May Contain Confidential Business Information
`Subject to Protective Order
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN DIGIT AL VIDEO RECEIVERS
`AND RELATED HARDWARE AND
`SOFTWARE COMPONENTS
`
`Inv. No. 337-TA-1103
`
`ORDER NO. 41:
`
`CONSTRUING CERTAIN TERMS OF THE ASSERTED
`CLAIMS OF THE PA TENTS AT ISSUE (MARKMAN
`CLAIM CONSTRUCTION)
`
`(October 15, 20 I 8)
`
`I.
`
`JI.
`
`BACKGROUND ................................................................................................................ 1
`
`PATENTS AND CLAIMS AT ISSUE ............................................................................... 3
`
`A.
`
`B.
`
`C.
`
`U.S. Patent No. 7,779,011 ....................................................................................... 3
`
`U.S. Patent No. 7,827,585 ....................................................................................... 4
`
`U.S. Patent No. 9,369,741 ....................................................................................... 5
`
`III.
`
`TERMS ADOPTED AND CONSTRUED IN THIS ORDER ........................................... 6
`
`A.
`
`B.
`
`Claim Construction and Ground Rules ................................................................... 6
`
`Chart of Constructions in Appendix A ................................................................... 7
`
`IV.
`
`APPLICABLE LAW .......................................................................................................... 8
`
`A.
`
`B.
`
`Generally ................................................................................................................. 8
`
`Preambles .............................................................................................................. 10
`
`V.
`
`VJ.
`
`PERSON OF ORDINARY SKILL IN THE ART ............................................................ 10
`
`PROCEEDINGS GOING FORWARD ............................................................................ 12
`
`A.
`
`B.
`
`C.
`
`Supplementation in Response to This Order ........................................................ 12
`Streamlining the Investigation .............................................................................. 12
`
`Settlement ............................................................................................................. 13
`
`VII.
`
`CONCLUSION ................................................................................................................. 13
`
`1
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`May Contain Confidential Business Information
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`I.
`
`BACKGROUND
`On March 16, 2018, the Commission instituted this Investigation pursuant to subsection
`
`(b) of Section 337 of the Tariff Act of 1930, as amended, to determine:
`
`to determine whether there is a violation of subsection (a)(l)(B) of section 337 in
`the importation into the United States, the sale for importation, or the sale within
`the United States after importation of certain digital video receivers and related
`hardware and software components by reason of infringement of one or more of
`claims 1-3, 5-11, 13-19, and 21-24 of the '011 patent; claims 1, 2, 4-6, and 8-11 of
`the '394 patent; claims 1, 3, 4, 8, 10, 11, 15, 17, 18, 22, 24, and 25 of the '585
`patent; claims 1-3, 5, 7, 9-12, 14, 16, 18, and 28 of the '799 patent; claims 1-3, 5-
`10, 12, 14-17, 19, and 20 ofthe '741 patent; claims 1-8, 10-18, and 20 of the '363
`patent; claims 1, 2, 4-6, 11, 12, and 14-16 of the '956 patent; and claims 1-4, 7-13,
`and 17-20 of the '014 patent, and whether an industry in the United States exists or
`is in the process of being established as required by subsection (a)(2) of section
`337[.J
`83 Fed. Reg. 11792 (Mar. 16, 2018).1
`The Notice of Investigation ("NOI") names as complainants: Rovi Corporation, Rovi
`
`Guides, Inc., and Rovi Technologies Corporation, of San Jose, California; and Veveo, Inc. of
`Andover, Massachusetts (collectively, "Complainants"). Id. The NOT names as respondents:
`Comcast Corporation, Comcast Cable Communications, LLC, Comcast Cable Communications
`
`Management, LLC, Comcast Business Communications, LLC, and Comcast Holdings
`
`Corporation, all of Philadelphia, Pennsylvania; and Comcast Shared Services, LLC of Chicago,
`
`Illinois (collectively, "Respondents," and with Complainants, "the Private Parties"). Id. The
`NOi also names as a party with limited involvement, the Office of Unfair Import Investigations
`("Staff," and together with the Private Parties, "the Parties"). Id.
