Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 1 of 8 PageID #: 10495
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`ULTRAVISION TECHNOLOGIES, LLC,
`Plaintiff,
`
`
`
`v.
`GOVISION LLC,
`Defendant.
`
`Case No. 2:18-cv-00100-JRG-RSP
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`ULTRAVISION TECHNOLOGIES, LLC,
`Plaintiff,
`
`v.
`LEDMAN OPTOELECTRONIC CO., LTD.,
`Defendant.
`
`ULTRAVISION TECHNOLOGIES, LLC,
`Plaintiff,
`
`v.
`SAMSUNG ELECTRONICS CO., LTD.,
`Defendant.
`
`ULTRAVISION TECHNOLOGIES, LLC,
`Plaintiff,
`
`v.
`BARCO NV,
`
`Defendant.
`
` Case No 2:18-cv-00101-JRG-RSP
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
` Case No. 2:19-cv-00252-JRG-RSP
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
` Case No. 2:19-cv-00253-JRG-RSP
`(CONSOLIDATED CASE)
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF ULTRAVISION TECHNOLOGIES, LLC’S CORRECTED OBJECTIONS
`TO THE CLAIM CONSTRUCTION MEMORANDUM AND ORDER (DKT. 407)
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`Glux Visual Effects Tech, et al. Ex. 1026
`Page 1 of 8
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 2 of 8 PageID #: 10496
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`Pursuant to Fed. R. Civ. P. 72(a) and 28 U.S.C. § 636(b), Plaintiff Ultravision
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`Technologies, LLC (“Ultravision”) hereby objects to three claim constructions issued in the above-
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`captioned case on September 30, 2020. Ex. A, Dkt. 407.
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`I.
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`INTRODUCTION
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`The Claim Construction Memorandum and Order (the “Order”) is clearly erroneous or
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`contrary to law regarding three specific claim constructions: (1) “waterproof”/ “sealed to be
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`waterproof;” (2) “display module;” and (3) “structural frame”/“compound structural frame.”
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`The construction of “[sealed to have an] ingress protection (IP) rating of IP 65 or higher”
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`is clearly erroneous because it improperly limits these terms to achieving a specific IP rating where
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`the dependent claims make clear that specific IP ratings are narrower than the proper construction
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`of “waterproof.” The Court’s concern regarding indefiniteness is undermined by Plaintiff’s
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`expert’s unrebutted testimony that its proffered construction, “preventing water from entering the
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`interior of the panel when exposed to weather,” is not indefinite.
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`The construction of the “display module” terms1 is clearly erroneous or contrary to law
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`because it improperly reads the preferred embodiment into the claims. The Order limited the
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`claimed “display module” to “a sealed display module having a pair of LED panels operatively
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`coupled to a daughter board” based upon statements in the specification that do not rise to the level
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`of lexicography or disclaimer.
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`Finally, the Court’s construction of the “structural frame” terms is clearly erroneous or
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`contrary to law because it again improperly reads a preferred embodiment into the claims. The
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`Order limited the claimed “structural frame” to “a structural foam material or material having
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`1 Plaintiff does not object to the “weatherized” portion of this construction, merely the limiting of
`the “display module” to a “sealed display module having a pair of LED panels operatively
`coupled to a daughter board.”
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 3 of 8 PageID #: 10497
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`equivalent strength and weight properties of structural foam” based upon statements in the
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`specification which neither disclaimed claim scope or amounted to lexicography. The Order also
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`did not give due weight to claims that specifically claim “wherein said compound structural frame
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`is composed of structural foam.”
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`II. LEGAL STANDARD
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`A non-dispositive decision must be modified or set aside if it is “clearly erroneous or
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`contrary to law.” Fed. R. Civ. P. 72(a).
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`III. ARGUMENT
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`A. Waterproof
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`A person of ordinary skill in the art would understand that “waterproof” means “preventing
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`water from entering the interior of the panel when exposed to weather.” Ex. B, ¶ 51.
