Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Civil Action No.: 6:18-CV-372-ADA
`
`JURY TRIAL DEMANDED
`
`§§§§§§§§§§
`
`FINTIV, INC.,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`PLAINTIFF FINTIV, INC.’S REPLY CLAIM CONSTRUCTION BRIEF
`
`Apple Ex. 1021, p. 1
` Apple v. Fintiv
`IPR2020-00019
`
`

`

`I.
`II.
`
`III.
`
`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 2 of 21
`
`TABLE OF CONTENTS
`
`Page
`
`2.
`
`B.
`
`C.
`
`INTRODUCTION ............................................................................................................. 1
`THE DISPUTED CLAIM TERMS ................................................................................... 2
`A.
`“wallet management applet (WMA)” (Claims 11 and 23) .................................... 2
`1.
`“Wallet management applet (WMA)” is not a “coined” term and
`should have its plain and ordinary meaning .............................................. 2
`Apple’s proposed claim construction seeks to impermissibly
`narrow the claim scope .............................................................................. 4
`“widget” (claims 11, 18, and 23) ........................................................................... 6
`1.
`“widget” should have its plain and ordinary meaning............................... 7
`2.
`Apple’s proposed claim construction is improper ..................................... 7
`“mobile wallet application” (all asserted claims) .................................................. 9
`1.
`“mobile wallet application” should have its plain and ordinary
`meaning...................................................................................................... 9
`Apple’s proposed claim construction is improper ................................... 10
`2.
`“SE information” (Claims 14 and 23).................................................................. 12
`“mobile device information” (Claims 14, 18, and 23)......................................... 12
`1.
`“mobile device information” should have its plain and ordinary
`meaning.................................................................................................... 12
`Apple’s proposed claim construction is improper ................................... 13
`2.
`“over-the-air (OTA) proxy” (Claim 23) and “OTA proxy” (claim 16)............... 14
`1.
`“over-the-air (OTA) proxy” and “OTA proxy” should have their
`plain and ordinary meaning ..................................................................... 14
`Apple’s proposed claim construction is improper ................................... 14
`2.
`“provision[ing]” (Claims 11 and 23) ................................................................... 15
`G.
`CONCLUSION................................................................................................................ 15
`
`D.
`E.
`
`F.
`
`-i-
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`Apple Ex. 1021, p. 2
` Apple v. Fintiv
`IPR2020-00019
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`

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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 3 of 21
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Epistar Corp. v. Int’l Trade Comm’n,
`566 F.3d 1321 (Fed. Cir. 2009)..................................................................................................3
`
`Meetrix IP, LLC v. Citrix Sys., Inc.,
`No. 1:16-CV-1033-LY, 2017 WL 5986191 (W.D. Tex. Dec. 1, 2017) ....................................7
`
`MV3 Partners LLC v. Roku, Inc.,
`No. 6:18-cv-00308 (W.D. Tex.), D.I. 90 (Claim Construction Order dated Oct.
`2, 2019) ......................................................................................................................................1
`
`Seachange Int’l., Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2005)..................................................................................................8
`
`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`229 F.3d 1313 (Fed. Cir. 2002)..................................................................................................4
`
`U.S. Surgical Corp. v. Ethicon, Inc.,
`103 F.3d 1554 (Fed. Cir. 1997)..........................................................................................12, 15
`
`-ii-
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`Apple Ex. 1021, p. 3
` Apple v. Fintiv
`IPR2020-00019
`
`

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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 4 of 21
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`I.
`
`INTRODUCTION
`
`Plaintiff Fintiv, Inc. (“Fintiv”) submits this Reply Claim Construction Brief in support of
`
`its Opening Claim Construction Brief (D.I. 72) regarding U.S. Patent No. 8,843,125 (“the ’125
`
`Patent” or “Patent-in-Suit”).1
`
`As discussed below and in Fintiv’s Opening Claim Construction Brief (D.I. 72) and
`
`Responsive Claim Construction Brief (D.I. 75), Apple ignores the plain claim language and
`
`intrinsic evidence, and attempts to improperly construe the claim terms in dispute to suit its non-
`
`infringement arguments while claiming that claim construction is necessary for the jury’s
`
`understanding. Citing to O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Apple also attempts
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`to advance the argument that the Court would commit a legal error if it does not provide a
`
`construction for each proposed claim term. (D.I. 74 at 1-4 (citing 521 F.3d 1351, 1361 (Fed. Cir.
