Case 3:22-cv-01832-WHO Document 85 Filed 04/04/23 Page 1 of 17
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`R.N NEHUSHTAN TRUST LTD.,
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`Case No. 22-cv-01832-WHO
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`CLAIM CONSTRUCTION ORDER
`
`Re: Dkt. No. 70
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`Plaintiff R.N Nehushtan Trust Ltd. (“RNN Trust”) and defendant Apple Inc. (“Apple”)
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`seek construction of claim terms in two of RNN Trust’s patents, which RNN Trust alleges that
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`Apple infringed upon. My construction of the disputed claim terms is set forth below.
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`BACKGROUND
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`RNN Trust holds the rights, title, and interest to U.S. Patent Nos. 9,642,002 (“the ’002
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`Patent”) and 9,635,544 (“the ’544 Patent”). Compl. [Dkt. No. 1] ¶ 1. The patents are directed to a
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`“cellular communication security technology” preventing the cloning and hacking of devices. See
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`id. ¶¶ 8-9. RNN Trust accuses Apple of selling devices—including its well-known and widely
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`used iPhones, iPads, and Apple Watches—that directly infringe on “at least” Claim 17 of the ’544
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`Patent and “at least” Claim 5 of the ’002 Patent. See id. ¶¶ 15, 19.
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`Claim 17 of the ’544 Patent claims:
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`A cellular communication device comprising a processor, a memory and a data
`mode, said data mode allowing reading and writing of data and changing of settings
`on said cellular communication device by an active connection;
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`said settings comprising personal data, device configuration data and technical data
`relating to said cellular communication device;
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`said cellular communication device further comprising an access restrictor to
`restrict use of said data mode in response to a cellular communication device
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`1
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`APPLE 1026
`Apple v. R.N Nehushtan Trust
`IPR2023-00231
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`

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`Case 3:22-cv-01832-WHO Document 85 Filed 04/04/23 Page 2 of 17
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`unique security setting;
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`wherein said device unique security setting is obtained remotely and provided to
`the cellular communication device before use of the data mode; said data mode
`being usable for transfer of icons to the cellular communication device; and
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`wherein said cellular communication device is associated with a client program for
`managing a predetermined communication protocol, and carrying out one member
`of the group consisting of:
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`setting said cellular communication device into said data mode when said device
`unique security setting is correct; and
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`disabling said data mode when said active connection is no longer active.
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`’544 Patent [Dkt. No. 70-2] 23:45-24:2.
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`Claim 5 of the ’002 Patent claims:
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`A cellular communication device comprising a processor, a memory and a data
`mode, said data mode allowing reading and writing of data in said memory and
`changing of settings on said cellular communication device, said settings
`comprising personal data, cellular communication device configuration data and
`technical data relating to the cellular communication device; wherein
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`said cellular communication device also comprises an access restrictor to restrict
`use of said data mode in accordance with a device unique security setting, the
`device unique security setting provided remotely to said cellular communication
`device using a predetermined security protocol;
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`said device unique security setting is obtained remotely and provided to the cellular
`communication device before the data mode is used;
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`said data mode permits actions comprising uploading, maintaining or replacing an
`operating system in said cellular communication device that are provided by a
`cellular provider using an active connection; the device further being configured to
`carry out one member of the group consisting of:
`
`enabling said cellular communication device to use said data mode when it is
`determined that said device unique security setting is correct; and
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`disabling use of said data mode when said active connection is no longer active.
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`’002 Patent [Dkt. No. 70-1] 22:49-23:8.
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`LEGAL STANDARD
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`Claim construction is a matter of law. See Markman v. Westview Instruments, Inc., 517
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`U.S. 370, 372 (1996); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
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`Claim terms are “generally given their ordinary and customary meaning.” Vitronics, 90 F.3d at
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`1582. When determining the proper construction of a claim, a court begins with the intrinsic
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`evidence of record, consisting of the claim language, the patent specification, and, if in evidence,
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`the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005); see also
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`Vitronics, 90 F.3d at 1582. “A claim term used in multiple claims should be construed
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`consistently.” Inverness Med. Switzerland GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365,
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`1371 (Fed. Cir. 2002).
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`“The appropriate starting point . . . is always with the language of the asserted claim itself.”
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`Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998). “[T]he ordinary
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`and customary meaning of a claim term is the meaning that the term would have to a person of
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`ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date
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`of the patent application.” Phillips, 415 F.3d at 1313. “There are only two exceptions to this
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`general rule: 1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when
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`the patentee disavows the full scope of a claim term either in the specification or during
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`prosecution.” Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).
