim
`fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing
`that function, the court does not believe that is the case here. Id.
`Plaintiffs' expert, Dr. Douglass Schmidt, has supported their assertion that the claim limitation recites
`"program instructions associated with said microprocessor," and a person of ordinary skill in the art ("POSA") would
`understand this language to connote the structure of a software program that is executed by a microprocessor. (D.I.
`117 at 6.) In his declaration, Dr. Schmidt explains: a POSA would understand that "finger touch" refers to a user's
`interaction with a touchscreen, and that "finger touch program instructions" are part of a software program· executed
`by the microprocessor that operates on the information provided from a touchscreen." Id. at 6-7 (citing D.I. 122 'lJ 29).
`Defendants offer no opposing evidence, either intrinsic or extrinsic. Rather, Defendants rely on arguments
`that the claim merely substitutes the word "instructions," that "could encompass any number of different software
`algorithms," for the word "means" and fail to disclose "how the software operates to achieve [the claimed] function."
`(D.I. 118 at 8.) Notably, Defendants seem to concede that the claim language connotes structure by indicating that
`"[t]his limitation describes a special-purpose software running on a microprocessor." (Id. at 8; D.I. 131 at 6.) Because
`Defendants failed to establish clear and convincing evidence that the claim limitation does not provide sufficient
`structure, they cannot overcome the presumption that the claim is not subject to§ 112 ii 6.
`·
`
`9 As noted, the court is aware that a term presumptively falls within 35 U.S.C. § 112, ii 6 when the claim
`employs the word "means," Micro Chem., Inc. v. Great Plains Chem. Co., Inc., 194 F.3d 1250, 1257 (Fed. Cir. 1999),
`but that presumption may be overcome when the claim recites sufficient structure for performing the function. Id.
`The court believes that is the case here.
`Plaintiffs argue that the term connotes sufficient structure for a POSA to perform the claimed function of
`"providing timing capacity therefor," and therefore should be afforded its plain and ordinary meaning. (D.I. 117 at
`9.) The court is convinced that a POSA would interpret a "timer means associated with said microprocessor" to refer
`to specific, well known structure for providing timing capacity for a microprocessor. (Id.) Although Defendants argue
`that patentee "as master of the claim" made a "deliberate choice" to use "timer means" language, Markman Hr'g Tr.
`61:4-8, the court finds that the term should be given its plain and ordinary meaning. See Phillips v. AWH Corp., 415
`F.3d 1303, 1314 (Fed. Cir. 2005) ("In some cases, the ordinary meaning of claim language as understood by a person
`of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more
`than the application of the widely accepted meaning of commonly understood words.").
`6
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`Page 6 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 7 of 20 PageID #: 6217
`
`3.
`
`The term "stopping motion program instructions associated with said
`
`microprocessor for terminating scrolling displacement of the image on said
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`screen upon first occurrence of any signal in the group of signals comprising:
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`(a) a substantially stationary finger touch on the screen enduring for a period
`
`longer than a preset'minimum time, and (b) an end-of-scroll signal received
`
`from said scroll format data source" is construed in accordance with its plain and
`
`ordinary meaning. 10
`
`The '806 Patent
`
`1.
`
`The court adopts the parties' proposed construction for the term "alternative flies"
`
`to mean "alternative :files;"
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`2.
`
`The court adopts the parties' proposed construction for the term ".give" to mean
`
`"given.
`
`3.
`
`The term "media presentation" 1s construed to mean "data having multiple
`
`segments." 11
`
`10 Like the claim limitation above, supra note 8, this claim limitation does not employ the word "means."
`Again, there is a presumption that 35 U.S.C. § 112, iJ 6 does not apply. Plaintiffs, relying on the expert declaration of
`Dr. Schmidt, contend:
`the POSA would understand the term to connote structure by sufficiently describing how the claim
`limitation's operation (terminating scrolling displacement) is achieved in the context of the
`invention (through the execution of a software program by the microprocessor which stops the
`scrolling displacement of the images displayed on the screen in response to the first appropriate
`signal it receives from either the touchscreen or the scroll format data source).