`
`2008).) However, in O2 Micro, the Federal Circuit found that a court should construe a term when
`
`the parties dispute the proper scope of that term, not its meaning. See 521 F.3d at 1360-62 (“We,
`
`however, recognize that district courts are not (and should not be) required to construe every
`
`limitation present in a patent’s asserted claims.”). Here, O2 Micro is inapposite because the
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`meaning of the disputed terms is clear and unambiguous to begin with.
`
`In fact, this Court has
`
`found, in the past, that claim terms do not need to be construed and should have their plain and
`
`ordinary meaning. See, e.g., MV3 Partners LLC v. Roku, Inc., No. 6:18-cv-00308 (W.D. Tex.),
`
`D.I. 90 (Claim Construction Order dated Oct. 2, 2019).
`
`Apple also attempts to fault Fintiv for not considering the provisional applications related
`
`to the ’125 Patent. However, that is meritless.
`
`Just as Apple attempts to read the various
`
`1 For clarification, Fintiv asserts that Apple infringes claims 11, 13, 14, 16, 17, 18, 20, 21, 22, 23,
`24, and 25 of the ’125 Patent.
`
`Apple Ex. 1021, p. 4
` Apple v. Fintiv
`IPR2020-00019
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`

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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 5 of 21
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`embodiments described in the specification of the issued patent into the claims, it also attempts to
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`do the same with the embodiments described in the related provisional applications. This is
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`improper as explained in Fintiv’s Opening and Responsive Claim Construction Briefs. The claims
`
`in dispute cannot be limited by the description of exemplary embodiments, regardless of whether
`
`they are disclosed in the related provisional applications and the ’125 Patent.
`
`II.
`
`THE DISPUTED CLAIM TERMS
`
`A.
`
`“wallet management applet (WMA)” (Claims 11 and 23)
`
`Fintiv’s Construction
`Plain and ordinary meaning. To the extent the
`Court requires construction the plain and
`ordinary meaning is “integrated functionality
`that enables management of a wallet related
`applet.”
`
`Apple’s Construction
`“software application for storing duplicate
`account specific information accessible to the
`mobile wallet application”
`
`1.
`
`“Wallet management applet (WMA)” is not a “coined” term and
`should have its plain and ordinary meaning
`
`Contrary to Apple’s and its expert’s assertions, the “wallet management applet (WMA)”
`
`term is not a coined term. (D.I. 75 at 9-10.) As Fintiv explained in its Responsive Brief, a careful
`
`and thorough reading of the Iridescent Networks, Inc. v. AT&T Mobility, LLC and Interval
`
`Licensing LLC v. AOL, Inc. cases cited by Apple for its “coined term” arguments shows that their
`
`facts are distinguishable from the facts at bar. (Id. (citing 933 F.3d 1345, 1350-53 (Fed. Cir. 2019);
`
`766 F.3d 1364, 1371 (Fed. Cir. 2014)). These two cases involved the construction of phrases that
`
`are of a term of degree and highly subjective—“high quality of service connection” and
`
`“unobtrusive manner.” Id. Given the uncertainty as to the boundaries of these terms that are highly
`
`subjective, the Federal Circuit first looked at the claims for guidance and then turned to the intrinsic
`
`evidence. Id.
`
`Here, since the term “wallet management applet” does not contain a term of degree and is
`
`-2-
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`Apple Ex. 1021, p. 5
` Apple v. Fintiv
`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 6 of 21
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`not highly subjective, Apple’s reliance on these cases to support its “coined term” argument is
`
`misplaced. Further, since there is no dispute as to the boundaries of “wallet management applet
`
`(WMA),” the term should be assigned its plain and ordinary meaning. (See Ex. A2, Declaration
`
`of David R. Tushie in Support of Plaintiff Fintiv, Inc.’s Reply Claim Construction Brief (“Tushie
`
`Decl.”) at ¶¶ 28-32.) Further, contrary to Apple’s assertions, “wallet management applet” is a
`
`commonly understood term by one of ordinary skill in the art at the time of the invention based on
`
`its context in the claims and specification.
`
`(See Tushie Decl. at ¶ 28.)
`
`In particular, the term
`
`“applet” is a term that had an ordinary meaning that was commonly understood at the time of the
`
`invention. (Id.)
