Case 2:16-cv-00747-JRG-RSP Document 86 Filed 03/16/17 Page 1 of 13 PageID #: 1451
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`LEXOS MEDIA IP, LLC,
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`v.
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`APMEX, INC.,
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`§
`§
`§
`§
`§
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`Case No. 2:16-CV-00747-JRG-RSP (Lead)
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`EARLY CLAIM CONSTRUCTION OPINION AND ORDER
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`Lexos Media IP, LLC (“Lexos”) filed a series of now-consolidated patent infringement
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`actions against defendants who maintain online retail websites. The amended complaints accuse
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`the defendants of infringing two United States Patents, U.S. Patent No. 5,995,102, and U.S. Patent
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`No. 6,118,449. The patents generally relate to server systems and methods for modifying a cursor
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`image on a website. On motion from Defendants, the Court concluded that early claim construction
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`would assist the parties in narrowing or potentially resolving their dispute. An early claim
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`construction hearing was held on March 15, 2017. The Court now enters the following claim
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`construction order.
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`BACKGROUND
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`The ’449 patent is a continuation of the ’102 patent, and the two patents share the same
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`specification. The patents’ backgrounds primarily discuss existing limitations with advertising on
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`websites, including small and sometimes unnoticeable banner ads, and pop-up ads that can be
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`easily avoided, or worse, ignored. See, e.g., ’102 patent at 1:10-2:26. The patents therefore describe
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`a need for “a simple means to deliver advertising elements, i.e., logos, animations, sound,
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`impressions, text, etc., without annoyance of totally interrupting and intrusive content delivery,
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`and without the passiveness of ordinary banner and frame advertisements which can be easily
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`ignored.” Id. at 2:27-33.
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`Ebay Exhibit 1007, Page 1 of 13
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`The patents describe numerous examples in which cursor images are modified to an image
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`that represents some or all of the subject matter being displayed on the website. In one “Fizzy
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`Cola” embodiment, for example, a generic cursor image takes “the appearance of a ‘Fizzy Cola’
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`bottle when a ‘Fizzy Cola’ banner advertisement appears among the display data of a popular
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`search engine’s site.” Id. at 17:5-9. This example is similar to one of Lexos’ commercial
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`embodiments:
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`See Dkt. No. 79 at 3.
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`The claims include recitations of this and similar applications, although all claims are not
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`limited to advertising. Representative claim 70 of the ’102 patent recites (in relevant part):
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`A server system for modifying a cursor image to a specific image
`having a desired shape and appearance displayed on a display of a
`remote user’s terminal, said system comprising:
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`cursor image data corresponding to said specific image;
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`cursor display code, said cursor display code operably to modify
`said cursor image; and
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`transmitting specified content
`a first server computer for
`information to said remote user terminal, . . . , said cursor display
`instruction and said cursor display code operable to cause said user
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`terminal to display a modified cursor image on said user’s display
`in the shape and appearance of said specific image, . . . , said
`specific image including content corresponding to at least a
`portion of said information to be displayed on said display of said
`user’s terminal, . . . .
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`’102 patent at 23:15-46 (emphasis to relevant language added).
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`* * *
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`Shortly after the Court held a scheduling conference, Defendants Musician’s Friend, Inc.,
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`Guitar Center Inc., and Costco Wholesale Corporation moved for early claim construction. See
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`Dkt. No. 60. These defendants alleged a pattern by Lexos of serially filing groups of cases and
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`then settling those cases before claim construction. According to the defendants, Lexos’
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`infringement theory is implausible because the patent claims cannot possibly cover the accused
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`websites, e.g., websites in which a cursor disappears and is replaced by a magnifying glass icon
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`when the user hovers the cursor over an image that can be magnified:
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`See Dkt. No. 79 at 4 (citing Defendant Musician’s Friend accused website).
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`The Court granted the defendants’ motion, reasoning that early claim construction would
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`aid in the speedy resolution of this and future cases involving the ’102 and ’449 patents. See Dkt.
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`No. 70 at 1-2 (citing Fed. R. Civ. P. 1). The Court thereafter stayed all further deadlines in the case
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`and scheduled an early claim construction hearing for March 15, 2017. Dkt. No. 77. On March 6,
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`2017, Lexos and Defendants Musician’s Friend and Guitar Center filed a joint motion to dismiss.
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`Costco and one other defendant, Saks Incorporated, remained for the early claim construction
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`hearing.
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`DISCUSSION
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`Claim construction begins with the language of the claims. Phillips v. AWH Corp., 415
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`F.3d 1303, 1312-14 (Fed. Cir. 2005) (en banc); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
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`1576, 1582 (Fed. Cir. 1996). When interpreting claim language, courts consult the intrinsic record,
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`which includes the specification and prosecution history. Phillips, 415 F.3d at 1315-17. The
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`specification is “the single best guide to the meaning of a disputed term.” Id. at 1315 (citation
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`omitted).