`(D.I. 117 at 7.) Defendants fail to effectively refute this contention. The court therefore adopts the plain and ordinary
`meaning.
`
`11 The court adopts, in part, Plaintiffs' proposed construction of this term. At oral argument, Plaintiffs
`identified two relevant questions: (1) must a "media presentation" have multiple segments and (2) is a "media
`presentation" video or audio data?
`As to the first issue, the court finds that the intrinsic record supports the assertion that media presentation has
`multiple segments. Plaintiffs correctly point out that independent claims 1 and 12 refer to "a given segment of the
`media presentation," suggesting that the invention requires multiple segments. (D.I. 117 at 10.) The Title, Abstract,
`and Summary of The Invention support Plaintiffs' construction. See, e.g., '806 patent, col. 111. 65-66 ("To this end
`7
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`Page 7 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 8 of 20 PageID #: 6218
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`4.
`
`The term "wherein if the determined filed is one of a plurality of files required
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`for the media presentation, the means for parsing comprises means for:
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`concurrent with the media presentation, retrieving a next :file; and using
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`content of the next file to continue the media presentation" is construed to mean
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`"the means for parsing has the capability to: (1) retrieve a next file corresponding
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`to a later segment of a media presentation while an earlier retrieved segment is
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`presented and (2) to use the content of the next file to continue the media
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`presentation." 12
`
`5.
`
`The term "parsing [the/a] control information file" is construed in accordance
`
`with its plain and ordinary meaning. 13
`
`the content file is split into multiple parts. Each part or segment requires a relatively short download time."); id. col.
`4 11. 15-16 ("The segmentation of the content file into separately downloadable segments ... "). Plaintiffs'
`construction-"multiple segments"-aligns with the patent's description of the invention. See Reinshaw PLC
`Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998).
`Second, the intrinsic record demonstrates that media presentation can be "video or audio data." Dependent
`claim 4 discloses "[t]he method of claim 1, wherein the media presentation comprises an audio presentation;"
`dependent claim 5 discloses "[t]he method of claim 1, wherein the media presentation comprises a video presentation."
`'806 patent, col. 6 IL 7-10. The specific dispute, however, is whether media presentation should be limited to just
`those two types of data. Because limitations stated in dependent claims are typically not to be read into the independent
`claim from which they depend, the dependent claims 4-5 do not establish thatthe '806 patent requires the term "media
`presentation" to be exclusively audio or video data. See AK Steel Corp. v. Sollac, 344 F.3d 1234, 1242 (Fed. Cir.
`2003) ("Under the doctrine of claim differentiation, dependent claims are presumed to be of narrower scope than the
`independent claims from which they depend."). There is a strong implication that media presentation is not limited to
`audio and video data. As a result, the court believes construing the claim term as "data having multiple segments"
`aligns with the scope of the patent and does not divorce the construction from its claim language.
`
`12 The court adopts Plaintiffs' proposed construction. The specification provides support for this limitation
`in step 110 of Figure 1, labeled "Download Next File Segment & Buffer While Preceding Segment is Being Played
`Out." '806 patent at Fig. l; id. col. 3 11. 14-16 ("In step 110, the next file segment is downloaded at the client and
`stored in a buffer while the previous file segment ... is played out.").
`
`13 Plaintiffs argue that the term "parsing" is "a well-understood term in computer science ... relat[ing] to the
`analysis of a computer file," and therefore should be afforded its plain meaning. (D.I. 117 at 11.) Plaintiffs also argue
`that the term "control information file" should be construed in accordance with its plain meaning, because the term is
`not given any specialized meaning in the intrinsic record. (Id.)
`According to Defendants, the prosecution history establishes that the patentee intended "parsing [the/a]
`control information file" to have a specific meaning that distinguished the claimed invention from the prior art. (D.I.
