IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`V.
`
`2WIRE, INC.,
`
`Defendant.
`
`Civil Action No. 1 :13-cv-01835-RGA
`
`MEMORANDUM OPINION
`
`Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE; Peter J. McAndrews,
`Timothy J. Malloy, Thomas J. Wimbiscus, James P. Murphy, Paul W. McAndrews, Rajendra
`Chiplunkar, and Anna M. Targowska, MCANDREWS, HELD & MALLOY, LTD., Chicago, IL.
`
`Attorneys for Plaintiff.
`
`Jody C. Barillare, MORGAN LEWIS & BOCKJUS LLP, Wilmington, DE; Brett Schuman,
`Rachel M. Walsh, and Monte M.F. Cooper, GOODWIN PROCTER LLP, San Francisco, CA.
`
`Attorneys for Defendant.
`
`April~
`
`2019
`
`1
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`CommScope, Inc.
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`Presently before me are the Parties' Family 3 summary judgment motions: Defendant' s
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`Motion for Summary Judgment of Non-Infringement of the Asserted Claims (D.I. 752 (briefing
`
`at D.I. 754, 893 , 961)); Plaintiffs Motion for Summary Judgment of No Invalidity of Family 3
`
`Patent Claims under 35 U.S .C. § 112 (D.I. 765 (briefing at D.I. 766, 873 , 957)); Defendant' s
`
`Motion for Summary Judgment oflnvalidity of Family 3 Patents (D.I. 773 (briefing at D.I. 774,
`
`892, 963)); Plaintiffs Motion for Summary Judgment of No Invalidity of Family 3 Patent
`
`Claims Under 35 U.S.C. § 103 (D.I. 777 (briefing at D.I. 778, 879, 972)); and Plaintiffs Motion
`
`for Summary Judgment oflnfringement of Claim 19 of U.S. Patent No. 8,495 ,473 (D.I. 790
`
`(briefing at D.I. 791 , 880, 973)). The Parties' Family 3 Daubert motions and motions to strike
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`are also before me: Defendant' s Motion to Strike the Untimely Supplemental Expert Reports of
`
`Jonathan Putnam Ph.D. and Reply Report of Dr. Kevin Almeroth (D.I. 737 (briefing at D.I. 738,
`
`862, 913)); Defendant's Motion to Preclude the Expert Testimony of Dr. Todor Cooklev for
`
`Family 3 (D.I. 760 (briefing at D.I. 763 , 890, 960)); Plaintiffs Motion to Preclude Certain
`
`Opinions of Dr. Krista S. Jacobsen For Family 3 Patents (D.I. 779 (briefing at D.I. 780, 874,
`
`952)); Defendant's Motion to Preclude the Testimony and Expert Report of Peter Heller Ph.D.
`
`on VDSL2 Chip Design (D.I. 785 (briefing at D.I. 786, 886, 964)); and Plaintiffs Motion in the
`
`Alternative, for Leave to Serve Attachment M to The Reply Report of Dr. Kevin Almeroth (D.I.
`
`860 (briefing at D.I. 991)). After consideration of the briefing, the motions are resolved as
`
`follows.
`
`I.
`
`B ACKGROUND
`
`Plaintiff filed suit on November 4, 2013 , alleging that Defendant' s DSL customer
`
`premise equipment infringes several of its patents. (D.I. 1 ). I split the case into separate trials
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`based on the patent families of the asserted patents. (D.I. 280). Fact discovery closed on
`
`2
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`October 1, 2018 . (D.I. 513). Expert discovery for Family 3 closed on February 8, 2019. (Id.).
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`Trial for Family 3 is scheduled for May 20, 2019. (Id.).
`
`The remaining Family 3 patents are U.S. Patent Nos. 7,836,381 ("'381 Patent"),
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`7,844,882 ('" 882 Patent"), 8,276,048 ("' 048 Patent"), and 8,495,473 ("'473 Patent"). 1 They
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`relate "to memory sharing in communication systems." ('381 Patent at 1:18-19). The Patents
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`share a common specification and have the same drawings. They claim the benefit of an October
`
`12, 2004 provisional patent application, U.S. Provisional Application No. 60/618,269. The
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`asserted claims of the '381 and ' 882 Patents were altered post-issuance via certificates of
`
`correction.
