IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`v.
`
`2WIRE, INC.,
`
`Defendant.
`
`TQ DEL TA, LLC,
`
`Plaintiff,
`
`V.
`
`ZYXEL COMMUNICATIONS, INC
`and
`ZYXEL COMMUNICATIONS
`CORPORATION,
`
`Defendants.
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`v.
`
`ADTRAN, INC.,
`
`Defendant.
`
`Civil Action No. 1:13-cv-01835-RGA
`
`Civil Action No. 1:13-cv-02013-RGA
`
`Civil Action No. 1 :14-cv-00954-RGA
`
`I
`l
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`I
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`CommScope, Inc.
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`ADTRAN, INC.,
`
`Plaintiff,
`
`V.
`
`TQ DELTA, LLC,
`
`Defendant.
`
`Civil Action No. 1 :15-cv-00121-RGA
`
`[
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`I I
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`MEMORANDUM OPINION
`
`Brian E. Farnan, and Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews,
`Esq. (argued) and Rajendra A. Chiplunkar, MCANDREWS, HELD & MALLOY, (Chicago, IL).
`
`Attorneys for Plaintiff
`
`Colm F. Connolly and Jody Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE;
`Brett M. Schuman (argued), Rachel M. Walsh (argued), and David L. Simpson, GOODWIN
`PROCTOR LLP, San Francisco, CA.
`
`Attorneys for Defendant 2WIRE, Inc.
`
`Kenneth L. Dorsney, MORRIS JAMES LLP, Wilmington, DE.
`
`Attorney for Defendants Adtran Inc. and Zyxel Communications Inc.
`
`January)B , 2018
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`CommScope, Inc.
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`AN~~TRlC
`
`Presently before the Court is the issue of claim construction of multiple terms in U.S. Patent
`
`Nos. 7,570,686 ("the '686 patent"); 7,835,430 ("the '430 patent"); 7,889,784 ("the '784 patent");
`
`8,238,412 ("the '412 patent"); and 9,432,956 ("the '956 patent"). The Court has considered the
`
`Parties' Joint Claim Construction Brief. (Civ. Act. No. 13-01835-RGA, D.I. 342; Civ. Act. No.
`
`13-02013-RGA, D.I. 327; Civ. Act. No. 14-00954-RGA, D.I. 180; Civ. Act. No. 15-00121-RGA;
`
`D.I. 182). 1 The Court heard oral argument on September 5, 2017.
`
`(D.I. 357). The Court
`
`subsequently heard testimony from two technical experts and received supplemental submissions.
`
`I.
`
`BACKGROUND
`
`The patents-in-suit represent "Family 1" of the patents that Plaintiff has asserted against
`
`Defendants, and they all share a common specification. (D.I. 342 at 12 n.1). The Family 1 patents
`
`claim both an apparatus and method for the reliable exchange of diagnostic and test information
`
`over a multicarrier communications system.
`
`II.
`
`LEGALSTANDARD
`
`"It is a bedrock principle of patent law that the claims of a patent define the invention to
`
`which the patentee is entitled the right to exclude." Phillips v. AWH Corp., 415 F.3d 1303, 1312
`
`(Fed. Cir. 2005) (en bane) (citation omitted).
`
`'"[T]here is no magic formula or catechism for
`
`conducting claim construction.'
`
`Instead, the court is free to attach the appropriate weight to
`
`appropriate sources 'in light of the statutes and policies that inform patent law."' Soft View LLC v.
`
`Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324)
`
`(alteration in original). When construing patent claims, a court considers the literal language of
`
`the claim, the patent specification, and the prosecution history. Markman v. Westview Instruments,
`
`1 Unless otherwise specifically noted, all references to the docket refer to Civil Action No. 13-1835-RGA.
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`Inc., 52 F.3d 967, 979-80 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370 (1996). Of these sources,
`
`"the specification is always highly relevant to the claim construction analysis. Usually, it is
`
`dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d at
`
`1315.
`
`"[T]he words of a claim are generally given their ordinary and customary meaning ....
`
`[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
`
`1312-13. "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after
`
`reading the entire patent." Id. at 1321. "In some cases, the ordinary meaning of claim language
`
`as understood by a person of skill in the art may be readily apparent even to lay judges, and claim
`
`construction in such cases involves little more than the application of the widely accepted meaning
`
`of commonly understood words." Id. at 1314.
