Case 2:22-cv-00212-JRG-RSP Document 120 Filed 10/31/23 Page 1 of 16 PageID #: 1512
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CIVIL ACTION NO. 2:22-cv-00212-JRG-RSP
`(Lead Case)
`
`
`
`DYNAPASS IP HOLDINGS LLC,
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` Plaintiff,
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`v.
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`JPMORGAN CHASE & CO., et al,
`
` Defendants.
`
`
`
`
`
`
`
`
`
`
`CLAIM CONSTRUCTION ORDER
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`In these consolidated patent cases, Dynapass IP Holdings LLC alleges infringement by
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`Defendants of various claims of U.S. Patent No. 6,993,658. The patent “relates to a system
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`through which user tokens required for user authentication [for a secure computer system] are
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`supplied through personal communication devices such as mobile phones and pagers.” ’658 Pa-
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`tent at 1:8–11.
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`The parties dispute the scope of five terms. For each term, Dynapass alleges a “plain and
`
`ordinary meaning” construction, whereas Defendants propose specific language. Having consid-
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`ered the parties’ briefing and arguments of counsel during the October 5, 2023 hearing, the Court
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`resolves the disputes as follows.
`
`I.
`
`BACKGROUND
`
`The patent addresses a problem with the traditional use of a user ID and password for us-
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`er authentication to a computer system. According to the patent:
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`Guessing passwords is a frequent technique used by “hackers” to break into sys-
`tems. Therefore, many systems impose regulations on password formats that re-
`quire mixtures of letters of different cases and symbols and that no part of a pass-
`word be a word in the dictionary. A user’s inability to remember complex combi-
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`nations of letters, numbers, and symbols often results in the password being writ-
`ten down, sometimes on a note stuck to the side of a workstation.
`
`Present systems face several problems: users dread frequent password changes,
`[and] frequent password changes with hard-to-remember passwords inevitably re-
`sult in users surreptitiously writing down passwords, [which compromises securi-
`ty].
`
`’658 Patent at 1:30–43.
`
`The patent describes one prior-art product to make authentication easier. That product re-
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`quires the user to possess a card that generates and displays an unpredictable, one-time access
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`code that changes every minute. When logging in to the system, the user provides the code which
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`can be verified by the system. See id. at 1:44–53.
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`The patent teaches a system with similar benefits without requiring the user to carry such
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`a card. As shown in FIG. 1 (above), a token server (116) running on a user authentication server
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`(102) generates a random token in response to a user request (160) for a new password. The
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`server (102) creates the new password based on a secret passcode known to the user and the to-
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`ken, and then sets the user’s password as the new password in a user database (114). A commu-
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`nication module (118) transmits the token (156) to the user’s personal communication device
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`(106), such as a mobile phone. The user forms the password from the secret passcode and re-
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`ceived token and submits the password to access the secure system (100). See generally ’658 Pa-
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`tent at [57], 4:2–51.
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`The patent includes two independent claims that collectively include four of the five dis-
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`puted terms. Claim 1 is directed to:
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`1. A method of authenticating a user on a first secure computer
`network, the user having a user account on said first secure
`computer network, the method comprising:
`associating the user with a personal communication device
`possessed by the user, said personal communication device
`in communication over a second network, wherein said
`second network is a cell phone network different from the
`first secure computer network;
`receiving a request from the user for a token via the per-
`sonal communication device, over the second network;
`generating a new password for said first secure computer net-
`work based at least upon the token and a passcode, wherein
`the token is not known to the user and wherein the
`passcode is known to the user;
`setting a password associated with the user to be the new
`password;
`activating access the user account on the first secure com-
`puter network;
`transmitting the token to the personal communication device;
`receiving the password from the user via the first secure com-
`puter network; and
`deactivating access to the user account on the first secure com-
`puter network within a predetermined amount of time after
`said activating, such that said user account is not accessible
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`through any password, via said first secure computer net-
`work.
