Case 2:17-cv-00140-WCB-RSP Document 153 Filed 08/14/18 Page 1 of 11 PageID #: 6198
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO. LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendants.
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`Case No. 2:17-CV-140-WCB
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`ORDER
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`Before the Court is a submission styled “Defendants’ Objections to Magistrate Judge
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`Payne’s Claim Construction Memorandum and Order,” Dkt. No. 125. In his Claim Construction
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`Opinion and Order in this case, Dkt. No. 117, Judge Payne construed certain disputed terms in the
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`patents in suit, U.S. Patent Nos. 8,441,438 (“the ’438 patent”) and 8,552,978 (“the ’978 patent”).
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`Plaintiff CyWee Group Ltd. (“CyWee”) has filed a response to the defendants’ objections, Dkt.
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`No. 128. At the invitation of the Court, Dkt. No. 131, defendants Samsung Electronics Co. Ltd.
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`and Samsung Electronics America, Inc., (collectively, “Samsung”) have filed a reply, Dkt. No.
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`134, and CyWee has filed a sur-reply, Dkt. No. 139. The Court heard oral argument on the
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`defendants’ objections to Judge Payne’s claim construction order on August 10, 2018. After
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`reviewing the claim construction record and considering the parties’ oral arguments, the Court
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`finds no part of the claim construction order to be “clearly erroneous or contrary to law.” 28
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`U.S.C. § 636(b)(1)(A); see Fed. R. Civ. P. 72(a). The defendants’ objections to Magistrate Judge
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`Payne’s claim construction opinion and order are therefore overruled.
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`Because the Court agrees with Judge Payne’s claim construction analysis, the Court will
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`comment only briefly on most of the issues raised by the defendants; the Court will address in
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`detail only the defendants’ arguments that the asserted claims are invalid for indefiniteness.
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`1. “three-dimensional (3D) pointing device”/“3D pointing device” (’438 patent, claims
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`1, 3, 4, 5, 14, 15, 16, 17, and 19; ’978 patent, claim 1)
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`Judge Payne concluded that these terms require no construction and should be accorded
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`their plain and ordinary meaning. Samsung argues that the terms must be construed in order to
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`resolve the parties’ dispute about their meaning. According to Samsung, the term “3D pointing
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`device,” as used in the patents, should be construed to mean “a device that detects the motion of
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`the device in three-dimensions and translates the detected motions to control the movement of a
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`cursor or pointer on a display.” Dkt. No. 125, at 3. The dispute between the parties focuses on the
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`requirement of a “cursor or pointer on a display” in Samsung’s proposed construction, which
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`CyWee argues is unduly restrictive.
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`The Court agrees with Judge Payne that the 3D pointing device recited in the claims is not
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`required to control a “cursor or pointer on a display.” Even though a 3D pointing device may be
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`associated with a cursor or pointer, and even though cursors are mentioned in some of the
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`embodiments discussed in the specifications, nothing in the patents supports such a restrictive
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`reading of the term “3D pointing device.” A device practicing the patents may indicate movement
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`in a variety of ways, including displaying “some video effect on the display screen” to “exhibit a
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`movement pattern on the display screen.” ’438 patent, col. 17, ll. 36-37; ’978 patent, ll. 61-62.
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`As to the risk that the failure to construe the claim will result in an unresolved dispute
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`between the parties as to the meaning of the term, the Court will deal with that issue by prohibiting
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`the defendants from arguing to the jury that the 3D pointing device requires a cursor or pointer on a
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`display. If it appears at trial that there is some risk that the jury will understand the term to require
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`a cursor or pointer, the Court will deal with that risk by issuing an appropriate instruction.
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`2. “six-axis motion sensor” (’438 patent, claims 1, 5, 14, 15, 16, 17, and 19)
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`Judge Payne ruled that this term needs no construction and should be accorded its plain
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`and ordinary meaning. Samsung argues that the term should be construed to mean “a module
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`consisting of two types of sensors: (i) a rotation sensor and (ii) one or more accelerometers.”