`On March 28, 2018, a Proposed Scheduling Order issued to guide the timing and conduct
`
`1 The asserted patents are: U.S. Patent No.7,779,011 ("the 'O I I patent"); U.S. Patent No. 7,937,394
`("the '394 patent"); U.S. Patent No. 7,827,585 (''the '585 patent"); U.S. Patent No. 9,294,799
`("the '799 patent"); U.S. Patent No. 9,396,741 ("the '741 patent"); U.S. Patent No. 9,578,363
`("the '363 patent"); U.S. Patent No. 9,621,956 ("the '956 patent"); and U.S. Patent No. 9,668,014
`("the '014 patent"). 83 Fed. Reg. 11792 (Mar. 16, 2018).
`
`Page 1 of 14
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`of this Investigation. (Order No. 2 (Mar. 28, 2018).). Also on March 28, 2018, an initial
`
`determination ("ID") issued setting August 16, 2019 as the target date in this Investigation.
`
`(Order No. 3 (Mar. 28, 2018).). On April 16, 2018, an initial procedural schedule ("Procedural
`
`Schedule)" issued (Order No. 4 (Apr. 16, 2018)) that accepted "most proposed scheduling
`
`changes set fmih in the Parties' Corrected Proposed Schedule," filed on April 10, 2018 (Doc. ID
`
`No. 641506 (Apr. 10, 2018)).
`
`On June 11, 2018, the Private Parties filed a joint claim construction chart ("Joint CC
`
`Chart"). (Doc. ID No. 647338 (June 11, 2018).).2 The Joint CC Cha11 lays out the claim terms
`
`for which a meaning remains in dispute. (Id.).
`On June 15, 2018, the Private Parties each filed a claim construction brief.
`
`(Complainants' Initial Claim Construction Brief ("CMBr.") (Doc. ID No. 647981 (June 15,
`
`2018); Respondents' Initial Claim Construction Brief, Doc. ID No. 647995 (JW1e 15, 2018).).
`Also on June 15, 2018, the Private Parties filed a joint Markman Hearing Proposal requesting the
`scheduling of a one-day Markman hearing to occur on July 11, 2018 or July 12, 2018. (Doc. ID
`
`No. 647986 (June 15, 2018).). On JW1e 27, 2018, Respondents filed a corrected Initial Claim
`
`Construction B1ief. (Respondents' Corrected Claim Construction Brief ("RMBr.") (Doc. ID No.
`
`648940) (June 18, 2018).).
`On June 20, 2018, an order issued setting July 26, 2018 as the date of the Markman
`hearing. (Order No. 10 (June 20, 2018).). The Markman hearing took place on July 26, 2018.
`(Markman Hearing Transcript ("Markman Tr."), Doc. ID No. 651341 (July 27, 2018).).
`On August 10, 2018, the Private Parties filed a joint chart setting forth their post­
`Markman hearing claim constructions ("Joint Post-Markman CC Chart"). (Doc. ID No. 652733
`
`2 This is the official received date. The Private Patties filed the Jo.int CC Chart on June 8, 20 I 8.
`
`Page 2 of 14
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`(Aug. 10, 2018).). The agreed upon and cusputed claim terms construed in Appendix A are
`
`based on this Joint Post-Markman CC Chart.
`
`On October 5, 2018, a teleconference was held to provide the Private Parties
`
`constructions of disputed claim terms in advance of the evidentiary hearing ("Hearing"). The
`
`Private Parties should note that this Order clarifies a few of those constructions. The contents of
`
`this Order supersede the preview of claim constructions provided at the teleconference.
`
`II.