`
`Plaintiff asserts one claim from each of the four patents-in-suit. It asserts claim 5 of the
`
`'381 Patent:
`
`A non-transitory computer-readable information storage media having stored
`thereon instructions, that if executed by a processor, cause to be performed a
`method for allocating shared memory in a transceiver comprising:
`
`transmitting or receiving, by the transceiver, a message durii:i.g initialization
`specifying a maximum number of bytes of memory that are available to be
`allocated to a deinterleaver;
`
`determining, at the transceiver, an amount of memory required by the
`deinterleaver to deinterleave a first plurality of Reed Solomon (RS) coded
`data bytes within a shared memory;
`
`allocating, in the transceiver, a first number of bytes of the shared memory
`to the deinterleaver to deinterleave a fust plurality of Reed Solomon (RS)
`coded data bytes for transmission [reception] at a fust data rate, wherein the
`allocated memory for the deinterleaver does not exceed the maximum
`number of bytes specified in the message;
`
`allocating, in the transceiver, a second number of bytes of the shared
`memory to an interleaver to interleave a second plurality of RS coded data
`bytes received [transmitted] at a second data rate; and
`
`deinterleaving the first plurality of RS coded data bytes within the shared
`memory allocated to the deinterleaver and interleaving the second plurality
`of RS coded data bytes within the slHea [ shared] memory allocated to the
`
`1 U.S. Patent Nos. 7,831,890 and 8,607,126 are no longer asserted.
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`3
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`interleaver, wherein the shared memory allocated to the deinterleaver is
`used at the same time as the shared memory allocated to the interleaver.
`
`('381 Patent, claim 5 (original language struck; corrected language in brackets)).
`
`Plaintiff asserts claim 13 of the ' 882 Patent:
`
`A system that allocates shared memory comprising:
`a transceiver that performs:
`
`transmitting or receiving a message during initialization specifying
`a maximum number of bytes of memory that are available to be
`allocated to a deinterleaver;
`determining an amount of memory required by the deinterleaver to
`deinterleave a first plurality of Reed Solomon (RS) coded data bytes
`within a shared memory;
`allocating a first number of bytes of the shared memory to the
`deinterleaver to deinterleave a first plurality of Reed Solomon (RS)
`coded data bytes for transmission [reception] at a first data rate,
`wherein the allocated memory for the deinterleaver does not exceed
`the maximum number of bytes specified in the message;
`
`allocating a second number of bytes of the shared memory to an
`interleaver to interleave a second plurality of RS coded data bytes
`received [transmitted] at a second data rate; and
`deinterleaving the first plurality of RS coded data bytes within the
`shared memory allocated to the deinterleaver and interleaving the
`second plurality of RS coded data bytes within the SflreEl [shared]
`memory allocated to the interleaver, wherein the shared memory
`allocated to the deinterleaver is used at the same time as the shared
`memory allocated to the interleaver.
`
`('882 Patent, claim 13 (original language struck; corrected language in brackets)).
`
`Plaintiff asserts claim 1 of the '048 Patent:
`
`A system that allocates shared memory comprising:
`
`a transceiver that is capable of:
`transmitting or receiving a message during initialization specifying
`a maximum number of bytes of memory that are available to be
`allocated to an interleaver;
`determining an amount of memory required by the interleaver to
`interleave a first plurality of Reed Solomon (RS) coded data bytes
`within the shared memory;
`
`4
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`allocating a first number of bytes of the shared memory to the
`interleaver to interleave the first plurality of Reed Solomon (RS)
`coded data bytes for transmission at a first data rate, wherein the
`allocated memory for the interleaver does not exceed the maximum
`number of bytes specified in the message;
`
`allocating a second number of bytes of the shared memory to a
`deinterleaver to deinterleave a second plurality of RS coded data
`bytes received at a second data rate; and
`
`interleaving the fust plurality of RS coded data bytes within the
`shared memory allocated to the interleaver and deinterleaving the
`second plurality of RS coded data bytes within the shared memory
`allocated to the deinterleaver, wherein the shared memory allocated
`to the interleaver is used at the same time as the shared memory
`allocated to the deinterleaver.
