PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`
`
`
`In the Matter of
`
`CERTAIN ELECTRICAL CONNECTORS
`AND CAGES, COMPONENTS THEREOF,
`AND PRODUCTS CONTAINING THE
`SAME
`
`
`
` Inv. No. 337-TA-1241
`
`ORDER NO. 31:
`
`
`
`
`
`CONSTRUING CERTAIN TERMS OF THE ASSERTED CLAIMS
`OF THE PATENTS AT ISSUE
`
`(October 19, 2021)
`
`This order addresses the construction of certain disputed claim terms in U.S. Patent No.
`
`7,371,117 (“the ’117 patent); U.S. Patent No. 9,705,255 (“the ’255 patent”), and U.S. Patent No.
`
`10,381,767 (“the ’767 patent”).
`
`I. BACKGROUND
`
`The Commission instituted this investigation to determine whether certain electrical
`
`connectors and cages, components thereof, and products containing the same infringe certain
`
`claims of the ’117 patent, the ’255 patent, the ’767 patent, U.S. Patent No. 8,371,875 (“the ‘875
`
`patent”), and U.S. Patent No. 8,864,521 (“the ‘521 patent”). See 86 Fed. Reg. 7104 (Jan. 26,
`
`2021) (“Notice of Investigation”). As set forth in the Notice of Investigation, the plain language
`
`description of the accused products is “high speed electrical connectors, components thereof,
`
`electrical connectors disposed within metal cages, and products containing the same, including
`
`electrical connectors mounted to printed circuit boards, such as test boards, test fixtures, or
`
`mated compliance boards.” Id.
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`The complainant is Amphenol Corporation (“Amphenol”). Id. The respondents are
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`Luxshare Precision Industry Co., Ltd., Dongguan Luxshare Precision Industry Co., Ltd.,
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`Luxshare Precision Limited (HK), and Luxshare-ICT Inc. (collectively, “Luxshare”). Id. The
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`claims originally asserted in this investigation were claims 1, 2, 9, 11, 24-27, and 29 of the ’117
`
`patent; claims 1, 2, 9, 10, 12, and 13 of the ’875 patent; claims 33-35, 38-40, 45, 46, and 48-50
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`of the ’521 patent; claims 1-3, 5-8, 12-14, and 16-18 of the ’255 patent; and claims 1-7, 9-17, 19-
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`23, 24-27, and 28-30 of the ’767 patent. Id.
`
`Pursuant to the Procedural Schedule (Order No. 6), the parties filed a joint proposed claim
`
`construction chart on May 3, 2021 identifying terms proposed for construction, including the
`
`“ten most significant disputed terms.” EDIS Doc. ID 741445. The parties filed opening claim
`
`construction briefs on May 26, 2021 and rebuttal claim construction briefs on June 11, 2021
`
`addressing the ten most significant terms. A Markman hearing was held on June 23, 2021
`
`addressing these terms. Pursuant to Order No. 8 (Apr. 6, 2021), the parties filed an updated joint
`
`proposed claim construction chart on June 25, 2021.
`
`On October 8, 2021, Amphenol filed an unopposed motion for partial termination of the
`
`investigation based on withdrawal of the ’875 patent and ’521 patent as well as certain asserted
`
`claims of the ’117, ’255, and ’767 patents. Mot. Dkt. 1241-024. The unopposed motion, granted
`
`in Order No. 29, states that the following patent claims remain at issue: claims 1, 9, 11, 24, and
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`29 of the ’117 patent; claims 12-14, 16 and 17 of the ‘255 patent; and claims 1, 4-6, 9-13, 15-17,
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`19, 23, 28 and 29 of the ‘767 patent. Order No. 29 at 2 n.2 (EDIS Doc. ID 754054, Oct. 13,
`
`2021). On October 8, 2021, the parties also filed a Joint Status Report noting the withdrawal of
`
`these patents and claims, and providing an updated chart identifying the 8 remaining most
`
`
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`2
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`significant terms briefed by the parties and argued at the June 23, 2021 hearing. EDIS Doc. ID
`
`753882, Exhibit A.
`
`On October 12, 2021, pursuant to Order No. 28, the parties filed supplemental submissions
`
`regarding construction of the term “lossy” in the ’255 patent.
