Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 1 of 12 PageID #: 3566
`
`CHRIMAR SYSTEMS, INC. d/b/a
`CMS TECHNOLOGIES AND
`CHRIMAR HOLDING COMPANY,
`LLC,
`
`vs.
`
`ALCATEL-LUCENT USA, INC. et al.,
`
`CHRIMAR SYSTEMS, INC. d/b/a
`CMS TECHNOLOGIES AND
`CHRIMAR HOLDING COMPANY,
`LLC,
`
`vs.
`
`AMX, LLC,
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`§
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`Civil No. 6:15-cv-163-JDL
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`
`Civil No. 6:15-cv-164-JDL
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`
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendants Alcatel-Lucent USA, Inc., Alcatel-Lucent Holdings, Inc.,
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`ALE USA Inc., and AMX LLC’s (collectively, “Defendants”) Motion for Summary Judgment of
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`Indefiniteness. (Doc. No. 99.) Plaintiffs Chrimar Systems, Inc. d/b/a CMS Technologies and
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`Chrimar Holding Company LLC (“Plaintiffs” or “Chrimar”) filed a response (Doc. No. 101) and
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`Defendants filed a reply (Doc. No. 105). On March 10, 2016, the Court held a hearing. Having
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`considered the parties’ arguments and for the reasons stated below, the Court DENIES
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`Defendants’ Motion for Summary Judgment (Doc. No. 99).
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`BACKGROUND
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`Plaintiffs allege Defendants infringe claims 31, 35, 36, 43, 56, and 60 of the ’012 Patent,
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`claims 1, 5, 43, 72, 83, 103, 104, 111, and 125 of the ’107 Patent, claims 1, 31, 59, 69, 72, 73,
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`
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`1
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`HPE 1013-0001
`
`HPE Co. v. ChriMar Sys., Inc.
`IPR Pet. - U.S. Patent No. 8,902,760
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 2 of 12 PageID #: 3567
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`106, 142, and 145 of the ’760 Patent, and claims 1, 7, 26, 40, and 69 of the ’838 Patent. (Doc.
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`No. 99, at 2.) Plaintiffs contend that “[a]ll four patents share, in substance, a common
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`specification and disclose inventions related to managing devices that connect to a wired
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`network.” (Doc. No. 97, at 1.) Specifically, the ’107 Patent is a continuation of the ’012 Patent,
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`and the ’760 Patent and the ’838 Patent are continuations of the ’107 Patent.
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`For reference, background on the ’012 Patent is provided. The ’012 Patent is titled
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`“System and Method for Adapting a Piece of Terminal Equipment,” and relates to tracking of
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`devices that are connected to a wired network. See generally ’012 Patent. More specifically, the
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`’012 Patent describes permanently identifying an “asset,” such as a computer, “by attaching an
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`external or internal device to the asset and communicating with that device using existing
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`network wiring or cabling.” ’012 Patent at 1:67–2:2. The ’012 Patent refers to that device as the
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`“remote module.” Id. at 3:22–26. The asset can then be managed, tracked, or identified by using
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`the remote module to communicate a unique identification number, port ID, or wall jack location
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`to the network monitoring equipment, or “central module.” Id. at 6:7–13, 8:66–9:4. The ’012
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`Patent further discloses that “asset identification” may be done in a way “that does not use
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`existing network bandwidth.” Id. at 3:10–12. These concepts are reflected in the patents’
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`asserted claims, and independent claim 31 is set forth below for reference:
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`31. An adapted piece of Ethernet data terminal equipment comprising:
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`an Ethernet connector comprising a plurality of contacts;
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`and
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`at least one path coupled across selected contacts, the selected contacts
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`comprising at least one of the plurality of contacts of the Ethernet
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`connector and at least another one of the plurality of contacts of the
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`Ethernet connector,
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`wherein distinguishing information about the piece of Ethernet data
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`terminal equipment is associated to impedance within the at least
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`one path.
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`’012 Patent at 18:62–19:5 (Claim 31).