`
`PA TENTS AND CLAIMS AT ISSUE
`
`The complaint ("Complaint") and NOI identify eight (8) asserted patents and
`
`approximately 116 asserted claims: claims 1-3, 5-11, 13-19, and 21-24 of the '011 patent; claims
`
`1, 2, 4-6, and 8-11 of the '394 patent; claims 1, 3, 4, 8, 10, 11, 15, 17, 18, 22, 24, and 25 of
`
`the '585 patent; claims 1-3, 5 , 7, 9-12, 14, 16, 18, and 28 of the '799 patent; claims 1-3, 5-10, 12,
`
`14-17, 19, and 20 of the '741 patent; claims 1-8, 10-18, and 20 of the '363 patent; claims 1, 2, 4-
`
`6, 11, 12, and 14-16 of the '956 patent; and claims 1-4, 7-13, and 17-20 of the '014 patent. (See,
`e.g., Com pl. at ,i 7; 83 Fed. Reg. 11792 (Mar. 16, 2018).). Patents and claims that remain after
`
`Complainants' motions for partial termination are: (1) claims 1 and 9 of the '011 patent; (2)
`
`claims l, 8, and 14 ofthe '741 patent; and (3) claims 1, 8, 11, 15, and 22 of the '585 patent.
`
`A.
`
`U.S. Patent No. 7,779,011
`
`The '011 patent, entitled "Method and System for Dynamically Processing Ambiguous,
`
`Reduced Text Search Queries and Highlighting Results Thereof," was filed on December 20,
`
`2005 as U.S. Patent Application Serial No. 11/312,908 ("the '908 application"). (JXM-0001 at
`
`(21), (22), (54).). The '908 application claims priority to U.S. Provisional Application Serial No.
`
`60/716,101, filed on September 12, 2005, and U.S. Provisional Application Serial No.
`
`607711,866 filed on August 26, 2005. (Id. at (60).). The '908 application issued as the '011
`
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`patent on August 17, 2010, and names as inventors Sashikwnar Venkataraman, Rakesh Barve,
`
`Bangalore, Murali Aravamudan, and Ajit Rajasekharan. (Id. at (75).).
`Veveo, Inc. owns, by assignment, all right, title, and interest in and to the '011 patent.
`
`id. at (73).).3 The inventors of the '011 patent assigned their rights in the '011 patent to
`(See, e.g.,
`
`Veveo, Inc. (See Comp!. at 158; see also id. at Exs. 9, 89.).
`
`The asserted claims of the '0 11 patent are generally directed towards highlighting
`
`characters in search results that are associated with ambiguous characters in a search of an index
`
`in which subsets of items are directly mapped to conesponding strings of ambiguous characters.
`
`Doc. ID No. 6494 74 at 1-2 (Technology Stipulation) (July 5, 2018).). The search
`(See, e.g.,
`
`involves an overloaded nwneric keypad where each key represents a number and at least one
`
`alphabetic character (e.g., a single key represents 2, A, B, and Con a conventional telephone
`keypad). (Id.). This guides users toward faster and more precise searches with overloaded keys.
`
`(CompJ. at 161.).
`
`B.
`U.S. Patent No. 7,827,585
`The '585 patent, entitled "Electronic Program Guide with Digital Storage," was filed on
`
`August 4, 2005, as U.S. Patent Application Serial No. 11/197,867 ("the '867 application").
`
`(JXM-0003 at (21), (22), (54).). The '867 application is a continuation of U.S. Patent
`
`Application Serial No. I 0/383,281, filed on March 5, 2003, which is a continuation of U.S.
`
`Application Serial No. 09/157,256, filed on September 17, 1998. (Id. at (63).). The '867
`application issued as the '585 patent on November 2, 2010 and names as inventors Joel G.
`Hassell, Edward B. Knudson, L. Joe Hedges, Michael D. Ellis, and David M. Berezowski. (id. at
`(45), (75).).
`
`3 Veveo, Inc., is a wholly-owned subsidiary ofRovi Corporation. (See Campi. at ,r 13.).