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`It was error to limit “waterproof” to display panels having an ingress protection (IP) rating
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`of IP65 or higher because the dependent claims, which are presumed to have narrower scope than
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`the independent claims from which they depend, see 35 U.S.C. § 112 ¶ 4, claim display panels
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`with IP ratings of IP65 or higher. See, e.g., Ex. C, ’782 Patent, claim 6. These dependent claims
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`are narrower than the independent claims because they require that the display panel have an IP
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`rating in the first place, and that the IP rating ranges from IP65 to IP68. The incorporation of IP
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`ratings in a dependent claim gives rise to a presumption that IP ratings are not present in the
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`independent claims. See Philips v. AWC Corp., 415 F.3d 1303, 1314-15 (Fed. Cir. 2005). Rather
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`than acknowledge that the dependent claims raised the presumption that the Court’s construction
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`was incorrect, the Court found that the limitation of the dependent claims supported its reading of
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`this limitation into the “waterproof” terms of the independent claims. See Ex. A, at 22 (citing to
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`claims 1 and 6 of the ’782 Patent). This was clear error.
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` 
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`2
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 4 of 8 PageID #: 10498
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`The remainder of the intrinsic record does not support limiting the claims in a manner
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`inconsistent with their plain and ordinary meaning. The portions of the specification cited in the
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`Order do not equate “waterproof” with an IP rating, but describe how IP ratings can be used to
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`evaluate the degree to which a display panel is protected from the elements. See Ex. A, at 21 (citing
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`’782 Patent specification). Moreover, the prosecution history cited in the Order refers to an
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`argument distinguishing prior art where the claim limitation at issue was “the panel comprises an
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`ingress protection (IP) rating of IP67 or IP68.” See Ex. D, Dkt. 304-5 at 10. The applicant did not
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`argue that the term “waterproof” was understood to require a certain IP rating.
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`Separate from this issue, the intrinsic record and Plaintiff’s unrebutted expert testimony
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`makes clear that “waterproof” is not limited to a particular IP rating at all, but rather that the
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`product can operate for its intended purpose when used outdoors and exposed to the weather. Ex.
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`E, Dkt. 297, at 7-8. The Order expressed uncertainty regarding the definiteness of Ultravision’s
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`proposed construction (Ex. A at 22-23), but ranges of waterproofing dependent on application have
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`been previously approved by this court. Biosonix, LLC v. Hydrowave, LLC, 230 F. Supp. 3d 598,
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`610-11 (E.D. Tex. 2017).
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`Further, Plaintiff presented unrebutted expert testimony that its construction of
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`“waterproof” would be understood by the person of ordinary skill in the art to be definite. See Ex.
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`B, Dkt. 297-20 ¶ 51. The POSITA would understand that the term “waterproof” used in the
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`asserted claims refer to preventing water from entering the panels in the conditions under which
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`they were designed to operate. The Order raises concerns that “a manufacturer would not know
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`whether the device infringes until it is shipped and installed,” Ex. A, at 22, but this concern is not
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`valid because Plaintiff’s proposed construction did not depend on the specific weather at the site
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`of installation. Rather, the construction requires waterproof sufficient to protect against weather in
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`3
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 5 of 8 PageID #: 10499
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`general because display panels, when manufactured, contain a level of sealing that are either
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`sufficient or insufficient to protect them from weather, a determination that a skilled expert can
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`make without seeing the panel operate. See Ex. B, ¶ 52. The evidence on this issue presented by
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`Plaintiff’s expert was unrebutted by Defendants’ expert but given no weight by the Court.
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`B. Display Module
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`The Order limited this term to a “module having a pair of LED display panels operatively
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`coupled to a daughter board” (Ex. A, at 67) for two reasons. First, it noted that the daughter board
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`and pair of panels are “important and unique feature[s] of the present invention.” Id. (quoting ’791
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`Patent (Ex. F), 34:50-52). Second, it noted that “every disclosed embodiment includes a pair of
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`LED panels operatively coupled to a daughter board.” Id. (citing ’791 Patent, 25:30-33, 27:1-7,
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`38:9-14, and 43:62-67).