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`“Importantly, the person of ordinary skill in the art is deemed to read the claim term not
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`only in the context of the particular claim in which the disputed term appears, but in the context of
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`the entire patent, including the specification.” Phillips, 415 F.3d at 1313. “Claims speak to those
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`skilled in the art,” but “[w]hen the meaning of words in a claim is in dispute, the specification and
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`prosecution history can provide relevant information about the scope and meaning of the claim.”
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`Electro Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) (citations
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`omitted). “[T]he specification is always highly relevant to the claim construction analysis.
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`Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Vitronics,
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`90 F.3d at 1582. “However, claims are not to be interpreted by adding limitations appearing only
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`in the specification.” Electro Med. Sys., 34 F.3d at 1054. “Thus, although the specifications may
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`well indicate that certain embodiments are preferred, particular embodiments appearing in a
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`specification will not be read into the claims when the claim language is broader than such
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`embodiments.” Id. Conversely, “where . . . the claim language is unambiguous,” the Federal
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`Circuit has “construed the claims to exclude all disclosed embodiments.” Lucent Techs., Inc. v.
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`Gateway, Inc., 525 F.3d 1200, 1215-16 (Fed. Cir. 2008). “[T]he description may act as a sort of
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`dictionary, which explains the invention and may define terms used in the claims,” and the
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`“patentee is free to be his own lexicographer,” but “any special definition given to a word must be
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`clearly defined in the specification.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979-80
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`(Fed. Cir. 1995).
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`That said, it is a fundamental rule that “claims must be construed so as to be consistent
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`with the specification.” Phillips, 415 F.3d at 1316. “The construction that stays true to the claim
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`language and most naturally aligns with the patent’s description of the invention will be, in the
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`end, the correct construction.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
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`1250 (Fed. Cir. 1998).
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`The court may also consider the prosecution history of the patent, if in evidence.
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`Markman, 52 F.3d at 980. The prosecution history may “inform the meaning of the claim
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`language by demonstrating how the inventor understood the invention and whether the inventor
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`limited the invention in the course of prosecution, making the claim scope narrower than it would
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`otherwise be.” Phillips, 415 F.3d at 1317; see also Chimie v. PPG Indus., Inc., 402 F.3d 1371,
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`1384 (Fed. Cir. 2005) (“The purpose of consulting the prosecution history in construing a claim is
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`to exclude any interpretation that was disclaimed during prosecution.”).
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`In most situations, analyzing this intrinsic evidence will resolve claim construction
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`disputes. Vitronics, 90 F.3d at 1583. However, “it is entirely appropriate . . . for a court to consult
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`trustworthy extrinsic evidence to ensure that the claim construction it is tending to from the patent
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`file is not inconsistent with clearly expressed, plainly apposite, and widely held understandings in
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`the pertinent technical field.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309
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`(Fed. Cir. 1999). “Extrinsic evidence consists of all evidence external to the patent and
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`prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.”
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`Markman, 52 F.3d at 980. All extrinsic evidence should be evaluated in light of the intrinsic
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`evidence. Phillips, 415 F.3d at 1319. Courts should not rely on extrinsic evidence in claim
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`construction to contradict the meaning of claims discernible from an examination of the claims,
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`Case 3:22-cv-01832-WHO Document 85 Filed 04/04/23 Page 5 of 17
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`
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`the written description, and the prosecution history. Pitney Bowes, 182 F.3d at 1308 (citing
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`Vitronics, 90 F.3d at 1583). While extrinsic evidence may guide the meaning of a claim term,
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`such evidence is less reliable than intrinsic evidence. Phillips, 415 F.3d at 1318-19.
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`DISCUSSION
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`
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`The parties sought construction of six terms. See Opening Brief [Dkt. No. 70] 1:16-2:19;
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`Responsive Brief [Dkt. No. 71] 5:1-14:20. 1 At the Markman hearing, the parties accepted my
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`tentative construction of four of those terms, noted in the chart below. See Dkt. No. 81. Because
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`those terms are no longer disputed, this Order focuses on the two terms that remain at issue:
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`“active connection” and “said . . . settings comprising personal data, configuration data and
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`technical data” or “said settings comprising personal data, device configuration data and technical
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`data.”