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`A. The Parties’ Proposed Constructions
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`After the early claim construction briefing, the parties resolved their dispute concerning
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`the phrase “modifying a cursor image” and “modified cursor image.” The parties agree that these
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`phrases should mean “changing or replacing the form, shape or appearance of a cursor image.” See
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`Dkt. No. 83-1. Two additional phrases remain in dispute—“specific image” and “content
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`corresponding to at least a portion of said information to be displayed.”
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`1. “specific image”
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`Plaintiff’s Proposal
`“the cursor image displayed on the remote
`user’s terminal after it has been modified”
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`Defendants’ Proposal
`“an image selected based on the subject matter
`displayed, not an individual user interface state
`or the current state of the user interface”
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`Ebay Exhibit 1007, Page 4 of 13
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`Lexos contends that its proposal is consistent with the language of the claims because the
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`claims repeatedly recite that the “cursor image” is modified into the “specific image,” and thus the
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`specific image must be the image that is displayed on the user’s screen after the cursor image is
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`modified. See Dkt. No. 79 at 9-10. Such claim language, according to Lexos, is consistent with the
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`remainder of the specification’s description of the term “specific image.” Id.
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`There are two problems with Lexos’ construction. First, Lexos’ construction includes the
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`phrase “cursor image.” The “specific image” is not the “cursor image” because the phrase “cursor
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`image” appears elsewhere in the claims, and there is a “general presumption that different terms
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`have different meanings.” See Chicago Bd. Options Exch., Inc. v. Int’l Sec. Exch., LLC, 677 F.3d
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`1361, 1369 (Fed. Cir. 2012). While the specification uses “cursor image” and “specific image”
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`interchangeably, the claims that issued use both phrases to refer to different images. “[T]he
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`language of the claim frames and ultimately resolves all issues of claim interpretation.” Abtox, Inc.
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`v. Exitron Corp., 122 F.3d 1019, 1023 (Fed. Cir. 1997). In sum, the “cursor image” recited in the
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`claims is the image that appears before the cursor image is modified into the specific image. Lexos’
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`construction fails to properly account for this distinction.
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`Second, Lexos’ construction ignores the word “specific.” Neither party cites a dictionary
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`definition of “specific,” but the common meaning of “specific” indicates that something has
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`particular characteristics. Lexos’ construction of “specific image” effectively means nothing more
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`than a “modified” cursor image. Such a construction is inconsistent with the specification. Aside
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`from the claims’ use of the word “specific,” the claims clarify that the “specific image” includes
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`“content corresponding to at least a portion of said information to be displayed” on the screen.
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`This additional limitation relates the content displayed within the “specific image” to the content
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`being displayed on the screen. A few examples of the “specific image” include “rendering the
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`Ebay Exhibit 1007, Page 5 of 13
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`cursor as a baseball bat (on a site with sports information), a pink but otherwise standard-shaped
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`pointer (on a site about the Pink Panther), a witch-on-a-stick to celebrate Halloween, the Statue of
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`Liberty to celebrate Fourth of July, etc.” ’102 patent at 17:32-40.
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`Defendants’ construction attempts to account for the word “specific” using two limitations.
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`First, the “specific image,” according to Defendants, is an “image including content dependent on
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`the subject matter being displayed.” Second, and to make that distinction clear, Defendants
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`propose that two negative limitations be included in the construction—“not connected with
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`individual user interface states” and “not connected with the current state of the user interface.”
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`According to Defendants, inclusion of the phrase “content dependent on the subject matter
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`being displayed” is based both on the specification and the prosecution history. During
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`prosecution, for example, the Examiner rejected the pending claims under 35 U.S.C. § 103(a) as
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`obvious over U.S. Patent 5,710,897 to Schneider. Dkt. No. 80-1 at 35. Schneider relates to a
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`computer operating system manager for selecting and customizing pointer images that represent
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`different events or mouse commands that a user can implement. Scheider at 5:55-65-6:1. In a
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`“standard window,” for example, a “normal arrow pointer” is displayed. Id. at 5:57-58. When the
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`mouse moves over text, the “text” pointer is displayed. Id. at 6:10-11. One example of a folder of
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`different pointer images for different events is shown in Figure 3 of Schneider:
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`The patent applicant distinguished Schneider in part because although Schneider discloses
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`a cursor image that can change into a particular pointer image, the pointer image, according to the
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`applicant, is not modified to an image that is related to content information being displayed on the
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`screen. See Dkt. 80-1 at 35-36. The applicant stressed this point, arguing that the pointer images
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`of Schneider are “not related to any specific content being displayed on the device,” that
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`“Schneider completely lacks even of a hint of the desirability of associating a cursor image with
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`specific content information,” and that “cursor images in Schneider are changed when the mouse
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`pointer moves over any window regardless of what is being displayed within that window.” Id. at
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`36; see also Dkt. No. 80-2 at 15-17.