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`2
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`HPE 1013-0002
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 3 of 12 PageID #: 3568
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`Defendants move for summary judgment that the certain asserted claims of the ’012,
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`’107, and ’760 Patents are invalid because the following phrases fail to comply with the
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`definiteness requirement of 35 U.S.C. § 112, ¶ 2: (1) “at least one condition [applied]” (’107
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`Patent, Claims 1, 104); (2) “detection protocol” (’012 Patent, Claim 35; ’107 Patent, Claim 72;
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`’760 Patent, Claim 59); and (3) “DC current” (’107 Patent, Claim 72).
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`LEGAL STANDARD
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`Summary Judgment Standard
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`“Summary judgment is appropriate in a patent case, as in other cases, when there is no
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`I.
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`
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`genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
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`law.” Nike Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 646 (Fed. Cir. 1994); FED. R. CIV.
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`P. 56(c).
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`II.
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`Indefiniteness
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`
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`Indefiniteness is a question of law. Teva Pharms. USA, Inc. v. Sandoz, Inc., 723 F.3d
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`1363, 1368 (Fed. Cir. 2013). “[D]etermination of claim indefiniteness is a legal conclusion that
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`is drawn from the court's performance of its duty as the construer of patent claims.” Exxon
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`Research & Eng'g Co. v. United States, 265 F.3d 1371, 1376 (Fed. Cir. 2001) abrogated on
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`other grounds by Nautilus v. Biosig Instruments, Inc., - U.S. -, - n. 9, 134 S.Ct. 2120, 2130 n. 9,
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`189 L.Ed.2d 37 (2014). Indefiniteness is a challenge to the validity of the patent that must be
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`established by clear and convincing evidence. Nautilus, 134 S.Ct. at 2130, n. 10 (citing Microsoft
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`Corp. v. i4i Ltd. Partnership, - U.S. -, -, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011) for the
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`clear-and-convincing standard applicable to challenges to invalidity and declining to alter this
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`standard).
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`3
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`HPE 1013-0003
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 4 of 12 PageID #: 3569
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`
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`Under 35 U.S.C. § 112 ¶ 2, “[t]he specification shall conclude with one or more claims
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`particularly pointing out and distinctly claiming the subject matter which the applicant regards as
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`his invention.” “A lack of definiteness renders invalid ‘the patent or any claim in suit.’”
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`Nautilus, 134 S.Ct. at 2125 (citing 35 U.S.C. § 282, ¶ 2(3)). Until recently, a claim was
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`indefinite “only when it [was] not amendable to construction or insolubly ambiguous.” Id. at
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`2127. The Supreme Court rejected this standard as too imprecise. Id. at 2130.
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`
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`Under the new standard, “a patent is invalid for indefiniteness if its claims, read in light
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`of the specification ..., and the prosecution history, fail to inform, with reasonable certainty,
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`those skilled in the art about the scope of the invention.” Id. at 2124 (emphasis added). In
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`rejecting the prior standard, the court found it insufficient “that a court [could] ascribe some
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`meaning to a patent’s claims.” Id. at 2130. Reasonable certainty is something more precise than
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`insolubly ambiguous, but short of absolute precision. Id. at 2129–30. In describing the new
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`standard the court “mandates clarity.” Id. at 2129.
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`
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`The Supreme Court noted the “delicate balance” to the indefiniteness analysis. Id. at
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`2128. In summarizing this balance post-Nautilus, the Federal Circuit explained that “[t]he
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`definiteness standard ‘must allow for a modicum of uncertainty’ to provide incentives for
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`innovation, but must also require ‘clear notice of what is claimed, thereby appris[ing] the public
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`of what is still open to them.’” Interval Licensing LLC v. AOL, 766 F.3d 1364, 1370 (Fed. Cir.
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`2014) (emphasis added) (quoting Nautilus, 134 S.Ct. at 2128–29).