`
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`Ravi Guides, Inc. owns, by assignment, all right, title, and interest in and to the '585
`patent. (See Compl. at ,r 72.). The inventors of the '585 patent assigned their rights in the '585
`patent to Prevue Networks, Inc. (Id.). Prevue Networks, Inc. changed its name to TV Guide
`
`Networks, Inc.; TV Guide Networks, Inc. assigned its rights in the '585 patent to United Video
`
`Properties, Inc.; United Video Properties, Inc. merged with UV Corp., which merged with TV
`
`Guide, Inc., whjch merged with Ravi Guides, Inc. (Id.; see also id. at Exs. 11, 89.).
`
`The asserted claims of the '585 patent are generally directed to providing a user with
`
`storage options for storing a program on a random access digital storage device. (See, e.g.,
`
`Technology Stipulation at 2.). The '585 patent discloses features such as the local interactive
`
`program guide ("IPG") that are configured to display program listings, provide a user with an
`
`opportunity to choose a program to be recorded on a random access digital storage device,
`
`provide the user with an opportw1ity to select at least one storage option, and for storing the
`
`program to be recorded on the digital storage device in accordance with the storage option
`
`selected by the user. (Compl. at 75.).
`
`C.
`U.S. Patent No. 9,369,741
`The '741 patent, entitJed "Interactive Television Systems with Digital Video, Recording
`
`and Adjustable Reminders," was filed on June 16, 2015, as U.S. Patent Application Serial No.
`
`14/741,034 ("the '034 application"). (JXM-0005 at (21), (22), (54).). The '034 application is a
`
`Patent No. 9,071,872,
`
`continuation of U.S. Patent Application Serial No. 14/313,348 filed on June 24, 2014, now U.S.
`
`which is a continuation of U.S. Patent Application Serial No. 13/866,247,
`filed on Ap1il 19, 2013, now U.S. Patent No. 8,806,546, which is a continuation of U.S. Patent
`
`Application Serial No. 13/112,078 filed on May 20, 2011, now U.S. Patent No. 8,799,971 which
`
`is a continuation of U.S. Patent Application Serial No. 12/827,046 filed on June 30, 2010, now
`U.S. Patent No. 7,971,222, which is a continua6on of U.S. Application Serial No. 12/350,393
`
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`filed on January 8, 2009, now U.S. Patent No. 7,779,445, which is a continuation of U.S. Patent
`
`Application Serial No. 10/357,001, filed on January 30, 2003, now U.S. Patent No. 7,493,646.
`
`(Id. at (63).). The '034 application issued as the '741 patent on June 14, 2016 and names
`Michael D. Ellis as the inventor. (Id. at (45), (75).).
`Rovi Guides, Inc. owns, by assignment, all right, title, and interest in and to the '741
`patent. (See Comp!. at 86.). The inventor of the '741 patent assigned his rights in the '741
`
`patent to United Video Properties, Inc. (Id.). United Video Properties, Inc. merged with UV
`
`Corp., which merged with TV Guide, Inc., which merged with Rovi Guides, Inc. (Id.; see also
`id. at Ex. 13.).
`
`The asserted claims of the '741 patent generally relate to displaying simultaneously with
`
`a video (after a specified time after the start time but before the end time configured prior to the
`
`start time of the video) an indicator that an archived copy of the video is available, and retrieving
`
`the archived copy based on a user response to the indicator. (See, e.g., Technology Stipulation at
`2.). This feature permits a user who has tuned in late to a linear broadcast to restart the program
`
`from the begi1ming by determining the existence of and accessing a non-I inear ( e.g., on-demand)
`copy of the program. (Comp!. at ,r 89.).
`
`I I I . TERMS ADOPTED AND CONSTRUED IN THIS ORDER
`
`A.
`Claim Construction and Ground Rules
`Claim te1ms are construed in this Order solely for the purposes of this Section 337
`
`Investigation. Only claim terms in controversy need to be construed, and then only to the extent
`necessary to resolve the controversy. Vanderlande lndus. Nederland B V v. Int'/ Trade Comm. ,
`366 F.3d 1311, 1323 (Fed. Cir. 2004); Vivid Tech., Inc. v. Am. Sci. & Eng 'g, Inc., 200 F.3d 795,
`803 (Fed. Cir. 1999).