`
`Apple also repeatedly asks this Court to consider intrinsic evidence that allegedly supports
`
`Apple’s position that a construction is required without first addressing the need for any disavowal
`
`of the plain and ordinary meaning. In fact, not a single analysis of any need for disavowal of or
`
`deviation from the plain and ordinary meaning of “wallet management applet (WMA)” is found
`
`in Apple’s Opening and Responsive Briefs. Yet, Apple wrongly insists that intrinsic evidence be
`
`introduced to limit the term beyond its plain and ordinary meaning. This violates a basic tenet of
`
`claim construction. See Epistar Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1334 (Fed. Cir.
`
`2009) (citing Teleflex, Inc. v. Ficosa N. Am. Corp., 229 F.3d 1313, 1325 (Fed. Cir. 2002)) (to
`
`prevail in limiting a term beyond its plain and ordinary meaning, a party “must establish the
`
`inventors ‘demonstrate[d] an intent to deviate from the ordinary and accustomed meaning of a
`
`claim term by including in the specification expressions of manifest exclusion or restriction,
`
`representing a clear disavowal of claim scope.”’).
`
`2 References to Exhibits refer to the Exhibits to the Declaration of Rodney R. Miller (“Miller
`Decl.”) filed concurrently herewith.
`
`-3-
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`Apple Ex. 1021, p. 6
` Apple v. Fintiv
`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 7 of 21
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`2.
`
`Apple’s proposed claim construction seeks to impermissibly narrow
`the claim scope
`
`Even if this term should be construed (it should not), Apple’s proposed claim construction
`
`is improper for several reasons as discussed in Fintiv’s Claim Construction Briefs and further
`
`expanded below. First, Apple has not provided any justification for the need to change “wallet
`
`management applet (WMA)” into “software application” by equating these two phrases. (D.I. 71
`
`at 11-12; D.I. 74 at 11-12.) What’s more, equating the two phrases would be contrary to the
`
`specification that also discloses embodiments where “wallet management applet (WMA)” is also
`
`implemented using an applet, not a “software application.” (See ’125 Patent at 7:8-9 & 7:42-43;
`
`see also D.I. 72 at 7-8.) Moreover, a POSITA at the time of the invention would understand that
`
`there was a difference between a “wallet management applet (WMA)” and “software application.”
`
`(See Tushie Decl. at ¶ 30.)
`
`Further, Apple’s proposed claim construction would ultimately violate the principle that
`
`limitations from the patent specification (or the related provisional applications) should not be
`
`improperly imported into the claim language, unless there is unmistakable evidence that the
`
`patentee disclaimed claim scope through clear disavowal or by acting as its own lexicographer.
`
`Teleflex, Inc. v. Ficosa N. Am. Corp., 229 F.3d 1313, 1325 (Fed. Cir. 2002). Such special
`
`circumstances do not exist here. Apple argues that the patent specification defines the claim term
`
`by implication because, allegedly, the specification “so repeatedly and consistently uses the term
`
`WMA to refer to a software application for storing duplicate account specific information
`
`accessible to the mobile wallet application.” (D.I. 74 at 11.) Yet the passages relied upon by
`
`Apple do not show this alleged repeated and consistent usage of the term, and in fact do not require
`
`“storing duplicate account specific information accessible to the mobile wallet application.” (Id.)
`
`To the contrary, these passages demonstrate potential embodiments, as exhibited by using the
`
`-4-
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`Apple Ex. 1021, p. 7
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`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 8 of 21
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`permissive language of “may”:
`
`“Once account specific information is installed into WMA 21 container as
`WMA 21 applet, the respective mobile device 100 may access the information
`periodically for required updates.” (’125 Patent at 9:45-48 (emphasis added));
`
`“As the issuers of contactless card applets 23 do not allow direct access into the
`applets themselves, duplicate account information may be stored separately within
`the WMA 21 in order for the mobile wallet application to view account specific
`information (e.g. credit card number, security code, PIN, expiration date, and etc.)”
`(Ex. B, U.S. Provisional Application No. 61/428,846 (“’846”) at ¶ 42 (emphasis
`added));
`
`“During the provisioning process, WMA 501 will store duplicate payment applet
`account information so that mobile wallet application may access the account
`specific information stored within the SE.” (Ex. C, U.S. Provisional Application
`No. 61/428,851 (“’851”) at ¶ 90 (emphasis added)); and
`
`“During the provisioning process, WMA will store duplicate account information
`as the payment applet, so that mobile wallet application may access the account
`specific information stored within the SE.” (Ex. D, U.S. Provisional Application
`No. 61/428,853 (“’853”) at ¶ 78 (emphasis added).)
