Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 1 of 23 PageID #: 2212
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`LEXOS MEDIA IP, LLC,
`
`
`Plaintiff,
`
`
`v.
`
`AMAZON.COM, INC.,
`
`
`Defendant.
`
`
`
`v.
`
`TARGET CORPORATION,
`
`
`Defendant.
`
`
`
`v.
`
`OFFICE DEPOT, LLC,
`
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`No. 2:22-CV-00169-JRG
`(Lead Case)
`
`No. 2:22-CV-00175-JRG
`(Member Case)
`
`No. 2:22-CV-00273-JRG
`(Member Case)
`
`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
`
`In these consolidated patent cases, Lexos Media IP, LLC (“Lexos”) asserts claims from
`
`three patents against Amazon.com, Inc., Target Corporation, and Office Depot, LLC (together,
`
`“Defendants”). Each of the patents relates to modifying a cursor image displayed on a computer.
`
`See U.S. Patent 5,995,102 (the “’102 Patent”) at 1:6–8 (“This invention relates . . . to a server
`
`system capable of modifying a cursor image displayed on a remote client computer.”); U.S. Patent
`
`6,118,449 (the “’449 Patent”) at 1:9–11 (same); U.S. Patent 7,975,241 (the “’241 Patent”) at 11:8–
`
`Ebay Exhibit 1014, Page 1 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 2 of 23 PageID #: 2213
`
`10 (same).
`
`The parties dispute the proper construction of six terms from the asserted patents. In
`
`addition, Defendants challenge whether “promotional material” in Claim 35 of the ’241 Patent is
`
`entitled to patentable weight. Having considered the parties’ briefing, along with arguments of
`
`counsel during an August 16, 2023 hearing, the Court resolves the disputes as follows.
`
`I.
`
`BACKGROUND
`
`The asserted patents relate to on-line advertising during the infancy of the world wide web.1
`
`As background, the patents describe three prominent types of on-line advertising and the various
`
`problems with each. For example, the most common type of advertisements at the time were “ban-
`
`ner ads”—“generally square or rectangular boxes provided with some combination of graphics,
`
`color and text directed to the product or service being advertised.” ’102 Patent at 1:29–31. How-
`
`ever, because banner ads typically occupy a small part of a web page, they are easily ignored. Id.
`
`at 1:41–49. As an alternative, web page “frames” divide the display into separate sections, some
`
`of which may be used for advertising. The content, however, can still be difficult to read and is
`
`easily ignored by resizing or eliminating the frames. Id. at 1:55–2:3. Finally, the patents describe
`
`pop-up ads as an intrusive advertising method that annoys users by generating dialogue boxes that
`
`temporarily control the user’s screen. Id. at 2:4–26.
`
`Against that background, the asserted patents describe the technical problem as “a need for
`
`a simple means to deliver advertising elements, i.e. logos, animations, sound, impressions, text,
`
`
`1 Two of the patents are related. The application underlying the ’449 Patent claims priority to the
`application from which the ’102 Patent issued. ’449 Patent at [63]. The ’241 Patent does not claim
`priority to an earlier-filed application. Defendants characterize the three specifications as “sub-
`stantively the same but vary[ing] slightly due to formatting and non-substantive differences.” Dkt.
`No. 105 at 1 n.1.
`
`2
`
`
`Ebay Exhibit 1014, Page 2 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 3 of 23 PageID #: 2214
`
`etc., without the annoyance of totally interrupting and intrusive content delivery, and without the
`
`passiveness of ordinary banner and frame advertisements which can be easily ignored.” Id. at 2:27–
`
`32. To address that need, the patents teach storing (1) “cursor image data” that corresponds to a
`
`“specific image,” and (2) “cursor display code” that modifies the cursor image to the specific im-
`
`age. When instructed by a server, the system modifies the cursor image to the shape and appearance
`
`of the specific image. Id. at [57].
`
`As an example, FIG. 8 (below) of the ’102 Patent shows a web browser displaying a web
`
`page called “SportsNews.” When loading the web page, the browser also loads a banner advertise-
`
`ment (62) for Fizzy Cola that contains “cursor display instructions.” Based on those instructions,
`
`the user’s computer changes the cursor image from its normal arrow shape into a bottle shape (44a)
`
`to promote the product. See id. at 13:36–41.