`
`('048 Patent, claim 1).
`
`And Plaintiff asserts claim 19 of the '4 73 Patent:
`
`An apparatus comprising:
`
`a multicarrier communications transceiver that is configured to perform an
`interleaving function associated with a first latency path and perform a
`deinterleaving function associated with a second latency path, the multicarrier
`communications transceiver being associated with a memory,
`
`wherein the memory is allocated between the interleaving function and the
`deinterleaving function in accordance with a message received during an
`initialization of the transceiver and wherein at least a portion of the memory
`may be allocated to the interleaving function or the deinterleaving function at
`any one particular time depending on the message.
`
`('473 Patent, claim 19).
`
`I previously construed disputed terms of the asserted patents. (D.I. 454). The Parties
`
`have identified certain construed terms that bear most heavily on the pending motions:
`
`"shared memory" - "common memory used by at least two functions, where a
`portion of the memory can be used by either one of the functions"
`
`"the shared memory allocated to the [ deinterleaver/interleaver] is used at the same
`time as the shared memory allocated to the [interleaver/deinterleaver]" - "the
`deinterleaver reads from, writes to, or holds information for deinterleaving in its
`respective allocation of the shared memory at the same time as the interleaver reads
`
`5
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`from, writes to, or holds information for interleaving in its respective allocation of
`the shared memory"
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`"latency path" - "transmit or receive path, wherein each path has a distinct, but not
`necessarily different, latency or delay"
`
`"wherein at least a portion of the memory may be allocated to the [first]
`interleaving function or the [second interleaving/deinterleaving] function at any
`one particular time depending on the message" - plain meaning
`
`"portion of memory" - plain meaning
`
`"memory is allocated between the [first] interleaving function and the [second
`interleaving/deinterleaving] function" - "an amount of the memory is allocated to
`the [first] interleaving function and an amount of memory is allocated to the [second
`interleaving/deinterleaving] function"
`
`(D.I. 454 at 2).
`
`II.
`
`LEGAL ST AND ARDS
`
`A. Summary Judgm ent
`
`"The court shall grant summary judgment if the movant shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
`
`R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
`
`disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 4 77 U.S. 317,
`
`330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
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`dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
`
`to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
`
`2011) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,248 (1986)). The burden on the
`
`moving party may be discharged by pointing out to the district court that there is an absence of
`
`evidence supporting the non-moving party' s case. Celotex, 477 U.S. at 323.
`
`The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
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`for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
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`6
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`Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving
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`party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
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`particular parts of materials in the record, including depositions, documents, electronically stored
`
`information, affidavits or declarations, stipulations .. . , admissions, interrogatory answers, or
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`other materials; or (B) showing that the materials cited [by the opposing party] do not establish
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`the absence ... of a genuine dispute ... . " Fed. R. Civ. P. 56(c)(l).
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`When determining whether a genuine issue of material fact exists, the court must view
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`the evidence in the light most favorable to the non-moving party and draw all reasonable
`
`inferences in that party's favor. Scott v. Harris , 550 U.S. 372, 380 (2007); Wishkin v. Potter,
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`476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a
`
`reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
`
`If the non-moving party fails to make a sufficient showing on an essential element of its case
`
`with respect to which it has the burden of proof, the moving party is entitled to judgment as a
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`matter of law. See Celotex Corp. , 477 U.S. at 322.
`
`B. Obviousness
`
`The presumption that all patents are valid is the starting point for any obviousness
`
`determination. 35 U.S.C. § 282. A patent claim is invalid as obvious under 35 U.S.C. § 103 if
`
`the novel aspect of the claimed invention "would have been obvious .. . to a person having
`
`ordinary skill in the art .... " Id.§ 103(a); see also KSR Int '! Co. v. Teleflex Inc., 550 U.S. 398,
`
`406-07 (2007).
`
`Obviousness is a question of law that depends on the following factual inquiries: (1) the
`
`scope and content of the prior art; (2) the differences between the claims and the prior art; (3) the
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`level of ordinary skill in the relevant art; and (4) any objective indicia of nonobviousness. See
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`7
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`KSR, 550 U.S. at 406; see also Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling
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`USA, Inc., 699 F.3d 1340, 1347 (Fed. Cir. 2012).