`
`Moreover, Apple’s proposed claim construction also improperly injects into the claim
`
`language the word “for,” which implies that the only objective of “wallet management applet
`
`(WMA)” is to store “duplicate account specific information accessible to the mobile wallet
`
`application.” This clearly limits the claim in an unwarranted manner, and contradicts an
`
`embodiment disclosed in the very passage of the ’125 Patent’s specification cited by Apple at 8:60-
`
`9:5, which discloses that the “wallet management applet (WMA)” may also be used for the user to
`
`“view and manage” information. (D.I. 74 at 9 (emphasis added).)
`
`Apple also insists on injecting “storing duplicate account specific information” in the claim
`
`language. (See D.I. 74 at 12-14.) Relying on a passage from one of the provisional applications
`
`(’846 at ¶ 42) that states that “WMA 21 is unique in that, its primary purpose is to cause contactless
`
`card applet 23 account information to be stored within the mobile device’s SE separate from the
`
`contactless card applets 23,” Apple argues the “precise thing” that makes the WMA unique is that
`
`-5-
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`Apple Ex. 1021, p. 8
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`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 9 of 21
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`it stores “duplicate account information,” and therefore the term needs to be construed to add the
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`“duplicate account specific information” language.
`
`(D.I. 74 at 12.) However, the very next
`
`sentence in that same paragraph continues by stating that storing separately within the WMA is
`
`permissive, or optional, and is not required.
`
`“As the issuers of contactless card applets 23 do not allow direct access into the
`applets themselves, duplicate account information may be stored separately within
`the WMA 21 in order for the mobile wallet application to view account specific
`information (e.g. credit card number, security code, PIN, expiration date, and etc.).”
`
`(’846 at ¶42 (emphasis added).)
`
`Moreover, as explained in Fintiv’s Responsive Brief, Apple’s attempt to construe “wallet
`
`management applet (WMA)” to add “software application” and “storing duplicate account specific
`
`information” also violates the doctrine of claim differentiation as claim 16, which depends on
`
`claim 11, recites, in part, “wherein the WMA is a software application configured to store account
`
`specific information.” (See D.I. 75 at 7.)
`
`If the Court finds that the “software application for storing duplicate account specific
`
`information accessible to the mobile wallet application” term should be construed, Fintiv’s
`
`alternative proposed construction should be adopted for at least the reasons explained in Fintiv’s
`
`Responsive Brief. (D.I. 75 at 10-11; Tushie Decl. at ¶ 28.)
`
`Accordingly, “wallet management applet” should be given its plain and ordinary meaning,
`
`or alternatively be construed to mean “integrated functionality that enables management of a wallet
`
`related applet.”
`
`B.
`
`“widget” (claims 11, 18, and 23)
`
`Fintiv’s Construction
`Plain and ordinary meaning. To the extent the
`Court requires construction the plain and
`ordinary meaning is “integrated functionality
`that relates to applications related to a
`
`Apple’s Construction
`“user interface software application”
`
`-6-
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`Apple Ex. 1021, p. 9
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`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 10 of 21
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`financial institution, transportation account,
`and the like.”
`
`1.
`
`“widget” should have its plain and ordinary meaning
`
`Contrary to Apple’s and its expert’s assertions, the ’125 Patent specification and related
`
`provisional applications do not indicate that the meaning of the claimed “widget” should be
`
`different from its plain and ordinary meaning. Rather, the term “widget” does not require
`
`construction because a person of skill in the art would reasonably understand the meaning and
`
`scope of the term in the context of the claims and specification. (See Tushie Decl. at ¶¶ 33-37.)
`
`Further, Apple has failed to demonstrate the need to deviate from the plain and ordinary meaning
`
`of “widget” in its briefs. Indeed, Apple has not shown that it can overcome the heavy presumption
`
`in favor of the plain and ordinary meaning of “widget.” See Meetrix IP, LLC v. Citrix Sys., Inc.,
`
`No. 1:16-CV-1033-LY, 2017 WL 5986191, at *2 (W.D. Tex. Dec. 1, 2017) (citing Thorner v.