`
` For ease of reference, the materials submitted by the parties shall be referred to as
`
`follows:
`
`CIB
`CRB
`RIB
`RRB
`June 25, 2021
`Joint Chart
`October 8, 2021
`Joint Chart
`Tr.
`Amphenol
`Presentation
`Luxshare
`Presentation
`Blichasz Decl.
`
`Locati Decl.
`
`CSB
`RSB
`
`
`
`Complainant’s Initial Claim Construction Brief (May 26, 2021)
`Complainant’s Responsive Claim Construction Brief (June 11, 2021)
`Respondents’ Initial Claim Construction Brief (May 26, 2021)
`Respondents’ Responsive Claim Construction Brief (June 11, 2021)
`June 25, 2021 Updated Joint Proposed Claim Construction Chart (EDIS
`Doc. ID 745533)
`October 8, 2021 Joint Status Report, Exhibit A (EDIS Doc. ID 753882)
`
`Transcript of June 23, 2021 claim construction hearing
`Amphenol’s Markman Hearing Presentation (EDIS Doc. ID 753136)
`
`Luxshare’s Markman Hearing Presentation (EDIS Doc. ID 753163)
`
`Declaration of Charles S. Blichasz in Support of Luxshare’s Opening
`Markman Brief (May 26, 2021), filed with Respondents’ Initial Claim
`Construction Brief
`Declaration of Ronald P. Locati (June 11, 2021), filed as Exhibit R to
`Complainant’s Responsive Claim Construction Brief
`Complainant’s October 12, 2021 Supplemental Claim Construction Brief
`Respondents’ October 12, 2021 Supplemental Claim Construction Brief
`
`II. LEGAL STANDARDS
`
`A. Claim Construction
`
`The scope of a patent claim is defined by the claim language. Catalina Mktg. Int’l., Inc.
`
`v. Coolsavings.com, Inc., 289 F.3d 801, 807 (Fed. Cir. 2002). In construing the claims, the
`
`court’s task is to “ascertain[] the meaning of the claim terms to one of ordinary skill in the art at
`
`the time of invention.” Metabolite Labs., Inc. v. Lab’y Corp. of Am. Holdings, 370 F.3d 1354,
`
`
`
`3
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`1361 (Fed. Cir. 2004). “[O]nly those [claim] terms need be construed that are in controversy,
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`and only to the extent necessary to resolve the controversy.” Vivid Techs., Inc. v. Am. Sci. &
`
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999); Nidec Motor Corp. v. Zhongshan Broad Ocean
`
`Motor Co. Ltd. Matal, 868 F.3d 1013, 1017 (Fed. Cir. 2017) (same).
`
`To ascertain the meaning of claim terms at issue, courts rely on intrinsic evidence: the
`
`claims, specification, and prosecution history for the patent at issue. Phillips v. AWH Corp., 415
`
`F.3d 1303, at 1313-14 (Fed. Cir. 2005); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
`
`1582 (Fed. Cir. 1996). The words of a claim “are generally given their ordinary and customary
`
`meaning.” Phillips, 415 F.3d at 1312. This is the meaning “that the term would have to a person
`
`of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing
`
`date of the patent application.” Id. at 1313.
`
`Importantly, the person of ordinary skill in the art “is deemed to read the claim term not
`
`only in the context of the particular claim in which the disputed term appears, but in the context
`
`of the entire patent, including the specification.” Phillips, 415 F.3d at 1313. The Federal Circuit
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`has repeatedly confirmed that the specification is “the single best guide to the meaning of a
`
`disputed term.” Id. at 1315. The specification plays a primary role because it can function as a
`
`sort of dictionary, explaining the invention and defining the terms used in the claims. See id.
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`(“[C]laims . . . do not stand alone. Rather, they are part of a ‘fully integrated written instrument,’
`
`consisting principally of a specification that concludes with the claims.”) (citation omitted).
`
`“Ultimately . . . the construction that stays true to the claim language and most naturally aligns
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`with the patent’s description of the invention will be, in the end, the correct construction.” Id. at
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`1316 (internal quotation and citation omitted).
`
`
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`4
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`Claims should also be read in view of the prosecution history, which provides “evidence
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`of how the PTO and the inventor understood the patent.” Id. at 1317. “The prosecution history
`
`can often inform the meaning of the claim language by demonstrating how the inventor
`
`understood the invention and whether the inventor limited the invention in the course of
`
`prosecution, making the claim scope narrower than it would otherwise be.” Id.