`
`When a court relies solely upon the intrinsic evidence-the patent claims, the specification,
`
`and the prosecution history-the court's construction is a determination oflaw. See Teva Pharms.
`
`USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). The court may also make factual findings
`
`based upon consideration of extrinsic evidence, which "consists of all evidence external to the
`
`patent and prosecution history, including expert and inventor testimony, dictionaries, and learned
`
`treatises." Phillips, 415 F .3d at 1317-19. Extrinsic evidence may assist the court in understanding
`
`the underlying technology, the meaning of terms to one skilled in the art, and how the invention
`
`works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than
`
`the patent and its prosecution history. Id.
`
`"A claim construction is persuasive, not because it follows a certain rule, but because it
`
`defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa 'per Azioni,
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`2
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`158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude
`
`the inventor's device is rarely the correct interpretation." Osram GMBH v. Int 'l Trade Comm 'n,
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`505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).
`
`III. CONSTRUCTION OF DISPUTED TERMS
`
`The asserted patents claim both an apparatus and a method for the reliable exchange of
`
`diagnostic and test information over a multicarrier communications system. Plaintiff asserts claim
`
`5 of the '686 patent, claims 1 and 2 of the '430 patent, claims 1 and 2 of the '784 patent, claims 1-
`
`4 of the '412 patent, and claims 1-4 of the '956 patent. (D.I. 342 at 28-32). Claim 5 of the '686
`
`patent is representative and reads as follows:
`
`5. A diagnostic system capable of communicating diagnostic information over a
`communication channel using multicarrier modulation comprising:
`
`a transceiver capable of transmitting or receiving an initiate diagnostic
`mode message; and
`
`in
`a message determination module capable of determining and,
`cooperation with the transceiver, transmitting a diagnostic message from
`the transceiver, wherein the diagnostic message. comprises a plurality of
`the diagnostic
`information about
`data variables
`representing
`the
`communication channel and each bit in the diagnostic message is mapped
`to at least one DMT signal, and wherein one variable comprises an array
`representing frequency domain received idle channel noise information.
`
`('686 patent, claim 5) (disputed terms italicized).
`
`3
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`1.
`
`"transceiver"
`
`a.
`
`b.
`
`c.
`
`Plaintiff's proposed construction: "communications device capable of
`transmitting and receiving data wherein the transmitter portion and receiver
`portion share at least some common circuitry"
`
`Defendants' proposed construction: "communications device capable of
`transmitting and receiving data"
`
`Court's construction: "communications device capable of transmitting and
`receiving data wherein the transmitter portion and receiver portion share at least
`some common circuitry"
`
`This term appears in all five of the asserted patents. The parties agree that a transceiver is
`
`a communications device that can transmit and receive data. They also agree that transceiver
`
`should be given its plain and ordinary meaning, but dispute whether the plain and ordinary meaning
`
`requires that the transceiver's transmitter and receiver portions share common circuitry. (D.I. 342
`
`at 35). The specification does not provide an explicit definition of transceiver.
`
`Plaintiff offers two dictionary definitions as extrinsic evidence that a person of ordinary
`
`skill ("POSA") would understand that a transceiver's transmitter and receiver portions share
`
`common circuitry. (Id. at 34). Both definitions include a limitation that a transceiver's transmitter
`
`and receiver share common circuitry. (D.1. 343 at A53, A57). Defendants criticize Plaintiffs
`
`proposed construction as "an extraneous, irrelevant constraint" that improperly imports a
`
`limitation and relies "wholly on evidence extrinsic to the asserted patents." (D.I. 342 at 35, 36,
`
`41).
`
`Evaluating the intrinsic evidence in light of the dictionary definitions provided suggests
`
`that a POSA would understand the transmitter and receiver portions to share common circuitry or
`
`components. Phillips, 415 F .3d at 1318 ("Because dictionaries, and especially technical
`
`dictionaries, endeavor to collect the accepted meanings of terms used in various fields of science
`
`and technology, those resources have been properly recognized as among the many tools that can
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`assist the court in determining the meaning of particular terminology to those of skill in the art of
`
`the invention."). Therefore, I will construe transceiver to mean "a communications device capable
`
`of transmitting and receiving data wherein the transmitter portion and receiver portion share at
`
`least some common circuitry."
`
`2.
`
`"diagnostic information"
`
`a.
`
`b.
`
`c.