`
`Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)) (“The Federal Circuit has
`
`reaffirmed that a departure from the ordinary and customary meaning is the exception, not the
`
`rule.”). Apple has also failed to explain how a construction would assist the jury to understand the
`
`term.
`
`2.
`
`Apple’s proposed claim construction is improper
`
`Even if this term should be construed (it should not), Apple’s proposed claim construction
`
`is improper for several reasons as discussed in Fintiv’s Opening and Responsive Briefs and further
`
`elaborated below. First, as explained in Fintiv’s briefs, Apple’s proposed construction for
`
`“widget” imports the limitation “user interface software application.” (See D.I. 72 at 10-11; D.I.
`
`75 at 11-13.) Apple simply chooses to ignore the various patent specification disclosures
`
`indicating that “widget” may, but does not have to, be a “user interface.” But, other embodiments
`
`exist, as shown below:
`
`-7-
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`Apple Ex. 1021, p. 10
` Apple v. Fintiv
`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 11 of 21
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`“Widgets may be an application configured to interface with a user of the mobile
`device. In an example, widgets may refer to individual payment applications,
`transportation applications, and other related applications.” (’125 Patent at 5:6-9
`(emphasis added).)
`
`“If installation is executed, a corresponding widget representing a virtual card, such
`as a virtual credit card, may be provisioned to reside within the respective mobile
`wallet application 24. In an example, the widget representing the virtual card may
`reside within the mobile wallet application 24.” (’125 Patent at 5:66-6:4 (emphasis
`added).)
`
`“The corresponding widget may reside in the mobile wallet application 24, at the
`application level, to provide an interface to the user.” (’125 Patent at 8:63-65
`(emphasis added).)
`
`Apple also attempts to again cite to related provisional applications to support its position
`
`that “the specification ‘repeatedly and consistently’ describes widget as user interface software
`
`application.” (D.I. 74 at 15.) However, there is no such repetitiveness or consistency from the
`
`provisional applications cited by Apple that a “widget” must be a “user interface.” (See ’851,
`
`Requirements Use Cases at pp. 18-19, 44; ’853, Business Requirements at p. 30.)
`
`Moreover, Apple’s request that the Court ignore the doctrine of claim differentiation is
`
`misplaced. (D.I. 74 at 16.) As explained in Fintiv’s briefs, Apple’s proposed construction would
`
`violate the doctrine of claim differentiation because dependent claim 24, which depends on
`
`independent claim 23, requires that “the widget is configured to include a user interface” and
`
`dependent claim 16, which depends on independent claim 11, requires that “the widget is an
`
`application configured to interface with a user of the mobile device.” (D.I. 75 at 12-13.) Apple
`
`has not cited to any evidence that would overcome the presumption of claim differentiation. (D.I.
`
`74 at 16.) Specifically, Apple has not demonstrated that the ’125 Patent’s written description and
`
`its prosecution history require that the only embodiment of “widget” is a “user interface software
`
`application.” Seachange Int’l., Inc. v. C-COR, Inc., 413 F.3d 1361, 1369 (Fed. Cir. 2005) (the
`
`presumption created by the doctrine of claim construction will be overcome by a contrary
`
`-8-
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`Apple Ex. 1021, p. 11
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`IPR2020-00019
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 12 of 21
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`construction dictated by the written description or prosecution history). Rather, as discussed
`
`above, the specification teaches that “[w]idgets may be an application configured to interface with
`
`a user of the mobile device” and further identifies “individual payment applications, transportation
`
`applications, and other related applications” as examples of widgets. (See, e.g., ’125 Patent at 5:6-
`
`9 (emphasis added).)
`
`If the Court finds that “widget” should be construed, Fintiv’s alternative proposed
`
`construction should be adopted for at least the reasons explained in Fintiv’s Responsive Brief.
`
`(D.I. 75 at 13.)
`
`Accordingly, “widget” should be given its plain and ordinary meaning, or alternatively be
`
`construed to mean “integrated functionality that relates to applications related to a financial
`
`institution, transportation account, and the like.”
`
`C.
`
`“mobile wallet application” (all asserted claims)
`
`Fintiv’s Construction
`Plain and ordinary meaning. To the extent the
`Court requires construction the plain and
`ordinary meaning is “application that provides
`wallet functionality on the mobile device.”
`
`Apple’s Construction
`“mobile wallet software application capable
`of being independently downloaded and
`installed”
`
`1.