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`
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`The Supreme Court did not apply the new standard in Nautilus.1 The Federal Circuit,
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`however, has both applied the new standard and provided guidance on the level of precision
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`1 The court declined to apply the new “reasonable certainty” standard to the claim language at issue in Nautilus,
`“mounted ... in spaced relationship with each other.” Nautilus, 134 S.Ct. at 2131. The language describes the
`location of two electrodes on a cylinder held in the user's hand. Id. at 2127. In concluding the language was not
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`4
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`HPE 1013-0004
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 5 of 12 PageID #: 3570
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`required. Interval, 766 F.3d at 1369–71. “Although absolute precision or mathematical
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`precision is not required, it is not enough as some of the language in ... prior cases may have
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`suggested, to identify ‘some standard for measuring the scope of the phrase.’” Id. at 1370–71
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`(quoting Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005)).
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`“The claims, when read in light of the specification and the prosecution history, must provide
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`objective boundaries for those of skill in the art.” Id at 1371 (emphasis added) (relying on
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`Nautilus, 134 S.Ct. at 2130 & n. 8). In noting the necessity for objective boundaries, the Federal
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`Circuit relied on the finding in Halliburton Energy Servs., Inc. v. M–I LLC that “[e]ven if a claim
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`term's definition can be reduced to words, the claim is still indefinite if a person of ordinary skill
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`in the art cannot translate the definition into meaningfully precise claim scope.” Id. (emphasis
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`added) (relying on Halliburton, 514 F.3d 1244, 1251 (Fed. Cir. 2008)).
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`
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`Other parts of the indefiniteness inquiry remain the same. Indefiniteness is still
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`“evaluated from the perspective of someone skilled in the relevant art at the time the patent was
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`filed.” Nautilus, 134 S.Ct. at 2128. Claims must also still “be read in light of the patent’s
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`specification and prosecution history.” Id. at 2128.
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`DISCUSSION
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`“at least one condition [applied]” (’107 Patent, Claims 1, 104)
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`I.
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`
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`Plaintiffs’ Proposal
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`Defendants’ Proposal
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`No construction necessary, as the term should
`be afforded its plain and ordinary meaning.
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`Indefinite
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`
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`indefinite, the reversed Federal Circuit decision had concluded the spaced relationship could not be greater than the
`width of a user's hand. Id. at 2127.
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`5
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`HPE 1013-0005
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 6 of 12 PageID #: 3571
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`In their motion for summary judgment, Defendants argue that the phrase “at least one
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`condition” is indefinite because the intrinsic record provides no guidance regarding the objective
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`bounds of the term “condition.” (Doc. No. 99, at 5.) Defendants submit that “it was not until
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`November 5, 2014 (more than 10 years after the earliest filing date of the original specification)
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`that the abstract of the ’107 patent eventually was amended to add the term ‘condition.’” Id.
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`Defendants further argue that the dependent claims claim certain “conditions,” therefore
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`indicating what things “condition” is not limited to, but providing no further bounds to what is
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`meant by the term “condition.” Id. at 6. Plaintiffs respond that “‘[a]t least one condition’ . . .
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`refers to something that will cause different magnitudes of current to flow through the at least
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`one path when applied to a contact. (Doc. No. 101, at 3.) Plaintiffs contend that while this may
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`be broad, it is not indefinite. Id. Plaintiffs also urge that in the context of the patents-in-suit, “the
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`term ‘condition’ refers to an electrical condition.” Id. at 4–5 (footnotes omitted). Defendants
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`reply that Plaintiffs’ proposal of “something that will cause different magnitudes of current to
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`flow” demonstrates the indefiniteness of the recited “condition.” (Doc. No. 105, at 2.)
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`Here, the claim language itself indisputably provides some bounds regarding the term
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`“condition.” For example, claim 1 of the ’107 Patent demonstrates that the “condition” causes
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`“different magnitudes of DC current flow.” See ’107 Patent at 17:19–21 (“…the different
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`magnitudes of DC current flow to result from at least one condition applied to at least one of the
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`contacts.”) The recited language alone provides context. Defendants’ own expert recognizes this
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`requirement of the claim language and goes through several examples of what a “condition
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`applied” could be understood to mean, including those examples a person of ordinary skill in the
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`art would understand to change the magnitudes of DC current as claimed. (Doc. No. 99-6
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`(“Seifert Decl.”) at ¶¶ 134–137.)