`Going forward, including during the Hearing scheduled from October 17-19, 2018 and
`
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`October 22-25, 2018, the Parties are limited to the claim-term constructions adopted in this
`Order. Ground Rule 1.14 states that "[t]he parties will be bow1d by their claim construction
`positions set forth on the date they are required to submit a joint list showing each party's final
`
`proposed construction of the disputed claim terms and will not be permitted to alter these absent
`
`a timely showing of good cause." Modified or new claim-tenn constructions set forth for the
`
`first time in post-hearing briefs will be considered to be waived.
`
`Similarly, it will not be appropriate for any party to seek additional claim construction
`
`during the Hearing or merely to state that a claim term that may be implicated in an expert report
`
`or expert testimony has either a "plain or ordinary" meaning, or that a claim term is "indefinite."
`
`(See Proposed Scheduling Order and Notice of Ground Rules (Order No. 2 at 6-7; G.R. 1. I 4 at 9
`(Mar. 28, 2018).). If any party posits a "plain and ordinary meaning," it must be explained.
`
`(Id.).
`
`B.
`Chart of Constructions in AppendL'- A
`The claim chart attached as Appendix A contains terms for which the Private Parties have
`
`agreed to a construction and terms for which the Private Parties dispute the proper construction,
`
`broken down by patent. The Private Parties' agreed-upon claim constructions were adopted
`without providing a rationale or explanation. For disputed terms, here are seven (7) columns in
`
`the chart: (1) Term No.; (2) Patent/Claim(s); (3) Term(s) to be Construed; (4) Complainants'
`
`Proposed Construction; (5) Respondents' Proposed Construction; (6) the Adopted Construction;
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`and (7) and the Rationale/Support for the Adopted Construction.
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`IV.
`
`APPLICABLE LA W4
`
`Generally
`A.
`Claim construction begins with the language of the claims themselves. Claims should be
`
`given their ordinary and customary meaning as understood by a person of ordinary skill in the
`
`art, viewing the claim terms in the context of the entire patent. Phillips v. A WH Corp., 415 F .3d
`1303, 1312-13 (Fed. Cir. 2005). In some cases, the plain and ordinary meaning of claim
`
`language is readily apparent and claim construction will involve little more than "the application
`of the widely-accepted meaning of commonly understood words." Id. at 1314. In other cases,
`claim terms have a specialized meaning and it is necessary to determine what a person of
`
`ordinary skill in the art would have understood disputed claim language to mean by analyzing
`
`"the words of the claims themselves, the remainder of the specification, the prosecution history,
`
`and extrinsic evidence concemjng relevant scientific principles, as well as the meaning of
`technical terms, and the state of the art." id. (quoting Innova/Pure Water, Inc. v. Safari Water
`Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)).
`The claims themselves provide substantial guidance with regard to the mearung of
`
`ilisputed claim language. Phillips, 415 F.3d at 1314. "[T]he context in which a term is used in
`the asserted claim can be highly instructive." Id. Similarly, other claims of the patent at issue,
`regardless of whether they have been asserted against respondents, may show the scope and
`
`meaning of disputed claim language. Id.
`In cases in which the meaning of a disputed claim term in the context of the patent's
`claims is uncertain, the specification is "single best guide to the meaning of a disputed tenn." Id.
`
`4 The constructions of the disputed claim terms in Appendix A generally follow and apply the law cited i_n
`this Order. To the extent possible, the case law that applies to a construction is either identified explicitly
`or implicitly in adopting a party's argument or consb·uction.
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`at 1 3 2 1 . Moreover, "[t]he construction that stays true to the claim language and most naturally
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`aligns with the patent's description of the invention will be, in the end, the co1Tect construction."
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`discussed in the examples or embodiments the particular Id. at 1 3 1 6. As a general rule, however,
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`specification are not to be read into the claims as limitations. Id. at 1 323.