`8
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`Page 8 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 9 of 20 PageID #: 6219
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`6.
`
`The term "means for parsing a control information file" is construed pursuant
`
`to 35 U.S.C § 112, 'ti 6. The claimed function is: "parsing a control information
`
`file." The corresponding structure is: "single purpose media player or multipurpose
`
`computing device programmed with software to perform the function, such as the
`
`algorithm disclosed in Figure 1 and at 2:53-3 :2."14
`
`118 at 17.) During the prosecution of the '806 patent, the examiner rejected claims based on the Cohen reference,
`which the examiner observed ''taught the invention as claimed including ... the client device parsing the control
`information file." (D.I. 138-1 at Al 16.) In response, the applicant distinguished Cohen as not "parsing" in the same
`way the terin is used in the '806 patent, because Cohen "knows a priori the format of the connection file, which
`(Id . . at All8.) Defendants claim that this segment of the prosecution history
`therefore need not be parsed."
`demonstrates the patentee intended "parsing [the/a] control information file" to mean interpreting a file of unknown
`format. (D .I. 118 at 17.)
`·
`The court disagrees. Tellingly, Defendants' overlook the applicant's statements informing the PTO that
`Cohen uses a "rigid and inflexible" system that renders parsing unnecessary, (D.I. 138-1 at Al 18), and distinguishing
`the present invention as "flexible," using "parseable control information file," such as an XML file. (Id. at Al15.)
`Defendants' construction also contradicts dependent claims 7 and 13, which depend off claims 1 and 12 respectively
`and require that the control information file be of a known format (XML file). "Absent a clear disavowal or contrary
`definition in the specification or the prosecution history, the patentee is entitled to the full scope of its claim language."
`Home Diagnostics, Inc. v. LifeScan, Inc., 381F.3d1352, 1358 (Fed. Cir. 2004). Because the plain meaning of"parsing .
`a control information file" is clear, and the specification and prosecution history do not reveal a clear intent by the
`pate1:1tee, the prosecution history does not delimit the term's scope.
`
`14 The parties dispute centers on whether there is adequate corresponding structure for this functional term.
`First, Plaintiffs observe that the specification discloses the physical structure, noting that the invention is either
`implemented as a "hardware-based single purpose device" or "a software application on a multi-purpose computing
`device." (D.I. 117 at 12; see '806 patent, col. 4 11. 32-44.) Additionally, the specification provides an algorithm to
`perform the claimed function, as disclosed in Figure 1and2:53-3:61. In relevant part, the specification discloses that
`"[i]n step 104 the XML code is parsed," using an XML interpreter which is well known in the art:
`Parsing of XML is well known in the art. A person skilled in the art can Download an XML
`interpreter source code, from the Internet, see e.g.www.ibm.com/xml. Thus, the client is enabled to
`get information about the content information and the URLs of the first and subsequent file
`segments.
`'806 patent, col. 2 11. 64-col. 3 11. 2.
`Defendants note that the knowledge of a POSA cannot provide corresponding structure. Williamson, 792
`F.3d at 1352 ("[T]he fact that one of skill in the art could program a computer to perform the recited functions cannot
`create structure where none otherwise is disclosed."). Contrary to Defendants' contention, the patent sets forth
`corresponding structure. See Budde v. Harley-Davidson, Inc., 250 F.3d 1369, 1376 (Fed. Cir. 2001) ("Whether or not
`the specification adequately sets forth structure corresponding to the claimed function necessitates consideration of
`that disclosure from the viewpoint of one skilled in the art."). The court finds ample structure disclosed in the
`specification corresponding to the "parsing" function. The coUrt therefore adopts Plaintiffs' proposed construction.
`
`9
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 10 of 20 PageID #: 6220
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`7.