`
`In addition to intrinsic evidence, extrinsic evidence may be considered if necessary to
`
`explain scientific principles, technical terms, and terms of art that appear in the patent and
`
`prosecution history. Extrinsic evidence consists of all evidence external to the patent and
`
`prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.
`
`Vitronics, 90 F.3d at 1584. Extrinsic evidence in the form of expert testimony “can be useful to
`
`a court for a variety of purposes, such as to provide background on the technology at issue, to
`
`explain how an invention works, to ensure that the court’s understanding of the technical aspects
`
`of the patent is consistent with that of a person of skill in the art, or to establish that a particular
`
`term in the patent . . . has a particular meaning in the pertinent field.” Phillips, 415 F.3d at 1318.
`
`While not prohibited, extrinsic evidence is less reliable than the patent and its prosecution
`
`history. Phillips, 415 F.3d at 1318. Extrinsic evidence in the form of expert testimony that is at
`
`odds with the intrinsic evidence must be disregarded. Network Commerce, Inc. v. Microsoft
`
`Corp., 422 F.3d 1353, 1361 (Fed. Cir. 2005).
`
`B. Indefiniteness
`
`
`
`“The Patent Act requires that a patent specification ‘conclude with one or more
`
`claims particularly pointing out and distinctly claiming the subject matter which the applicant
`
`regards as [the] invention.’” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014)
`
`(quoting 35 U.S.C. § 112, ¶ 2). “[T]he second paragraph of § 112 contains two requirements:
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`first, [the claim] must set forth what the applicant regards as his invention, and second, it must do
`
`
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`5
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`so with sufficient particularity and distinctness, i.e., the claim must be sufficiently definite.”
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`Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1348 (Fed. Cir. 2002) (citation and
`
`internal quotation marks omitted) (alteration in original). A claim does not satisfy the second
`
`requirement and is thereby indefinite “if read in light of the specification delineating the patent,
`
`and the prosecution history, [it] fail[s] to inform, with reasonable certainty, those skilled in the
`
`art about the scope of the invention.” Nautilus, 534 U.S. at 901. Indefiniteness is a question of
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`law, subject to a determination of underlying facts. Akzo Nobel Coatings, Inc. v. Dow Chem.
`
`Co., 811 F.3d 1334, 1343-44 (Fed. Cir. 2016). The party challenging the validity of a claim
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`bears the burden of establishing indefiniteness. Id. Indefiniteness must be shown by clear and
`
`convincing evidence. Sonix Tech. Co., Ltd. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir.
`
`2017).
`
`III. LEVEL OF ORDINARY SKILL IN THE ART
`
`The parties have provided positions on the qualifications and experience of a person of
`
`ordinary skill in the art. Amphenol proposes that a person of ordinary skill in the art “in the 2004
`
`and 2010 time periods would have had at least a bachelor’s degree in engineering or a related
`
`scientific field and at least two years of experience working with electrical systems, including
`
`electrical connectors.” CIB at 5. In addition, according to Amphenol, a person of ordinary skill
`
`in the art “would have had at least a working knowledge of signal integrity and how it is affected
`
`by various electrical connector designs,” and “would have understood the technology
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`surrounding mounting an electrical connector to another structure, such as a printed circuit board
`
`(‘PCB’).” Id.
`
`Luxshare’s expert, Mr. Charles Blichasz, states that a person of ordinary skill in the art
`
`“as of each patent’s purported priority date would have had at least a bachelor’s degree in
`
`engineering or a related scientific field with at least three to five years of experience working
`
`
`
`6
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`with electromechanical systems and who has an understanding of transmitting high speed
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`signals, with the recognition that more education could substitute for experience and that
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`experience combined with training could substitute for formal education.” Blichasz Decl., at 6.
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`No party has argued that any proposed construction turns on differences between these
`
`positions. Amphenol’s expert states that these positions are “not materially different” and would
`
`not change or impact his opinions on claim construction. See Locati Decl. ¶ 11. To the extent a
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`finding on this issue is necessary, a person of ordinary skill in the art at the time of the inventions
`
`in question would have at least a bachelor’s degree in engineering or a related scientific field, at
`
`least two years of working with electromechanical systems, and would in addition have an
`
`understanding of transmitting high speed signals. Additional work or research experience can
`
`substitute for less or different education, and vice versa.
