Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 1 of 61 PageID #: 1986
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Plaintiff,
`
`
`FRACTUS, S.A.,
`
`
`
`v.
`
`ZTE CORPORATION, ZTE (USA) INC.,
`ZTE (TX), INC.,
`
`
`
`Defendants.
`
`
`
`
`
`
` Case No. 2:17-CV-00561-JRG
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
`On August 28, 2018, the Court held a hearing to determine the proper construction of the
`
`disputed claim terms in United States Patent Nos. 7,394,432 (“the ’432 Patent”), 7,397,431 (“the
`
`’431 Patent”), 8,941,541 (“the ’541 Patent”), 8,976,069 (“the ’069 Patent”), 9,054,421 (“the ’421
`
`Patent”), 9,240,632 (“the ’632 Patent”), and 9,362,617 (“the ’617 Patent”.) The Court has
`
`considered the arguments made by the Parties at the hearing and in their claim construction briefs.
`
`(See Dkt. Nos. 77, 82, 85.) The Court has also considered the intrinsic evidence and made
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`subsidiary factual findings about the extrinsic evidence. See Phillips v. AWH Corp., 415 F.3d 1303,
`
`1314 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The
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`Court issues this Claim Construction Memorandum and Order in light of these considerations.
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`Page 1 of 61
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`Fractus S.A.
`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
`Page 1 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 2 of 61 PageID #: 1987
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`III.
`
`IV.
`
`BACKGROUND ................................................................................................................ 3
`
`APPLICABLE LAW .......................................................................................................... 5
`
`CONSTRUCTION OF AGREED TERMS ........................................................................ 7
`
`CONSTRUCTION OF DISPUTED TERMS ..................................................................... 8
`
`A. “multilevel structure” and “structure for the multi-band antenna” ................ 8
`
`B. “antenna element having a multi-band behavior” ........................................ 17
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`C. “majority of the geometric elements” .......................................................... 21
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`D. “level of structural detail” / “levels of detail”.............................................. 23
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`E. “geometric element” / “polygon” ................................................................. 28
`
`F. “a set of closed figures bounded by the same number of sides, the sides
`comprising one or more of straight lines, portions of circles and portions of
`ellipses” ........................................................................................................ 34
`
`G. “number of sides” ........................................................................................ 37
`
`H. “Substantially within” terms ........................................................................ 40
`
`I. “the second portion is a second level of structural detail within the first level
`of structural detail” ........................................................................................ 46
`
`J. “overall structure of the conductive radiating element” / “overall structure”50
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`K. “frequency band” ......................................................................................... 54
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`L. “fractal type antenna” ................................................................................... 56
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`V.
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`CONCLUSION ................................................................................................................. 60
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`
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`Page 2 of 61
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`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 3 of 61 PagelD #: 1988
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`I.
`
`BACKGROUND
`
`This case involves seven patents (the “Asserted Patents”) that claim priority to a 1999
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`Spanish PCT application. A family tree of the Asserted Patents, known as the “Multilevel
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`Patents” or “MLV Patents” follows:
`
`
`
`(Dkt. No. 77-2 at 2 (Asserted Patents shaded).1) The term “multilevel” describes the configuration
`
`of an antenna, which requires “at least two levels of detail” in the antenna design. ’432 Patent at
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`1 The specifications of the Asserted Patents are virtually identical. The parties cite to the
`Fractus S.A.
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`Ex. 2016
`ZTE (5%? n6d. v. Fractus S.A.; |PR2018—01461
`Page 3 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 4 of 61 PageID #: 1989
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`2:60–64. The specification states “the essence of the invention is found in the geometry used in
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`the multilevel structure.” Id. at 6:3–4. According to the specification, this “geometry is much more
`
`flexible, rich and varied, allowing operation of the antenna from two to many more bands, as well
`
`as providing a greater versatility as regards diagrams, band positions and impedance levels, to
`
`name a few examples. Although they are not fractal, multilevel antennae are characterised in that
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`they comprise a number of elements which may be distinguished in the overall structure.” Id. at
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`2:32–39. Specifically, multilevel antennae “clearly show several levels of detail (that of the overall
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`structure and that of the individual elements which make it up)” and “provide a multiband behavior
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`and/or a small size.” Id. at 2:39–42.
