Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 1 of 60 PageID #: 13750
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`FRACTUS, S.A.,
`
`Plaintiff,
`
`vs.
`
` CIVIL ACTION No. 6:09cv00203
`
` §
` §
` §
` §
` §
` §
`SAMSUNG ELECTRONICS CO., LTD.; §
`et. al.
` §
` §
` §
`
`Defendants,
`
`MEMORANDUM ORDER AND OPINION
`
`This claim construction opinion construes the disputed terms in U.S. Patent Nos. 7,015,868
`
`(the ‘868); 7,123,208 (the ‘208); 7,394,432 (the ‘432); 7,397,431 (the ‘431); 7,528,782 (the ‘782);
`
`7,148,850 (the ‘850); 7,202,822 (the ‘822); 7,312,762 (the ‘762); 7,411,556 (the ‘556) (collectively
`
`“patents-in-suit”). The parties have presented their claim construction positions with Defendants
`
`diverging on some terms and filing separate oppositions.1 (Doc. Nos. 423, “PL.’S BR.;” 428 “PKU
`
`DEF. RESP.;” 430, “DEF.’S RESP.,” 439, “PL.’S REPLY”). On September 2, 2010, the Court held a
`
`claim construction hearing and heard further argument (Doc. No. 455). The Court issued a
`
`provisional claim construction order on November 9, 2010. (Doc. No. 475). For the reasons stated
`
`herein, the Court adopts the constructions set forth below.
`
`1 Defendants Palm, Inc., Kyocera Wireless, Inc., Kyocera Communications, Inc., and UTStarcom, Inc.
`(“PKU”) filed a separate opposition with regard to the terms “multilevel structure,” “first radiating arm” and “second
`radiating arm.” Otherwise, the PKU Defendants joined the other Defendants, HTC, RIM, Samsung, LG and Pantech
`(“RIM”) opposition.
`
`1
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0001
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 2 of 60 PageID #: 13751
`
`CLAIM CONSTRUCTION PRINCIPLES
`
`“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, 1312
`
`(Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
`
`1111, 1115 (Fed. Cir. 2004)). The Court examines a patent’s intrinsic evidence to define the
`
`patented invention’s scope. Id. at 1313-1314; Bell Atl. Network Servs., Inc. v. Covad Commc’ns
`
`Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). Intrinsic evidence includes the claims, the rest
`
`of the specification and the prosecution history. Phillips, 415 F.3d at 1312-13; Bell Atl. Network
`
`Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and customary meaning as
`
`understood by one of ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1312-
`
`13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
`
`Claim language guides the Court’s construction of claim terms. Phillips, 415 F.3d at 1314.
`
`“[T]he context in which a term is used in the asserted claim can be highly instructive.” Id. Other
`
`claims, asserted and unasserted, can provide additional instruction because “terms are normally used
`
`consistently throughout the patent.” Id. Differences among claims, such as additional limitations
`
`in dependent claims, can provide further guidance. Id.
`
`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. (quoting
`
`Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)). “[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). In the specification, a patentee may define his own terms, give a claim term
`
`2
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0002
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 3 of 60 PageID #: 13752
`
`a different meaning that it would otherwise possess, or disclaim or disavow some claim scope.
`
`Phillips, 415 F.3d at 1316. Although the Court generally presumes terms possess their ordinary
`
`meaning, this presumption can be overcome by statements of clear disclaimer. See SciMed Life Sys.,
`
`Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed. Cir. 2001). This
`
`presumption does not arise when the patentee acts as his own lexicographer. See Irdeto Access, Inc.
`
`v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed. Cir. 2004).
`
`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. For example,
`
`“[a] claim interpretation that excludes a preferred embodiment from the scope of the claim ‘is rarely,
`
`if ever, correct.” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362 F.3d 1367, 1381
`
`(Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, “[a]lthough the specification may
`
`aid the court in interpreting the meaning of disputed language in the claims, particular embodiments
`
`and examples appearing in the specification will not generally be read into the claims.” Constant
`
`v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988); see also Phillips, 415 F.3d
`
`at 1323.
`
`The prosecution history is another tool to supply the proper context for claim construction
`
`because a patentee may define a term during prosecution of the patent. Home Diagnostics Inc. v.