`
`IV. THE ASSERTED PATENTS
`
`A. The ’117 Patent
`
`The ’117 patent is titled “High Speed, High Density Electrical Connector” and names
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`Mark W. Gailus as the inventor. ’117 patent, cover. The patent issued from an application filed
`
`on September 30, 2004. Id.
`
`Complainant asserts claims 1, 9, 11, 24, and 29 of the ’117 patent. Notice of
`
`Investigation at 2; EDIS Doc. ID 753882; Order No. 29 (Oct. 29, 2021) (EDIS Doc. ID 754054).
`
`Disputed terms addressed in this Order are shown in context below with emphasis.
`
`1. An electrical connector, comprising an insulative material, a plurality of
`conductive elements each having a portion partially disposed in said
`insulative material, a signal conductor having a portion disposed in
`said insulative material extending between but not contacting the
`portions of said plurality of conductive elements disposed in said
`insulative material, and an electrically lossy material electrically
`connecting the portions of said plurality of conductive elements with
`one another but not electrically connecting said plurality of signal
`conductors.
`
`
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`9. An electrical connector comprising a plurality of regions, each region
`having:
`
`insulative material;
`
`a plurality of signal conductors, each signal conductor having a
`contact tail and a contact portion and an intermediate portion there
`between, and at least a part of the intermediate portion of each of
`the plurality of signal conductors secured in the insulative material;
`
`a plurality of conductive elements not in contact with any one of the
`plurality of signal conductors, each conductive element having an
`intermediate portion; and
`
`electrically lossy material extending between and in contact with the
`intermediate portion of each of the plurality of conductive
`elements,
`
`wherein the plurality of signal conductors are not electrically
`connected with the electrically lossy material.
`
`11. The electrical connector of claim 9 wherein within each region the
`intermediate portions of the plurality of signal conductors are
`positioned in a plane and each conductive elements comprises a first
`portion parallel to the plane and a second portion transverse to the
`plane.
`
`B. The ’255 Patent
`
`The ’255 patent is titled “High Frequency Electrical Connector” and names Prescott B. Atkinson,
`
`Brian Kirk, Mark W. Gailus, David Manter, and Thomas S. Cohen as inventors. ‘255 patent,
`
`cover. The ’255 patent issued from an application filed on November 20, 2015. Through a chain
`
`of intervening applications, the ’255 patent claims priority to a provisional application filed on
`
`June 30, 2005 and a provisional application filed on August 1, 2008. Id. at cover-2.1
`
`
`1 Through an intervening application, the ’255 patent is a continuation of the originally-asserted ’521
`patent. The ’521 patent is titled “High Frequency Electrical Connector” and names Prescott B. Atkinson,
`Brian Kirk, Mark W. Gailus, David Manter, and Thomas S. Cohen as inventors. ’521 patent, cover.
`
`
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`Complainant asserts claims 12-14, 16 and 17 of the ’255 patent. Notice of Investigation
`
`at 2; EDIS Doc. ID 753882; Order No. 29 (Oct. 13, 2021) at 2 n. 2 (EDIS Doc. ID 754054).
`
`Disputed terms addressed in this Order are shown in context below with emphasis.
`
`12. An electrical connector comprising a plurality of components, wherein
`at least one component of the plurality of components comprises:
`
`an insulative housing;
`
`a plurality of conductive elements, wherein:
`
`each conductive element of the plurality of conductive elements
`comprises a contact tail, a mating contact portion, and an
`intermediate portion extending between the contact tail and the
`mating contact portion;
`
`the intermediate portions of the plurality of conductive elements
`extend through the insulative housing;
`
`the plurality of conductive elements comprise a first conductive
`element and a second conductive element adjacent the first
`conductive element; and
`
`the mating contact portions of the first and second conductive elements
`are aligned edge to edge; and
`
`a lossy insert that is separately manufactured and assembled with the
`insulative housing, wherein the lossy insert is disposed adjacent a
`transition region between the intermediate portion of the first
`conductive element and the mating contact portion of the first
`conductive element.