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`’658 Patent at 11:43–57 (disputed terms bolded). Claim 5 is directed to a system that implements
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`the method:
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`5. A user authentication system comprising:
`a computer processor;
`a user database configured to associate a user with a personal
`communication device possessed by the user, said personal
`communication device configured to communicate over a
`cell phone network with the user authentication system;
`a control module executed on the computer processor config-
`ured to create a new password based at least upon a token
`and a passcode, wherein the token is not known to the user
`and wherein the passcode is known to the user, the control
`module further configured to set a password associated
`with the user to be the new password;
`a communication module configured to transmit the token to
`the personal communication device through the cell phone
`network; and
`an authentication module configured to receive the password
`from the user through a secure computer network, said se-
`cure computer network being different from the cell phone
`network, wherein the user has an account on the secure
`computer network, wherein the authentication module acti-
`vates access to the account in response to the password
`and deactivates the account within a predetermined amount
`of time after activating the account, such that said account
`is not accessible through any password via the secure com-
`puter network.
`
`Id. at 12:20–47 (disputed terms bolded). For each of the disputed terms, Dynapass asks for a
`
`“plain and ordinary meaning” construction. Defendants, on the other hand, propose specific lan-
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`guage.
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`II.
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`GENERAL LEGAL STANDARDS
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`“[T]he claims of a patent define the invention to which the patentee is entitled the right to
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`exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). As such, if the
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`parties dispute the scope of the claims, the court must determine their meaning. See, e.g., Verizon
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`Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1317 (Fed. Cir. 2007) (Gajarsa, J., con-
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`curring in part); see also Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996),
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`aff’g, 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc).
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`Claim construction, however, “is not an obligatory exercise in redundancy.” U.S. Surgical
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`Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Rather, “[c]laim construction is a
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`matter of [resolving] disputed meanings and technical scope, to clarify and when necessary to
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`explain what the patentee covered by the claims . . . .” Id. A court need not “repeat or restate eve-
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`ry claim term in order to comply with the ruling that claim construction is for the court.” Id.
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`When construing claims, “[t]here is a heavy presumption that claim terms are to be given
`
`their ordinary and customary meaning.” Aventis Pharm. Inc. v. Amino Chems. Ltd., 715 F.3d
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`1363, 1373 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1312–13). Courts must therefore “look
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`to the words of the claims themselves . . . to define the scope of the patented invention.” Id. (cita-
`
`tions omitted). The “ordinary and customary meaning of a claim term is the meaning that the
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`term would have to a person of ordinary skill in the art in question at the time of the invention,
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`i.e., as of the effective filing date of the patent application.” Phillips, 415 F.3d at 1313. This “per-
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`son of ordinary skill in the art is deemed to read the claim term not only in the context of the par-
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`ticular claim in which the disputed term appears, but in the context of the entire patent, including
`
`the specification.” Id.
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`Intrinsic evidence is the primary resource for claim construction. See Power-One, Inc. v.
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`Artesyn Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips, 415 F.3d at 1312). For
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`certain claim terms, “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 in-
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`volves little more than the application of the widely accepted meaning of commonly understood
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`words.” Phillips, 415 F.3d at 1314; see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313,
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`1319 (Fed. Cir. 2005) (“We cannot look at the ordinary meaning of the term . . . in a vacuum. Ra-
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`ther, we must look at the ordinary meaning in the context of the written description and the pros-
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`ecution history.”). But for claim terms with less-apparent meanings, courts consider “those
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`sources available to the public that show what a person of skill in the art would have understood
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`disputed claim language to mean . . . [including] the words of the claims themselves, the remain-
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`der of the specification, the prosecution history, and extrinsic evidence concerning relevant sci-
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`entific principles, the meaning of technical terms, and the state of the art.” Phillips, 415 F.3d at
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`1314.