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`Dkt. No. 125, at 3. By virtue of the use of the phrase “consisting of,” Samsung seeks to limit the
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`term to a structure containing only those two types of sensors, thus excluding any device
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`containing those sensors but also containing a magnetometer, as disclosed and claimed in the
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`’978 patent.
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`Samsung bases its argument on a statement made by the applicants during the
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`prosecution of the application that ultimately issued as the ’978 patent. In the course of that
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`prosecution, the examiner rejected the claims of the application on double patenting grounds in
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`light of the earlier application that ultimately issued as the ’438 patent. The examiner required
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`the applicants to “either cancel the conflicting claims from all but one application or maintain a
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`clear line of demarcation between the applications.” Dkt. No. 67-13, at 9. In response, the
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`applicants amended the claims of the newer application to include new limitations regarding “a
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`nine-axis motion sensor module” and to include the requirement that the orientation output be
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`generated by the nine-axis motion sensor module, including by using “a plurality of measured
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`magnetisms . . . and a plurality of predicted magnetisms.” Id. The changes, according to the
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`applicants, served “to fully patentably differentiate and provide [a] clear line of demarcation”
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`between the two applications. Id. The applicants then stated that the prior application “includes
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`the claimed subject matter of a six-axis motion sensor module without having and using
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`measured magnetisms and predicted magnetisms.” Id. at 10.
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`Samsung seizes on the last sentence to support its contention that the applicants
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`surrendered their right to argue that the ’438 patent covers any device containing more than six-
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`axis sensors, such as the nine-axis sensor devices claimed in the ’978 patent. The Court agrees
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`with Judge Payne that Samsung reads too much into that statement in the prosecution history. In
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`context, it appears clear that the applicants were distinguishing between the two applications by
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`pointing out that the earlier application, which became the ’438 patent, did not claim the use of
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`measured and predicted magnetisms, unlike the later application, which became the ’978 patent.
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`Nothing in the prosecution history suggests that the applicants meant to suggest that the
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`application that became the ’438 patent would not read on a device containing a six-axis sensor
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`simply because that device also contained a three-axis magnetometer and thus could be
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`characterized as having a nine-axis sensor. No such disclaimer would have been required to
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`avoid the double patenting issue raised by the examiner, and even if the language used by the
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`applicants was not as precise as it might have been, it did not constitute the kind of “clear and
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`unmistakable” disclaimer that would be necessary to surrender claim scope that is otherwise
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`supported by plain claim language, as is the case here. See Trivascular, Inc. v. Samuels, 812
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`F.3d 1056, 1063–64 (Fed. Cir. 2016); Elbex Video, Ltd. v. Sensormatic Elecs. Corp., 508 F.3d
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`1366, 1371–72 (Fed. Cir. 2007). That conclusion is supported by the language of the asserted
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`claims from the ’438 patent, which claim an apparatus or method “comprising” the recited
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`components or steps, a term that means that the “device may contain elements in addition to those
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`explicitly mentioned in the claim.” In re Skvorecz, 580 F.3d 1262, 1267 (Fed. Cir. 2009).
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`The Court therefore agrees with Judge Payne that no construction of “six-axis motion
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`sensor” is necessary. The Court will prohibit Samsung from arguing to the jury that a device
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`containing the claimed six-axis motion sensor does not infringe the ’438 claims if it contains any
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`other sensors, such as a three-axis magnetometer. If it appears there is some risk that the jury will
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`understand the term to foreclose the presence of a magnetometer, the Court will deal with that risk
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`by issuing an appropriate instruction.
