Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 1 of 20 PageID #: 4901
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`LEXOS MEDIA IP, LLC,
`
`
`Plaintiff,
`
`v.
`
`NIKE, INC.,
`
`
`Defendant.
`
`§
`§
`§
`§ CIVIL ACTION NO. 2:22-cv-00311-JRG
`§ (Lead Case)
`§
`§
`§
`
`CLAIM CONSTRUCTION ORDER
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`In these consolidated patent cases, Lexos Media IP, LLC, asserts claims from U.S. Patents
`
`5,995,102, 6,118,449, and 7,975,241 against Nike, Inc., CDW LLC, Ulta Beauty, Inc., The Gap,
`
`Inc., Walmart, Inc., and Northern Tool & Equipment Company (together, “Defendants”).
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`Generally, the patents relate to modifying a cursor image displayed on a computer for advertising
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`purposes. See ’102 Patent at 1:6–8 (“This invention relates . . . to a server system capable of
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`modifying a cursor image displayed on a remote client computer.”); ’449 Patent at 1:9–11 (same);
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`’241 Patent at 11:8–10 (same). The patents, which share a common disclosure, teach “a simple
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`means to deliver advertising elements . . . without the annoyance of totally interrupting and
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`intrusive content delivery, and without the passiveness of ordinary banner and frame
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`advertisements which can be easily ignored.” ’102 Patent at 2:27–32.
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`The parties dispute the scope of eleven terms, some of which were recently construed by
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`the Court in Lexos Media IP, LLC, v. Amazon.com, Inc., No. 2:22-CV-00169 (Amazon). Having
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`considered the parties’ briefing, along with arguments of counsel during an October 12, 2023
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`hearing, the Court resolves the disputes as follows.
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`Ebay Exhibit 1015, Page 1 of 20
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 2 of 20 PageID #: 4902
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`I.
`
`BACKGROUND
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`In Amazon, Chief Judge Gilstrap provided this background of the patents and technology:
`
`The asserted patents relate to on-line advertising during the infancy of the
`world wide web. As background, the patents describe three prominent types of on-
`line advertising and the various problems with each. For example, the most com-
`mon type of advertisements at the time were “banner ads”—“generally square or
`rectangular boxes provided with some combination of graphics, color and text di-
`rected to the product or service being advertised.” ’102 Patent at 1:29–31. However,
`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 prob-
`lem as “a need for a simple means to deliver advertising elements, i.e. logos, ani-
`mations, sound, impressions, text, etc., without the annoyance of totally interrupt-
`ing 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 image. 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 advertisement (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.
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`Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 3 of 20 PageID #: 4903
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`FIG. 8 of the ’102 Patent
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`
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`Claim 72 of the ’102 Patent is representative of the claims at issue and in-
`cludes 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
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`instruction, 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).
`
`Cl. Constr. Order, Dkt. No. 161-5 at 1–4.
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`II.
`
`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) (quoting In-
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`nova/Pure-Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)).
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`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
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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 every
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`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
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`their ordinary and customary meaning.” Aventis Pharm. Inc. v. Amino Chems. Ltd., 715 F.3d 1363,
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`1373 (Fed. Cir. 2013) (citing Phillips, 415 F.3d at 1312–13). Courts must therefore “look to the
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`words of the claims themselves . . . to define the scope of the patented invention.” Id. (citations
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`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
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`invention, i.e., as of the effective filing date of the patent application.” Phillips, 415 F.3d at 1313.
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`This “person of ordinary skill in the art is deemed to read the claim term not only in the context of
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`the particular claim in which the disputed term appears, but in the context of the entire patent,
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`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 involves
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`little more than the application of the widely accepted meaning of commonly understood words.”
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`Phillips, 415 F.3d at 1314; see also DeMarini Sports, Inc., v. Worth, 239 F.3d 1314, 1324 (Fed.
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`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-
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`tory . . . .”). But for claim terms with less-apparent meanings, courts consider “‘those sources
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`available to the public that show what a person of skill in the art would have understood disputed
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`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
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`Innova, 381 F.3d at 1116).