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`III. THE LEVEL OF ORDINARY SKILL IN THE ART
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`The level of ordinary skill in the art is the skill level of a hypothetical person who is pre-
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`sumed to have known the relevant art at the time of the invention. In re GPAC, 57 F.3d 1573,
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`1579 (Fed. Cir. 1995). In resolving the appropriate level of ordinary skill, courts consider the
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`types of and solutions to problems encountered in the art, the speed of innovation, the sophistica-
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`tion of the technology, and the education of workers active in the field. Id. Importantly, “[a] per-
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`son of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR
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`Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
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`Here, only Defendants propose an ordinary level of skill in the art. Specifically, Defend-
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`ants assert a skilled artisan “would have at least an undergraduate degree in electrical engineer-
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`ing, computer science, computer engineering, or a closely related field, and two or more years of
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`experience in online security, such as user authentication technologies.” Dkt. No. 107 at 6. Be-
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`cause Dynapass does not challenge this proposed level of ordinary skill, the Court adopts it for
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`purposes of analyzing the disputed terms, except the Court limits the amount of experience in
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`“online security” to two years.
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`IV.
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`THE DISPUTED TERMS
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`A.
`
`“concatenating” (Claim 2)
`
`Plaintiff’s Proposal
`Plain and ordinary meaning. See Dkt. No. 106 at 6 (“concatenating
`means ‘joining’ or combining”)
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`Defendants’ Proposal
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`“joining sequentially”
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`Claim 1 recites “generating a new password for said first secure computer network based
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`at least upon the token and a passcode.” ’658 Patent at 11:54–55. Claim 2, which depends from
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`Claim 1, then recites generating the new password “by concatenating the token and the
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`passcode.” Id. at 12:15. The parties dispute the scope of “concatenating.”
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`According to Dynapass, “concatenating means ‘joining’ or combining.” Dkt. No. 106 at
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`6. For support, Dynapass points to the disclosure of “combin[ing] a valid, memorized passcode
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`of ‘abcd’ with a valid token of ‘1234’ to form a valid password of ‘abcd1234.’” Id. at 7 (citing
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`’658 Patent at 4:54–56). Dynapass accuses Defendants’ construction of “run[ning] afoul of the
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`intrinsic record because it requires that the ‘joining’ is sequential.” Id.
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`Defendants rely only on extrinsic evidence for their definition of “join sequentially.” Dkt.
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`No. 107 at 24 (citing Microsoft Comput. Dict., Dkt. No. 107-5 at 122). They also cite three deci-
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`sions from the Court they contend support their position. Id.
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`The Court agrees with Defendants. Dynapass provides no evidence of the ordinary mean-
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`ing of “concatenating” to a skilled artisan. And contrary to Dynapass’s assertion, nothing about
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`Defendants’ construction runs “afoul of the intrinsic record.” Dynapass contends Defendants’
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`construction would exclude the example in the specification where the “passcode” occurs before
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`the token, but nothing about Claim 2 limits the order in which the passcode and token are con-
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`catenated. And even if it did, “concatenating” only appears in a dependent claim, and Claim 1
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`would still include the embodiment to which Dynapass refers.
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`In its reply, Dynapass argues Defendants’ statements show the term does not need con-
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`struction because Defendants agree “concatenating” is a common term with an ordinary mean-
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`ing. Dkt. No. 109 at 6 (citing Dkt. No. 107 at 23). That argument, however, ignores the parties’
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`disagreement over what the “ordinary meaning” is, the resolution of which is a primary purpose
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`of claim construction. See Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d
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`1314, 1319 (Fed. Cir. 2016) (“[A] district court’s duty at the claim construction stage is, simp-
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`ly . . . to resolve a dispute about claim scope that has been raised by the parties.”). Here, based on
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`the only evidence of the term’s ordinary meaning submitted by the parties, the Court resolves
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`that disagreement by construing “concatenating” in Claim 2 as “joining sequentially.”1
`
`
`1 At the hearing, Dynapass asked for “clarification as to whether sequentially means that the
`password and token need to be abutted next to each other without any intervening data.” Hr’g
`Tr., Dkt. No. 119 at 6:15–20 (noting that as “the only dispute remaining between the parties”).