`
`LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the specification, a patent
`
`applicant may define a term in prosecuting a patent”). The well established doctrine of prosecution
`
`disclaimer “preclud[es] patentees from recapturing through claim interpretation specific meanings
`
`disclaimed during prosecution.” Omega Eng’g Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir.
`
`3
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0003
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 4 of 60 PageID #: 13753
`
`2003). The prosecution history must show that the patentee clearly and unambiguously disclaimed
`
`or disavowed the proposed interpretation during prosecution to obtain claim allowance. Middleton
`
`Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed. Cir. 2002). “Indeed, by distinguishing the claimed
`
`invention over the prior art, an applicant is indicating what the claims do not cover.” Spectrum Int’l
`
`v. Sterilite Corp., 164 F.3d 1372, 1378-79 (Fed. Cir. 1988) (quotation omitted). “As a basic
`
`principle of claim interpretation, prosecution disclaimer promotes the public notice function of the
`
`intrinsic evidence and protects the public’s reliance on definitive statements made during
`
`prosecution.” Omega Eng’g, Inc., 334 F.3d at 1324.
`
`Although, “less significant than the intrinsic record in determining the legally operative
`
`meaning of claim language,” the Court may rely on extrinsic evidence to “shed useful light on the
`
`relevant art.” Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and treatises
`
`may help the Court understand the underlying technology and the manner in which one skilled in
`
`the art might use claim terms, but such sources may also provide overly broad definitions or may
`
`not be indicative of how terms are used in the patent. Id. at 1318. Similarly, expert testimony may
`
`aid the Court in determining the particular meaning of a term in the pertinent field, but “conclusory,
`
`unsupported assertions by experts as to the definition of a claim term are not useful.” Id. Generally,
`
`extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to
`
`read claim terms.” Id.
`
`A.
`
`Overview of Patents-in-Suit
`
`DISCUSSION
`
`The patents-in-suit can be categorized into four patent families: (1) the “multilevel” family
`
`(“MLV”) which includes the ‘868, ‘208, ‘432, ‘431 and ‘782; (2) the “space-filling” antenna family
`
`4
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0004
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 5 of 60 PageID #: 13754
`
`(“SFC”) which includes the ‘850 and ‘822; (3) the “loaded” antenna patent which is the ‘762; and
`
`(4) the “multiband monopole” patent which is the ‘556.
`
`The MLV patent family generally claims antennae made up of “multilevel structures.” The
`
`term “multilevel” was coined by the inventors to describe the structural configuration of the claimed
`
`antennae. The ‘432 derived from a divisional application, in which the parent application issued as
`
`the ‘431. The ‘432 is a continuation of the ‘208, which in turn, is a continuation of the ‘868. The
`
`‘782 is a continuation of the ‘431. The patents explain that MLV structures are generally
`
`characterized by their shape. ‘868 at 2:32-33. The claimed invention relates to a specific geometric
`
`design of antennae which facilitates two main advantages: multiband operation and/or small size.
`
`Id. at 1:13-16. One configuration of a multilevel structure is depicted in figure 3.1:
`
`The SFC patent family generally claim antennae based on a specific geometry known as
`
`“space-filling curves.” ‘850 at 1:13-15. The patent explains that by using space-filling curves, the
`
`antennae can be reduced in size compared with prior existing antennae. Id. at ABSTRACT. The ‘822
`
`is a continuation of the ‘850, thus they consist of a common specification but include different claim
`
`language. Figure 4 of the patent provides a depiction of a particular SFC antenna consisting of a
`
`monopole antenna:
`
`5
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0005
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 6 of 60 PageID #: 13755
`
`The loaded antenna patent claims antennae in which the radiating element consists of two
`
`different parts: a conducting surface and a loading structure. ‘762 at ABSTRACT. The conducting
`
`surface is described as consisting of a “polygon, space-filling or multilevel shape” and the loading
`
`structure consists of “a conducting strip or set of strips” connected to the conducting surface. Id.
`
`at 2:41-43.
`
`The multiband monopole patent claims antennae designed for a mobile communications
`
`device. ‘556 at ABSTRACT. The design of a mutliband monopole antenna is described to include
`
`a “common conductor coupled to both a first radiating arm and a second radiating arm.” Id. at 1:36-
`
`38.