`
`FIG. 8 of the ’102 Patent
`
`
`
`3
`
`
`Ebay Exhibit 1014, Page 3 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 4 of 23 PageID #: 2215
`
`Claim 72 of the ’102 Patent is representative of the claims at issue and includes most of
`
`the disputed terms. That claim recites:
`
`72. A method for modifying an initial cursor image displayed on
`a display of a user terminal connected to at least one server, com-
`prising:
`receiving a request at said at least one server to provide specified
`content information to said user terminal;
`providing said specified content information to said user termi-
`nal in response to said request, said specified content infor-
`mation including at least one cursor display instruction and
`at least one indication of cursor image data corresponding to
`a specific image; and
`transforming said initial cursor image displayed on said dis-
`play of said user terminal into the shape and appearance of
`said specific image in response to said cursor display in-
`struction, wherein said specified content information in-
`cludes information that is to be displayed on said display of
`said user’s terminal, wherein said specific image includes
`content corresponding to at least a portion of said infor-
`mation that is to be displayed on said display of said user’s
`terminal, and wherein said cursor display instruction indi-
`cates a cursor display code operable to process said cursor
`display instruction to modify said cursor image to said
`cursor image in the shape and appearance of said specific
`image responsive to movement of said cursor image over a
`display of said at least a portion of said information to be
`displayed on said display of said user’s terminal.
`
`’102 Patent at 24:10–36 (disputed terms bolded). In addition, the parties dispute the scope of
`
`“tracks a movement” in Claim 35 of the ’241 Patent, and whether “promotional material” in that
`
`claim is entitled to patentable weight.
`
`II.
`
`LEGAL STANDARDS
`
`“[T]he claims of a patent define the invention to which the patentee is entitled the right to
`
`4
`
`
`Ebay Exhibit 1014, Page 4 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 5 of 23 PageID #: 2216
`
`exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting In-
`
`nova/Pure-Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)).
`
`As such, if the parties dispute the scope of the claims, the court must determine their meaning. See,
`
`e.g., Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1317 (Fed. Cir. 2007); see
`
`also Markman v. Westview Instruments, Inc., 517 U.S. 370, 390 (1996), aff’g, 52 F.3d 967, 976
`
`(Fed. Cir. 1995) (en banc).
`
`Claim construction, however, “is not an obligatory exercise in redundancy.” U.S. Surgical
`
`Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). Rather, “[c]laim construction is a
`
`matter of [resolving] disputed meanings and technical scope, to clarify and when necessary to
`
`explain what the patentee covered by the claims . . . .” Id. A court need not “repeat or restate every
`
`claim term in order to comply with the ruling that claim construction is for the court.” Id.
`
`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 1363,
`
`1373 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1312–13). Courts must therefore “look to the
`
`words of the claims themselves . . . to define the scope of the patented invention.” Id. (citations
`
`omitted; ellipses in original). “[T]he ordinary and customary meaning of a claim term is the mean-
`
`ing that the term would have to a person of ordinary skill in the art in question at the time of the
`
`invention, i.e., as of the effective filing date of the patent application.” Phillips, 415 F.3d at 1313.
`
`This “person of ordinary skill in the art is deemed to read the claim term not only in the context of
`
`the particular claim in which the disputed term appears, but in the context of the entire patent,
`
`including the specification.” Id.
`
`Intrinsic evidence is the primary resource for claim construction. See Power-One, Inc. v.
`
`Artesyn Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010) (citing Phillips, 415 F.3d at 1312). For
`
`5
`
`
`Ebay Exhibit 1014, Page 5 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 6 of 23 PageID #: 2217
`
`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 involves
`
`little more than the application of the widely accepted meaning of commonly understood words.”
`
`Phillips, 415 F.3d at 1314; see also DeMarini Sports, Inc., v. Worth, 239 F.3d 1314, 1324 (Fed.
`
`Cir. 2001) (“We cannot look at the ordinary meaning of the term . . . in a vacuum. Rather, we must
`
`look at the ordinary meaning in the context of the written description and the prosecution his-
`
`tory . . . .”). However, for claim terms with less-apparent meanings, courts consider “those sources
`
`available to the public that show what a person of skill in the art would have understood disputed
`
`claim language to mean[,] [including] the words of the claims themselves, the remainder of the
`
`specification, the prosecution history, and extrinsic evidence concerning relevant scientific princi-
`
`ples, the meaning of technical terms, and the state of the art.” Phillips, 415 F.3d at 1314 (quoting
`
`Innova, 381 F.3d at 1116).