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`Claim 1 of the ’431 Patent is an exemplary claim and recites the following elements
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`(disputed term in italics):
`
`1. A multi-band antenna comprising:
`
`
`
`
`
`
`
`a conductive radiating element including at least one multilevel structure,
`
`least one multilevel structure comprising a plurality of
`said at
`electromagnetically coupled geometric elements,
`
`said plurality of geometric elements including at least three portions, a first
`portion being associated with a first selected frequency band, a second
`portion being associated with a second selected frequency band and a third
`portion being associated with a third selected frequency band, said second
`and third portions being located substantially within the first portion, said
`first, second and third portions defining empty spaces in an overall structure
`of the conductive radiating element to provide a circuitous current path
`within the first portion, within the second portion and within the third
`portion, and
`
`
`
`the current within said first portion providing said first selected frequency
`band with radio electric behavior substantially similar to the radio electric
`behavior of said second and third selected frequency bands, the current
`within the second portion providing said second selected frequency band
`with radio electric behavior substantially similar to the radio electric
`behavior of said first and third selected frequency bands, and the current
`                                                            
`specification of the ’432 Patent, and the Court will generally do the same.
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`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 5 of 61 PageID #: 1990
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`within the third portion providing said third selected frequency band with
`radio electric behavior substantially similar to the radio electric behavior of
`said first and second selected frequency bands.
`
`II.
`
`APPLICABLE LAW
`
`A.
`
`Claim Construction
`
`This Court’s claim construction analysis is guided by the Federal Circuit’s decision in
`
`Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips, the Federal
`
`Circuit reiterated that “the claims of a patent define the invention to which the patentee is entitled
`
`the right to exclude.” 415 F.3d at 1312. The starting point in construing such claims is their
`
`ordinary and customary meaning, which “is the meaning that the term would have to a person of
`
`ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date
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`of the patent application.” Id. at 1312–13.
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`However, Phillips made clear that “the person of ordinary skill in the art is deemed to read
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`the claim term not only in the context of the particular claim in which the disputed term appears,
`
`but in the context of the entire patent, including the specification.” Id. at 1313. For this reason,
`
`the specification is often ‘the single best guide to the meaning of a disputed term.’” Id. at 1315.
`
`However, it is the claims, not the specification, which set forth the limits of the patentee’s
`
`invention. Id. at 1312. Thus, “it is improper to read limitations from a preferred embodiment
`
`described in the specification—even if it is the only embodiment—into the claims absent a clear
`
`indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-
`
`Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004). Other asserted or unasserted
`
`Claims can also aid in determining a claim’s meaning. See, e.g., Phillips, 415 F.3d at 1314 (use
`
`of “steel baffles” and “baffles” implied that “baffles” did not inherently refer to objects made of
`
`steel).
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` 
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`Page 5 of 61
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`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
`Page 5 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 6 of 61 PageID #: 1991
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`The prosecution history also plays an important role in claim interpretation as intrinsic
`
`evidence of how the U.S. Patent and Trademark Office (“PTO”) and the inventor understood the
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`patent. Phillips, 415 F.3d at 1317; see also Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d
`
`1340, 1350 (Fed. Cir. 2004) (noting that “a patentee’s statements during prosecution, whether
`
`relied on by the examiner or not, are relevant to claim interpretation”); Aylus Networks, Inc. v.
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`Apple Inc., 856 F.3d 1353, 1361 (Fed. Cir. 2017) (applying this principle in the context of inter
`
`partes review proceedings). However, “because the prosecution history represents an ongoing
`
`negotiation between the PTO and the applicant, rather than the final product of that negotiation, it
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`often lacks the clarity of the specification and thus is less useful for claim construction purposes.”
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`Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996)
`
`(ambiguous prosecution history may be “unhelpful as an interpretive resource”).
`
`In addition to intrinsic evidence, courts may rely on extrinsic evidence such as “expert and
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`inventor testimony, dictionaries, and learned treatises.” Id. at 1317. As the Supreme Court
`
`recently explained:
`
`In some cases . . . the district court will need to look beyond the patent’s intrinsic
`evidence . . . to consult extrinsic evidence in order to understand, for example, the
`background science or the meaning of a term in the relevant art during the relevant
`time period.