`
`16. The electrical connector of claim 12, wherein the lossy insert
`comprising a protruding portion that protrudes toward the first
`conductive element.
`
`17. The electrical connector of claim 12, wherein the lossy insert
`comprises a material having a conductivity of about 1 siemens/meter
`to about 30,000 siemens/meter.
`
`C. The ’767 Patent
`
`The ’767 patent is titled “High Performance Cable Connector” and names Donald W.
`
`Milbrand, Jr., Prescott B. Atkinson, and Brian Kirk as inventors. ’767 patent, cover. The patent
`
`
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`issued from an application filed on March 9, 2016. ’767 patent, cover. Through a chain of
`
`intervening applications, the ’767 patent claims priority to a provisional application filed on May
`
`7, 2010. Id. at cover-2.
`
`Complainants assert claims 1, 4-6, 9-13, 15-17, 19, 23, 28 and 29 of the’767 patent.
`
`Notice of Investigation at 2 (Jan. 21, 2021); EDIS Doc. ID 753882; Order No. 29 (Oct. 13, 2021)
`
`at 2 n. 2 (EDIS Doc. ID 754054). Disputed terms addressed in this Order are shown in context
`
`below with emphasis.
`
`1. A receptacle adapted for mounting to a printed circuit board,
`comprising:
`
`a housing having a cavity bounded by a first surface that is parallel to
`the printed circuit board and an opposing second surface that is
`parallel to the printed circuit board, each of the first and second
`surfaces being disposed above a first side of the printed circuit
`board;
`
`a first lead assembly including:
`
`a first monolithic housing member; and
`
`a first plurality of conductive elements each comprising a contact
`tail adapted for attachment to the printed circuit board that is
`perpendicular to the first side of the printed circuit board, a
`mating contact portion disposed along the first surface of the
`cavity, and an intermediate portion disposed in the first
`monolithic housing member and coupling the contact tail to the
`mating contact portion,
`
`wherein the first monolithic housing member comprises exterior
`projections extending away from the first plurality of
`conductive elements along a direction parallel to the first
`surface; and
`
`a second lead assembly including:
`
`a second monolithic housing member; and a second plurality of
`conductive elements each comprising a contact tail adapted for
`attachment to the printed circuit board that is perpendicular to
`the first side of the printed circuit board, a mating contact
`portion disposed along the second surface of the cavity, and an
`
`
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`10
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`intermediate portion disposed in the second monolithic housing
`member coupling the contact tail to the mating contact portion,
`
`wherein the second monolithic housing member comprises exterior
`projections extending away from the second plurality of
`conductive elements along the direction parallel to the first
`surface.
`
`2. The receptacle as defined in claim 1, wherein the contact tails and the
`mating contact portions are disposed at right angles.
`
`9. The receptacle as defined in claim 1, wherein the housing further
`comprises a second cavity bounded by a third surface and an opposing
`fourth surface, further comprising a third lead assembly including a
`third plurality of conductive elements disposed in a third monolithic
`housing member and a fourth lead assembly including a fourth
`plurality of conductive elements disposed in a fourth monolithic
`housing member, each conductive element of the third and fourth
`pluralities of conductive elements comprising a contact tail adapted
`for attachment to the printed circuit board, a mating contact portion
`and an intermediate portion coupling the contact tail to the mating
`contact portion, wherein the mating contact portions of the third
`plurality of conductive elements are disposed along the third surface of
`the second cavity and the mating contact portions of the fourth
`plurality of conductive elements are disposed along the fourth surface
`of the second cavity.
`
`11. The receptacle as defined in claim 10, wherein the insert includes an
`electrically lossy material.