`
`III. THE LEVEL OF ORDINARY SKILL IN THE ART
`
`The level of ordinary skill in the art is the skill level of a hypothetical person who is pre-
`
`sumed to have known the relevant art at the time of the invention. In re GPAC, 57 F.3d 1573, 1579
`
`(Fed. Cir. 1995). In resolving the appropriate level of ordinary skill, courts consider the types of
`
`and solutions to problems encountered in the art, the speed of innovation, the sophistication of the
`
`technology, and the education of workers active in the field. Id. Importantly, “[a] person of ordinary
`
`skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex
`
`Inc., 550 U.S. 398, 421 (2007).
`
`Here, Lexos notes that the PTAB previously found, in a related IPR proceeding concerning
`
`the ’102 Patent, that a person of ordinary skill in the art would have “at least a master’s degree in
`
`Computer Science, Computer Engineering, or a related field, or hold a bachelor’s degree in
`
`6
`
`
`Ebay Exhibit 1014, Page 6 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 7 of 23 PageID #: 2218
`
`Computer Science, Computer Engineering, or equivalent and have at least two years of relevant
`
`work experience in the fields of [user interface] design and [operating systems].” Dkt. No. 98-3 at
`
`9 (quoting Final Written Decision, Dkt. No. 98-4 at 10). Because Defendants do not challenge this
`
`proposed level of skill in the art, the Court adopts this characterization for its analysis.
`
`IV.
`
`THE DISPUTED TERMS
`
`A.
`
`“cursor display code” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 27, 53)
`
`Lexos’s Construction
`“computer code for modifying the display of
`the cursor image”
`
`Defendants’ Construction
`
`Plain and ordinary meaning.
`
`Lexos asserts that the specification describes “cursor display code” as a set of instructions
`
`executed on the user terminal to change the cursor. Dkt. No. 98-3 at 12 (quoting ’102 Patent at
`
`8:52–57). Lexos interprets this to mean “the cursor display code causes the user’s terminal to dis-
`
`play that cursor image data in place of the original cursor, using the API of the operating system
`
`to effect these changes.” Id. (citing ’102 Patent at 8:34–37, 8:52–57, 13:19–30).
`
`Defendants appear to agree with most of Lexos’s position but instead argue construction is
`
`not necessary. For example, they argue “anyone reading the patents or claims would understand
`
`that the ‘code’ referenced in the claims is computer code.” Dkt. No. 105 at 7. Similarly, Defendants
`
`claim changing “cursor display” to “display of the cursor image” is unnecessary “as anyone, in-
`
`cluding a lay jury, reading the patents and claims would understand that ‘cursor display’ in the
`
`claims refers to the image of the cursor displayed on the screen.” Id. As for the phrase “for modi-
`
`fying,” Defendants stress that the claims already recite “the ‘cursor display code’ is used to modify
`
`the cursor image.” Id. (citing ’102 Patent at 24:30–32; ’449 Patent at 18:45–46, 20:40–41, 22:50–
`
`51).
`
`7
`
`
`Ebay Exhibit 1014, Page 7 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 8 of 23 PageID #: 2219
`
`At the hearing, the parties called the dispute over this term “small.” Hr’g Tr., Dkt. No. 125
`
`at 5:18 (“It’s a very small issue . . . .”); id. at 7:5–6 (“there really isn’t a large dispute here”). Lexos
`
`characterized its concern as clarifying that “cursor display code” is not code for displaying the
`
`cursor, but rather code for modifying the display of the cursor image. Id. at 6:13–15. Defendants
`
`do not dispute the accuracy of that characterization. See id. at 7:11–15.
`
`Lexos has a point. One could read “cursor display code” and form an incorrect position
`
`about the code’s purpose. Despite the fact that Lexos’s proposed construction is already accounted
`
`for elsewhere in the surrounding claim language, the Court sees some benefit and no harm in ar-
`
`ticulating the cursor display code’s purpose separately. Accordingly, the Court construes “cursor
`
`display code” as “computer code for modifying the display of the cursor image.”
`
`B.