`Arguing “sequentially” does not have that meaning, Dynapass pointed to the Microsoft Comput-
`er Dictionary, which shows the result of concatenating “hello” and “there” as “hello there,” with
`a space between the words. Id. at 6:23–7:4. Defendants agreed the result of “concatenating” two
`words could include an intervening space, but nothing more. Id. at 8:21–24. The Court notes that
`agreement, but otherwise rejects that “concatenating” could include intervening data, which
`would not be joining terms “sequentially.”
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`B.
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`“receiving a request from the user for a token via the personal communica-
`tion device, over the second network” (Claim 1)
`
`Plaintiff’s Proposal
`
`Plain and ordinary meaning
`
`Defendants’ Proposal
`“receiving a request from the user for a token where the
`request is transmitted over the second network from the
`user’s personal communication device”
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`The parties’ briefing suggests this phrase could be interpreted two ways with respect to
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`“over the second network.” First, the user’s request could be received “over the second net-
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`work.” Second, the request could be for the token to be sent “over the second network.” In other
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`words, does “over the second network” modify “receiving a request,” receiving a “token,” or
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`both? See Dkt. No. 107 at 22 (arguing “the user is not requesting (over any network) that a token
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`be sent to it over the second network, but instead, the system receives a token request from a user
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`that is transmitted over the second network”); id. (“[T]he specification does not disclose that a
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`user can send a request including an instruction to send the token over a particular network (e.g.,
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`the second network).”); Dkt. No. 109 at 6 (arguing “Defendants’ construction seeks to imply a
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`direct connection between the personal communication device and the second network”).
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`Defendants proffer three reasons why it is the user’s request—not the token—received
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`“over the second network.” First, the first limitation of Claim 1 requires the personal communi-
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`cation device to be connected to the system over the second network by reciting “said personal
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`communication device in communication over a second network.” Dkt. No. 107 at 21. Second,
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`the structure of the language supports its position, particularly the placement of the comma after
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`“device.” Id. at 21–22. Third, nothing in the specification suggests how the token is transmitted
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`to the user. Id. at 22.
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`The Court agrees. FIG. 1 shows the request from the personal communication device
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`(106) to the user authentication server (102), and nothing in the specification suggests the request
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`concerns how a token should be returned to the user. Moreover, the placement of the comma be-
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`fore “over the second network” suggests those four words modify the entirety of the preceding
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`language. The Court therefore construes this phrase as “receiving, over the second network via
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`the personal communication device, a request from the user for a token.”2
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`C.
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`“activates access to the account in response to the password” (Claim 5)
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`Plaintiff’s Proposal
`
`Plain and ordinary meaning
`
`Defendants’ Proposal
`“activates an account in response to the crea-
`tion of the password”
`
`Claim 5 recites “an authentication module [that] activates access to the account in re-
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`sponse to the password and deactivates the account within a predetermined amount of time after
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`activating the account, such that said account is not accessible through any password via the se-
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`cure computer network.” ’658 Patent at 12:37–47. The parties present two disputes about this
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`limitation: (1) whether “activates access to the account” means “activates an account,” and (2)
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`whether “in response to the password” means “in response to the creation of the password.”
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`Defendants give three reasons for their position. First, the specification never refers to
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`“activating access” to a user’s account—only “activating” the account. Dkt. No. 107 at 13. Sec-
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`ond, when responding to a petition for IPR by Unified Patents, Dynapass read out “access” from
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`the claims and admitted “activating” is “not in response to receiving the password from the user.”
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`Id. at 14–16 (citing Prelim. Resp., Dkt. No. 107-2 at 1–2, 10, 30–32). Finally, Dynapass dis-
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`claimed any interpretation where “activating” is not in response to the creation of the password.