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`The prosecution history may also explain the meaning of claim language, although "it
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`often lacks the claJity of the specification and thus is less useful for claim construction
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`record of the patent history consists of the complete purposes." Id. at 1 3 1 7. The prosecution
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`examination proceedings before the U.S. Patent and Trademark Office, including cited prior art.
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`and whether understood the invention "how the inventor Id. The prosecution history may reveal
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`the inventor limited the invention in the course of prosecution, making the claim scope nan-ower
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`than it would otherwise be." Id.
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`If the intrinsic evidence is insufficient to establish the clear meaning of a claim, a court
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`may resort to an examination of the extrinsic evidence.
`
`Zodiac Pool Care, Inc. v. Hoffinger
`
`
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`
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`Indus., Inc., 206 F.3d 1 408, 1 4 1 4 (Fed. Cir. 2000). Extrinsic evidence may shed light on the
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`relevant art, and "consists of all evidence external to the patent and prosecution history,
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`including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 4 1 5 F .3d
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`at 1 31 7. In evaluating expert testimony, a coUJt should disregard any expert testimony that is
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`conclusory or "clearly at odds with the claim construction mandated by the claims themselves,
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`the written description, and the prosecution history, in other words, with the written record of the
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`if, with respect to the is only of assistance expert testimony patent." (Id. at 1 3 18.). Moreover,
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`disputed claim language, it identifies what the accepted meaning in the field would be to one
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`skilled in the art. Symantec Corp. v. Comput. Assocs. Int '/, Inc., 522 F.3d 1 279, I 289 n.3 ., 1 290-
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`9 1 (Fed. Cir. 2008). Testimony that recites how each expert would construe the term shouJd be
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`"less reliable" than intrinsic evidence is inherently accorded little or no weight. Id. Extrinsic
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`evidence, and "is unlikely to result in a reliable interpretation of patent claim scope unless
`considered in the context of the intrinsic evidence." Phillips, 415 F.3d at 1318-19.
`Extrinsic evidence is a last resort: "[i]n those cases where the public record
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`unambiguously describes the scope of the patented invention, reliance on any extrinsic evidence
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`is improper." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, I 583 (Fed. Cir. 1996).
`
`B.
`Preambles
`A preamble may limit a claimed invention if it (i) recites essential structure or steps, or
`(ii) is "necessary to give life, meaning, and vitality" to the claim. Eaton Corp. v. Rockwell Int'/
`Corp., 323 F.3d 1332, 1339 (Fed. Cir. 2003) (citations omitted). The Federal Circuit has
`
`explained that a "claim preamble has the import that the claim as a whole suggests for it. ln
`
`other words, when the claim drafter chooses to use both the preamble and the body to define the
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`subject matter of the claimed invention, the invention so defined, and not some other, is the one
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`the patent protects." Id. (quoting Bell Commc 'ns Research, Inc. v. Vita/ink Commc 'ns Corp., 55
`F.3d 615, 620 (Fed. Cir. 1995)). When used in a patent preamble, the term "comprising" is well
`
`understood to mean "including but not limited to," and thus, the claim is open-ended. CIAS, Inc.
`v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007). The patent term "comprising"
`permits the inclusion of other unrecited steps, elements, or materials in addition to those
`
`elements or components specified in the claims. Id.
`
`V.
`
`PERSON OF ORDINARY SKILL IN THE ART
`This is a hypothetical person of ordinary skill and "ordinary creativity." KSB lnt 'l Co. v.