`
`To prove obviousness, a party must show that a skilled artisan would have been
`
`motivated to combine the prior art teachings to create the claimed method with a reasonable
`
`expectation of success. See Allergan, Inc. v. Sandoz Inc. , 726 F.3d 1286, 1291 (Fed. Cir. 2013).
`
`The improvement over prior art must be "more than the predictable use of prior art elements
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`according to their established functions. " KSR, 550 U.S. at 417. Evidence of obviousness,
`
`however, especially when that evidence is proffered in support of an "obvious-to-try" theory, is
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`insufficient unless it indicates that the possible options skilled artisans would have encountered
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`were "finite, small, or easily traversed, and that skilled artisans would have had a reason to select
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`the route that produced the claimed invention." In re Cyclobenzaprine Hydrochloride , 676 F.3d
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`at 1072 (internal quotation marks omitted). Obviousness must be proven by clear and
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`convincing evidence. Id. at 1078.
`
`C. Infringement
`
`A patent is infringed when a person "without authority makes, uses, offers to sell, or sells
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`any patented invention, within the United States .. . during the term of the patent .. . . " 35 U.S.C.
`
`§ 271(a). A two-step analysis is employed in making an infringement determination. See
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en bane), ajf'd, 517
`
`U.S. 370 (1996). First, the court must construe the asserted claims to ascertain their meaning and
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`scope. See id. The trier of fact must then compare the properly construed claims with the accused
`
`infringing product. See id. at 976. This second step is a question of fact. See Bai v. L & L Wings,
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`Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
`
`"Literal infringement of a claim exists when every limitation recited in the claim is found
`
`in the accused device." Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed. Cir. 1998). "If any
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`8
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`claim limitation is absent from the accused device, there is no literal infringement as a matter of
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`law." Bayer AG v. Elan Pharm. Research Corp. , 212 F.3d 1241 , 1247 (Fed. Cir. 2000). If an
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`accused product does not infringe an independent claim, it also does not infringe any claim
`
`depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed. Cir.
`
`1989). However, "[ o ]ne may infringe an independent claim and not infringe a claim dependent on
`
`that claim." Monsanto Co. v. Sy ngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed. Cir. 2007) (internal
`
`quotations omitted). The patent owner has the burden of proving infringement and must meet its
`
`burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab.
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`Corp., 859 F.2d 878, 889 (Fed. Cir. 1988) ( citations omitted).
`
`When an accused infringer moves for summary judgment of non-infringement, such relief
`
`may be granted only if at least one limitation of the claim in question does not read on an element
`
`of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG
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`Indus., Inc., 402 F.3d 1371 , 1376 (Fed. Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286
`
`F.3d 1360, 1369 (Fed. Cir. 2002) ("Summary judgment of noninfringement is . .. appropriate
`
`where the patent owner's proof is deficient in meeting an essential part of the legal standard for
`
`infringement, because such failure will render all other facts immaterial."). Thus, summary
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`judgment of non-infringement can only be granted if, after viewing the facts in the light most
`
`favorable to the non-movant, there is no genuine issue as to whether the accused product is covered
`
`by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett- Packard Co., 182
`
`F.3d 1298, 1304 (Fed. Cir. 1999).
`
`D. Written Description
`
`The written description requirement contained in 35 U.S.C. § 112, 1 1 requires that the
`
`specification "clearly allow persons of ordinary skill in the art to recognize that [the inventor]
`
`invented what is claimed." Ariad Pharm., Inc., v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir.
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`9
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`2010) (en bane) (alteration in original) (internal quotation marks omitted). "In other words, the
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`test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to
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`those skilled in the art that the inventor had possession of the claimed subject matter as of the filing
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`date." Id The written description inquiry is a question of fact. See id Although it is a question
`
`of fact, "[ c ]ompliance with the written description requirement ... is amenable to summary
`
`judgment in cases where no reasonable fact finder could return a verdict for the non-moving party."
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`PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1307 (Fed. Cir. 2008). "A party must
`
`prove invalidity for lack of written description by clear and convincing evidence." Vasudevan
`
`Software, Inc. v. MicroStrategy, Inc. , 782 F.3d 671 , 682 (Fed. Cir. 2015).