`
`“cursor display instruction” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 27,
`53; ’241 Patent, Claim 35)
`
`Lexos’s Construction
`“an instruction operable to modify the display,
`in conjunction with other information, of a
`cursor image”
`
`Defendants’ Construction
`
`Plain and ordinary meaning. No construction
`required.
`
`For “cursor display instruction,” the parties’ arguments are generally the same as those
`
`made with respect to “cursor display code.” In support of its construction, Lexos points to one
`
`excerpt in particular:
`
`Typically a web browser retrieves a web page to be loaded on a user’s terminal. The
`retrieved web page in accordance with one embodiment of the invention contains a
`set of predetermined instructions referred to herein as cursor display instructions.
`The browser or browser extension interprets the information contained in cursor
`display instructions and instructs the operating system of the user’s terminal via an
`application programming interface (API) to check its memory to determine if the
`user terminal is capable of loading the coded image, animation, and/or soundbite.
`
`8
`
`
`Ebay Exhibit 1014, Page 8 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 9 of 23 PageID #: 2220
`
`Dkt. No. 98-3 at 13 (quoting ’102 Patent at 4:31–45). Lexos also notes its construction accords
`
`with the claim language itself. Id.
`
`Defendants, however, assert that this term requires no construction and accuse Lexos of
`
`simply rearranging the phrase and adding superfluous language. Dkt. No. 105 at 8. The claims, say
`
`Defendants, already require the cursor display instruction to be an instruction to modify the dis-
`
`played cursor image. Id. at 8–9. Further, Defendants characterize the phrase “in conjunction with
`
`other information” in Lexos’s construction as ambiguous. Id. at 9.
`
`Here, the dispute in the briefing focuses on the phrase “in conjunction with other infor-
`
`mation.” At the hearing, Lexos pointed to the Abstract for support of that phrase, but agreed the
`
`language is not “material” or “critical” to its construction. Hr’g Tr., Dkt. No. 125 at 8:25–9:6.
`
`Defendants stressed that, despite any support in the abstract for “in conjunction with other infor-
`
`mation,” there is no reason to import that phrase into the claims. Id. at 9:20–23.
`
`The Court agrees with Defendants that “in conjunction with other information” is not part
`
`of the correct construction. However, for the same reasons set forth in Part IV.A., the Court adopts
`
`the remainder of Lexos’s construction for this term: “an instruction operable to modify the display
`
`of a cursor image.”
`
`C.
`
`“cursor image” and “initial cursor image” (’102 Patent, Claim 72; ’449 Patent,
`Claims 1, 27, 53; ’241 Patent, Claim 35)
`
`Lexos’s Construction
`
`Defendants’ Construction
`
`9
`
`
`Ebay Exhibit 1014, Page 9 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 10 of 23 PageID #: 2221
`
`“the appearance of the cursor on a user’s
`screen before the cursor image is modified
`into the specific image”
`
`“a movable image on a display screen whose
`position is controlled through a user interface
`and that indicates the location that will be af-
`fected by input from the user interface”
`Alternatively: “a movable image on a display
`screen whose position can be controlled
`through a user interface and that indicates the
`location that will be affected by input from the
`user interface.” See Dkt. No. 105 at 13.
`
`The parties present different disputes to the Court. Lexos argues that its construction should
`
`be adopted because this Court earlier held “the ‘cursor image’ recited in the claims is the image
`
`that appears before the cursor image is modified into the specific image.” Dkt. No. 98-3 at 14
`
`(quoting Lexos Media IP, LLC v. APMEX, Inc., 2017 WL 1021366, at *2 (E.D. Tex. Mar. 16, 2017).
`
`Defendants, however, do not contest Lexos’s position, so no construction is necessary to resolve
`
`that dispute. See Dkt. No. 105 at 14 (stating “the patents’ claims make clear which references
`
`concern the cursor image before or after modification”); id. at 14 n.5 (noting Defendants’ agree-
`
`ment that “transforming said initial cursor image,” “modify said cursor image,” and “responsive
`
`to movement of said cursor image” refer to the cursor image before modification, while “said
`
`cursor image in the shape and appearance of said specific image” refers to the image after modifi-
`
`cation).
`
`Defendants present different questions about these terms: (1) whether a “cursor image” is
`
`movable, and (2) the extent to which a “cursor image” must be controlled through a user interface.