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`Term
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`“device unique
`security setting”
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`“personal data”
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`“provided by a
`cellular provider”
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`“settings”
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`
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`RNN Trust’s
`Construction
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`“a setting that includes or is
`created using at least one
`data item unique to a
`particular device and that,
`when received by a device,
`causes an access restrictor
`of the device to grant
`access to a data mode”
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`
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`plain and ordinary meaning,
`which is “data relating to a
`person”
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`plain and ordinary meaning,
`which is “sent via a
`connection with a cellular
`network”
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`
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`plain and ordinary meaning,
`which is “a manner,
`position, and/or direction in
`which a device is set,
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`Apple’s
`Construction
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`plain and ordinary
`meaning or,
`alternatively, “security
`setting unique to the
`device”
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`Court’s
`Construction
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`“a setting that
`includes or is created
`using at least one
`data item unique to a
`particular device and
`grants access to a
`data mode”
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`“information relating to
`an identified or
`identifiable individual”
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`“supplied by a cellular
`provider”
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`“information relating
`to a particular
`person”
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`“supplied by a
`cellular provider”
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`plain and ordinary
`meaning
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`plain and ordinary
`meaning, which is “a
`manner, position
`and/or direction in
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`1 RNN Trust initially sought the construction of a seventh term, “client program,” but Apple stated
`in its opposition that it no longer requested its construction. See Opening Brief at 1:22-25;
`Responsive Brief at 1 n.1.
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`Case 3:22-cv-01832-WHO Document 85 Filed 04/04/23 Page 6 of 17
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`including but not limited to
`a password”
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`which a device is set”
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`“active connection”
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`I.
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`RNN Trust’s Construction
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`plain and ordinary meaning,
`which is “a communication
`link that is in operation”
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`Apple’s Construction
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`Court’s Construction
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`“connection over which there
`is ongoing exchange of data”
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`“a communication link that is
`intermittently exchanging
`data”
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`Claim 17 of the ’544 Patent and Claim 5 of the ’002 Patent both use the term “active
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`connection.” ’544 Patent at 23:45-24:2; ’002 Patent at 22:49-23:8. The parties agreed at the
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`Markman hearing that “connection” refers to a “communication link.” The dispute then focuses
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`on what “active” means: whether it requires an “ongoing exchange of data” (as Apple proposes) or
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`implies that the communication link is “in operation” (as RNN Trust contends). The answer lies
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`in the middle. For the reasons that follow, I construe “active connection” to mean “a
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`communication link that is intermittently exchanging data.”
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`i.
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`Intrinsic Evidence
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`Neither party refers to the asserted claims to define “active connection.” See Opening
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`Brief 8:18-11:2; Responsive Brief 5:2-6:19; Reply [Dkt. No. 75] 1:11-2:24. However, “[t]he
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`appropriate starting point [for claim construction] is always with the language of the asserted
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`claim itself.” Comark, 156 F.3d at 1186. And the plain language of the asserted claims, Claim 17
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`of the ’544 Patent and Claim 5 of the ’002 Patent, is informative.
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`In Claim 17 of the ’544 Patent, “active connection” is introduced in a phrase describing
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`“data mode”: “said data mode allowing reading and writing of data and changing of settings on
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`said cellular communication device by an active connection.” ’544 Patent at 23:46-48.
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`Rephrased, this can be condensed to “said data mode allowing [data and settings transactions] by
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`an active connection.” This would imply to a person of ordinary skill in the art that the data mode
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`in some circumstances, if not all, requires an active connection. The last phrase of the claim,
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`“disabling said data mode when said active connection is no longer active,” tells the reader that
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`without an active connection, the data mode stops. See id. at 24:1-2. Read together, this asserted
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`claim would imply to a person of ordinary skill in the art that an active connection is the medium
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`for the data mode to proceed on, and without this medium, the data mode ends. In other words,
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`the data mode requires an active connection.
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`Claim 5 of the other patent-in-suit gives the same impression. The first mention of “active
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`connection” is in the phrase, “said data mode permits actions comprising uploading, maintaining
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`or replacing an operating system in said cellular communication device that are provided by a
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`cellular provider using an active connection.” Id. at 22:65-23:1. As before, this can be condensed
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`to: “said data mode permits actions . . . that are provided by a cellular provider using an active
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`connection.” See id. Put plainly, the data mode uses an active connection. Claim 5 also ends with
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`a phrase that is almost identical to the last phrase in the first asserted claim: “disabling use of said
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`data mode when said active connection is no longer active.” Compare id. at 23:7-8 with ’544
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`Patent at 24:1-2. Each of the two asserted claims indicate that data mode requires an active
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`connection, as shown by their plain language.