`
`E. Daubert
`
`Federal Rule of Evidence 702 sets out the requirements for expert witness testimony and
`
`states:
`
`A witness who is qualified as an expert by knowledge, skill,
`experience, training, or education may testify in the form of an
`opinion or otherwise if: (a) the expert's scientific, technical, or other
`specialized knowledge will help the trier of fact to understand the
`evidence or to determine a fact in issue; (b) the testimony is based
`on sufficient facts or data; ( c) the testimony is the product of reliable
`principles and methods; and ( d) the expert has reliably applied the
`principles and methods to the facts of the case.
`
`Fed. R. Evid. 702. The Third Circuit has explained:
`
`Rule 702 embodies a trilogy of restrictions on expert testimony:
`qualification, reliability and fit. Qualification refers to the
`requirement that the witness possess specialized expertise. We have
`interpreted this requirement liberally, holding that a broad range of
`knowledge, skills, and training qualify an expert. Secondly, the
`testimony must be reliable; it must be based on the methods and
`procedures of science' rather than on
`'subjective belief or
`unsupported speculation; the expert must have good grounds for his
`In sum, Daubert holds that an inquiry into the
`or her belief.
`reliability of scientific evidence under Rule 702 requires a
`determination as to its scientific validity. Finally, Rule 702 requires
`that the expert testimony must fit the issues in the case. In other
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`words, the expert' s testimony must be relevant for the purposes of
`the case and must assist the trier of fact. The Supreme Court
`explained in Daubert that Rule 702 ' s helpfulness standard requires
`the pertinent inquiry as a
`a valid scientific connection to
`precondition to admissibility.
`
`By means of a so-called "Daubert hearing," the district court acts as
`a gatekeeper, preventing opinion testimony that does not meet the
`requirements of qualification, reliability and fit from reaching the
`jury. See Daubert ("Faced with a proffer of expert scientific
`testimony, then, the trial judge must determine at the outset,
`pursuant to Rule 104(a) of the Federal Rules of Evidence whether
`the expert is proposing to testify to (1) scientific knowledge that (2)
`will assist the trier of fact to understand or determine a fact in
`issue.").
`
`Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404-05 (3d Cir. 2003) (cleaned up). 1
`
`F. Motions to Strike
`
`Federal Rule of Civil Procedure 37(c)(l) provides that "[i]f a party fails to provide
`
`irtformation . . . as required by Rule 26(a) or (e), the party is not allowed to use that irtformation ...
`
`to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified
`
`or is harmless." To determine whether a failure to disclose was harmless, courts in the Third
`
`Circuit consider the Pennypack factors: (l) the prejudice or surprise to the party against whom the
`
`evidence is offered; (2) the possibility of curing the prejudice; (3) the potential disruption of an
`
`orderly and efficient trial; ( 4) the presence of bad faith or willfulness in failing to disclose the
`
`evidence; and (5) the importance of the information withheld. Konstantopoulos v. Westvaco Corp.,
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`112 F.3d 710, 719 (3d Cir. 1997) (citing Meyers v. Pennypack Woods Home Ownership Ass 'n, 559
`
`F.2d 894, 904-05 (3d Cir. 1977)). "[T]he exclusion of critical evidence is an ' extreme ' sanction,
`
`not normally to be imposed absent a showing of willful deception or ' flagrant disregard' of a court
`
`1 The Court of Appeals wrote under an earlier version of Rule 702, but the 2011 amendments to it
`were not intended to make any substantive change.
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`11
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`order by the proponent of the evidence." Id The determination of whether to exclude evidence is
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`within the discretion of the district court. Id
`
`III.
`
`SUMMARY JUDGME T MOTIONS
`
`A. Infringement
`
`Defendant moves for summary judgment of no infringement of the asserted claims of the
`
`'048, '381, ' 882, and ' 473 Patents. (D.I. 752). It argues that Plaintiff cannot prove infringement
`
`of at least one claim element in each patent. (D.I. 754 at 8-18). It further argues that the
`
`certificates of correction for the '3 81 and '882 Patents are invalid. (Id at 18-20). Plaintiff cross(cid:173)
`
`moves for summary judgment of infringement of claim 19 of the ' 4 73 Patent. (D.I. 790).