`
`Dkt. No. 105 at 12–13. Defendants also urge the Court to construe “cursor image” as a
`
`“standalone” term such that the Court’s construction applies to each of “cursor image,” “initial
`
`cursor image,” or “modified cursor image.” See Hr’g Tr., Dkt. No. 125 at 16:9–17:1.
`
`In its briefing, Lexos opposes Defendants’ construction on two grounds. First objecting to
`
`10
`
`
`Ebay Exhibit 1014, Page 10 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 11 of 23 PageID #: 2222
`
`the notion that a “cursor image” is “movable,” it contends “the only movement specified in the
`
`claims is that the cursor image transforms into the specific image when the cursor is positioned
`
`over a portion of the information to be displayed.” Dkt. No. 98-3 at 15. Second, to the extent a
`
`“cursor image” is movable, Lexos notes the specification provides an example of the cursor being
`
`movable by a remote server rather than a user, which undercuts Defendants’ construction. Id. at
`
`15–16. Defendants concede the cursor may at times be moved around the screen by a remote server
`
`and offer an alternative construction of “a movable image on a display screen whose position can
`
`be controlled through a user interface.” Dkt. No. 105 at 13.
`
`At the hearing, the “moveability” of the “cursor image” was not an issue. See Hr’g Tr., Dkt.
`
`No. 125 at 28:21–25 (admitting that the “cursor image” and “initial cursor image” are “movable”).
`
`Instead, Lexos’s arguments focused on whether the cursor image had to be movable by only the
`
`user interface. See id. at 20:21–25:10. Regarding Defendants’ alternative construction—that the
`
`image can be (rather than must be) controlled with a user interface, Lexos calls it a “totally mean-
`
`ingless limitation.” Id. at 22:8–12; see also id. at 22:18–21 (“It’s not a limitation anymore. I don’t
`
`know what it is. But it would be improper if it didn’t say ‘can be controlled,’ and it’s meaningless
`
`when it does say ‘can be controlled.’”).
`
`The Court generally agrees with Defendants. To start, the Court rejects any need for
`
`Lexos’s construction, as there appears to be no confusion about whether the terms, based on the
`
`surrounding claim language, refer to an image before or after modification or transformation.
`
`Lexos does not point to any particular instances of confusion. Thus, even though Lexos’s construc-
`
`tion might be correct, it is unnecessary.
`
`Regarding moveability of a “cursor image,” a cursor is inherently movable around the
`
`screen. See cursor, Encyclopedia MacIntosh, Dkt. No. 105-8 at 723 (“An on-screen icon that the
`
`11
`
`
`Ebay Exhibit 1014, Page 11 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 12 of 23 PageID #: 2223
`
`user manipulates by moving the mouse, or in some cases, by using the arrow keys from the key-
`
`board.”); cursor, Dict. of Comput., Dkt. No. 105-14 at 114–15 (“A symbol on a display screen that
`
`indicates the active position, e.g., the position at which the next character to be entered will be
`
`displayed. . . . The cursor can be moved to a new position on the screen by means of arrow keys
`
`on the keyboard or a pointing device such as a mouse.”). Lexos attempts to distinguish a “cursor”
`
`from its “image,”2 but the Court sees no situation in which the cursor is movable around the dis-
`
`play and its image is not.
`
`Regarding Lexos’s objection to Defendants’ alternative construction, the Court disagrees it
`
`is “meaningless.” Again, as evidenced from the cited definitions supra, cursors facilitate user con-
`
`trol and input to a computer. After all, the computer itself has no need for a cursor—it “knows” the
`
`position of everything on the screen and does what it is programmed to do—and a cursor-like
`
`image moving around a display without the possibility of user input is just a pointer. See ’102
`
`Patent at 3:51–54 (distinguishing between “cursors and pointers”). Although Lexos stresses the
`
`claims don’t expressly limit what controls the cursor, that ignores the meaning of “cursor.” Lexos
`
`correctly notes the specification’s example of a remote server moving the cursor after a certain
`
`period of inactivity by the user, and Defendants’ alternative construction sufficiently addresses that
`
`embodiment while maintaining the required relationship between “user interface” and “cursor.”