`
`Plaintiff's proposed construction: "information relating to a characteristic of a
`communication channel collected and communicated in a diagnostic mode"
`
`Defendants' proposed construction: "information relating to a characteristic of a
`communication channel or the communications equipment operating on that
`channel"
`
`Court's construction: "information relating to a characteristic of a communication
`channel or the communications equipment operating on that channel"
`
`This term appears in the asserted claims of the '686 and '956 patents. The parties agree
`
`that diagnostic information may include both information relating to a characteristic of a
`
`communication channel and information relating to a characteristic of the communications
`
`equipment operating on that channel. (D.I. 357 at 26:17-27:11). The parties dispute whether
`
`diagnostic information is limited to information "collected and communicated in a diagnostic
`
`mode." (D.I. 342 at 55).
`
`Defendants argue that Plaintiff attempts to import a limitation from the specification to
`
`restrict the claim language to a single embodiment. (Id. at 44). Plaintiff asserts that the claims
`
`reciting diagnostic information "are directed to the embodiment where information relating to the
`
`communication channel is collected and communicated while in the diagnostic mode." (Id. at 43).
`
`As support, Plaintiff offers only its expert's unsupported declaration. (Id.). This alone is not
`
`sufficient to support Plaintiffs proposed construction.
`
`5
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`Plaintiff also argues that "claim differentiation counsels against adopting" Defendants'
`
`proposed construction and points out that "the only difference between independent claim 1 of the
`
`'956 patent and independent claim 1 of the '412 patent is that one recites 'diagnostic information'
`
`and the other recites 'test information."' (Id. at 41-42). As the Federal Circuit has recognized,
`
`however, "two claims with different terminology can define the exact same subject matter."
`
`Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006); see also
`
`Hormone Research Found. v. Genentech, Inc., 904 F.2d 1558, 1567 n.15 (Fed. Cir. 1990) ("It is
`
`not unusual that separate claims may define the invention using different terminology, especially
`
`where (as here) independent claims are involved."). As Defendants point out, the specification
`
`recites "test information" alongside "diagnostic mode" the majority of the time, including in
`
`sections of the patent that describe the invention as a whole, such as the Summary of Invention.
`
`(D.1. 342 at 57-58). The Federal Circuit has recognized that claim differentiation can be overridden
`
`by a contrary suggestion in the specification. Atlas IP, LLC v. Medtronic, Inc., 809 F.3d 599, 607
`
`(Fed. Cir. 2015). Here, the Family 1 specification discloses that diagnostic information may be
`
`collected and transmitted in the normal steady state communications mode. ('686 patent at 1 :22-
`
`32; 2:21-26).
`
`Defendants also contend that Plaintiffs construction is incorrect because adopting
`
`Plaintiff's proposed construction would render superfluous language in unasserted independent
`
`claim 40 of the '686 patent. (D.I. 357 at 44:23-46:2). If the transmission of diagnostic information
`
`were limited to a diagnostic mode, the limitation in claim 40 that a diagnostic message be
`
`"transmit[ ed] during a diagnostic mode" would have no meaning. (Id.).
`
`I agree with Defendants. Under Plaintiffs construction, the diagnostic mode limitation in
`
`independent claim 40 of the '686 patent would be superfluous, and that limitation would have no
`
`6
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`effect. See Curtiss-Wright, 438 F.3d at 1380-81. Nothing in claim 5 of the '686 patent or in any
`
`of the asserted claims of the '956 patent limits those claims to a diagnostic mode. (See '686 patent
`
`at 9:3-17; '956 patent at 8:47-9:7). Nor does the language in the specification support limiting
`
`diagnostic information to. information collected in a diagnostic mode. Therefore, the intrinsic
`
`evidence does not support Plaintiffs proposed limitation and I will adopt Defendants'
`
`construction.
`
`3.
`
`"array representing frequency domain received idle channel noise information"
`
`a.
`
`b.
`
`c.
`
`Plaintiff's proposed construction: "ordered set of values representative of noise in
`the frequency domain that was received by a transceiver on respective
`subchannels in the absence of a transmission signal on the respective
`subchannels"
`
`Defendants' proposed construction: "ordered set of values representative of noise
`in the frequency domain that was received by a transceiver on respective
`subchannels in the absence of a transmission signal"
`
`Court's construction: "ordered set of values representative of noise in the
`frequency domain that was received by a transceiver on respective subchannels in
`the absence of a transmission signal on the received channel"
`
`The parties do not dispute the claim term requires that the subchannel on which the noise
`
`is measured be idle. (D.I. 342 at 60-61). They also agree that detected noise "includes noise
`
`created by crosstalk from transmission signals [from] other channels in the vicinity of the
`
`subchannels being measured," and would include "noise from signals on other lines." (Id). The
`
`parties dispute how many of the surrounding subchannels must be idle.