`
`28. A receptacle adapted for mounting to a printed circuit board,
`comprising:
`
`a housing made of an insulative material and having:
`
`a first cavity shaped to receive a first plug in an insertion direction,
`wherein the first cavity is bounded by a first surface that is
`parallel to the printed circuit board and a second surface that
`faces the first surface and is parallel to the printed circuit board;
`
`a second cavity offset from the first cavity in a direction
`perpendicular to the insertion direction, wherein the second
`cavity is shaped to receive a second plug in the insertion
`direction, and the second cavity and is bounded by a third
`surface that is parallel to the printed circuit board and a fourth
`surface that faces the third surface and is parallel to the printed
`circuit board;
`
`
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`11
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`a first lead assembly comprising:
`
`a first plurality of conductive elements disposed in a row extending
`in a first direction, each of the first plurality of conductive
`elements comprising a mating contact portion extending along
`the first surface of the cavity in a second direction parallel to the
`insertion direction, a contact tail extending from the monolithic
`housing, and an intermediate portion coupling the contact tail to
`the mating contact portion and comprising a right angle bend;
`and
`
`a first housing member made of an insulative material, molded over
`the intermediate portions of each conductive element of the first
`plurality of conductive elements; and
`
`a second lead assembly, separate and distinct from the first lead assembly,
`comprising:
`
`a second plurality of conductive elements disposed in a row
`extending in the first direction, each of the second plurality of
`conductive elements comprising a mating contact portion
`extending along the second surface of the first cavity in the
`second direction, a contact tail extending from the monolithic
`housing, and an intermediate portion coupling the contact tail to
`the mating contact portion and comprising a right angle bend;
`and
`
`a second housing member made of an insulative material, molded
`over the intermediate portions of each conductive element of the
`second plurality of conductive elements;
`
`a third lead assembly comprising:
`
`a third plurality of conductive elements disposed in a row extending
`in the first direction, each of the third plurality of conductive
`elements comprising a mating contact portion extending along
`the third surface of the second cavity in the second direction, a
`contact tail extending from the monolithic housing, and an
`intermediate portion coupling the contact tail to the mating
`contact portion and comprising a right angle bend; and
`
`a third housing member made of an insulative material, molded
`over the intermediate portions of each conductive element of the
`third plurality of conductive elements; and
`
`a fourth lead assembly, comprising:
`
`
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`12
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`a fourth plurality of conductive elements disposed in a row
`extendingin the first direction, each of the fourth plurality of
`conductive elements comprising a mating contact portion
`extending along the fourth surface of the second cavity in the
`seconddirection, a contacttail extending from the monolithic
`housing, and an intermediate portion coupling the contacttail to
`the mating contact portion and comprising a right angle bend;
`and
`
`a fourth housing member madeofan insulative material, molded
`over the intermediate portions of each conductive element of the
`fourth plurality of conductive elements;
`
`wherein:
`
`the first, second, third and fourth housing members engage with the
`housing to hold the intermediate portions of the first, second,
`third and fourth plurality of conductive elementsrelative to the
`circuit board, and
`
`the receptacle is in combination with a metallic cage, and the
`receptacle is disposed within the cage.
`
`29. The receptacle as defined in claim 28, wherein the contact tails of the
`first, second, third and fourth plurality of conductive elements are
`configured for attachment to conductive pads on a surface of the
`printed circuit board.
`
`V. DISPUTED CONSTRUCTIONS?
`
`A. “electrically lossy material”
`
`Respondents’ Construction
`Complainant’s Construction
`“material that conducts, but with loss, over
`“material that conducts, but with someloss,
`over the frequency range of interest such that|the frequency rangeof interest such that the
`the material conducts more poorly than
`material conducts more poorly than a
`materials used as a conductorin an electrical|conductor, such as metal, but better than an
`connector, but better than materials used as an|insulator”
`
`insulator in an electrical connector”
`
`The term “electrically lossy material” appears in asserted claims | and 9 of the 7117
`
`patent (and claims that depend therefrom), and asserted claim 11 of the ’767 patent.
`
`> The parties’ proposed constructions are taken from the October 8, 2021 Joint Status Report, Exhibit A.
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`As reflected in the proposed constructions, it is undisputed that “electrically lossy
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`material” involves materials that conduct, but with “loss” or “some loss,” over the frequency
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`range of interest. This understanding reflects descriptions in both the ’117 patent and the ’767
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`patent. See ’117 patent at col. 6:18-20 (“Materials that conduct, but with some loss, over the
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`frequency range of interest are referred to herein generally as ‘electrically lossy’ materials.”);
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`’767 patent at col. 11:31-33 (“Materials that conduct, but with some loss, over the frequency
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`range of interest are referred to herein generally as ‘lossy’ materials.”). It also reflects the ‘117
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`patent file history. See CIB at 6; id. Ex. D, at AMPH-000164 (‘117 File History, Reply to March
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`21, 2007 Office Action) (“An electrically lossy material is a material that conducts, but with
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`some loss, over a particular frequency range”).