`
`Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). However, the Federal Circuit
`
`has emphasized that such extrinsic evidence is subordinate to intrinsic evidence. Phillips, 415
`
`F.3d at 1317 (“[W]hile extrinsic evidence can shed useful light on the relevant art, we have
`
`explained that it is less significant than the intrinsic record in determining the legally operative
`
`meaning of claim language.” (internal quotation marks omitted)).
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` 
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`Page 6 of 61
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`Fractus S.A.
`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 7 of 61 PagelD #: 1992
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`III.
`
`CONSTRUCTION OF AGREED TERMS
`
`The Parties agreed to the construction of the following terms/phrases:
`
`Claim Term/Phrase
`
`A_reed Construction
`
`“non-convex geometric element”
`(’617 Patent Claim 17)
`
`“convex geometric element”
`(’617 Patent Claims 17)
`
`“a geometric element that is not convex”
`
`“a geometric element in which each
`straight line joining each set of two points
`within the geometric element or on the
`boundary of the geometric element lies
`wholly inside or on the boundary of the
`geometric element”
`
`
`
`“fraction of a total perimeter or a total area”
`(’421 Patent Claims 1, 11)
`
`“less than 50% of a total perimeter or a
`total area”
`
`
`
`“monopole configuration”
`(’617 Patent Claims 17, 19)
`
`“structure for the multi-band antenna”
`
`(’617 Patent Claims l7, 19; ’632 Patent Claim
`17)
`
`“a substantially similar combined amount of
`resistance and reactance”
`
`(’617 Patent Claim 17)
`
`“substantially similar impedance level and
`radiation pattern”
`(’069 Patent Claim 33; ’42] Patent Claim 1)
`
`“radio electric behavior substantially similar”
`(’431 Patent Claim 1; ’432 Patent Claim 1; ’54]
`Patent Claim 17)
`
`“an antenna comprising a radiating element
`and a ground plane, wherein a practical
`application, the ground plane is not
`infinite, and further where the antenna
`
`would produce a radiation pattern
`approximating that of an electric dipole in
`the half-space above the ground plane if
`the ground plane was infinite”
`
`Term should be given the same
`construction as “multilevel structure”
`
`substantially similar radiation pattern”
`
`“substantially similar combined amount of
`impedance level as characterized by the
`return loss (Lr) or equivalent SWR”
`
`These two terms have the same meaning.
`
`“substantially similar combined amount of
`impedance level as characterized by the
`return loss (Lr) or equivalent SWR, and
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`Ex. 2016
`ZTE (8%," n%. v. Fractus S.A.; |PR2018—01461
`Page 7 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 8 of 61 PagelD #: 1993
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`03kt. No. 77-15 at 2.) In View of the Parties’ agreement on the construction of the identified terms,
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`the Court hereby ADOPTS the Parties’ agreed constructions.
`
`IV.
`
`CONSTRUCTION OF DISPUTED TERMS
`
`The Parties’ dispute the meaning and scope of fourteen terms/phrases in the Asserted
`
`Patents. Each dispute is addressed below.
`
`A. “multilevel structure” and “structure for the multi—band antenna”
`
`Plaintiff 5 Pro osal
`
`Defendants’ Pro osal
`
`“multilevel structure”
`
`“a structure for an antenna
`
`“a structure for an antenna
`
`
`
`“structure for the multi-
`band antenna”
`
`useable at multiple frequency
`bands with at least two levels
`
`useable at multiple frequency
`bands with at least two levels of
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`detail, wherein one level of detail
`of detail, wherein one level of
`makes up another level. These
`detail makes 11p another level.
`levels of detail are composed of
`These levels of detail are
`polygons (polyhedrons) of the
`composed of polygons
`same type with the same number
`(polyhedrons) of the same type
`of sides (faces) wherein most
`with the same number of sides
`(i.e., more than 75%) of the
`(faces) wherein most of the
`polygons (polyhedrons) are
`polygons (polyhedrons) are
`clearly visible and individually
`clearly visible and individually
`distinguishable and most of the distinguishable and most (i.e.,
`polygons (polyhedrons) having more than 75%) of the polygons
`an area of contact, intersection
`(polyhedrons) having an area of
`or interconnection with other
`contact, intersection or
`elements (polygons or
`interconnection with other
`polyhedrons) that is less than
`elements (polygons or
`50% of the perimeter or area.”