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`Unasserted claims provide more guidance. The Federal Circuit has repeatedly (and
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`recently) explained that “because ‘claim terms are normally used consistently throughout the
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`patent,’ other claims of the patent, both asserted and unasserted, can provide insight into the
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`meaning of a claim term.” Evolusion Concepts, Inc. v. HOC Events, Inc., 22 F.4th 1361, 1365
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`(Fed. Cir. 2022) (quoting Phillips, 415 F.3d at 1314); see also In re Varma, 816 F.3d 1352, 1363
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`(Fed. Cir. 2016) (“[T]he principle that the same phrase in different claims of the same patent
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`should have the same meaning is a strong one, overcome only if it is clear that the same phrase has
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`different meanings in different claims.”) (citation and quotation marks omitted).
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`Apple points to Claim 1 of the ’544 Patent to support its construction that “active
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`connection” requires an exchange of data. See Responsive Brief at 5:13-19. Apple relies on a
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`phrase in this claim that appears almost verbatim in the asserted Claim 17: “disabling said data
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`mode when said active connection is not active.” See id. (quoting ’544 Patent at 22:26-27).
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`Apple’s reference is persuasive because the term “active connection” is mentioned in
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`several unasserted claims of both patents (Claims 1, 4, 9, 10, 18, and 19 of the ’544 Patent and
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`Claims 1, 3, 13, 14, 23, and 24 of the ’002 Patent) with consistent phrasing. See ’544 Patent at
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`Case 3:22-cv-01832-WHO Document 85 Filed 04/04/23 Page 8 of 17
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`21:65-25:15; see also ’002 Patent at 22:13-25:7. 2 Like the asserted claims, the unasserted
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`independent claims include the phrase “disabling said data mode when said active connection is
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`not active” or “no longer active.” ’544 Patent at 21:65-25:8; ’002 Patent at 22:13-24:52. A person
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`of ordinary skill in the art would read this consistently across the independent claims and conclude
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`that an “active connection” is required to maintain the “data mode.” RNN Trust concedes as much
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`in its reply. See Reply at 2:3-6 (“The patents consider this intermittent data transfer an ‘active
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`connection’ because it maintains the data mode.”) (citing Claim 1 of the ’002 Patent). There is no
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`other meaning that can be derived from this phrase that is common to all claims.3
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`The plain language of the asserted and unasserted claims indicates that an “active
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`connection” is a medium for maintaining the data mode, and that a “data mode” is a set of data
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`exchanges. Read together, this would imply to a person of ordinary skill in the art that an active
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`connection requires at least some exchange of data. The parties also agree that the intrinsic
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`evidence shows that an active connection exchanges data. See, e.g., Reply at 1:25-2:4 (“As Apple
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`points out, the specification explains that ‘when a cellular device is connected to the client
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`program, a data packet is sent at regular intervals to prevent the cellular device from exiting DM
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`(Data Mode) and/or resetting.’ . . . The patents consider this intermittent data transfer an ‘active
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`connection’ because it maintains the device in data mode.”) (quoting in part ’544 Patent at 20:18-
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`21); see also Responsive Brief at 5:14-17 (“The parties agree that when a cellular communication
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`device is in ‘data mode’ it functions in an ‘operation state’ that ‘permits the reading and writing of
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`device data and the changing of device settings’ over a connection. . . To put it another way,
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`while in data mode, an ongoing exchange of data occurs.”) (quoting Joint Claim Construction
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`2 Of the unasserted claims mentioning “active connection” in the ’544 Patent, Claims 5, 9 and 10
`are dependent on Claim 1, but the others are independent. See ’544 Patent at 21:65-25:8. Of the
`unasserted claims mentioning “active connection” in the ’002 Patent, Claims 3, 13, 14, and 23 are
`dependent on Claim 1, but Claims 1 and 24 are independent. See ’002 Patent at 22:13-24:52.
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` 3
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` Additional phrases used when mentioning “active connection” in some of these unasserted
`claims do not appear consistently like the “disabling” phrase does. See, e.g., ’544 Patent at 23:15-
`17 (reciting an “active connection” that is “identified via said unique security setting”); ’544
`Patent at 24:37-46 (reciting “a server using an active connection”). These additional and often-
`unique phrases would not help a person of ordinary skill in the art to apply the principle of
`consistent interpretation to understand “active connection,” especially in the asserted claims.