`
`“mobile wallet application” should have its plain and ordinary
`meaning
`
`With respect to “mobile wallet application,” Apple again asks this Court to consider
`
`intrinsic evidence that allegedly supports Apple’s position that a construction is required without
`
`first addressing the need for any disavowal of or deviation from the plain and ordinary meaning.
`
`Rather, Apple argues that the Court is required to construe this term because there is a dispute
`
`regarding the claim scope and because the jury is not likely to understand the term without a
`
`construction.
`
`(D.I. 74 at 18.) However, the meaning of the disputed term, “mobile wallet
`
`application,” is clear and unambiguous to begin with, and O2 Micro is therefore inapposite to the
`
`-9-
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`Apple Ex. 1021, p. 12
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`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 13 of 21
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`dispute here. (See Tushie Decl. at ¶¶ 38-41.) Additionally, Apple has failed to explain why its
`
`proposal, “mobile wallet software application capable of being independently downloaded and
`
`installed,” which includes all of the words of the term in dispute and also adds extraneous language,
`
`would assist the jury to understand the term.
`
`2.
`
`Apple’s proposed claim construction is improper
`
`Even if this term should be construed (it should not), Apple’s proposed claim construction
`
`is improper as it attempts to import limitations into claim language that is otherwise clear and
`
`unambiguous, as discussed in Fintiv’s Claim Construction Briefs. (D.I. 72 at 12-13; D.I. 75 at 14-
`
`15.) The patent specification discloses that no independent download or independent installation
`
`is necessary for some embodiments:
`
`“The mobile wallet application 24 may be downloaded directly to the requesting
`mobile device 100, sent to the user in a physical medium storing the application, or
`by other suitable methods for providing software applications.” (’125 Patent at
`6:27-30 (emphasis added).)
`
`“Once the mobile wallet application 24 and accompanying OTA proxy program
`have been downloaded, the mobile wallet application 24 may be launched by the
`requesting user in step 207. Alternatively, the mobile wallet application 24 may be
`launched automatically once it is downloaded.” (’125 Patent at 6:42-46 (emphasis
`added).)
`
`“Exemplary embodiments of the present invention provide a method for installing
`a wallet application in a mobile device including requesting, by the mobile device,
`a mobile wallet application comprising a corresponding Over-the-Air (OTA)
`proxy; receiving mobile wallet application installation information; installing the
`mobile wallet application in the mobile device; capturing mobile device
`information by using the OTA proxy, the mobile device information comprising
`secure element (SE) information; and transmitting the mobile device information
`for registering the installed mobile wallet application.” (’125 Patent at 3:1-11
`(emphasis added).)
`
`“As shown in FIG. 2, in step 201, the mobile device 100 requests a new mobile
`wallet application 24. In an alternative flow, a SP 140 may request installation of
`the mobile wallet application 24 from the TSM system 120. When requesting
`installation of mobile wallet application 24 from the TSM system 120, the TSM
`system 120 may wait for the mobile device 100 to connect to the TSM system 120
`before installing the mobile wallet application 24. The TSM system 120 may
`
`-10-
`
`Apple Ex. 1021, p. 13
` Apple v. Fintiv
`IPR2020-00019
`
`

`

`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 14 of 21
`
`install the mobile wallet application 24 directly upon connection to the mobile
`device 100 or wait until the user approves the request to install the mobile wallet
`application 24.” (’125 Patent at 5:55-66 (emphasis added).)
`
`“After a customer account has been created or updated, if it is determined that the
`mobile wallet application 24 is not installed on the mobile device 100, the TSM
`system 120 will confirm the mobile wallet application installation request and
`initiate the wallet application installation process. The installation process may
`be initiated by transmitting a Wireless Application Protocol (WAP) message with
`an embedded Uniform Resource Locator (URL) to the Short Message Service
`(SMS) platform in step 203, which relays the message to the mobile device 100 in
`step 204. However, the mobile wallet application 24 may be obtained in various
`other ways as well and is not limited to the WAP message method as described
`above.” (’125 Patent at 6:15-27 (emphasis added).)
`
`“The user, upon receipt of the installation message from the SMS platform, may
`initiate the actual installation process by sending a request to the TSM system
`120 in step 205.” (’125 Patent at 6:31-33 (emphasis added).)