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`Defendants contend that the proposed negative limitations “emphasize that the ‘specific
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`image’ is selected based on the subject matter displayed.” E.g., Dkt. No. 80 at 6. As support for
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`these limitations, Defendants highlight language in the description discussing prior art in which
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`“pointers change shape to reflect an internal state of the computer or present function within an
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`application.” Id. (quoting ’102 patent at 3:44-48). Defendants also point to remarks made by the
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`applicant in which prior art, including Schneider, was distinguished because the pointer images of
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`Schneider correspond to “user interface states.” Id. (quoting Dkt. No. 80-2 at 15-17).
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`While Defendants’ proposed construction is more consistent with the intrinsic record than
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`Lexos’, it is unnecessary to include Defendants’ negative limitations. The patent applicant
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`distinguished Schneider using the language Defendants propose, but the first clause in Defendants’
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`construction conveys that the “specific image” itself includes “content dependent on the subject
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`matter being displayed.” Typically, only the words of the claims, an express disclaimer, or
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`lexicography justifies adding a negative limitation. Omega Eng'g, Inc, v. Raytek Corp., 334 F.3d
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`1314, 1322 (Fed. Cir. 2003). The patent applicant’s remarks are less like an outright disclaimer
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`and more like language distinguishing the meaning of “specific image” from the pointer images
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`described in Schneider. It is clear from the intrinsic record that “specific image” does not simply
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`consist of content that is independent of the subject or topic displayed on the screen, such as a
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`user-interface state.
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`The phrase “content dependent on the subject matter displayed” is nevertheless similar to
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`a later phrase in the claims, “content corresponding to at least a portion of said information to be
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`displayed.” This similarity, or redundancy as Lexos characterizes it, is a reason not to include the
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`phrase in the construction at all. See Dkt. No. 79 at 11 (“To the extent that Defendants’ proposed
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`construction of the term ‘specific image’ is intended to encompass this separate limitation, it is
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`unnecessary and unfaithful to the actual words of the separate limitation already included in the
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`claim language.”). In sum, neither Lexos’ nor Defendants’ proposed construction of “specific
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`image” appears to include understandable language that would assist the trier of fact in placing the
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`claims into context.
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`2. “content corresponding to at least a portion of said information to be displayed”
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`Plaintiff’s Proposal
`“information linked and related to at least a
`portion of the content being transmitted to and
`displayed on the remote user’s computer or
`terminal”
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`Defendants’ Proposal
`“content that has a relationship to the subject
`matter being displayed, and not corresponding
`to a system operation or user interface state
`representing a unique system operation”
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`The parties’ dispute concerning the “content” phrase largely mirrors the “specific image”
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`dispute. Although the parties do not clearly dispute the meaning of the word “content” itself,
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`Lexos’ construction switches the word “information” with “content,” relative to the order in the
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`claim language. “Courts do not rewrite claims; instead, we give effect to the terms chosen by the
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`patentee.” K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999). The Court therefore
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`declines to switch or otherwise equate the word “content” with the word “information.”
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`Defendants again propose negative limitations to clarify that the content displayed in the
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`specific image is related to at least a portion of the subject matter being displayed. But the proposed
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`negative limitations are unnecessary—in the absence of an express disclaimer, independent
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`lexicography, or another compelling reason to include them. See Omega Eng'g, Inc, v. Raytek
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`Corp., 334 F.3d 1314, 1322 (Fed. Cir. 2003).
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`B. The Court’s Construction
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`The Court concludes that the construction of a single claim limitation, although slightly
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`different than the parties’ proposal, would best resolve the claim construction dispute:
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`said specific image including content corresponding to at least a
`portion of said information to be displayed on said display of said
`user’s terminal
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`The dispute, as Lexos readily admits, is about whether the “specific image” recited in the
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`claims can include content—such as a magnification icon or a plus sign—that is “linked and related
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`to” information on a website because the generic cursor image morphs into the magnification icon
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`when the cursor image hovers over or near that information. The “information” could be a variety
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`of images, such as a guitar in the case of (former) Defendant Musician’s Friend, or a PlayStation™
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`controller in the case of Defendant Costco.
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`See Dkt. No. 79 at 4 (citing Defendant Musician’s Friend accused website).
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`Lexos’ proposed “linked and related to” phrase appears to derive support from two
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`instances in the description in which “sound and animation” is “linked and related to the content
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`being transmitted to and displayed on the client computer or terminal.” ’102 patent at 3:60-64;
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`4:10-12. While this portion of the description raises the question of whether the word “content” is
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`referring to “sound or animation” in the claims, that issue is not disputed. Nevertheless, the “linked
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`and related to” phrase proposed by Lexos, or at least how Lexos interprets that phrase, means
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`something different than “corresponding to”—as that phrase is used in the claims and informed by
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`the remainder of the specification and prosecution history.