`Teleflex, Inc., 550 U.S. 398, 420 (2007). "Factors that may be considered in determining [the]
`level of ordinary skill in the aii include: (1) the educational level of the inventor[s]; (2) type of
`
`problems encountered in the art; (3) prior art solutions to the problems; (4) rapidity with which
`
`inventions are made; (5) sophistjcation of the technology; and (6) educational level of active
`
`Page 10 of 14
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`workers in the field." Envtl. Designs Ltd. v. Union Oil Co. of California, 713 F.2d 693, 696-97
`(Fed. Cir. 1983) (citations omitted). "These factors are not exhaustive but merely a guide to
`
`determining the level of ordinary skill in the art." Daiichi Sankyo Co. v. Apotex, Inc., 501 F3d
`1254, 1256 (Fed. Cir. 2007).). The hypothetical person of skill is also separately presumed to
`have knowledge of all the relevant prior art in the field. Custom Accessories, Inc. v. Jeffrey­
`Allan Indus., Inc. , 807 F.2d 693, 697 (Fed. Cir. 1983).
`Complainants proposed that a person of ordinary skill in the art would have a bachelor's
`
`degree in electrical engineering, computer engineering, computer science, or applied
`
`mathematics as well as two or more years of relevant industry experience, including in electronic
`
`content delivery, electronic program guides, television video signal processing, graphical user
`interfaces, cable or satellite television systems, set-top boxes, multimedia systems, or data search
`techniques. (CMBr. at I (citing Madisetti Deel. at ,r 7; Madisetti Deel. at ,r,r 17-23; Balakrishnan
`Deel. at ,r 12).).
`Respondents proposed that a person of ordinary skill in the art would have a bachelor's
`
`degree in electrical engineering, computer engineering, computer science, applied mathematics,
`or a similar discipline, as well as two or more years of relevant industry or research experience,
`including in electronic content delivery, electronic program guides, television video signal
`
`processing, graphical user interfaces, cable or satellite television systems, set-top boxes,
`
`multimedia systems, or data search techniques.
`Staff did not offer a definition.
`Although Complainants' and Respondents' proposals for the level of ordinary skill are
`
`different, the differences are not material. Thus, a person of ordinary skill in the art is defined as
`one who would have had a bachelor's degree in electrical engineering, computer engineering,
`computer science, or applied mathematics as well as two or more years of relevant industry
`
`Page 1 1 of 14
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`May Contain Confidential Business Information
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`experience, including in electronic content delivery, electronic program guides, television video
`signal processing, graphical user interfaces, cable or satellite television systems, set-top boxes,
`
`multimedia systems, or data search techniques.
`
`VI.
`
`PROCEEDINGS GOING FORWARD
`
`A. Supplementation
`in Response
`to This
`Order
`The Parties may not file supplemental expert reports in response to this Order. No
`
`additional discovery will be permitted because of this Order. No re-argument of the claims
`
`constrned in this Order may occur.
`
`As the Pai1ies proceed in this Investigation, they will be expected to notify Chambers of
`
`any issues that have become moot, or have been eliminated for any reason. The Parties' required
`
`outlines that must identify any issues, claims, defenses, prior art, theories, or any other content
`
`that was originally asserted or argued, should identify all issues or contentions and patents that
`
`have been dropped or become moot for any reason.
`
`The Parties should redact from expert reports and from any other documents upon which
`
`they intend to rely any issues, claims, defenses, prior art, theories, or any other content that has
`
`been rendered moot or disallowed as a result of this or other Orders, or termination from this
`Investigation of patent claims or allegations. The Parties must file on EDIS any expert reports or
`
`other documents upon which they intend to rely that have been redacted for the reasons stated
`
`above, and provide two (2) copies to Chambers.
`
`B. Streamlining
`the Investigation
`To the extent that this Markman Order will enable the Parties to streamline the
`Investigation, the Parties are encouraged to drop issues now in advance of the Hearing scheduled
`for October 17-19, 2018 and October 22-25, 2018. Moreover, the Parties are encouraged
`
`promptly to resolve each issue in this Investigation for which there is no reasonable dispute or
`
`Page 12 of 14
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`May Contain Confidential Business Information
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`
`little, or weak, evidentiary support.
`
`C.
`Settlement
`It is strongly recommended that the Parties take informal opportunities to engage in
`
`settlement.
`
`VII.