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`Absent lexicography or disavowal of claim scope, it is improper to limit the claims to the
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`preferred embodiment. Cont’l Circuits LLC v. Intel Corp., 915 F.3d 788, 796 (Fed. Cir. 2019). The
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`Order cites no precedent holding that a statement that the feature is an “important and novel” rises
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`to the level of lexicography. While claim terms are construed in light of the specification, departing
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`from the plain meaning based on the specification can only occur in instances of lexicography or
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`disavowal. Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
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`The standard for lexicography is exacting. The patentee must “clearly set forth a definition
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`of the disputed claim term” and “’clearly express an intent’ to define the term.” Id. The statement
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`that this feature is “important and unique” does not rise to the level of lexicography. Although in
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`some instances an “important” feature can be found to limit the claims, it is also required that
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`alternatives to that feature are disparaged. Inpro II Licensing, S.A.R.L. v. T-Mobile USA Inc., 450
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`F.3d 1350, 1354-55 (Fed. Cir. 2008). Here, while the patent describes the daughter board and dual
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`4
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 6 of 8 PageID #: 10500
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`panel design as “important and unique,” it does not disparage other designs. GE Lighting Sols.,
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`LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). And the ’791 Patent explicitly states
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`that in one embodiment, the display module comprises “at least one LED board coupled to the
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`frontside of the frame” and in another embodiment “the at least one LED board includes two LED
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`boards disposed in a side-by-side arrangement along the X-axis.” Ex. F, 2:9-29.
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`C. Structural Frame
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`The Order improperly limited the “structural frame” and “compound structural frame” to
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`a “frame composed of a structural foam material or material having equivalent strength and weight
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`properties of structural foam.”2 Ex. A at 83.
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`Other claims in this patent family support plaintiff’s proposal. When the patentee sought
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`to specifically claim structural foam, it did so. Taking for example the related patent 9,230,458
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`(Ex. G), claim 1 recites “a compound structural frame” and claim 5 claims “wherein said
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`compound structural frame is composed of structural foam to help minimize frame weight for hand
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`lifting and mounting of said compound structural frame by one person without the use of a
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`mechanical frame lifting arrangement.” (emphasis added). The Order recognized this claim
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`differentiation but found that it was “overcome by a contrary construction dictated by the written
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`description or prosecution history.” Ex. A at 81. Here, again, the specification describes the
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`structural foam construction as a “unique and novel feature” of the preferred embodiment. Ex. E,
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`at 32:7-13. But absent disparagement of the alternatives, this is not sufficient to find lexicography.
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`Inpro II Licensing, 450 F.3d at 1354-55. The structural frame being made of structural foam is
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`merely the preferred embodiment.
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`2 The Court also limited the compound structural frame to a frame “having a plurality of bay
`members.” This portion of the construction is not objected to. The Court’s construction of the
`phrase “weatherized” is also not objected to.
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`5
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 7 of 8 PageID #: 10501
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`Dated: October 15, 2020
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`Respectfully submitted
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`
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`
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Joseph M. Mercadante
`NY Bar No. 4784930
`Email: jmercadante@fabricantllp.com
`Daniel J. Shea
`NY Bar No. 5430558
`Email: dshea@fabricantllp.com
`FABRICANT LLP
`230 Park Avenue, 3rd Floor W.
`New York, New York 10169
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF
`ULTRAVISION TECHNOLOGIES,
`LLC
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` 
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`Case 2:18-cv-00100-JRG-RSP Document 420 Filed 10/15/20 Page 8 of 8 PageID #: 10502
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on October 15, 2020, a true and correct copy of the
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`above and foregoing document has been served on counsel of record via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3).
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`
`
`/s/ Alfred R. Fabricant
` Alfred R. Fabricant
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`Glux Visual Effects Tech, et al. Ex. 1026
`Page 8 of 8
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