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`3. “global reference frame associated with Earth” (’978 patent, claim 10)
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`Judge Payne construed the “global reference frame” limitation to mean “reference frame
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`with axes defined with respect to Earth.” Samsung argues that the proper construction of that
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`phrase is “an Earth-centered coordinate system with an origin and a set of three axes defined
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`with respect to Earth.” Dkt. No. 125, at 4. Samsung’s objection to Judge Payne’s construction is
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`that under his construction, the claimed reference frame “can encompass any reference frame
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`with axes defined with respect to Earth.” Id.
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`Samsung’s construction of this phrase is quite restrictive; it would require that the origin
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`of the reference frame be at the center of the Earth. Although Samsung argues that its
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`construction is supported by the extrinsic evidence cited by the parties, the Court disagrees.
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`Both Samsung’s extrinsic evidence, Paul D. Groves, Principles of GNSS, Inertial, and
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`Multisensor Integrated Navigation Systems §§ 2.1.1, 2.1.2 (2008), Dkt. No. 67-15, and CyWee’s
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`extrinsic evidence, Aboelmagd Noureldin, et al., Fundamentals of Inertial Navigation, Satellite-
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`based Positioning and their Integration §§ 2.2.1, 2.2.2 (2013), Dkt. No. 66-5, refer to reference
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`frames having their origins at the Earth’s center as “Earth-centered” frames. The claim language
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`in dispute does not use that terminology. Although Samsung argues that the term “global” must
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`be given the same meaning as “Earth-centered” in this context, the ’978 patent contains nothing
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`to suggest that such a restrictive meaning was intended. The words “associated with Earth”
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`plainly require that the reference plane be associated with Earth in some manner, such as having
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`a Z-axis that is congruent with the force of gravity, but the claim phrase is no more restrictive
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`than that. The term “global” would appear to have no special meaning other than to suggest that
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`the reference frame is not an entirely local reference frame specific to a particular device.
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`4. “using the orientation output and the rotation output to generate a transformed
`output associated with a fixed reference frame associated with a display device” (’978
`patent, claim 10)
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`Judge Payne construed this phrase to mean “using the orientation output and rotation
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`output to generate a transformed output representing a movement in a fixed reference frame that
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`is parallel to the screen of the display device.” Samsung accepts that construction, except that it
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`argues that instead of the phrase “representing a movement in a fixed reference frame,” the
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`construction should use the phrase “representing a two-dimensional movement in a fixed
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`reference frame.” Dkt. No. 125, at 5.
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`Samsung’s construction is based on a preferred embodiment taken from the specification
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`of the ’978 patent. Citing that embodiment, Samsung argued in the proceedings before Judge
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`Payne that the ’978 patent makes clear that the “transformed output” discussed at column 31,
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`lines 65 of the ’978 patent “is a two-dimensional vector representing two-dimensional
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`movement.” Dkt. No. 67, at 25 (citing ’978 patent, col. 31, line 31, to col. 32, line 3). The
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`specification, however, indicates that the representations of movement are not limited to
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`representations of two-dimensional movement. Instead, the patent clearly indicates that
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`representations of three-dimensional movement, as depicted on a two-dimensional screen, are
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`included within the scope of the claim language. See ’978 patent, col. 13, ll. 48–58 (referring to
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`mapping movement in a 3D reference frame to a 2D display reference frame); id., col. 5, ll. 41–
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`45 (same). Accordingly, the Court agrees with Judge Payne’s construction and overrules
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`Samsung’s objection.
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`5. Indefiniteness
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`Samsung identifies three phrases in the claims that it contends are fatally indefinite and
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`that should give rise to the invalidation of the patent: (1) “utilizing a comparison to compare the
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`first signal set with the second signal set” in claim 1 of the ’438 patent; (2) “comparing the
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`second quaternion in relation to the measured angular velocities ωx, ωy, and ωz of the current state
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`at current time T with the measured axial accelerations Ax, Ay, and Az, and the predicted axial
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`accelerations Ax', Ay', and Az' also at current time T” in claims 14 and 19 of the ’438 patent; and
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`(3) “generating the orientation output based on the first signal set, the second signal set and the
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`rotation output or based on the first signal set and the second signal set” in claim 10 of the ’978
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`patent.