`polyhedrons) that is less than
`50% of the erimeter or area.”
`
`l. The Parties’ Positions2
`
`The term “multilevel structure” was construed in Fracms, S.A. v. Samszmg Elecs. Co., et
`
`al., 6:09-CV—203-LED-JDL. (See Dkt. Nos. 77-3 at 7—19; Dkt. No. 77-4.) The Parties agree with
`
`2 The Parties agree that the term “structure for the multi-band antenna” should be construed the
`same as the term “multilevel structure.”
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 9 of 61 PageID #: 1994
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`the prior construction except on one point. Defendants argue that “most of the polygons” should
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`be further clarified to mean “more than 75%” of the polygons. (Dkt. No. 82 at 2.)
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`Plaintiff contends that the patentees coined “multilevel structure” to describe the antenna
`
`geometry disclosed in the MLV Patents. (Dkt. No. 77 at 3.) According to Plaintiff, the specification
`
`uniformly refers to a “multilevel structure” as incorporating multiple levels of detail in an antenna
`
`design. (Id.) (citing ’432 Patent at 2:31–43, 2:60–64, 3:40–43, 4:66–5:6, 6:27–37.) Plaintiff argues
`
`that the levels of detail in a multilevel structure are constructed of polygons of the same type with
`
`the same number of sides. (Id. at 4 (citing ’432 Patent at 5:8–11, 2:43–46, 3:8–11, 4:53–60).)
`
`Plaintiff contends that most of the polygons used to construct the multi-level structure are clearly
`
`visible and individually distinguishable because less than 50% of the perimeter or area of these
`
`polygons is in contact with other polygons. (Id. (citing ’432 Patent at 2:35–38, 2:60–67, 3:8–11,
`
`3:30–43, 5:36–38, 6:27–42).)
`
`Regarding Defendants’ construction, Plaintiff argues that the 75% requirement appears in
`
`a certain embodiment, but that it is not mandatory in every instance. (Id. at 5.) Plaintiff contends
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`that the Summary does not mentions the 75% requirement, and instead requires that a “majority”
`
`or “most” of the elements exhibit this characteristic. (Id. (citing ’432 Patent at 2:60–67, 3:8–11,
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`3:34–38).) According to Plaintiff, the plain and ordinary meaning of “majority” and “most” is
`
`more than 50%. (Id. at 6 (citing Dkt. Nos. 77-5; 77-6).)
`
`Plaintiff concedes that certain embodiments include the “at least 75%” requirement, but
`
`argues that the Preferred Embodiment also notes that “at least most” of the component elements
`
`are individually identifiable when discussing certain examples. (Id. (citing ’432 Patent at 4:63–
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`5:6, 5:31–38).) According to Plaintiff, it is apparent that the term “multilevel” is used in instances
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 10 of 61 PageID #: 1995
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`requiring only that a “majority” of the geometric elements meet the 50% perimeter-free
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`requirement. (Id.)
`
`Plaintiff further argues that the independent claims of the ’432, ’431 and ’541 Patents do
`
`not recite the percentage of polygons that must meet the 50% perimeter-free requirement in a
`
`multilevel structure. (Id. at 6–7.) Plaintiff contends that certain dependent claims include the 75%
`
`requirement, and thus, under the doctrine of claim differentiation, it is presumed that “multilevel
`
`structure” in Claim 1 does not include the 75% requirement, (id. at 7 (citing ’541 Patent at Claim
`
`6),) and that other dependent claims specify a lower requirement for the percentage of geometric
`
`elements that must meet the 50% perimeter-free rule. (Id. (citing ’431 Patent at Claim 22).)