`
`Defendants argue that all of the subchannels within the channel of which the measurement
`
`subchannel is a part must be idle. (Id at 66). They assert that their proposed construction is
`
`consistent with the claim language reciting '"idle channel noise information,' and not 'idle
`
`subchannel noise information,"' and that Plaintiffs construction is not supported by any intrinsic
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`evidence. (Id. at 62). Defendants further contend that Dr. Chrissan's prior IPR testimony for the
`
`'430 patent that "the transmitter is off" when a channel is idle is inconsistent with Plaintiffs
`
`proposed construction. (Id. at 61 ). If "the transmitter is off' when a channel is idle, then no
`
`transmission signal should be detected on the measured channel. (Chrissan IPR Testimony, DJ.
`
`343 at A205, 133:12-134:7). Therefore, Plaintiff's proposed construction is incorrect because it
`
`"would permit an interpretation that despite the transmitter being 'off' (and therefore not
`
`transmitting), a transmission signal could be received on some subchannels, but be absent for
`
`other[]" subchannels within the measured channel. (DJ. 342 at 61).
`
`Plaintiff argues that only the subchannel on which noise is being measured need be idle;
`
`other subchannels within the same channel as the measurement subchannel may be transmitting
`
`data during the measurement period. (Id. at 63). When the parties briefed this term, Plaintiff's
`
`stated concern with Defendants' proposed construction was "that it might be understood to require
`
`the absence of transmission signals on channels adjacent to the channel being measured, including
`
`the example sources of idle channel noise discussed in the intrinsic evidence--'adjacent phone
`
`lines, such as, for example, ADSL, HDSL, ISDN, Tl, or the like."' (Id. at 62-63). To support its
`
`construction, Plaintiff cites the Family 1 specification's mention of"other data services on adjacent
`
`phone lines," such as "voice communications" when discussing noise or disturbances. (Id. at 60
`
`(citing '686 patent at 1:44-45)). The cited portion of the patent does not mention subchannels or
`
`otherwise suggest that these "other services" would be transmitting data on the channel on which
`
`noise is measured. None of Plaintiff's Family 1 specification citations referring explicitly to
`
`subchannels appear in the context of a discussion of noise or data disturbances. (See id. at 63-64
`
`(citing '686 patent at 2:5-12; 4:66-5:2)). Plaintiff relies solely on its expert's unsupported
`
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`declaration for the proposition that multicarrier communication and voice communication use
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`separate subchannels, but not separate channels, on the same line. (Id. at 64-65).
`
`I agree with Defendants that Plaintiffs proposed construction imposes a limitation that is
`
`not present in the claim language. As Plaintiff points out, however, Defendants' proposed
`
`construction allows the interpretation that there is no transmission signal on channels adjacent to
`
`the channel being measured. Therefore, I decline to adopt either party's proposed construction
`
`and instead will construe this term to mean "ordered set of values representative of noise in the
`
`frequency domain that was received by a transceiver on respective subchannels in the absence of
`
`a transmission signal on the received channel."
`
`4.
`
`"DMT signal"
`
`a.
`
`b.
`
`c.
`
`Plaintiff's proposed construction: "signal resulting from DMT modulation where
`the signal has the duration of a DMT symbol period"
`
`Defendants' proposed construction: "signal resulting from DMT modulation"
`
`Court ·s construction: "signal resulting from DMT modulation"
`
`The term "DMT signal" appears only once in the '686 patent, in asserted claim 5. After
`
`oral argument on claim construction, the Court held a supplemental hearing during which
`
`Plaintiffs expert, Dr. Chrissan, and Defendants' expert, Dr. Jacobsen, offered testimony on the
`
`construction of this term. (D.I. 431 ). The parties agree that a "DMT signal" results from DMT
`
`modulation but dispute whether a "DMT signal" is limited to "the duration of a DMT symbol
`
`period." (D.I. 342 at 78-79). They also agree that a DMT symbol has the duration of a DMT
`
`symbol period. (D.I. 431 at 16:1-2; see id. at 87:10-11). The parties do not dispute that a POSA
`
`would have consulted the contemporaneous ADSL standard, mentioned in the specification's
`
`discussion of one bit per DMT symbol modulation, to determine the meaning of "DMT signal" in
`
`the context of the Family 1 patents. (D.I. 342 at 81, 84, 87; '686 patent at 3:44-67).