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`Samsung argues that those phrases are all indefinite for three reasons. First, Samsung
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`contends that the references to “axial accelerations” do not distinguish among linear acceleration,
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`centrifugal acceleration, and gravitational acceleration. Second, and relatedly, Samsung states
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`that the patents’ failure to define the kind of axial acceleration to which the patent is addressed is
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`fatal because the comparison of axial accelerations with angular velocities (if it were possible)
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`would lead to different results depending on what type of axial acceleration is intended. Finally,
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`according to Samsung and its expert, Dr. M. Ray Mercer, the claims are indefinite because
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`comparisons between angular velocities and axial accelerations are not mathematically possible.
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`Dkt. No. 125, at 1–2.
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`The first two objections are readily disposed of. As Judge Payne found, the patents make
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`clear that the term “axial accelerations” can be represented by vectors along the three orthogonal
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`axes of a chosen reference frame. That is true, Judge Payne found, regardless of whether the
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`pointing device is experiencing linear, centrifugal, and/or gravitational acceleration. Dkt. No.
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`117, at 15. As CyWee’s expert Dr. Joseph J. LaViola, Jr., explained, the patents acknowledge
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`that all three types of acceleration can act on an accelerometer at the same time, which may
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`impair the accuracy of the accelerometer’s reading and require corrective measures through the
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`“enhanced comparison method” described in the patent. Dkt. No. 66-6, at 11 (citing ’438 patent,
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`col. 3, ll. 9–15, 62–66); see also ’438 patent, col. 4, line 65, to col. 5, line 8. Accordingly, it is
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`clear that the references to axial acceleration encompass all three types of acceleration that will
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`be detected by an accelerometer, and that there is no need for the patents to distinguish among
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`those differing types of acceleration.
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`The third objection is more fundamental, and on this issue Dr. Mercer and Dr. LaViola
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`are squarely at odds: Dr. Mercer contends that the proposed comparison of angular velocity and
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`axial acceleration set forth in the asserted claims will not work, as it is mathematically
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`impossible to use angular velocity and axial acceleration to calculate the “deviation comprising
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`resultant angles in [the] spatial pointer reference frame” referred to in claim 1 of the ’438 patent.
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`See Dkt. No. 67-1, at 18–20. Dr. LaViola insists that the patented invention will work and that
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`the written descriptions of the two patents describe how the inventions function in a way that
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`would be reasonably clear to a person of skill in the art. See Dkt. No. 66-6, at 5–21.
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`The mathematical descriptions of the inventions, consisting of 18 equations in the ’438
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`patent and 29 in the ’978 patent, are not easy to follow.1 The text of the specifications is also not
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`particularly instructive in explaining the meaning of the equations. Nor have the experts proved
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`1 The ’438 patent contains 17 numbered equations, and the ’978 patent contains 28.
`Each patent contains one unnumbered equation. The anomaly is apparently the result of sloppy
`drafting, which is reflected throughout the two patents.
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`to be much help. The Court has read the reports and the excerpted portions of the depositions of
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`both experts and has been disappointed by their seeming unwillingness, or inability, to explain
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`the technology in a manner sufficient to give the Court a clear view of how, or even whether, the
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`inventions actually work.
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`In the end, however, the Court is persuaded that the question whether the claimed
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`inventions actually do what the patents—and Dr. LaViola—claim they do is an issue of
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`enablement, not indefiniteness. As the Federal Circuit has explained, if a patent is inoperable,
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`that is an issue of lack of enablement, not indefiniteness. Exxon Res. & Eng’g Co. v. United
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`States, 265 F.3d 1371, 1382 (Fed. Cir. 2001), abrogated on other grounds by Nautilus, Inc. v.