`
`Finally, the parties dispute whether this reasoning applies not just to “cursor image” and
`
`“initial cursor image,” but also “modified cursor image.” Defendants argue it should. See Hr’g Tr.,
`
`Dkt. No. 125 at 30:3–15; see also Dkt. No. 105 at 9 (contending “cursor image” should be
`
`
`2 For example, Lexos acknowledges that the specification describes control of the cursor with the
`user interface, but argues there is no language in the specification that says the user interface con-
`trols the cursor image. Hr’g Tr., Dkt. No. 125 at 23:13–17.
`
`12
`
`
`Ebay Exhibit 1014, Page 12 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 13 of 23 PageID #: 2224
`
`construed as a standalone term). Lexos argues “they are totally different things.” Hr’g Tr., Dkt.
`
`No. 125 at 28:2–5. The “cursor image,” says Lexos, “is simply the image on the screen that appears
`
`where the cursor is.” Id. at 27:15–17. The “modified cursor image,” on the other hand, appears
`
`after the cursor is moved over an image—that is, after the claimed “modification” or “transfor-
`
`mation.” Id. at 27:19–28:1.
`
`With respect to movability of “modified cursor image” and its relationship with the user
`
`interface, the Court sees no reason why the same analysis doesn’t apply to “modified cursor im-
`
`age.” Nor does Lexos provide any such reasoning. Both the claims and the specification show that
`
`the “modification” that gives rise to the “modified cursor image” relates to a change of its appear-
`
`ance rather than its movability or control source. See, e.g., ’102 Patent at [57] (“A system for
`
`modifying a cursor image . . . to a specific image having a desired shape and appearance.”); id. at
`
`3:10–13 (“It is still an additional embodiment of the present invention to provide a means of chang-
`
`ing the appearance of a computer’s cursor or pointer . . . .”) (emphasis added); id. at 3:51–53 (“The
`
`present invention provides a means for enabling cursors and pointers to change color, shape, ap-
`
`pearance, make sounds, display animation, etc., . . . .”); ’449 Patent at 18:52–55 (requiring, in
`
`Claim 1, “cursor display code operable to cause said user terminal to display a modified cursor
`
`image . . . in the shape and appearance of said specific image”) (emphasis added); id. at 20:59–
`
`64 (requiring, in Claim 27, “cursor display code . . . operable to process said cursor display in-
`
`struction to modify said cursor image to [a modified] cursor image in the shape and appearance
`
`of said specific image in response to movement of said cursor image over a specified location on
`
`said display” (emphasis added)); id. at 22:50–56 (similar). Nothing suggests that the “modified
`
`cursor image” suddenly becomes immovable or no longer controllable by a user once moved “over
`
`a specified location on [the] display.” Thus, if the “cursor image” and “initial cursor image” are
`
`13
`
`
`Ebay Exhibit 1014, Page 13 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 14 of 23 PageID #: 2225
`
`movable—a notion with which Lexos agrees, see Hr’g Tr., Dkt. No. 125 at 28:21–25 (admitting
`
`that the “cursor image” and “initial cursor image” are “movable”)—the Court sees no reason why
`
`the “modified cursor image” is not also movable.
`
`The Court adopts a variation of Defendants’ alternative construction and construes “cursor
`
`image” as “a movable image on a display screen whose position can be controlled through a user
`
`interface.” That construction applies to each of “cursor image,” “initial cursor image,” and “mod-
`
`ified cursor image.”
`
`D.
`
`“modifying” / “transforming” [said cursor image/initial cursor image]; “mod-
`ify [said cursor image]”; “modifying [a cursor image]” (’102 Patent, Claim 72;
`’449 Patent, Claims 27, 53; ’241 Patent, Claim 35)
`
`Lexos’s Construction
`“changing (change) or replacing (replace) the
`form, shape or appearance of a cursor image”
`
`Defendants’ Construction
`Plain and ordinary meaning. No construction
`required.
`
`The five claims at issue recite either “modifying” or “transforming” a cursor image. For
`
`example, Claim 72 of the ’102 Patent recites “transforming said initial cursor image displayed on
`
`said display of said user terminal into the shape and appearance of [a] specific image in response
`
`to said cursor display instruction.” ’102 Patent at 24:20–23. Similarly, Claim 35 of the ’241 Patent
`
`requires that, after receiving content information from a server, “the at least one client computer
`
`process[es] the at least one cursor display instruction and modif[ies] the cursor image to include
`
`the visual image and display[] the modified cursor image.” ’241 Patent at 20:66–21:3.