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`The essence of Defendants' argument is that Plaintiffs proposed construction finds no
`
`support in the intrinsic evidence, and further, that it does not comport with a POSA' s understanding
`
`of the term "DMT signal" at the relevant time. Defendants argue that Plaintiffs sole basis for its
`
`proposed construction adding the "DMT symbol period" limitation "rests on an assertion found
`
`only in Dr. Chrissan's declaration." (D.I. 342 at 76). Defendants also maintain that Plaintiffs
`
`proposed construction of "DMT signal" improperly equates the term with "DMT symbol." (Id. at
`
`77). Plaintiffs proposed construction cannot be correct, Defendants contend, because "six other
`
`independent claims in the '686 patent (claims 1, 9, 13, 17, 40, and 41) recite [the "DMT symbol"]
`
`limitation," and independent claim terms are presumed to have different meanings and scope when
`
`different words or phrases are used in the claims. (Id. (citing Seachange Int'!, Inc. v. C-COR, Inc.,
`
`413 F.3d 1361, 1368-69 (Fed. Cir. 2005))). Finally, Defendants argue that Plaintiffs proposed
`
`construction is inconsistent with the ADSL standard mentioned in the specification. (Id. at 81 ).
`
`Plaintiff contends that Defendants' proposed "construction of 'DMT signal' is vague in
`
`that it does not define the period of the signal that is used to communicate only a single bit." (Id.
`
`at 78). Plaintiff argues that when the ADSL standard states that the REVERB 1 signal "is
`
`transmitted consecutively for 4096 symbols," it "means that the REVERBl signal having a
`
`duration of one symbol period is transmitted consecutively (i.e., one after another repeatedly
`
`without interruption) for 4096 DMT symbol periods during the R-REVERB-1 initialization state,
`
`not that the REVERBl signal itself has a duration of 4096 symbol periods." (Id. at 84-85).
`
`Plaintiff cites only one unsupported paragraph in its expert's declaration as evidence for this
`
`proposition.
`
`(Id. at 85). Plaintiff provides no intrinsic evidence to support its proposed
`
`construction.
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`I agree with Defendants. During the supplemental hearing, both parties' experts offered
`
`testimony regarding how a POSA would have understood the term "DMT signal" in the context
`
`of the Family 1 patents at the relevant time. While Dr. Jacobsen's testimony reconciles the
`
`specification with the ADSL standard referenced in the patent, Dr. Chrissan's testimony is
`
`inconsistent with the ADSL standard.
`
`Dr. Jacobsen testified that as of the priority date, a POSA would have understood the term
`
`"DMT signal" to refer the transmission signal resulting from DMT modulation, that is, "the
`
`continuous analog signal that emerges from the digital to analog converter" and "is launched onto
`
`the twisted pair." (D.I. 431 at 79:16-19, 87:23-25). As support, Dr. Jacobsen offered additional
`
`pieces of extrinsic evidence, from her dissertation and a book chapter titled "Fundamentals of
`
`Multicarrier Modulation," that use the term "DMT signal" in a manner consistent with Defendants'
`
`proposed construction. (See id. at 79:24-86:12). According to Dr. Jacobsen, "A DMT signal is
`
`not limited to one symbol period." (Id. at 88:15-16). The relevant ADSL standard supports this
`
`notion, disclosing that, "The description of a signal will consist of three parts . . . . The second is
`
`a statement of the required duration, expressed in DMT symbol periods, of the signal." (D.I. 343
`
`at A150).
`
`Dr. Chrissan disagrees. The '686 patent characterizes the C-RATESl messaging scheme
`
`in the relevant ADSL standard as an exemplary embodiment of "one bit per DTM [sic] symbol
`
`modulation," and, in the following paragraph, discloses that, "In the one bit per DMT symbol
`
`modulation message encoding scheme, a bit with value 0 is mapped to the REVERB 1 signal and
`
`a bit with a value of 1 mapped to a SEGUEl signal." ('686 patent at 3:46-57). According to Dr.