`
`6
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0006
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 7 of 60 PageID #: 13756
`
`B.
`
`Disputed Terms
`
`“Multilevel structure” [‘868, cl. 1, 6, 12, 14; ‘208, cl. 1, 15, 29, 48; ‘431, cl. 1, 22, 24-27, 31;
`
`‘432, cl. 1; ‘762, cl. 1, 15, 21] and “a structure” [‘782, cl. 1, 2] as:
`
`Plaintiff’s Proposed
`Construction
`“A structure for a
`non-fractal antenna
`operating at multiple
`frequency bands with at
`least two overlapping levels
`of detail. Each level of
`detail includes elements
`that have the same shape or
`the same number of sides or
`faces, electromagnetically
`coupled and grouped to
`form a larger structure,
`where most of the elements
`have an area of contact,
`intersection or
`interconnection with other
`elements that is less than
`50% of the perimeter or
`area.”
`
`Ordinary meaning: “an
`arrangement of parts”
`
`Defendant’s Proposed Construction
`
`For HTC, RIM, Samsung, LG, Pantech: “a symmetrical
`arrangement presenting at least two levels of detail: 1)
`polygons(or polyhedrons) of the same type with the same
`number of sides (or faces),most of which are clearly visible and
`individually distinguishable; and 2) an ordered structure formed
`by grouping the polygons (or polyhedrons), which can be
`further grouped into higher order structures similar to the way
`the polygons (or polyhedrons) are grouped.”
`
`For Kyocera, Palm, and UTStarcom:“a symmetrical
`arrangement presenting at least two levels of detail: 1)
`polygons(or polyhedrons) of the same type with the same
`number of sides (or faces),most of which are clearly visible and
`individually distinguishable; and 2) an ordered structure formed
`by grouping the polygons (or polyhedrons), which can be
`further grouped into higher order structures similar to the way
`the polygons (or polyhedrons) are grouped, the arrangement
`having radioelectric behavior that can be similar in several
`frequency bands such that its impedance and radiation
`diagrams remain similar across frequency bands and wherein
`the number of bands is proportional to the number of levels”
`
`All parties agree that the “multilevel structure” must have at least two levels of detail.
`
`DEF.’S RESP. at 4; PL.’S REPLY at 1. Otherwise, there a number of issues in dispute.
`
`Plaintiff contends that the inventors disclaimed “fractal” antennae and includes such a
`
`limitation in its construction. PL.’S BR. at 6. Defendants counter than such a limitation is
`
`“meaningless and vague.” DEF.’S RESP. at 11-13. Defendants contend that the multilevel structure
`
`must be symmetrical. DEF.’S RESP. at 7-9. Plaintiff disagrees. Id. at 12-13; PL.’S REPLY at 4-5.
`
`7
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0007
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 8 of 60 PageID #: 13757
`
`Plaintiff also argues that the specification dictates overlap between the two levels of detail that make
`
`up the multilevel structure. PL.’S BR. at 6-7. Defendant contends that such a construction is
`
`unsupported and would read out embodiments. DEF.’S RESP. at 13-14. Defendants’ construction
`
`limits the levels of detail to “polygons” or “polyhedrons” of the same type with the same number
`
`sides or faces. Id. at 4-6. Plaintiff asserts that the construction should include the generic term
`
`“element” because it is inclusive of claims using the phrase “geometric element.” PL.’S BR. at 7.
`
`The parties also disagree whether a multilevel structure must support “a higher order structure.”
`
`DEF.’S RESP. at 6-7; PL.’S BR. at 10-12; PL.’S REPLY at 2-4.
`
`The PKU Defendants contend that a multilevel structure must operate in multiple bands and
`
`have similar radioelectric behavior. PKU DEF. RESP. at 1-2. The RIM Defendants and Plaintiff
`
`disagree. PL.’S BR. at 13-14; DEF.’S RESP. at 14-15. The parties also disagree whether “structure”
`
`should be construed the same as “multilevel structure.” PL.’S BR. at 14-15; DEF.’S RESP. at 9-11.
`
`The term “multilevel structure” was coined by the inventors, thus, the term’s meaning must
`
`be discerned from the intrinsic evidence. Irdeto Access, Inc. v. Echostar Satellite Corp., 338 F.3d
`
`1295, 1303 (Fed. Cir. 2004). The inventor’s lexicography regarding the meaning of “multilevel
`
`structure” should control. Phillips, 415 F.3d at 1316. Generally, when a patent “describes the
`
`features of the present invention as a whole, this description limits the scope of the invention.”