`
`The term "means for parsing, based on parsing of the control information file:
`
`identifying multiple alternative files corresponding to a given segment of the
`
`media presentation; determining which file of the multiple alternative flies to
`
`retrieve based on system constraints; retrieving the determined flle of the
`
`multiple alternative files to begin a media presentation" is construed pursuant
`
`to 35 U.S.C § 112, if 6. The claimed function is: "parsing, based on parsing of the
`
`control information file: identifying multiple alternative files corresponding to a
`
`given segment of the media presentation; determining which file of the multiple
`
`alternative files to retrieve based on system constraints; retrieving the determined
`
`file of the multiple alternative files to begin a media presentation." The
`
`corresponding structure is: "dedicated media player or multipurpose computing
`
`device programmed with software to perform the function, such as the algorithm in
`
`Figure 1, and at 2:53-3:61, 4:20-26."15
`
`15 The parties agree that this phrase should be construed under 35 U.S.C § 112, iJ 6. The parties dispute the
`claimed function and corresponding structure.
`First, the court adopts Defendants' proposed function. Plaintiffs present no plausible reason for the court to
`ignore the claim language by reading out the entire clause "parsing, based on parsing of the control information file."
`See Generation II Orthotics Inc. v. Med. Tech. Inc., 263 F.3d 1356, 1363 (Fed. Cir. 2001) ("[§ 112, ~ 6] does not
`permit limitation of means-plus-function claim by adopting a function different from that explicitly recited in the
`claim") (citation omitted). Notably, Plaintiffs claim construction briefing wholly ignores this issue, and Plaintiffs
`barely addressed the claimed function dispute during Marlanan. The explicit claim language reveals that there are
`two distinct parsing functions, and Defendants' proposed claim function gives effect to both. Second, the court adopts
`Flaintiffs' proposed corresponding structure. The court believes the identified structural support would allow a POSA
`to perform the claimed function.
`
`10
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`Page 10 of 20
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 11 of 20 PageID #: 6221
`
`The '797 Patent
`
`1.
`
`The term "gravitation-controlled sensor [means]" is construed to mean "sensor
`
`responsive to gravity." 16
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`2.
`
`The term "acceleration based motion pattern" is construed to mean "a pattern of
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`motion which reflects acceleration."17
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`3.
`
`The term "wherein said motion is nonuniform in time under control of a static
`
`said orientation of the screen means" is construed to mean "wherein the
`
`16 As an initial matter, the court notes that it is authorized to add the word "means" to the term "gravitatitm(cid:173)
`controlled sensor [means] in order to resolve obvious antecedent basis informalities. H-W Tech. L.C. v.
`Overstock.com, Inc., 758 F.3d 1329 (Fed. Cir. 2014); Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587
`F.3d 1339 (Fed. Cir. 2009) ("[I]fthe correction is not subject to reasonable debate to one of ordinary skill in the art,
`namely, through claim language and the specification, and the prosecution history does not suggest a different
`interpretation, then a court can correct an obvious typographical error."). The court agrees, as Plaintiffs urge, that the
`informalities in claim 1 of the '797 patent are evident on the face of the patent. First, a POSA would understand that
`"said sensing means" in claim 1 and "said gravitation-controlled sensor means" in claim 3 both refer to the sathe
`element and find antecedent basis in the "gravitation-controlled sensor" element of claim l. Second, the specification
`provides further support for this conclusion, as it refers to a "gravitation-controlled sensor means" in the Background
`of the Invention. '797 patent, col. 11. 11. Finally, the prosecution history confirms that "gravitation-controlled sensor
`means" is precisely what the patentee claimed; it also refutes Defendants' contention that this informality in antecedent
`basis is "a material error." (D.I. 131at13.) The prosecution history, therefore, demonstrates that the PTO erred in
`issuing the claims without the patentee's requested amendments. Accordingly, the court can and will correct
`"gravitation-controlled sensor" to read "gravitation-controlled sensor means."