`
`Plaintiff further argues that claims from unasserted patents explicitly require that 75% of the
`
`polygons must have less than 50% of their perimeter or area in contact. (Id. at 8 (citing the ’868
`
`Patent at Claim 1 (Dkt. No. 77-7); the ’208 Patent at Claim 1 (Dkt. No. 77-8)).) According to
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`Plaintiff, the inclusion of the 75% requirement in certain patent claims, but not in the Asserted
`
`Claims, supports the conclusion that the term “multilevel structure” does not include the 75%
`
`requirement. (Id.)
`
`Defendants respond that the term “multilevel structure” does not have any meaning apart
`
`from the intrinsic evidence, because it is a term coined by the patentees. (Dkt. No. 82 at 3.)
`
`Defendants argue that the specification describes the defining attributes of the “present invention”
`
`as having the “at least 75%” requirement, (id. (citing ’432 Patent at 4:51–5:1, 5:15–16),) that
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`Plaintiff admitted the “at least 75%” requirement in the prosecution history, (id. (citing Dkt. No.
`
`77-12 at 8–9),) and that Defendants’ construction is consistent with the PTO’s construction in the
`
`most recent reexamination. (Id. at 4 (citing Dkt. No. 82-2 at 4).)
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 11 of 61 PageID #: 1996
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`Defendants further argue that Plaintiff does not point to anything in the specification that
`
`explains that “most” means anything other than “at least 75%.” (Id.) Defendants also contend that
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`Plaintiff’s dictionary definitions do not apply to the coined term “multilevel structure.” (Id.)
`
`Defendants argue that the dictionary excerpts only provide definitions for “majority,” not “most.”
`
`(Id. at 5.) Defendants also argue that the dictionaries are later in time than the alleged invention.
`
`(Id.)
`
`Defendants next argue that Plaintiff’s reliance on claim differentiation is unavailing,
`
`because the present invention is explained as having “at least 75%.” (Id.) According to Defendants,
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`Plaintiff’s position is weakened by its reliance on dependent claims, and claims in other patents
`
`that were drafted after the original specification was filed that are not supported by the written
`
`description. (Id.)
`
`Plaintiff replies that there are particular portions of the MLV patent family specification
`
`that provide the definition for a multilevel structure. (Dkt. No. 85 at 1 (citing ’432 Patent at 2:60–
`
`6, 3:30–43; ’868 Patent at 2:20–33, 2:48–56).) According to Plaintiff, these passages clarify that
`
`a multilevel structure only requires “most” or a “majority” of elements to have the perimeter
`
`characteristic. (Id.). Plaintiff contends that Defendants improperly focus on one passage. (Id.
`
`(citing ’432 Patent at 4:51–5:1).) Plaintiff argues that even that passage continues with a statement
`
`referencing “most of the basic component elements,” and notes that its “multilevel” name “is
`
`precisely due to this characteristic.” (Id. (citing ’432 Patent at 4:66–5:6).)
`
`Regarding the prosecution history, Plaintiff argues that the claim pending in the PCT
`
`application included the “at least 75%” requirement, so it is not surprising the Response mentions
`
`it. (Id. at 1–2 (citing Dkt. No. 77-12 at 2).) Plaintiff further argues that the Response sought to
`
`distinguish a prior patent drawn to a fractal antenna, which met the “at least 75%” requirement.
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 12 of 61 PageID #: 1997
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`(Id. at 2 (citing Dkt. No. 77-12 at 8).) According to Plaintiff, the Response emphasized that a
`
`multilevel geometry is flexible, and the contact zones can be varied, unlike a fractal design. (Id.)
`
`Plaintiff also argues that statement by the PTO during the ’432 Reexam should be given
`
`little weight during claim construction. (Id.) Plaintiff contends that the PTO also stated that “[d]ue
`
`to the above, one can individually distinguish most of the component polygons . . . .” (Id. (citing
`
`Dkt. No. 82-2 at 7).) Plaintiff contends that the ordinary meaning of “most” will be understood by
`
`a juror without further definition, and that the specification uses “most” and “majority”
`
`synonymously. (Id. (citing ’432 Patent at 2:60–67, 3:30–43).)