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`Id. at 16–18 (citing Prelim. Resp., Dkt. No. 107-2 at 31, 40–41).
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`2 At the hearing, the parties accepted this construction. See Hr’g Tr., Dkt. No. 119 at 10:1–11.
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`According to Dynapass, the IPR arguments on which Defendants rely “do nothing more
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`than identify requirements that are already in the recited claims.” Dkt. No. 106 at 12. Moreover,
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`says Dynapass, Defendants’ construction “is inconsistent with the claim language and the state-
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`ments made in the [IPR] proceeding.” Id. at 14.
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`1.
`
`Whether “activates access to the account” is interchangeable with “activates the
`account”
`
`In Dynapass’s preliminary response to Unified’s petition for IPR, Dynapass summarized
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`the claims as requiring “activation of the user’s account in response to creation of a new ‘pass-
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`word’ for the user.” Prelim. Resp., Dkt. No. 107-2 at 1; see also id. at 2 (“The asserted references
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`do not discuss activation of a user account.”). For example, Dynapass characterized Claim 1 and
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`Claim 5, which both recite activating access, as “requir[ing] that the user’s account is deactivated
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`‘within a predetermined amount of time’ after the account is activated.” Id. at 10. Thus, Dyna-
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`pass appears to have used “activating access to the account” and “activating the account” inter-
`
`changeably, and also used “deactivating access to the account” and “deactivating the account”
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`interchangeably, in its arguments to the PTAB.
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`But that does not mean there is a disclaimer of scope. Disclaimer narrows the meaning of
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`the claim “congruent with the scope of the surrender.” Omega Eng'g, Inc. v. Raytek Corp., 334
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`F.3d 1314, 1324 (Fed. Cir. 2003) (emphasis added); see also Mass. Inst. of Tech. v. Shire
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`Pharms., Inc., 839 F.3d 1111, 1123 (Fed. Cir. 2016) (concluding the defendant did not show that
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`“a clear and unmistakable disclaimer attaches to limit the claim scope”). Here, Defendants point
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`to nothing from Dynapass’s IPR arguments that turns on the difference in meaning, if any, be-
`
`tween “activating access to the account” and “activating the account.” In fact, Defendants sug-
`
`gest there isn’t any difference in meaning. See Hr’g Tr., Dkt. No. 119 at 22:19–24 (“we’re not
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`advocating that . . . there’s necessarily a different meaning between activates an account and ac-
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`tivates access”). And Dynapass’s IPR arguments were focused on the meaning of “in response to
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`the password” rather than any distinction between “activating access to the account” and “acti-
`
`vating the account.” Given that, Defendants have not persuaded the Court that Dynapass has dis-
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`claimed any scope with respect to this part of the disputed phrase.
`
`2.
`
`Whether Dynapass disclaimed any embodiment in which “activating” is not “in
`response to the creation of the password”
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`In its petition for IPR, Unified asserted Kew teaches “wherein the authentication module
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`activates access to the account in response to the password and deactivates the account within a
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`predetermined amount of time after activating the account.” In response, Dynapass argued “[t]he
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`Petition fails to show that Kew discloses activating account access in response to generation of
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`the new ‘password,’ . . . . Instead, Petitioner incorrectly relies on steps in the prior art that occur
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`well after the claimed ‘password’ is created.” See Prelim. Resp., Dkt. No. 107-2 at 40. Dynapass
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`also wrote Claim 5 “requires that the ‘authentication module’ activates access to the account in
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`response to creation of the new ‘password,’ not in response to receiving the ‘password’ from the
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`user.” Id. at 41 (emphasis added). These statements clearly and unmistakably tie the disputed
`
`phrase to the creation of the new password. See also id. at 1 (“[T]he independent claims require
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`activation of the user’s account in response to creation of a new ‘password’ for the user.” (em-
`
`phasis added)); id. at 2 (“Petitioner disregards the requirement that activation occurs in response
`
`to creation of a new ‘password’ for the user.” (emphasis added)); id. at 29 (“the creation of ‘the
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`password’ by the ‘control module’ . . . is what causes the ‘authentication module’ to activate ac-
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`cess to the account” (emphasis added)).