`
`1.
`
`"Message During Initialization Specifying a Maximum Number of Bytes
`of Memory that are Available to be Allocated" Limitation
`
`The Parties dispute whether the accused products send a "message during initialization
`
`specifying a maximum number of bytes of memory that are available to be allocated" as is
`
`required by the asserted claims of the '048, ' 381, and '882 Patents.
`
`Defendant's initial argument is that the Rule 30(b)(6) witness from Broadcom, the
`
`supplier of the chips that provide the accused DSL functionality, testified that the accused
`
`products do not send such a message. (D.I. 754 at 8-9; D.I. 961 at 3-4). It argues that this
`
`testimony is undisputed and sufficient to establish noninfringement. (D.I. 754 at 9). Plaintiff
`
`responds by noting that the Broadcom witness's response to Defendant's questions about
`
`whether the accused products' chips meet the disputed limitation was, "I don't believe so." (D.I.
`
`893 at 11-12; see also D.l. 754 at 8-9 (summarizing relevant deposition testimony)). Plaintiff
`
`argues that Broadcom' s belief is biased and "contradicted by the overwhelming evidence of
`
`infringement." (D.I. 893 at 11-12). I agree with Plaintiff that summary judgment on this basis is
`
`inappropriate. Broadcom' s Rule 30(b)(6) witness' s testimony is not concrete, only indicating a
`
`12
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`belief rather than actual knowledge. Moreover, Broadcom' s potential interest in this case is
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`apparent, as Defendant is its customer. The probative weight of Broadcom' s witness' s testimony
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`should be determined by a jury. I will not grant Defendant' s motion on this basis.
`
`Defendant next argues that Dr. Cooklev' s opinion does not establish that the accused
`
`products meet the "message during initialization specifying a maximum number of bytes of
`
`memory that are available to be allocated" limitation. Dr. Cooklev, Plaintiffs infringement
`
`expert, opines that because the accused products comply with the International
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`Telecommunication Union VDSL22 standard, they infringe the ' 048, ' 381 , and ' 882 Patents.
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`(D.I. 893 at 12-15 ; see also id. at 7-8 (describing undisputed evidence that the accused products
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`comply with VDSL2)). The Parties largely agree on the relevant technical details of the VDSL2
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`standard. (See D.I. 754 at 6-7, D.I. 893 at 4-6). They agree that the accused products send a
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`message during initialization and that the message specifies an amount of memory. (D.I. 754 at
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`10; D.I. 893 at 12-13). They disagree, however, on whether the amount of memory that is
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`provided for in the initialization message is, in fact, a maximum amount. (D.I. 754 at 11-14; D.I.
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`893 at 12-15). Defendant argues that it is at least theoretically possible that more memory is
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`available to be allocated and that the VDSL2 standard says it is the minimum necessary amount.
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`(D.I. 754 at 13). Plaintiff argues that if, in practice, the product does not use more memory than
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`the amount provided for during initialization, then the memory amount sent is a maximum
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`amount. (D.I. 893 at 13-14).
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`I agree with Plaintiff. The language of the VDSL2 standard is not dispositive. The
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`infringement inquiry is whether, in practice and within the meaning of the claims, a message
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`specifying the maximum number of available bytes is sent. If, as Plaintiff contends, the message
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`2 "VDSL" means "very high speed digital subscriber line."
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`sent during initialization functions as a maximum then it may meet the requirement of the
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`claim-despite being labeled as a minimum in the standard. Thus, there is a dispute of material
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`fact as to whether the accused products meet the "message during initialization specifying a
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`maximum number of bytes of memory that are available to be allocated" limitation.
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`Finally, Defendant argues that one of Plaintiffs experts, Dr. Almeroth, conceded during a
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`deposition that the message sent during initialization of the accused products does not specify the
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`maximum amount of available memory. (D .I. 7 54 at 14-15). This opinion was contrary to the
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`opinion he expressed in his expert report. (Id.) . Dr. Almeroth' s concession is likely valuable
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`fodder for cross-examination but is not sufficient to warrant a grant of summary judgment. I will
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`deny Defendant's motion for summary judgment on this issue.