`
`Verizon Services Corp. v. Vonage Holdings Corp., 509 F.3d 1295, 1308 (Fed. Cir. 2007). However,
`
`“such [present invention] language must be read in context of the entire specification and
`
`prosecution history.” Rambus Inc. v. Infineon Technologies AG, 318 F.3d 1081, 1094-95 (Fed. Cir.
`
`2003).
`
`Particular portions of the MLV patent family specifications (“MLV specifications”) provide
`
`8
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0008
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 9 of 60 PageID #: 13758
`
`the definition for a multilevel structure. Specifically, the MLV specifications use signals such as
`
`“the present invention consists of” (‘868 at 2:32-56) to highlight the most relevant features of the
`
`multilevel structure. See also id. at 1:8-19 (“the present invention relates to”); id. at 3:20-33 (“the
`
`main characteristic of”); id. at 4:42-5:5 (“[t]he present invention relates to”); id. at 6:19-34 (“[t]he
`
`most relevant properties of”). Thus, the Court looks to these portions of the MLV specifications
`
`for the construction of “multilevel structure,” in context of the entire specification and prosecution
`
`history. Rambus Inc., 318 F.3d at 1094-95.
`
`Multilevel Structure vs. Structure
`
`As an initial matter, the Court finds that “multilevel structure” and “structure” require the
`
`same construction. The term “structure” appears in independent claims 1, 2 and 3 of the ‘782. ‘782
`
`at 9:61-11:15. As Plaintiff concedes, the MLV specifications are virtually identical. PL.’S BR. at
`
`5, fn. 1. While the ‘782 patent uses “structure” as opposed to “multilevel structure” within its claim
`
`language, the MLV specifications provide little support for construing the more generic term
`
`“structure” differently. Plaintiff’s supporting citations to the MLV specifications are not to the
`
`contrary. For example, Plaintiff cites the following language: “[i]n addition to their mutliband
`
`behavior, multilevel structure antennae usually have a smaller than usual size as compared to other
`
`antennae of a simpler structure.” ‘868 at 3:5-8. The cited portion does not support Plaintiff’s
`
`argument that “structure” used without the modifier “multilevel” is used to describe the claimed
`
`antenna. In fact, the cited portion refers to “simpler structures” in the prior art – not the claimed
`
`invention.
`
`Further, the MLV specifications use the terms “multilevel structure” and “structure”
`
`interchangeably. See ‘782 at ABSTRACT; id. at 2:46-61; id. at 4:67-5:2; id. at 7:51-59. Additionally,
`
`9
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0009
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 10 of 60 PageID #:
` 13759
`
`all sixty-six (66) disclosed embodiments are described as including a multilevel structure. ‘782 at
`
`4:10-45. The MLV specifications establish that the entire essence of the invention pertains to
`
`multilevel structures. See ‘782 at 4:54-56 (“The present invention relates to an antenna which
`
`includes at least one construction element in multilevel structure form.”); see also id. at 1:20-25; id.
`
`at 2:46-62. Indeed, the entire intrinsic record of the multilevel antenna is consistently clear that the
`
`basic geometry of the invention is based on “multilevel structures” not generic “structures.”
`
`Accordingly, the Court provides the same construction for “multilevel structure” and “structure.”2
`
`Non-fractal
`
`Plaintiff proposes a construction that explicitly disclaims “fractal” antennae. PL.’S BR. at
`
`6. The MLV specifications do appear to teach away from “fractal antennae,” but the MLV
`
`specifications do not provide any meaningful definition of “fractal antennae” within the context of
`
`the patent. The MLV specifications merely state that “strictly fractal antennae” cannot be
`
`constructed in the real world. ‘868 at 1:47-49. Thus, while the claimed invention is inherently
`
`“non-fractal,” because strictly fractal antennae are a scientific impossibility, the MLV specifications
`
`do not explicitly use the term “non-fractal” to describe multilevel antennae nor do they define
`
`“fractal.” Put simply, without a definition of what is meant by “fractal,” there is no way of
`
`determining the parameters of “non-fractal” antennae.