`Next, the court turns to the parties' claim construction dispute. Defendants argue that the term should be
`construed as "sensor response to gravity." (D.I. 118 at 3.) The specification supports this conclusion. '797 patent,
`col. 21. 56-col. 3 1. 12; Fig. l; see also id. at Abstract, Fig. 5, col. 111. 1-5, col. 111. 8-14, col. 111. 62-64, col. 411. 15-
`26. Plaintiffs' construction, "gravitation-controlled sensor that measures acceleration," flies in the face of the claim
`language which provides that "a gravitation-controlled sensor integrated with said screen means and feeding said data
`processing means for measuring an acceleration of said screen means." '797 patent, col. 4 11. 44-46. Thus, the court
`adopts Defendants' proposed construction.
`
`17 Defendants argue that the term should be construed as "motion proportional to the sensed screen motion,
`as ifthe user's manipulation of the screen were instead manipulating the objects." The court declines to adopt this
`proposed construction because Defendants improperly seek to import a limitation from the specification into the claim.
`(D.I. 117 at 6.) While the specification and prosecution history may suggest a relationship between the measured
`acceleration of the screen and the motion pattern imparted to the object, the claim language does not evince any
`particular type of acceleration. (Id.) The court therefore adopts Plaintiffs proposed construction
`
`11
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`Case 1:15-cv-01126-GMS Document 160 Filed 07/11/17 Page 12 of 20 PageID #: 6222
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`acceleration based motion is nonuniform in time under control of a static said
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`orientation of the screen means." 18
`
`4.
`
`The term "programmed calculating means for under control of a screen motion
`
`sensed by said sensing means imparting an acceleration based motion pattern
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`to a predetermined selection among said objects" is construed pursuant to 35
`
`U.S.C § 112, if 6. The claimed function is: "receiving screen motion information
`
`and imparting an acceleration based motion pattern to one or more or all displayed
`
`objects." The corresponding structure is: "a computer program that performs an
`
`algorithm for imparting an acceleration based motion patter, such as those disclosed
`
`in Figures 3-5 and at 3:332-4:39."19
`
`18 The court adopts Plaintiffs' proposed construction, in part, because the parties do not dispute that "said
`motion" refers to "the acceleration based motion" and provides antecedent basis.
`(D.I. 132 at 5.) Defendants,
`however, contend that Plaintiffs' proposed construction, "wherein the acceleration based motion pattern changes over
`time while the screen means is stationary," changes the meaning and scope of the claim limitation in two aspects.
`(D.I. 118 at 6.)
`.
`First, Defendants argue the construction eliminates the requirement that the motion be "under control" of a
`static orientation, as required by the claim language and specification. (Id.) Second, Defendants argue that Plaintiffs'
`proposed construction would change the scope of the claim by construing "static orientation" as "stationary." The
`court declines to adopt Plaintiffs' construction because the plain meaning of "under control" is unambiguous.
`Plaintiffs' proposed construction eliminates the causal element required by the term "under control." '797 patent, col.
`1, 11. 17-19 ("The inventor has found that various spatial orientations of an apparatus according to the preamble may
`control associated object motions on the screen .... "); id. col 111. 27-29 ("[T]he orientation of the screen can be used
`to control various different types of motion depending on the actual spatial orientation.").
`During Marlanan, Plaintiffs conceded that they did not see a substantive difference between using the term
`"stationary" rather than "static," so there does not appear to be a genuine dispute concerning that aspect of the claim
`term. Marlanan Hr'g Tr. 105:2-12. Accordingly, the court construes the term as "wherein the acceleration based
`motion is nonuniform in time under control ofa static said orientation of the screen means."
`
`19 The parties rightly agree that this term should be construed under 35 U.S.C. § 112, ii 6. They also
`substantially agree as to the claimed function. The court agrees, as Plaintiffs contend, that the specification directly
`supports their proposed function. See '797, col. 1 11. 54-56 ("The selection of the moving objects may encompass a
`single one or more displayed objects, or ra