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`The parties’ constructions further address the issue of what the “some loss” should be
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`compared to. The parties agree that the “electrical lossy materials” should be distinguished from
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`conductors and insulators. See CIB at 8; RIB at 5; ’117 patent at col. 5:17-20. Luxshare states
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`(and Amphenol does not appear to dispute) that both conductors and insulators may conduct with
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`“some loss.” RIB at 8; Blichasz Decl. ¶ 38.3 Thus, the parties’ proposed constructions both
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`specify that the “loss” or “some loss” indicates a comparison to conductors and insulators.4
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`The disputes between the parties concern certain proposed added language concerning
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`the conductors and insulators to which “electrically lossy material” is compared. Amphenol
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`proposes a comparison to “materials used as a conductor in an electrical connector” and
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`3 See Amphenol Presentation, Slide 25 (“[t]he question is not whether a particular material conducts with
`some loss in the abstract; rather, the relevant inquiry is whether a particular material constitutes
`‘electrically lossy material’ in the context of the claims”).
`4 See also CRB at 4 (“[T]he claims demonstrate that ‘electrically lossy material’ is material that ‘conducts
`more poorly than a conductor . . . but better than an insulator.’”).
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`“materials used as an insulator in an electrical connector.” Luxshare proposes a comparison to
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`“a conductor, such as metal.”
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`Amphenol’s proposed language properly indicates that the “conductors” and “insulators”
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`used for comparison should be viewed in the context of electrical connectors. See ’117 patent,
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`col. 1:6-9 (invention relates generally to “electrical interconnection systems”); ’767 patent, col.
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`1:25-27 (same). Luxshare appears to agree with this general principle. See Luxshare
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`Presentation, Slide 11 (“the parties have agreed that electrically lossy material excludes
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`conductors and insulators (in the context of connectors)”). However, Amphenol’s reference to
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`“materials used as conductor in an electrical connector” and “materials used as an insulator in an
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`electrical connector” introduces ambiguity. In particular, it leaves unclear which “electrical
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`connector” is referenced. Moreover, the evidence indicates that the terms “conductor” and
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`“insulator” have meaning to persons of skill in the art. See, e.g., Blichasz Decl. ¶ 30. These
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`meanings (within the context of electrical connection systems), rather than the characteristics of
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`an unidentified “electrical connector,” should inform the term “electrically lossy material.”
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`Luxshare’s proposed addition—“such as metal”— seeks a holding that “metal” cannot, as
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`a matter of law, be “electrically lossy material.” Luxshare correctly notes that the ‘117 patent’s
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`specification characterizes “metal” as “a conductive material,” and indicates that a “metal plate”
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`would be considered conductive. RIB at 5; ‘117 patent, col. 10:10-16. However, the
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`specifications of the ‘117 patent and the ‘767 patent also state that electrically lossy materials
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`can be “formed from materials that are generally thought of as conductors, but are either
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`relatively poor conductors over the frequency range of interest, contain particles or regions that
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`are sufficiently dispersed that they do not provide high conductivity or otherwise are prepared
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`with properties that lead to a relatively weak bulk conductivity over the frequency range of
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`interest.” ’117 patent, col. 6:38-46; ’767 patent col. 11:49-56. In light of this statement, and in
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`the absence of evidence regarding the circumstances under which metal may or may not be a
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`“relatively poor conductor over the frequency range of interest,” or “contain particles or regions
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`that are sufficiently dispersed that they do not provide high conductivity,” or “be prepared with
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`properties that lead to a relatively weak bulk conductivity over the frequency range of interest,”
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`it would be premature to hold that “metal” is never, under any circumstances, “electrically
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`lossy.”5
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`Luxshare further argues that its construction is necessary to save the claims from
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`indefiniteness by “captur[ing] the specification’s objective baseline: conventional metal
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`shielding materials.” RRB at 1-2. However, Luxshare’s proposed “such as” language does not
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`limit the “baseline” to metals, and thus does not resolve the indefiniteness issue it contends
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`exists. Moreover, as acknowledged by Luxshare, terms of degree are not inherently indefinite.
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`See id.; Sonix Tech. Co., Ltd. v. Publ’cs Intern’l, Ltd., 844 F.3d 1370, 1378