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`Statement [Dkt. No. 60] at 2:8-9)). They only disagree as to the frequency of that exchange—
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`whether it is “ongoing,” as Apple argues, or “intermittent” but “in operation” as RNN Trust
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`contends. See Responsive Brief at 5:12-22; Reply at 1:25-2:10.
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`Apple argues that “in operation” is too broad because it could encompass establishing a
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`connection, which Apple contends is distinct from an “active connection.” See Responsive Brief
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`at 5:23-6:16. It first points to an excerpt from the prosecution history, which states in relevant part
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`that “[w]hat is claimed is a new inventive technological way of establishing the connection in the
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`first place prior to any transfer of data.” See id., Ex. 1 at 11-12. But there is no support in the
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`claims themselves for distinguishing an “active connection” from “establishing a connection,” as
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`Apple contends this excerpt shows. See id. at 5:23-6:11. “Connection” is mentioned in the claims
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`with the term “active connection,” never without this modifier. See, e.g., ’544 Patent at 21:65-
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`22:27 (mentioning “connection” only as “active connection” and doing so three times). There is
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`no separate step claimed in either patent for establishing a connection.
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`Further, none of Apple’s proffered specification excerpts support a distinction between
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`establishing and maintaining an “active connection.” Instead, they imply—like the claims—that
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`an “active connection” is required for data mode. For example, Apple notes that because “the
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`cellular device is only able to enter data mode when a connection is present to the given server,”
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`establishing a connection is separate from an active connection. See Responsive Brief at 5:24-6:2
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`(quoting ’544 Patent at 8:5-7). But this statement from the specification creates no such
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`distinction. Instead, it tells the reader only that a “connection” is required for “entering data
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`mode;” “a connection is present” could include both establishing a connection and maintaining an
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`active one. See ’544 Patent at 8:5-7. Apple attempts to show that “active connection” requires
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`“ongoing” data exchange with a false dichotomy between establishing and maintaining the
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`connection that is not supported by the intrinsic evidence.
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`Importantly, both RNN Trust and Apple agree that the data exchange is at least
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`intermittent. See, e.g., Responsive Brief at 5:17-18 (“while in data mode, an ongoing exchange of
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`data occurs”); see also Reply 2:1-10 (“The patents consider this intermittent data transfer an
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`‘active connection’ because it maintains the device in data mode.”). However, a construction of
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`“active connection” that uses “in operation” would not resolve the disputed nature of the term
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`because “in operation” could include both “intermittent” or “ongoing” data exchange. RNN
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`Trust’s use of the phrase “in operation” thus supports the very construction that it contends is not
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`supported by the intrinsic evidence: Apple’s construction of “active” to mean “ongoing” data
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`exchange.
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`In sum, the intrinsic evidence would guide a person of ordinary skill in the art to
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`understand an “active connection” to require an intermittent though not “ongoing” data exchange.
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`ii.
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`Extrinsic Evidence
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`RNN Trust primarily uses dictionary definitions to support a “plain and ordinary”
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`construction of “active connection” as “a communication link that is in operation.” Opening Brief
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`at 8:26-9:13. Though one of RNN Trust’s definitions is inapplicable to the disputed term, a
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`person of ordinary skill in the art would find some meaning for an “active connection” in the non-
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`technical dictionaries that RNN Trust introduces that is consistent with the intrinsic evidence.
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`RNN Trust largely relies on Microsoft Computer Dictionary definitions to construct
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`“active connection.” See id. at 9:1-10. RNN Trust reads portions of these definitions—“active”
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`meaning “currently operational” and “connection” meaning “[a]. . . link. . . between two or more
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`communication devices”—to mean “a communication link that is in operation.” See id. But RNN
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`Trust’s reliance on this particular dictionary is misplaced. Although the Federal Circuit has
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`explained that extrinsic evidence can provide a person of ordinary skill in the art “widely held
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`understandings in the pertinent technical field,” computing and telecommunications are distinct
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`fields. See Pitney Bowes, Inc., 182 F.3d at 1309. The asserted technology is a “cellular device
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`security apparatus and method,” not a form of personal computing, which the Microsoft Computer
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`Dictionary focuses on. See ’544 Patent at 1. The image of a computer cursor is prominent on the
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`dictionary’s cover. See Opening Brief, Ex. C at 1. The cover also promises “[d]efinitive coverage
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`of hardware, software, the Internet, and more.” See id. This suggests that the dictionary was
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`focused on computing rather than cellular device security. Moreover, the parties’ primary
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`disagreement is whether an “active connection” involves any or ongoing exchange of data, and
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`whether such an exchange conforms with the claim and specification language. The Microsoft
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`Computer Dictionary definitions do not shed light on this. See Paragon Sols., LLC v. Timex
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`Corp., 566 F.3d 1075, 1092 (Fed. Cir. 2009) (finding that a Microsoft Computer Dictionary
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`definition “shed[] no light” on the disputed nature of the term, which was whether in an exercise
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`monitoring system’s recitation of “displaying real time data,” “real-time” meant “‘instantaneous’
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`or, if not, how much of a delay is permissible”).