`
`Chrissan, the REVERBl and SEGUE! signals disclosed in this embodiment are DMT signals that
`
`are one symbol in length. (D.1. 431at18:14-16, 24:5-6, 25:14-16). Dr. Chrissan argues that if the
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`REVERBl and SEGUE! signals disclosed in the patent were longer than one symbol in length,
`
`they would not embody "the one bit per DMT symbol modulation message encoding scheme" as
`
`described in the patent and would represent an internal inconsistency in the specification.
`
`Under Dr. Chrissan's understanding of "DMT signal," however, the patent's "one bit per
`
`DMT symbol modulation" disclosure is inconsistent with the ADSL standard to which the patent
`
`refers. Though Dr. Chrissan's interpretation limits the REVERBl and SEGUE I signals disclosed
`
`in the patent to one symbol period, the ADSL standard defines each of the durations of the
`
`REVERBl and SEGUE I signals as being longer than one symbol period.2 If a "DMT signal" is
`
`limited to one symbol period in duration as Plaintiff proposes, then the ADSL standard makes
`
`clear that C-REVERBl (512 symbols, resulting in a 512 symbol period duration), R-REVERBl
`
`(4096 symbols, 4096 symbol period duration), and C-SEGUEl (10 symbol periods) are each too
`
`long to qualify as a "DMT signal." (D.I. 343 at Al55-A158). Nor would the C-RATESl message
`
`(992 symbols, 992 symbol periods), discussed in the same section of the patent, qualify as a "DMT
`
`signal." ('686 patent at 3:44-67; D.I. 343 at A159).
`
`The ADSL standard is consistent with the patent's disclosure that the C-RATESl
`
`messaging scheme represents a "one bit per DTM [sic] symbol modulation." ('686 patent at 3:44-
`
`53; D.I. 343 at Al59 ("Only one bit of information is transmitted in each symbol ofC-RATESl ")).
`
`Contrary to Dr. Chrissan's assertion that the REVERBl and SEGUE I DMT signals are one symbol
`
`in length, Dr. Jacobsen explained that the ADSL standard confirms that "there is no REVERB 1
`
`signal in the C-RATES messaging scheme. There's a C-RATES signal that is made from the first
`
`2 Neither party cites any portion of the ADSL standard that refers to a "REVERB 1" signal or a "SEGUE 1" signal
`without a prefix. The parties do not appear to dispute the identity of the relevant REVERBl and SEGUEl signals,
`which are those involved in the C-RATESl messaging scheme disclosed in the specification: R-REVERBl,
`C-REVERBl, and C-SEGUEI. ('686 patent at 3:44-67; D.I. 343 at Al59). As Dr. Jacobsen explained, in the ADSL
`standard, REVERBl signals are preceded by either "C-" or "R-" depending on which transceiver is generating the
`signal, and they differ in duration. (D.I. 431 at 88: 18-89:8).
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`DMT symbol of either [the] REVERB 1 [signal] or SEGUEl [signal], depending on whether it's a
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`one [bit] or a zero [bit]." (D.I. 431 at 97:22-98:25 ("The standard specifically states that it's one
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`symbol of this otherwise larger signal."); D.I. 343 at Al 59 ("Only one bit of information is
`
`transmitted in each symbol of C-RATESl: a zero bit is encoded to one symbol of C-REVERBl
`
`and a one bit is encoded to one symbol of C-SEGUEl. Since there are a total of 992 bits of C(cid:173)
`
`RATESl information, the duration of C-RATESl is 992 symbols.")). The patentee's choice to
`
`discuss the "RE VERB 1 signal" and the "SEGUE 1 signal" in the context of "the one bit per symbol
`
`DMT modulation message encoding scheme" thus may have been a matter of imprudent shorthand
`
`or sloppy drafting. It is a portion of a "REVERB 1 signal" or "SEGUE 1 signal" that corresponds
`
`to one symbol period in duration; the entire signals themselves are not used in "one bit per DMT
`
`symbol modulation message encoding scheme." (See D.I. 431 at 97:22-98:25; D.I. 343 at A159
`
`(discussing the C-RATESl one bit per symbol modulation scheme)).
`
`Plaintiffs proposed construction, supported only by Dr. Chrissan's testimony, is
`
`contradicted by the ADSL standard and Dr. Jacobsen's testimony. (D.I. 431 at 25:14-16). During
`
`the supplemental hearing, I also found Dr. Jacobsen to be a more credible witness than Dr.