`
`The MLV specifications explain that antennae may be constructed “with a form based on
`
`said fractal objects, incorporating a finite number of iterations.” Id. at 1:49-51. However, while the
`
`2 The Court notes that the specification is fundamentally drawn to multilevel structures. Thus, if the terms
`“multilevel structure” and “structure” were construed different from one another, it would raise the possibility that
`the ‘782 patent would not be entitled to a priority date earlier than its own filing date of July 20, 2007. See
`Anascape, Ltd. v. Nintendo of Am. Inc., 601 F.3d 1333, 1340 (Fed. Cir. 2010) (finding that broadening the scope of a
`later filed patent would preclude entitlement to filing date of earlier filed parent application).
`
`10
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0010
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 11 of 60 PageID #:
` 13760
`
`claimed antennae may be based on fractal objects, the antennae is only “non-fractal,” because, as
`
`the patent and parties agree, purely fractal antennae are a scientific impossibility. Thus, including
`
`the negative limitation “non-fractal” adds nothing to the construction because all antennae are
`
`strictly non-fractal. Accordingly, the Court will not include the term “non-fractal” in its
`
`construction.3
`
`Symmetrical
`
`Defendants contend that a multilevel structure is “symmetrical” by claiming that all 66
`
`figures in the MLV specifications exhibit symmetry. DEF.’S RESP. at 7-9. Contrary to Defendants’
`
`assertions, Figure 5.8 in the MLV specifications does not exhibit symmetry. Defendants’ attempt
`
`to characterize Figure 5.8 as a meta-structure with three axes of symmetry is unpersuasive.
`
`Moreover, symmetry is never mentioned in the MLV specifications to describe multilevel structures.
`
`The most relevant portions of the MLV specifications do not emphasize symmetry. For example,
`
`symmetry is not mentioned in the MLV specifications where the “main characteristics” of multilevel
`
`geometry are described. ‘868 at 3:20-33. As such, the Court does not adopt Defendants’ proposed
`
`“symmetrical” construction.
`
`Useable at Multiple Frequency Bands
`
`The MLV specifications repeatedly describe multiband behavior as a highly relevant
`
`property of multilevel antennae. For example, the MLV specifications explain that the geometry
`
`3 Plaintiff provides citations to the MLV specifications and other references purporting to define “fractal
`antenna,” but those citations merely support a finding that while antennae may be based on fractal objects, all
`antennae are inherently non-fractal. The Court recognizes the existence of references that refer to “fractal antenna,”
`as well as the examiner’s statements in the inter partes reexamination of the ‘868 stating that the inventors
`disclaimed “fractal antenna.” See (Doc. No. 452; DEF’S SUMMARY JUDGMENT EXHIBIT DDD). However, the Court
`is hesitant to define something as a “non-fractal antenna” without a clear understanding of what entails a “fractal
`antenna.” If necessary, the Court may choose to construe the term “fractal antenna” at a later date to aid the jury in
`understanding the nature of what is claimed in the patents-in-suit.
`
`11
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0011
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 12 of 60 PageID #:
` 13761
`
`of multilevel antennae, i.e. the multilevel structure, provides the most relevant properties of
`
`multilevel antennae including the “possibility of simultaneous operation in several frequency bands”
`
`i.e. multiband behavior. Id. at 6:19-34; see also id. at 2:26-31 (“[multilevel antennae] provide a
`
`multiband behavior and/or a small size.”); id. at 3:29-33 (“multilevel antennae can present a
`
`multiband behavior (identical or similar frequency bands) and/or operate at a reduced frequency.”)
`
`Moreover, the possibility of multiband behavior is described as the essence of the invention. See
`
`id. at 2:26-31 (describing that the “origin of the name” of multilevel antennae lies in the multiband
`
`property). As such, the multilevel structure of the claimed antennae provides for the possibility of
`
`operation in multiple frequency bands.
`
`The Court notes that generally it is “improper to determine [structural terms] as having
`
`functional requirements,” unless the function is a necessary limitation of the claim term. Schwing
`
`GmbH v. Putzmeister Aktiengesellschaft, 305 F.3d 1318, 1324 (Fed. Cir. 2001) (citing Toro Co. v.