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`Biosig Instruments, Inc., 134 S. Ct. 2120 (2014); see also, e.g., Personalized Media Commc’ns,
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`LLC v. Int’l Trade Comm’n, 161 F.3d 696, 706–07 (Fed. Cir. 1998) (distinguishing between lack
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`of enablement under 35 U.S.C. § 112, para. 2, and indefiniteness under 35 U.S.C. § 112, para. 2);
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`Bone Care Int’l, LLC v. Pentech Pharms., Inc., No. 08-cv-1083, 2010 WL 3023423, at *5 n.4
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`(N.D. Ill. July 30, 2010) (claim construction “rests on what has been claimed, not what has been
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`proven. . . . If Defendants are correct as to Plaintiffs’ failure of evidence, then the likely result
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`would be that claim 7 is inoperable, not indefinite.”). The definiteness requirement merely
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`requires that the specification reasonably apprise those skilled in the art of the scope of the
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`invention. Miles Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir. 1993) (“The
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`invention’s operability may say nothing about a skilled artisan’s understanding of the bounds of
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`the claim.”); Cedarapids, Inc. v. Nordberg, Inc., No. 95-1529, 121 F.3d 727 (Table), 1997 WL
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`452801, at *4 (Fed. Cir. Aug. 11, 1997) (“The absence of parameters for increasing speed and
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`throw for other size crushers is not an indefiniteness issue. Inadequate disclosure in the
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`specification to support the claim covering crushers of varying sizes would implicate
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`enablement, not indefiniteness.”); Amgen Inc. v. Sandoz Inc., No. 14-cv-4741, 2016 WL
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`4137563, at *5 (N.D. Cal. Aug. 4, 2016) (To the extent a skilled artisan may have difficulty
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`adjusting the amount of G-CSF to administer depending on the species of the subject, the lack of
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`precision in the claim and specification impacts only his or her ability to practice all
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`embodiments of the claim—a question of enablement, not indefiniteness.”).
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`Lack of enablement constitutes a violation of section 112(b) of the Patent Act and results
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`from a failure of the specification to set forth “the manner and process of making and using [the
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`invention], in such full, clear, concise, and exact terms as to enable any person skilled in the art
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`to which it pertains, or with which it is most nearly connected, to make and use” the invention.
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`Indefiniteness, on the other hand, constitutes a violation of section 112(b) of the Act and results
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`from the inventor’s not “particularly pointing out and distinctly claiming the subject matter
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`which the inventor or a joint inventor regards as the invention.” 35 U.S.C. §§ 112(a), (b).
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`Whatever infirmities there may be in the specifications of the two patents, the asserted
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`claims are not indefinite. The particular limitations on which Samsung focuses—comparing the
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`first signal set with the second signal set; comparing the second quaternion in relation to the
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`measured angular velocities of the current state with the measured axial accelerations and the
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`predicted axial accelerations; and generating the orientation output based on the first signal set,
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`the second signal set, and the rotation output or based on the first signal set and the second signal
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`set—are all reasonably definite. The term “comparison” is specifically defined in the patents.
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`See ’438 patent, col. 2, ll. 26–32; ’978 patent, col. 2, ll. 29–35. The concepts of a quaternion,
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`angular velocity, and axial accelerations are familiar to persons of skill in the art and would not
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`be confusing, especially in light of the patents’ explanation of how the term “axial accelerations”
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`is used in the patents. And the patents make clear what each of the terms “first signal set,”
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`“second signal set,” and “rotation output” refers to.
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`Thus, the issue is not what those limitations mean; the issue is whether those limitations,
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`together with the remaining limitations of the claims, will work for the designated purpose. As
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`noted, that is an issue of enablement, not indefiniteness. And unlike indefiniteness, the issue of
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`enablement is not appropriate for resolution at the claim construction stage. The Court therefore
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`rejects Samsung’s indefiniteness challenges to the asserted claims.
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`IT IS SO ORDERED.
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`SIGNED this 14th day of August, 2018.
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`_____________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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