`
`Dynapass’s arguments to the contrary are not persuasive. In its opening brief, Dynapass
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`points to the “control module” limitation, which is “configured to create a new password.” It
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`then argues “that creation of that password is a prerequisite to . . . activat[ing] access to the ac-
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`count in response to the password,” which is all the claims require. Dkt. No. 106 at 12; see also
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`Dkt. No. 109 at 4–5 (arguing “activation of the access is not based solely on the creation of the
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`password” and “[t]he creation of the password is only one portion of the process, and the claim
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`language is not limited to that portion of the process”). The issue, however, is not whether crea-
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`tion of a password is required by the claim, but when does the authentication module “activate[]
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`access to the account”? If anything, the recitation of “to create a new password” earlier in the
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`claim bolsters Defendants’ position, as “in response to the password” refers back to the earlier
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`creation of the password. The Court therefore adopts that part of Defendants’ proposed construc-
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`tion.
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`For the foregoing reasons, the Court construes “activates access to the account in re-
`
`sponse to the password” as “activates access to the account in response to the creation of the
`
`password.”
`
`D.
`
`“activating access the user account on the first secure computer network”
`(Claim 1)
`
`Plaintiff’s Proposal
`
`Plain and ordinary meaning
`
`Defendants’ Proposal
`“activating access to the user account on the first secure com-
`puter network in response to the creation of the password”
`
`This dispute is similar to the dispute over the “activates access . . .” phrase from Claim 5.
`
`In its response to Unified’s IPR challenge to Claim 1, Dynapass wrote:
`
`Petitioner argues that “[m]ost limitations of claim 1 are substantively similar to
`claim 5. Therefore, these limitations are obvious for the same reasons as the cor-
`responding limitations in claim 5.” Pet., pp. 72-73. As discussed above, the com-
`bination of Kew and Sormunen fails to teach or suggest claim elements [5.3] and
`[5.6]. Accordingly, the combination also fails to teach or suggest the correspond-
`
`13 / 16
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`Case 2:22-cv-00212-JRG-RSP Document 120 Filed 10/31/23 Page 14 of 16 PageID #: 1525
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`ing limitations in independent claim 1.
`
`Prelim. Resp., Dkt. No. 107-2 at 43 (brackets in original). Dynapass identified element [5.6] as
`
`“wherein the authentication module activates access to the account in response to the password
`
`and deactivates the account within a predetermined amount of time after activating the account.”
`
`See id. at i. Notably, unlike element [5.6], the disputed phrase does not include “in response to.”
`
`Nonetheless, Defendants assert this phrase should be given an analogous construction to its pro-
`
`posal for the “activates access” phrase of Claim 5, including the requirement that activating ac-
`
`cess to the account occur “in response to the creation of the password.”
`
`The Court disagrees. In the cited portion of the Preliminary Response, Dynapass made a
`
`general response to an equally general argument by Unified. In fact, Dynapass’s prior argument
`
`concerning element [5.6] of Claim 5 isn’t completely applicable given Claim 1’s lack of the
`
`phrase “in response to.” Thus, given the lack of specificity in both Unified’s argument (as char-
`
`acterized by Dynapass) and Dynapass’s response, this does not amount to clear disclaimer.3 The
`
`Court will give this phrase a “plain and ordinary meaning” construction.
`
`E.
`
`“password” (Claim 1, 2, 5, 6)
`
`Plaintiff’s Proposal
`Plain and ordinary meaning
`
`Defendants’ Proposal
`“string of characters”
`
`This dispute concerns whether the password must be “distinct” from the passcode and to-
`
`ken. Dynapass, say Defendants, suggests “the passcode and token could instead be used separate-
`
`ly in some abstract or conceptual way as a new password.” Dkt. No. 107 at 7. In its reply, Dyna-
`
`3 In contrast, Dynapass made other, very specific arguments concerning Claim 5’s limitation of
`“receiving a request from the user for a token via the personal communication device, over the
`second network.” See Prelim. Resp., Dkt. No. 107-2 at 43–47.