`
`The passages are devoid of any indication of any independent download or independent
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`installation that is associated with the “mobile wallet application.” Therefore, the term in dispute
`
`is not limited by the extra “being independently downloaded and installed” language that Apple
`
`seeks to inject. Moreover, injecting the qualifier, “capable of,” into the claim language is also
`
`unwarranted because it adds an extraneous quality or ability to “mobile wallet application,” which
`
`is a term that is clear and unambiguous.
`
`It is also problematic to inject “independently” into the claim language as Apple proposes.
`
`The word “independently” in the context of Apple’s proposed construction would add ambiguity
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`to the scope of the claim language as it is unclear what “independently” means.
`
`If the Court finds that “mobile wallet application” should be construed, Fintiv’s alternative
`
`proposed construction should be adopted for at least the reasons explained in Fintiv’s Responsive
`
`Brief. (D.I. 75 at 15.)
`
`Accordingly, “mobile wallet application” should be given its plain and ordinary meaning,
`
`or alternatively be construed to mean “application that provides wallet functionality on the mobile
`
`-11-
`
`Apple Ex. 1021, p. 14
` Apple v. Fintiv
`IPR2020-00019
`
`

`

`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 15 of 21
`
`device.”
`
`D.
`
`“SE information” (Claims 14 and 23)
`
`Apple’s Construction
`“information relating to the secure element”
`
`Fintiv’s Construction
`Plain and ordinary meaning. To the extent the
`Court requires construction the plain and
`ordinary meaning is “information related to
`the secure element that may include at least
`card production life cycle, car serial number,
`card image number, and integrated circuit
`card identification.”
`
`As Fintiv’s expert explains, the term “SE information” does not require construction
`
`because a POSITA would have a reasonable understanding about the meaning and scope of the
`
`term in the context in the claims and specification. (See Tushie Decl. at ¶¶ 42-43.) Accordingly,
`
`no construction is needed. As explained in Fintiv’s Opening and Responsive Claim Construction
`
`Briefs, Apple’s proposed claim construction would be “an obligatory exercise in redundancy.”
`
`U.S. Surgical Corp., 103 F.3d at 1568.
`
`E.
`
`“mobile device information” (Claims 14, 18, and 23)
`
`Fintiv’s Construction
`Plain and ordinary meaning. To the extent the
`Court requires construction the plain and
`ordinary meaning is “mobile device related
`information.”
`
`Apple’s Construction
`“hardware or software properties relating to
`the mobile device”
`
`1.
`
`“mobile device information” should have its plain and ordinary
`meaning
`
`With respect to “mobile device information,” Apple again asks this Court to consider
`
`intrinsic evidence that allegedly supports Apple’s position that a construction is required without
`
`first addressing the need for any disavowal of or deviation from the plain and ordinary meaning.
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`Apple again argues that the Court is required to construe this term because there is a dispute
`
`regarding the claim scope and because the jury is not likely to understand the term without a
`
`-12-
`
`Apple Ex. 1021, p. 15
` Apple v. Fintiv
`IPR2020-00019
`
`

`

`Case 6:18-cv-00372-ADA Document 77 Filed 10/17/19 Page 16 of 21
`
`construction. (D.I. 71 at 25; D.I. 74 at 23.) However, the meaning of the disputed term, “mobile
`
`device information,” is clear and unambiguous to begin with, and O2 Micro is similarly inapposite
`
`to the dispute here. (See Tushie Decl. at ¶¶ 44-47.)
`
`2.
`
`Apple’s proposed claim construction is improper
`
`Even if this term should be construed (it should not), Apple’s proposed claim construction
`
`is improper as it attempts to import limitations into claim language that is otherwise clear and
`
`unambiguous, as discussed in Fintiv’s Claim Construction Briefs. (D.I. 72 at 14-15; D.I. 75 at 17.)
`
`As explained in Fintiv’s Responsive Brief, the ’125 Patent specification teaches that the mobile
`
`device information may include an identification number that is neither hardware nor software,
`
`specifically the MSISDN, which is a number used to uniquely identify the user of the mobile
`
`phone. (D.I. 75 at 16-17.)3 Furthermore, a POSITA would have a reasonable understanding about
`
`the meaning and scope of the term in the context in the claims and specification. (See Tushie Decl.
`
`at ¶ 44.) A POSITA would also understand that “mobile device information” is not limited to a
`
`hardware property or a software property as proposed by Apple. (Id. at ¶¶ 45-47.)
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`Further, if the Court finds that “mobile device information” should be construed, Fintiv’s
`
`alt