`
`Plaintiff further contends that the ordinary meaning should apply because the dispute is
`
`about the meaning of “most,” and not the coined term “multilevel structure.” (Id. at 2–3.) Finally,
`
`Plaintiff argues that the presence of a more specific requirement in a dependent claim raises a
`
`presumption that this specificity was not inherent in the independent claim requirement. (Id. (citing
`
`’541 Patent at Claims 1, 6).) According to Plaintiff, the MLV specification does not “consistently,
`
`and without exception,” describe the MLV invention as requiring the “more than 75% of the
`
`elements” limitation. (Id. (citing ’432 Patent at 2:60–67, 3:8–11, 3:30–38, 4:66–5:6, 5:36–38).)
`
`For the following reasons, the Court finds that the terms “multilevel structure” and
`
`“structure for the multi-band antenna” should be construed to mean “a structure for an
`
`antenna useable at multiple frequency bands with at least two levels of detail, wherein one
`
`level of detail makes up another level. These levels of detail are composed of polygons
`
`(polyhedrons) of the same type with the same number of sides (faces) wherein most of the
`
`polygons (polyhedrons) are clearly visible and individually distinguishable and most of the
`
`polygons (polyhedrons) having an area of contact, intersection or interconnection with other
`
`elements (polygons or polyhedrons) that is less than 50% of the perimeter or area.”
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`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 13 of 61 PageID #: 1998
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`
`
`2. Analysis
`
`The term “multilevel structure” appears in Asserted Claims 1, 14, and 30 of the ’431 Patent;
`
`Asserted Claims 1 and 6 of the ’432 Patent; and Asserted Claim 17 of the ’541 Patent.3 The Court
`
`finds that the term is used consistently in the claims and is intended to have the same general
`
`meaning in each claim. The term “structure for the multi-band antenna” appears in Asserted
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`Claims 17 and 19 of the ’617 Patent; and Asserted Claim 17 of the ’632 Patent. The Court finds
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`that the term is used consistently in the claims and is intended to have the same general meaning
`
`in each claim.
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`The Parties agree that the term “multilevel” was coined by the patentees to describe the
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`antenna geometry disclosed in the Asserted Patents. (See Dkt. No. 77 at 3; Dkt. No. 82 at 3.)
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`Therefore, the specification is the best source for determining what a person of ordinary skill in
`
`the art would understand the term to mean. 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d
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`1315, 1321 (Fed. Cir. 2013) (“Idiosyncratic language, highly technical terms, or terms coined by
`
`the inventor are best understood by reference to the specification.”) (internal citation omitted). The
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`Summary of the Invention (“Summary”) states the following:
`
`The present invention consists of an antenna whose radiating element is
`characterised by its geometrical shape, which basically comprises several polygons
`or polyhedrons of the same type. That is, it comprises for example triangles,
`squares, pentagons, hexagons or even circles and ellipses as a limiting case of a
`polygon with a large number of sides, as well as tetrahedra, hexahedra, prisms,
`dodecahedra, etc. coupled to each other electrically (either through at least one
`point of contact o through a small separation providing a capacitive coupling) and
`grouped in structures of a higher level such that in the body of the antenna can be
`                                                            
`3 As indicated above, the term “multilevel structure” was previously construed in Fractus, S.A. v.
`Samsung Elecs. Co., et al., 6:09-CV-203-LED-JDL (E.D. Tex. 2010) (Docket No. 526). As stated
`during the claim construction hearing, the Court is not bound to the previous construction. Tex.
`Instruments, Inc. v. Linear Techs. Corp., 182 F. Supp. 2d 580, 586 (E.D. Tex. 2002) (“[T]hose
`district courts which have addressed the issue have concluded that defendants in a later proceeding
`involving previously construed patents should have the opportunity to brief and argue the issue of
`claim construction, notwithstanding any policy in favor of judicial uniformity.”).
` 
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` 
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`Page 13 of 61
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`Fractus S.A.
`Ex. 2016
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`Page 13 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 14 of 61 PageID #: 1999
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`identified the polygonal or polyhedral elements which it comprises. In turn,
`structures generated in this manner can be grouped in higher order structures in a
`manner similar to the basic elements, and so on until reaching as many levels as the
`antenna designer desires.