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`For example, if I replaced “active connection” in the phrase “disabling said data mode
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`when said active connection is no longer active” with RNN Trust’s construction, “disabling said
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`data mode when said communication link that is in operation is no longer active,” the reader
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`would not have a better understanding of the data exchange frequency during an active
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`connection. See ’002 Patent at 22:36-37 (emphasis added). The only definition of “active
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`connection” that the claims make clear is that it is required for the data mode. In this light, the
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`claim language modified using RNN Trust’s construction is incongruent with its argument that the
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`data exchange is intermittent and not ongoing; “in operation” would include both intermittent and
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`ongoing data exchange. Separately, RNN Trust has not offered additional technical dictionaries to
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`validate its reliance on Microsoft’s. For these reasons, I do not find the Microsoft Computer
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`Dictionary a useful extrinsic source for construing “active connection.”
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`Moreover, RNN Trust’s proposed construction does not impart any additional meaning to
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`the word “active.” If I again replace the claim language (“disabling said data mode when said
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`active connection is no longer active”) with RNN Trust’s construction (“disabling said data mode
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`when said communication link that is in operation is no longer active”), when the connection is no
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`longer “active” the connection would cease to be “in operation,” but a person of ordinary skill in
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`the art has no understanding of what either of those broad terms mean in the context of this
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`invention. A jury trying to understand the invention according to the claims would not be helped
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`by RNN Trust’s construction of “active” because “in operation” is synonymous to the point of not
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`providing any meaning. See, e.g., Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372
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`(Fed. Cir. 2005) (“A claim construction that gives meaning to all the terms of the claim is
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`preferred over one that does not do so.”)
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`However, the other extrinsic sources RNN Trust provides—nontechnical dictionaries—
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`would help inform a person of ordinary skill in the art. RNN Trust also offers Webster’s II
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`Dictionary’s definitions of “active” and “connection” in support of its construction. See Opening
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`Brief at 9:10-15. RNN Trust relies on the eighth definition offered by Webster’s II for “active,”
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`perhaps because it is marked as pertaining to “Computer Sci[ence].” See id. at Ex. D at 3. This
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`defines “active” as “[r]elating to a file, device, or display that is currently operational and ready to
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`receive input <an active window>[.]” See id. A person of ordinary skill in the art would
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`understand that, in the context of the asserted patents, a “connection” is not a “file, device, or
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`display” and that instead, an “active connection” is a kind of medium for data exchange. An
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`ordinary artisan would thus be skeptical that this definition applies to the invention and instead
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`place more weight on other Webster’s II definitions of “active”: (1) “In action; moving”; (2)
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`“Capable of functioning”; (3) “Causing action or change”; (4) “Participating”; (5) “In a state of
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`action”; (6) “Energetic; lively”; and (7) “Expressing action rather than a state of being.” See id.4
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`Combining the common definitions from Webster’s II, a person of ordinary skill in the art
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`would understand “active connection” to mean “a communication link” that is “in action.” But
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`construing “in action” to mean “ongoing” or “in operation” would “contradict the meaning of
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`claims discernible from thoughtful examination of the claims, the written description, and the
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`prosecution history” discussed earlier. See Pitney Bowes, 182 F.3d at 1308 (citing Vitronics, 90
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`F.3d at 1583). As I have explained, the intrinsic evidence shows that an “active connection” is a
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`medium that maintains the data mode, which the parties agree is, at minimum, a series of
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`intermittent data exchanges.
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`If I replace “active connection” with “a communication link that is intermittently
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`exchanging data” in the phrase, “disabling said data mode when said active connection is no
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`longer active,” the claim reads as “disabling said data mode when said communication link that is
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`intermittently exchanging data is no longer active.” See ’002 Patent at 22:36-37 (emphasis
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`added). This construction tells the reader that “active” means an intermitte