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`6
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`HPE 1013-0006
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 7 of 12 PageID #: 3572
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`Moreover, by virtue of their own arguments regarding claim differentiation, Defendants
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`concede that at least several lower bounds of the claim scope are known and easily understood.
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`(Doc. No. 99, at 6.) Defendants’ expert also discusses some of these examples and opines how
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`he would understand their application as recited in the claim. See, e.g., Seifert Decl. at ¶¶ 137,
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`138 (“[t]o the extent that a ‘voltage’ condition is applied to the contacts, a person of ordinary
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`skill in the art would understand what is required because it is a clear application of Ohm’s law
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`to a recited element of the claim.”) Plaintiffs’ expert also describes some of these same
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`conditions and indeed describes how he would understand their operation in the recited claim
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`language as a person of ordinary skill in the art. (Doc. No. 101-5 (“Baxter Decl.”) at ¶¶ 47–49
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`(“[a] person of ordinary skill in the art, reading this claim, would understand that the ‘condition’
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`that would be applied…must be an electrical condition such as voltage or impedance, since the
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`claim requires that the Ethernet terminal equipment must be configured to draw different
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`magnitudes of current in response…”) While the claimed “at least one condition” may
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`encompass more than one “condition” as recited in the claims, the surrounding claim language
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`(e.g. result of “different magnitudes of DC current flow”) as well as the other intrinsic and
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`extrinsic evidence demonstrate that “condition” refers to electrical conditions.2
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`For these reasons, the Court finds that the phrase “at least one condition” does not fail to
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`“inform those skilled in the art about the scope of the invention with reasonable certainty.”
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`Nautilus, 134 S. Ct. at 2129; see also In re Gardner, 427 F.2d 786, 788 (C.C.P.A. 1970)
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`2 Defendants argue that limiting the “at least one condition…” to an “electrical condition” violates the principles of
`claim differentiation. (Doc. No. 99, at 6.) However, the dependent claims that actually modify the “at least one
`condition” recite the condition as specific examples of electrical conditions—voltage and impedance. ’107 Patent at
`18:27 – 32 (Claims 22, 23.) Therefore, those dependent claims, which recite specific subsets of electrical conditions,
`further limit was is claimed to the specific electrical condition recited. Claim 61, which recites “electrical condition”
`is distinguishable as it modifies the path as a function of an electrical condition, whereas claim 1 refers to the
`magnitude of DC current flow being a function of a condition. ’107 Patent at 12–16 (Claim 61). Moreover,
`Defendants’ expert agrees with this reading of the claims. (Doc. No. 101-6, Seifert Deposition, at 75:12-76:14. (“the
`electrical condition in Claim 61 is modifying the path…”).)
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`7
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`HPE 1013-0007
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 8 of 12 PageID #: 3573
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`(“[b]readth is not indefiniteness.”). The Court accordingly finds the phrase “at least one
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`condition” is not indefinite and means “at least one electrical condition.”
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`II.
`“detection protocol” (’012 Patent, Claim 35; ’107 Patent, Claim 72; ’760 Patent,
`Claim 59)
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`Plaintiffs’ Proposal
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`Defendants’ Proposal
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`No construction necessary, as the term should be afforded its plain
`and ordinary meaning.
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`To the extent that the Court finds that construction is required,
`Plaintiffs contend that the plain and ordinary meaning of
`“detection protocol” is “detection scheme, rule, or procedure”
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`Indefinite
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`Defendants argue that the term “detection protocol” is indefinite because “there is no
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`objective boundary as to what constitutes a ‘detection protocol,’ and the patents provide no
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`assistance in understanding the scope of the terms.” (Doc. No. 99, at 7.) Plaintiffs argue that the
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`term is not indefinite and that “Mr. Seifert [(Defendants’ expert)] admits that a person of
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`ordinary skill in the art would understand the term ‘protocol’ and would be familiar with data-
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`communications protocols.” (Doc. No. 101, at 8.) Defendants further argue that “encoded
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`signals sent pursuant to the invention do not use Ethernet network communication—in other
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`words, whatever ‘protocol’ [is] used is distinct from the Ethernet data communication protocols
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`known to those of skill in the art.” (Doc. No. 105, at 3.)