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`The problem with Lexos’ argument is that it assumes that the words of a claim can be
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`construed in a complete vacuum, divorced from the remainder of the intrinsic record. “[T]he
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`correct construction” is always the construction that “stays true to the claim language and most
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`naturally aligns with the patent’s description of the invention.” Ericsson, Inc. v. D-Link Sys., Inc.,
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`773 F.3d 1201, 1238 (Fed. Cir. 2014) (citation omitted) (emphasis added). Lexos’ construction
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`does not align with the patent’s description or the remainder of the intrinsic record.
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`There is nothing in the patent’s description or prosecution history suggesting that
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`“corresponding,” or “linked and related to” for that matter, can imply merely a functional or
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`positional relationship between the “specific image” and the information being displayed on the
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`screen. Contrary to Lexos’ position, when the patents explain that a “generic cursor” can “change
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`appearance . . . in a way that is linked and related to the content, such as a web page, which is
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`being transmitted to and displayed on the client computer,” see ’102 patent at 3:60-64, this means
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`that the cursor image itself—the content or visual characteristics of the cursor image—will morph
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`into something that represents at least a portion of the underlying web page content. The very next
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`sentence of the description provides an example: “[t]he cursor or pointer may appear as a corporate
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`or a brand logo which relates to advertising content within the web page being transmitted and
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`displayed.” Id. at 3:64-67.
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`A magnification icon, by contrast, may appear when the user hovers over content that
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`prompts it to appear, and in that sense is “linked and related to” to the content. But there is nothing
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`about the content of the magnification icon that prompts the user to associate the content being
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`displayed within the magnification icon with the information being displayed on the website. If a
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`user were to see the magnification icon off by itself, in other words, the user would not think,
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`“guitar!”
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`The same could not be said of every example in the description—the baseball bat on a
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`sports site, a pink-colored pointer on a Pink Panther site, a “witch-on-a-stick” on a Halloween
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`site—all the examples associate the shape or appearance of the “specific image” with information
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`on the underlying website. ’102 patent at 17:32-40. In addition, the patent applicant expressly
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`distinguished pointer images having a shape or appearance associated with a control function, e.g.,
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`a double-headed arrow for changing the size of a display window. See Dkt. 80-1 at 35-36.
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`To be clear, the Court is not limiting the claims to embodiments described in the
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`description, even though every embodiment points to a single conclusion. Rather, the Court is
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`simply confronted with a choice between two ordinary meanings of the word “corresponding.”
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`One, as Lexos contends, simply means associated at least positionally or functionally with
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`information on the website. The other, as Defendants contend, means similar in terms of content.
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`This choice often presents itself when construing claim terms that can have more than one plain
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`and ordinary meaning. See Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1318
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`(Fed. Cir. 2016), cert. denied sub nom. EON Corp. IP Holdings LLC v. Silver Spring Networks,
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`Inc., 137 S. Ct. 640 (2017). Confronted with such a choice, courts must adopt the construction that
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`“most naturally aligns with the patent’s description of the invention.” Ericsson, Inc. v. D-Link Sys.,
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`Inc., 773 F.3d 1201, 1238 (Fed. Cir. 2014) (citation omitted) (emphasis added).
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`With this understanding in mind, the Court construes the phrase “said specific image
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`including content corresponding to at least a portion of said information to be displayed on said
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`display of said user’s terminal” to mean “an image representative of at least a portion of the
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`subject or topic being displayed on the screen.”
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`This construction finds ample support in the patents’ description. The patent characterizes
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`the “specific image” as “representing” data displayed on the user’s screen. For example, “the
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`cursor can be modified for advertising purposes to represent Fizzy Cola’s logo, its corporate
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`mascot, images of its products or services, slogans, icons . . . , etc.” ’102 patent at 17:5-15
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`(emphasis added). While the word “representative” appears sparingly in the patents, the patents’
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`use of this word is simply synonymous with the intended meaning of “linked and related to” and
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`“corresponding to.” Among these descriptive phrases, however, “representative” best captures the
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`description of the invention and most closely aligns with the intrinsic record. Although there is
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`little difference between “representative” and Defendants’ proposed phrase, “dependent on,” the
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`Court believes that “representative” would be more helpful to the trier of fact.
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`CONCLUSION
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`Having resolved the parties’ early claim construction dispute, IT IS ORDERED that the
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`stay in this case be lifted and that the parties file any necessary amended docket control order
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`within fourteen days of this Order.
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`Ebay Exhibit 1007, Page 13 of 13
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