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`2.
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`Certificate of Correction
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`Defendant argues that changes to the asserted claims of the ' 381 and ' 882 Patents that the
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`Patentee made via a certificate of correction improperly affected their scope or meaning. 3 (D.I.
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`754 at 18-20). Certificates of correction are meant to correct mistakes "of a clerical or
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`typographical nature, or of minor character." 35 U.S .C. § 255. If a correction broadens the
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`scope of a patent claim, a certificate of correction may be invalidated. Superior Fireplace Co. v.
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`Majestic Prod. Co., 270 F.3d 1358, 1376 (Fed. Cir. 2001). This "requires proof of two elements:
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`(1) the corrected claims are broader than the original claims; and (2) the presence of the clerical
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`3 Plaintiff cursorily argues that Defendant waived this argument by not raising it earlier, during
`claim construction. Plaintiff does not cite caselaw to support its waiver argument. The law cited
`by Defendant, however, supports the conclusion that the validity of a certificate of correction is,
`at a minimum, an appropriate issue for it to raise on summary judgment. See S. O.I Tee Silicon
`On Insulator Techs., SA. v. MEMC Elec. Materials, Inc., 745 F. Supp. 2d 489, 507 (D. Del.
`2010). Defendant was not obligated to bring the issue before the Court at some earlier time and,
`indeed, possibly could have actively addressed the issue for the first time at trial. Thus, I find
`that Defendant has not waived this issue.
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`or typographical error, or how to correct that error, is not clearly evident to one of skill in the
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`art." Cent. Admixture Pharmacy Servs., Inc. v. Advanced Cardiac Sols., P.C. , 482 F.3d 1347,
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`1353 (Fed. Cir. 2007). The first element is a question oflaw, while the second element is a
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`question of fact. Id. at 1353-54. The party seeking to invalidate a certificate of correction must
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`meet the clear and convincing evidence standard. Id. at 1353.
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`As to the first element, the Parties appear to agree that the changes in the ' 381 and ' 882
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`Patents broadened the scope of the claims. Specifically, there is no argument that the correction
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`from "transmission" to "reception" and from "received" to "transmitted" did not change the
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`scope of the claims. As to the second element, however, the Parties disagree on whether a POSA
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`would understand the original language as a typographical error with a clearly evident correction.
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`(D.I. 754 at 20; D.I. 893 at 20). Plaintiff notes that Defendant' s position throughout this
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`litigation has been that "interleaving is associated with DSL transmission and deinterleaving is
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`associated with DSL reception." (D.I. 893 at 20). It argues that Defendant's position is evidence
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`that a POSA would recognize a typographical error and know how to fix it. (Id.) . Defendant
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`responds that the patent is not limited to DSL technology. (D.I. 961 at 9). It does not, however,
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`provide any evidence or argument as to why this is important. Thus, it remains an open factual
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`question whether a POSA would understand the error and how to fix it in all relevant technical
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`fields. Defendant has the burden to show, by clear and convincing evidence, "the presence of the
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`clerical or typographical error, or how to correct that error, is not clearly evident to one of skill in
`
`the art." It falls short of that standard. I will deny Defendant's motion for summary judgment on
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`this issue.
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`3.
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`'473 Patent, claim 19
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`Claim 19 of the ' 4 73 Patent claims an apparatus comprising a "multicarrier
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`communications transceiver" that is "associated with a memory." (' 4 73 Patent, claim 19). The
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`"multicarrier communication transceiver" is "configured" to perform certain functions. (Id. ).
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`The "memory" is "allocated between the interleaving function and the deinterleaving function in
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`accordance with a message received during an initialization." (Id.) .
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`Defendant argues that the apparatus infringes, if at all, only after initialization because
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`the memory is not allocated as required by the claim until that point. (D.I. 754 at 17-18).
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`Plaintiff does not dispute that allocation only happens after initialization, but argues that the
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`"configured" language applies to the memory as well as to the multicarrier communications
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`transceiver. I do not agree with Plaintiffs interpretation of the claim. The "multicarrier
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`communication transceiver" clause requires only that the apparatus is configured in a certain
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`way. The "memory" clause, however, requires that the memory has been allocated in accordance
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`with a mes