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`Turning first to the recited claims, claim 35 of the ’012 Patent, for example, recites: “35.
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`The piece of Ethernet data terminal equipment according to claim 31 wherein the impedance
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`within the at least one path is part of a detection protocol.” ’012 Patent at 19:20–22 (Claim 35)
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`(emphasis added). The specification does not use the terms “detection protocol” or “protocol,”
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`but does discuss “detecting.” For example, the specification discloses that “[r]elocation of the
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`electronic equipment with the attached communication device to another location on the network
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`8
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`HPE 1013-0008
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 9 of 12 PageID #: 3574
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`is detected immediately and may be used to update a database,” and that “[f]rom the foregoing it
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`will be understood that the invention provides a system and method for remotely detecting and
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`reading an asset identity and location.” ’012 Patent at 3:32-35, 16:44-46 (emphasis added).
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`Although the specification does not use the terms “detection protocol” or “protocol,” the
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`plain meaning of “protocol” is sufficiently clear and does not become any less clear when joined
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`with “detection” as it is claimed. Here, for example, Defendants’ own expert acknowledges that,
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`at least in the context of IEEE 802.3 communications, a “protocol” is “a series of procedures,
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`possibly including syntax and semantics of exchanged information to achieve some desired end.”
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`(Doc. No. 101, Ex. F, Feb. 2, 2016 Seifert Deposition, at 106:8-10.) Similarly, Plaintiffs’ expert
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`opined that the plain and ordinary meaning of “protocol” would be a “scheme, rule, or
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`procedure,” which in the context of being claimed as a “detection protocol” would mean a
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`“detection scheme, rule, or procedure.” Baxter Decl. at ¶ 70. Plaintiffs’ expert further went on
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`to opine that “[i]n the context of these claims, ‘detection protocol’ means that the equipment is
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`configured or designed so that the magnitude of the current (flow) or the impedance in the path
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`allow it to detect or determine some information about the equipment at the other end of the
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`path.” Id. at ¶ 74. In this regard, the experts are in general agreement as to the plain and ordinary
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`meaning of the term “protocol” in the art, and the Court finds that “detection protocol” can be
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`understood by a person of ordinary skill in the art with reasonable certainty in view of the recited
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`claims and the specification.
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`Defendants’ expert’s concern with Plaintiff’s expert’s position regarding his stated
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`understanding of the term “detection protocol” is that it would leave designers with no guidance
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`as to how to avoid infringement of the claims because a “detection protocol” could be “conjured
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`up at a later time by a different party.” Seifert Decl. at ¶ 146. However, the test for
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`9
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`HPE 1013-0009
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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 10 of 12 PageID #: 3575
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`indefiniteness is not whether a device or process would infringe. Instead, the test is whether the
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`claim read in light of the specification delineating the patent, and the prosecution history,
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`informs, with reasonable certainty, those skilled in the art about the scope of the invention.
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`Nautilus, 134 S. Ct. at 2124. Overall, Defendants have failed to demonstrate indefiniteness
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`under this standard. Therefore, the Court finds the term “detection protocol” to be definite, and
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`finds that no further construction is necessary.
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`“DC current” in Claim 72 of the ’107 Patent
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`III.
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`Plaintiffs’ Proposal
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`No construction necessary, as the terms should be afforded their
`plain and ordinary meaning.
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`To the extent that the Court finds that construction is required,
`Plaintiffs contend that “current” and “current flow” mean the
`same thing and the plain and ordinary meaning of “current” and
`“current flow” is “a flow of electric charge”
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`
`
`Defendants’ Proposal
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`Dependent claim 72 of the
`’107 patent is indefinite for
`lack of antecedent basis.
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`Defendants argue that the phrase “at least one magnitude of DC current” recited in claim
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`72 of the ’107 Patent has no antecedent basis in claim 1, from which it depends, and is therefore
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`indefinite. (Doc. No. 99, at 11.) Plaintiffs respond that “the specification refers equally to the
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`‘current’ between two devices and the ‘current flow’ between them.” (Doc. No. 101, at 11.)