`
`White Consol. Indus., Inc., 266 F.3d 1367, 1371 (Fed. Cir. 2001)). As explained above, the concept
`
`of multiband operation is intertwined into the essence of the multilevel structure, i.e. the multilevel
`
`geometry which provides the basis of the multilevel antennae. In fact, the name “multilevel
`
`antenna” is derived from the mutliband nature of the antennae. ‘868 at 2:26-31. Thus, this is an
`
`instance when a structural term does not resist a functional limitation due to the essential nature of
`
`the multilevel structure’s multiband operation. Toro, 305 F.3d at 1371.
`
`Plaintiff’s construction, however, requires the claimed antenna to “operate” at multiple
`
`frequency bands. Such a construction is too narrow because the specification provides only that the
`
`antenna may operate at multiple bands. Accordingly, the Court modifies Plaintiff’s proposal to
`
`12
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0012
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 13 of 60 PageID #:
` 13762
`
`“useable at multiple frequency bands.”4
`
`Overlapping Levels of Detail
`
`The parties agree that a multilevel structure is made up of at least two levels of detail.
`
`Plaintiff, however, adds the limitation that the levels of detail must overlap. PL.’S BR. at 6-7.
`
`Defendants are correct that “overlap” is only used in the MLV specifications to describe the sides
`
`of polygons contacting each other. DEF.’S RESP. at 13-14. On the other hand, Plaintiff is correct
`
`that the MLV specifications describe the two levels of detail consisting of the overall structure and
`
`the individual elements that make up the overall structure. ‘868 at 2:48-52. Therefore, the Court
`
`adopts the concept of one level of detail making up another level of detail by construing the
`
`multilevel structure as consisting of “at least two levels of detail, wherein one level of detail makes
`
`up another level.”
`
`Polygons and Polyhedrons
`
`The parties also disagree whether the levels of detail that compose the multilevel structure
`
`are made up of “elements” (PL.’S BR. at 7-10) or “polygons”5 (DEF.’S RESP. at 5-6). Defendants’
`
`construction is correct. The MLV specifications explicitly describe the “main characteristics” of
`
`the multilevel structure to include “multilevel geometry comprising polygon or polyhedron of the
`
`same class.” ‘868 at 3:20-23; see also id. at 2:32-35; id. at 2:48-52; id. at 4:44-46. Plaintiff’s
`
`generic “elements” are not independently supported in the MLV specifications. Any mention of
`
`“elements” either implicitly or explicitly refers to polygons and/or polyhedrons. Plaintiff’s citation
`
`4 The Court’s provisional order (Doc. No. 475) included Plaintiff’s proposed construction which read
`“operating at multiple frequency bands.” After further review, the Court clarifies the previous order by changing
`“operating” to “useable.”
`
`5Or polyhedrons
`
`13
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0013
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 14 of 60 PageID #:
` 13763
`
`to Claim 1 of the ‘431 is unavailing. PL.’S BR. at 9. The Court agrees that the ‘431 appears to claim
`
`broader “geometric elements.” ‘431 at 9:53-10:8. However, the MLV specifications explicitly
`
`demonstrate that the “geometric elements” are understood to be “polygons or polyhedrons,” not
`
`broader “elements.” ‘431 at ABSTRACT. Accordingly, the Court construes the multilevel structure
`
`as composed of polygons or polyhedrons.
`
`Same Type with Same Number of Sides or Faces
`
`Defendants also contend that the polygons and polyhedrons must be of the same type with
`
`the same number of sides or faces. DEF.’S RESP. at 5-6. Plaintiff agrees that the “elements” must
`
`be of the “same shape.” Plaintiff concedes that the “individual elements” must have the same
`
`number of sides or faces. PL.’S REPLY at 1.
`
`Initially, the distinctions between “same type,” “same class” and “same shape” are without
`
`difference. Thus the Court adopts Defendants’ “same type” as it is used in the MLV specifications.
`
`‘868 at 2:24-25. Moreover, the MLV specifications explicitly require the multilevel structures to
`
`be formed by polygons or polyhedrons with the same number of sides or faces. ‘868 at 4:67-5:2.
`
`As such, the Court adopts Defendants’ proposed construction that the multilevel structure is
`
`composed of polygons (polyhedrons) of the same type with the same number of sides (faces).