`
`14 / 16
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`Case 2:22-cv-00212-JRG-RSP Document 120 Filed 10/31/23 Page 15 of 16 PageID #: 1526
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`pass calls that statement “a regrettable misrepresentation,” but does not expressly deny it will not
`
`take that or a similar position under the guise of “plain and ordinary meaning.” Dkt. No. 109 at 1.
`
`In fact, Dynapass elsewhere asserts “there can be no reasonable dispute that the specification ex-
`
`pressly states that the ‘passcode’ and ‘token’ can be sent as separate components,” id. at 3 (citing
`
`’658 Patent at 4:59–61), suggesting the claims cover such an embodiment. The underlying ques-
`
`tion is therefore whether the separate receipt of the “passcode” and “token” can literally meet the
`
`“receiving the password” limitations of Claims 1 and 5.
`
`It cannot. As explained by Dynapass during another IPR proceeding, “password” refers
`
`“to the combination of at least the ‘passcode’ and a ‘token.’” Prelim. Resp., Dkt. No. 107-3 at 7.
`
`Thus, sending or receiving the “password” is different from sending or receiving the uncombined
`
`passcode and token and then later combining them into the password. Put differently, until the
`
`passcode and token are combined, there is no password. And while there “might be no reasona-
`
`ble dispute that the specification expressly states that the ‘passcode’ and ‘token’ can be sent as
`
`separate components” in an alternative embodiment, Dkt. No. 109 at 3, that does not mean the
`
`claims are directed to that embodiment. See Pacing Techs., LLC v. Garmin Int’l, Inc., 778 F.3d
`
`1021, 1026 (Fed. Cir. 2015) (“[W]here the patent describes multiple embodiments, every claim
`
`does not need to cover every embodiment. . . . This is particularly true where the plain language
`
`of a limitation of the claim does not appear to cover that embodiment.”). In fact, the context of
`
`the surrounding language underscores that sending the password is not the same as sending the
`
`passcode and token separately. See ’658 Patent at 4:52–60 (noting that “in the preferred embod-
`
`iment the user combines the token with the passcode to form a password” for use at a login
`
`screen, but “[i]n an alternative embodiment, the passcode and the token are submitted separate-
`
`ly” (reference numbers omitted)). Thus, the plain language of the claim does not appear to cover
`
`15 / 16
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`Case 2:22-cv-00212-JRG-RSP Document 120 Filed 10/31/23 Page 16 of 16 PageID #: 1527
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`an embodiment that submits the passcode and token separately.
`
`Having resolved the underlying dispute, the Court need not address whether the password
`
`is a “string of characters” as urged by Defendants. Subject to the foregoing guidance, the Court
`
`will give this term a “plain and ordinary meaning” construction.
`
`Disputed Term
`
`The Court’s Construction
`
`“concatenating”
`
`“joining sequentially”
`
`“receiving a request from the user for a token
`via the personal communication device, over
`the second network”
`
`“receiving, over the second network via the
`personal communication device, a request
`from the user for a token”
`
`“activates access to the account in response
`to the password”
`
`“activates access to the account in response to
`the creation of the password”
`
`“activating access the user account on the
`first secure computer network”
`
`“password”
`
`Plain and ordinary meaning
`
`Plain and ordinary meaning
`
`The Court ORDERS each party not to refer, directly or indirectly, to its own or any other
`
`party’s claim-construction positions in the presence of the jury. Likewise, the Court ORDERS
`
`the parties to refrain from mentioning any part of this opinion, other than the actual positions
`
`adopted by the Court, in the presence of the jury. Ne