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`Alternatively, Plaintiffs submit that “‘the magnitudes of DC current flow’ are magnitudes of the
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`‘DC current’ drawn through the same ‘at least one path.’” Id. at 12. Defendants reply that
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`“[w]hether the ‘DC current’ of claim 72 refers back to the ‘at least one path for the purpose of
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`drawing DC current’ or the ‘DC current flow’ that results from the condition applied to a contact
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`makes a difference in claim scope.” (Doc. No. 105, at 4.)
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`
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`
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`Claims 1 and 72 of the ’107 Patent recite:
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`1. A piece of Ethernet terminal equipment comprising:
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`an Ethernet connector comprising first and second pairs of
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`10
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`HPE 1013-0010
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 11 of 12 PageID #: 3576
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`contacts used to carry Ethernet communication signals,
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`at least one path for the purpose of drawing DC current,
`the at least one path coupled across at least one of the
`contacts of the first pair of contacts and at least one of the
`contacts of the second pair of contacts, the piece of
`Ethernet terminal equipment to draw different magnitudes
`of DC current flow via the at least one path, the
`different magnitudes of DC current flow to result from
`at least one condition applied to at least one of the contacts
`of the first and second pairs of contacts, wherein at least
`one of the magnitudes of the DC current flow to convey
`information about the piece of Ethernet terminal equipment.
`
`
`* * *
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`72. The piece of Ethernet terminal equipment of claim 1 wherein at least one
`magnitude of the DC current is part of a detection protocol.
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`’107 Patent at 17:11–25 (emphasis added), 20:47–49 (Claim 72) (emphasis added).
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`
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`As a preliminary matter, as discussed in the Court’s corresponding claim construction
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`opinion, the claims and the specification demonstrate that, at least for purposes of the present
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`case, any distinction between “DC current” and “DC current flow” is a distinction without a
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`difference. See ’012 Patent at 2:16-18, 6:48-54, 7:17-21, 7:40-42, 7:48-50, 8:7-8, 8:11-17,
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`8:27-31, 8:52-53, 12:32-38. Indeed, Defendants’ expert uses these terms without distinction in
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`describing the “current loop path” of the incorporated prior art ’260 Patent. See Doc. No. 101,
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`Ex. G, Jan. 21, 2016 Seifert Decl. at ¶ 40 (“…the figure relates to a device that sends a low DC
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`current over the existing Ethernet wiring and detects whether the path is present or broken, by
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`the presence (or lack of) current flow in the path.”) Therefore, the Court construed the terms
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`“current” and “current flow” to mean “a flow of electric charge.” Because there is no discernable
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`distinction between the terms, as discussed above and in the Court’s claim construction opinion,
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`the “at least one magnitude of the DC current” in Claim 72 has sufficiently clear antecedent basis
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`in the “magnitudes of DC current flow” in Claim 1. See Energizer Holdings Inc. v. Int’l Trade
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`11
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`HPE 1013-0011
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`

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`Case 6:15-cv-00163-JDL Document 122 Filed 03/28/16 Page 12 of 12 PageID #: 3577
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`Comm’n, 435 F.3d 1366, 1371 (Fed. Cir. 2006) (holding that “an anode gel comprised of zinc as
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`the active anode component” provided implicit antecedent basis for “said zinc anode”); see also
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`Ex Parte Porter, 25 U.S.P.Q. 2d (BNA) 1144, 1145 (B.P.A.I. 1992) (“The term ‘the controlled
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`fluid’ . . . finds reasonable antecedent basis in the previously recited ‘controlled stream of fluid
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`. . . .’”).
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`The Court therefore rejects Defendants’ indefiniteness argument and finds that the “at
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`least one magnitude of the DC current” in Claim 72 has sufficiently clear antecedent basis in the
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`“magnitudes of DC current flow” in Claim 1.
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`CONCLUSION
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`
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`For the foregoing reasons, the Defendants’ Motion for Summary Judgment (Doc. No. 99)
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`is DENIED.
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` So ORDERED and SIGNED this 28th day of March, 2016.
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`12
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`HPE 1013-0012
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