`
`Chrissan. (Id. at 110: 13-111 :6). Therefore, I construe "DMT signal" to mean "signal resulting
`
`from DMT modulation."
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`5.
`
`"each bit in the diagnostic message is mapped to at least one DMT signal"
`
`a.
`
`b.
`
`c.
`
`Plaintiff's proposed construction: "each bit in the diagnostic message is
`communicated using a modulation scheme where a DMT signal (or two or more
`DMT signals) represents only a single bit of the diagnostic message"
`
`Defendants' proposed construction: "indefinite"
`
`Court's construction: "each bit in the diagnostic message is mapped to either
`(1) one signal resulting from DMT modulation or (2) more than one signal
`resulting from DMT modulation"
`
`This term appears in asserted claim 5 of the '686 patent. Its construction turns in part on
`
`the construction for "DMT signal."
`
`Plaintiff argues that Defendants have conceded that this claim language is not indefinite
`
`because Defendants argued in their§ 101 motion that the claims of the Family 1 patents are invalid
`
`because the "specification establishes that [the claimed mapping] are standard features of the
`
`communication system that form the backdrop for the claimed invention." (D.1. 342 at 67-68
`
`(alteration in original)). Defendants counter that Plaintiff "misrepresents 2Wire's arguments in
`
`the Alice motion." (Id. at 76). Plaintiffs argument ignores Defendant 2Wire's statement on the
`
`same page of the briefing accompanying its§ 101 motion that, "For purposes of this motion only,
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`2Wire adopts TQ Delta's interpretation of [claim 5 of the '686 patent]." (D.I. 259 at 12 n.6).
`
`Whereas 2Wire made its § 101 motion arguments under Plaintiffs proposed construction of "DMT
`
`signal," Defendants advance their indefiniteness arguments for this term under Defendants'
`
`proposed construction for "DMT signal." Thus, I find that Defendants have not conceded that this
`
`term is not indefinite on the basis of2Wire's § 101 motion.
`
`Plaintiffs proposed construction for this term presupposes the Court's adoption of its
`
`proposed construction for "DMT signal," and it depends on the argument that the "REVERBl
`
`signal" and "SEGUEl signal" disclosed in the patent specification are "DMT signals." This
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`argument relies entirely on Dr. Chrissan's unsupported declaration. (See, e.g., D.I. 342 at 69-71).
`
`I have declined to credit Dr. Chrissan' s declaration and testimony with respect to the term "DMT
`
`signal," because both are inconsistent with the relevant ADSL standard and Dr. Jacobsen's
`
`testimony. Therefore, I decline to adopt Plaintiff's proposed construction.
`
`Plaintiff further urges that even under Defendants' construction of"DMT signal," this term
`
`is not indefinite, because "the scope of the claim is still known with reasonable certainty, even if
`
`the scope of the claim would then include an impractical embodiment." (Id. at 75). Defendants
`
`disagree and argue that claim 5 of the '686 patent is indefinite if their construction for "DMT
`
`signal" is adopted. (Id. at 71). According to Defendants, "[a] person of ordinary skill in the art
`
`would not understand how a bit in a message could be mapped to more than one DMT signal
`
`because there is only one DMT signal-the transmission signal-with which a transceiver could
`
`transmit a message." (Id.). Defendants argue that because all embodiments in which a bit is
`
`mapped to more than one DMT signal would be impossible, rather than merely impractical, the
`
`"claim scope [is] uncertain and the term indefinite." (Id. at 75). Regardless, Defendants maintain
`
`that, "To the extent that each bit in the diagnostic message is mapped to only one DMT signal, the
`
`term is simply non-limiting." (Id. at 72).
`
`Defendants acknowledge, however, that, "A person of ordinary skill in the art certainly
`
`would understand that each bit must be mapped to one DMT signal (i.e., the transmission signal),
`
`otherwise it would never be transmitted." (Id. at 72). Dr. Chrissan testified that although "bit
`
`mapping" in the strictest sense happens in the QAM encoder, "in the general sense one understands
`
`that bits are maps of the signal. Otherwise, they wouldn't get to the other side." (D.I. 431at50:21-
`
`51 :21 ). During the supplemental hearing, Dr. Jacobsen did not directly dispute Dr. Chrissan' s
`
`testimony about bit mapping in the general sense. Although she testified that the POSA "would
`
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`not have referred to mapping bits to signals" she also testified that the phrase "each bit of the
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`diagnostic message is mapped to at least one DMT signal" must be true, because