`
`Clearly Visible and Individually Distinguishable
`
`Defendants are also correct that most of the polygons or polyhedrons must be clearly visible
`
`and individually distinguishable. The MLV specifications explain that the polygons and
`
`polyhedrons must remain individually distinguishable in the multilevel structure. ‘868 at 4:58-60
`
`(“in a multilevel structure it is easy to identify geometrically and individually distinguish most of
`
`its basic component elements.”); see also id. at 1:8-10 (describing the present invention as an
`
`14
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0014
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 15 of 60 PageID #:
` 13764
`
`antenna formed by polygons or polyhedrons such that each of the basic elements may be
`
`distinguished); id. at ABSTRACT (same). The MLV specifications also describe as a “main
`
`characteristic” that most of the polygons and polyhedrons must remain clearly visible. Id. at 3:33-41
`
`(“[i]n a multilevel geometry most of [the polygons or polyhedrons] are clearly visible.”). Therefore,
`
`the Court adopts Defendants’ proposed construction that the polygons or polyhedrons must be
`
`clearly visible and individually distinguishable.
`
`Higher Order Structures
`
`Defendants contend that a multilevel structure can be grouped into “higher order structures”
`
`similar to the way the polygons or polyhedrons are grouped in the first and second levels of detail.
`
`DEF.’S RESP. at 6-7. Defendants provide the following annotated figures from the MLV
`
`specifications to demonstrate support for their construction:
`
`Defendants further rely on a statement within the MLV specifications that a multilevel structure “can
`
`be grouped in higher order structures in a manner similar to the basic elements.” ‘868 at 2:32-48.
`
`15
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0015
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 16 of 60 PageID #:
` 13765
`
`The Court first notes that the MLV specifications provide that higher order structures are
`
`permissive, not mandatory. ‘868 at 2:32-48 (stating that elements can be grouped in higher order
`
`structures). Moreover, the Court agrees that the polygons or polyhedrons may be grouped into
`
`higher order structures in a manner similar to the basic elements. ‘868 at 2:32-48. However, the
`
`Court finds that Defendants’ reading of the cited passage is too restrictive. Grouping the higher
`
`order structure “in a manner similar” to the basic elements does not absolutely require that the higher
`
`order structure replicate the exact shape of the lower order polygons or polyhedrons. For example,
`
`Plaintiff’s annotated Figures 5.6 and 5.8 from the MLV specifications demonstrate that the basic
`
`polygons in Figure 5.6 can be grouped in a “similar” manner to form the higher order structure in
`
`Figure 5.8, despite the fact that 5.8 does not embody the exact shape of the lower level polygons:
`
`Other embodiments of multilevel structures do not meet Defendants restrictive reading of the MLV
`
`16
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1009.0016
`
`

`

`Case 6:09-cv-00203-LED-JDL Document 526 Filed 12/17/10 Page 17 of 60 PageID #:
` 13766
`
`specification, including Figures 3.6, 3.13, 4.9, 5.7 and 6.9.
`
`In addition to Defendants’ restrictive reading of the MLV specifications, the Court finds that
`
`the basic principle of higher order structures is not a necessary element to include in the construction
`
`of multilevel structure. “Multilevel structure” already requires an exceedingly complicated
`
`construction and adding this permissive and unnecessary element will only lead to jury confusion and
`
`potential gamesmanship by the parties. Accordingly, the Court declines to adopt Defendants’
`
`construction.
`
`Area of Contact, Intersection or Interconnection
`
`Defendants argue that the last portion of Plaintiff’s construction is incorrect because it
`
`excludes embodiments comprising polyhedrons. DEF.’S RESP. at 14. While Defendants are correct
`
`that Plaintiff’s proposed construction would exclude polyhedrons, the MLV specifications require
`
`most of the polygons or polyhedrons to have a “an area of contact or intersection (if it exists) between
`
`the majority of elements forming the antenna.” ‘868 at 2:52-56; see also id. at 3:24-28 (“[i]n
`
`multilevel geometry most of these [polygons or polyhedrons] are clearly visible as their area of
`
`contact, intersection or interconnection (if these exists) with other [polygons or polyhedrons] is
`
`always less than 50% of their perimeter.”). Also, Plaintiff addressed the issue by modifying its
`
`construction incl