`
`Its designation as multilevel antenna is precisely due to the fact that in the body of
`the antenna can be identified at least two levels of detail: that of the overall structure
`and that of the majority of the elements (polygons or polyhedrons) which make it
`up. This is achieved by ensuring that the area of contact or intersection (if it exists)
`between the majority of the elements forming the antenna is only a fraction of the
`perimeter or surrounding area of said, polygons or polyhedrons.
`
`’432 Patent at 2:44–67 (emphasis added). The sole dispute is whether the term “most” or
`
`“majority” should be defined as “more than 75%.” As indicated above, the Summary does not
`
`mention the “more than 75%” requirement. Instead, it notes that “the area of contact or intersection
`
`(if it exists) between the majority of the elements forming the antenna is only a fraction of the
`
`perimeter or surrounding area.” Id. at 2:60–67 (emphasis added). The Summary further states that
`
`the perimeter characteristic exists in the “majority” or in “most” of the polygons. Id. at 3:34–38
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`(describing the “main characteristic of multilevel antennae” as follows: “In multilevel geometry
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`most of these elements are clearly visible as their area of contact, intersection or interconnection
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`(if these exist) with other elements is always less than 50% of their perimeter.”) (emphasis added),
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`id. at 3:8–11 (“[I]t remains possible to identify in the antenna majority of basic elements . . . .”)
`
`(emphasis added).
`
`In other words, the Summary focuses on the requirement that the “majority” or “most” of
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`the geometric elements can be identified, because those geometric elements have less than 50% of
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`their perimeter or area in contact or overlap with another element. See Microsoft Corp. v. Multi-
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`Tech Sys., 357 F.3d 1340, 1348 (Fed. Cir. 2004) (noting that statements in the “Summary of the
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`Invention” are more likely to describe the invention than a preferred embodiment). Furthermore,
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`the specification indicates that the patentees used the term “most” and “majority” interchangeably,
`
`and there is no indication that the patentees intended to define either one to mean “more than
`
` 
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`Page 14 of 61
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`Fractus S.A.
`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
`Page 14 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 15 of 61 PageID #: 2000
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`75%.” Indeed, the plain and ordinary meaning of “majority” is more than 50%. (See Dkt. No. 77-5
`
`at 4; Dkt. No. 77-6 at 4.)
`
`Defendants contend that specification describes the defining attributes of the “present
`
`invention” to include “at least 75%.” (Dkt. No. 82 at 3 (citing ’432 Patent at 4:51–5:1).) The
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`portion of the specification quoted by Defendants is included in the “Description of the Preferred
`
`Embodiment of the Invention.” While certain embodiments in the specification specify that 75%
`
`of the geometric elements are configured with the majority of their perimeter free of contact, the
`
`requirement of 75% is not mandatory in every instance. In particular, the Summary does not
`
`mention the “at least 75%” requirement. Instead, it only requires that a “majority” or “most” of
`
`the elements exhibit this characteristic. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898,
`
`906 (Fed. Cir. 2004) (“Even when the specification describes only a single embodiment, the claims
`
`of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to
`
`limit the claim scope using words or expressions of manifest exclusion or restriction.”) (quotations
`
`omitted).
`
`Moreover, the preferred embodiment also notes that “at least most” of the component
`
`elements are individually identifiable when discussing certain examples, such as those provided
`
`in Figure 4. ’432 Patent at 5:36–38 (“Note that the component elements are always individually
`
`identifiable (at least most of them are).”) (emphasis added), id. at 4:66–5:1 (“[I]n a multilevel
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`structure it is easy to identify geometrically and individually distinguish most of its basic
`
`component elements.”) (emphasis added). Thus, even the preferred embodiments do not uniformly
`
`require “more than 75%.”
`
`Defendants also argue that the prosecution history indicates that the patentees admitted that
`
`“at least 75% of the polygons or polyhedrons . . . is deliberate, given that it is precisely in this
`
` 
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`Page 15 of 61
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`Fractus S.A.
`Ex. 2016
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018-01461
`Page 15 of 61
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`Case 2:17-cv-00561-JRG Document 93 Filed 09/07/18 Page 16 of 61 PageID #: 2001
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`manner how the multilevel antenna that has all the operating functions sought is attained.” (Dkt.
`
`No. 77-12 at 8–9.) The Court finds that this single statement was