`
`CONCLUSION
`The construction of the agreed-upon claim term listed in Chart A in Appendix A is also
`
`adopted by this Order. Constructions of the disputed claim terms are adopted by this Order for
`
`the reasons discussed in Chart B in Appendix A.
`
`Within seven (7) business days of the date of this document, each party shall submit to
`
`the Office of the Administrative Law Judges a statement as to whether or not it seeks to have any
`confidential portion of this document (including Charts A and B) deleted from the public
`
`version.5 Any party seeking redactions to the public version must submit to this office two (2)
`
`copies of a proposed public version of this document pursuant to Ground Rule 1.10 with yellow
`
`highlighting clearly indicating any portion asserted to contain confidential business information.
`
`The Parties' submissions may be made by facsimile and/or bard copy by the
`
`aforementioned date. In addition, an electronic courtesy copy is required pursuant to Ground
`
`Rule 1.3.2.
`The Parties' submissions concerning the public version of this document need not be
`
`filed with the Commission Secretary.
`
`SO ORDERED.
`
`Administrative Law Judge
`
`
`
`5 This means that parties that do not seek to have any portion of this Order redacted are stilJ required to
`
`
`
`
`
`
`
`
`
`
`submit a statement to this effect.
`
`Page 1 3 of 14
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`A1A Y CONTAIN CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER
`
`INV. NO. 337-TA-1 103: APPENDIX A TO ORDER NO. 41
`
`I.
`
`U.S. PATENT NO. 7,779,01 11
`
`Agreed Terms2
`A.
`Term
`Claim(s)
`'011 patent - 1, "prefix
`substring( s)"
`
`9
`
`Agreed Construction
`"a variable length string of characters that contains fewer than all the characters making up the
`word."3
`
`1 Complainants in this lnvestigation are Rovi Corporation, Rovi Guides, Inc., and Rovi Technologies Corporation, of San Jose, Californ ia, and Veveo, Inc. of
`Andover, Massachusetts (collectively, "Complainants" or "Rovi"). Respondents are Comcast Corporation, Comcast Cable Communications, LLC, Comcast Cable
`Communications Management, LLC, Comcast Business Communications, LLC, and Comcast Holdings Corporation, all of Philadelphia, Pennsylvania, and
`Comcast Shared Services, LLC of Chicago, Illinois ( collectively, "Respondents" or "Comcast," and with Complainants, "the Private Parties"). Commission
`lnvestigative Staff (" Staff," and with the Private Parties, "the Parties") has limited participation in this Investigation and did not propose claim constructions.
`
`2 On August 10, 2018, the Private Parties filed a joint chart setting forth their post-Markman hearing claim constructions ("Joint Post-Markman CC Chart"). (Doc.
`I D No. 652733 (Aug. 10, 2018).). The agreed upon and disputed claim terms in Appendix A are based on this Joint Post-Markman CC Chait
`
`3 On June 1 5, 2018, the Private Parties each filed a claim construction brief. (Complainants' Initial Claim Construction Brief ("CMBr.") (Doc. ID No. 647981
`(June 1 5, 2018); Respondents' Initial Claim Construction Brief, Doc. ID No. 647995 (June 15, 2018).). On June 27, 2018, Respondents filed a corrected Initial
`Claim Construction Brief. (Respondents' Corrected Claim Construction Brief ("RMBr.") (Doc. ID No. 648940) (June 18, 2018).).
`Page 1 of52
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`MA Y CONTAIN CONFIDENTIAL BUSINESS INFORMA TION SUBJECT TO PROTECTIVE ORDER
`
`INV. NO. 337-TA- 1 1 03 : APPENDIX A TO ORDER NO. 4 1
`
`B.
`
`Disputed Terms
`
`Term No.
`1
`
`Claim(s)
`'011
`patent - 1,
`9
`
`Term
`Preamble
`
`Rovi's
`Comcast's
`Proposed
`Proposed
`Adopted Construction
`Rationale
`Construction
`Construction
`The preamble