`
`In its briefing, Lexos seeks clarification that both “modifying” and “transforming” the cur-
`
`sor image means either changing or replacing the cursor image. Dkt. No. 98-3 at 19. Defendants
`
`apparently agree and argue no construction is necessary. Dkt. No. 105 at 15–16 (calling the use of
`
`these terms “consistent with everyday parlance, which is confirmed by Lexos’s attempt to convert
`
`14
`
`
`Ebay Exhibit 1014, Page 14 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 15 of 23 PageID #: 2226
`
`[the terms] into other workaday terms—‘changing’ and ‘replacing’”). Defendants, however, ques-
`
`tion “how ‘form’ differs from ‘shape’ or ‘appearance.’” Id. at 16.
`
`The parties confirmed their positions at the hearing. Lexos presented the dispute as whether
`
`“the words ‘modifying’ and ‘transforming’ used in the claims are broad enough to encompass both
`
`‘changing’ and ‘replacing.’” Hr’g Tr., Dkt. No. 125 at 34:22–23. Lexos further expressed concern
`
`about Defendants’ refusal to agree to that scope and urged that Defendants’ “plain and ordinary
`
`meaning” construction could be a “stalking horse” for a more limiting interpretation. Id. at 35:9–
`
`10. Defendants, however, denied any such intent, and confirmed to Lexos and the Court that “mod-
`
`ifying” and “transforming” are each broad enough to include the concept of “replacing” the cursor
`
`image. Id. at 39:2–19. Accordingly, because there is no apparent dispute between the parties, and
`
`because these are well-understood terms, the Court will give them a “plain and ordinary meaning”
`
`construction.
`
`E.
`
`“specific image” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 27, 53)
`
`Lexos’s Construction
`
`a “modified cursor image,” and not the “cur-
`sor image” or the “initial cursor image”
`
`Defendants’ Construction
`“modified cursor image, which is static and
`representative of at least a portion of the sub-
`ject or topic being displayed on the screen”
`
`Claim 72 of the ’102 Patent recites “transforming [the] initial cursor image displayed on
`
`[the] display of said user terminal into the shape and appearance of [a] specific image in response
`
`to said cursor display instruction.” ’102 Patent at 24:20–23. The claim then requires the “specific
`
`image” to “include[] content corresponding to at least a portion of said information that is to be
`
`displayed on said display of said user’s terminal.” Id. at 24:26–28. Claims 1, 27, and 53 of the ’449
`
`Patent include similar limitations. See ’449 Patent at 18:61–64 (reciting, in Claim 1, “said specific
`
`image including content corresponding to at least a portion of said information to be displayed on
`
`15
`
`
`Ebay Exhibit 1014, Page 15 of 23
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00336
`
`

`

`Case 2:22-cv-00169-JRG Document 130 Filed 09/05/23 Page 16 of 23 PageID #: 2227
`
`said display of said user’s terminal”); id. at 20:65–567 (same language in Claim 27); id. at 22:46–
`
`48 (reciting similar language in Claim 53).
`
`The parties present two disputes. First, Lexos objects to Defendants’ attempt to limit a
`
`“specific image” to one that is “static.” Second, Defendants assert the “specific image” must be
`
`more than merely the modified image, as Lexos’s construction suggests, and more particularly
`
`“representative of at least a portion of the subject or topic being displayed on the screen.”
`
`1.
`
`Whether the “specific image” must be “static”
`
`Lexos claims the specification contradicts Defendants’ requirement of a “static” “specific
`
`image.” It points to the disclosure of a “dynamic cursor image” comprising a straw that always
`
`points to a displayed stationary bottle regardless of the straw’s position on the screen. Dkt. No.
`
`98-3 at 21 (citing ’102 Patent at 17:15–31). It also notes the disclosure of a “baseball bat” cursor
`
`that “could be enhanced with related animations, such as the bat hitting the ball. Id. (citing ’102
`
`Patent at 17:32–40).
`
`According to Defendants, the intrinsic evidence shows a “specific image” must be static—
`
`that is, a single image. For support, they emphasize the Abstract’s reference to “a specific image
`
`[singular] having a desired shape and appearance