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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-
`
`sumed to have known the relevant art at the time of the invention. In re GPAC, 57 F.3d 1573, 1579
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`(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
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`technology, and the education of workers active in the field. Id. Importantly, “[a] person of ordinary
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`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).
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`During post-grant review of the ’102 Patent, the PTAB found a person of ordinary skill in
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`the art would have had “at least a master’s degree in Computer Science, Computer Engineering,
`
`or a related field, or hold a bachelor’s degree in Computer Science, Computer Engineering, or
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`equivalent and have at least two years of relevant work experience in the fields of [user interface]
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`design and [operating systems].” Final Written Decision, Dkt. No. 155-1 at 10. Lexos asserts that
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`level of ordinary skill here. Dkt. No. 155 at 9. Because Defendants do not offer a competing level
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`of skill, the Court adopts the PTAB’s characterization for its analysis. See also Cl. Constr. Order,
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`Dkt. No. 161-5 at 7 (adopting the same level of ordinary skill in the art).
`
`IV.
`
`THE DISPUTED TERMS
`
`A.
`
`“corresponding to” as used in the phrase “cursor image data corresponding to
`[a/said] specific image” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 5, 38,
`53)
`
`Lexos’s Construction
`
`Defendants’ Construction
`
`“associated with”
`
`Plain and ordinary meaning, or in the alterna-
`tive, “conforming to, in degree and kind”
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`These claims require some relationship between “cursor image data” and a “specific im-
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`age.” For example, Claim 1 of the ’449 Patent requires a system comprising “cursor image data
`
`corresponding to said specific image.” ’449 Patent at 18:43. Similarly, Claim 72 of the ’102 Patent
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`requires providing, to a user terminal, “specified content information” that includes an “indication
`
`of cursor image data corresponding to a specific image.” ’102 Patent at 24:16–19 (emphasis
`
`added); see also ’449 Patent at 22:36–39.
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`The parties dispute the extent of the required relationship between the “cursor image data”
`
`and the “specific image.” Citing to two excerpts from the specification, Lexos asserts “correspond-
`
`ing to” means “associated with.” Dkt. No. 155 at 10 (citing ’102 Patent at 3:4–9, 3:10–14). Sug-
`
`gesting Defendants intend to use “plain and ordinary meaning” as a “stalking horse” to improperly
`
`limit the scope of the term, Lexos asks the Court to expressly reject Defendants’ “alternative”
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`construction. Dkt. No. 163 at 5. But according to Defendants, “‘[c]orresponding to’ is a common
`
`phrase that jurors can understand without further construction,” and Lexos’s construction unnec-
`
`essarily changes the term’s meaning. Dkt. No. 161 at 11.
`
`The Court agrees with Defendants. “Corresponding to” is a well-understood phrase, and
`
`neither party points to evidence that changes its meaning. Notably, neither excerpt cited by Lexos
`
`strongly supports its construction, as both concern the relationship between the cursor’s appear-
`
`ance and the content displayed on the screen—not between cursor image data and a specific image.
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`See ’102 Patent at 3:4–9 (noting the invention’s objective of “provid[ing] a means for changing a
`
`cursor’s appearance by sending data and control signals from a remote computer so that the cursor
`
`or pointer’s appearance is associated with a portion of, or the entire content being displayed on
`
`the user’s screen” (emphasis added)); id. at 3:10–14 (noting the invention’s objective of
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`“provid[ing] a means for changing the appearance of a computer’s cursor or pointer by sending
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`data and control signals from a remote computer so that the cursor or pointer’s appearance is
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`associated with advertising messages” (emphasis added)). The Court therefore adopts a “plain and
`
`ordinary meaning” construction for this term.
`
`B.
`
`“cursor display code” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 5, 38, 53)
`
`Lexos’s Construction
`“computer code for modifying the display of the
`cursor image”
`
`Defendants’ Construction
`Plain and ordinary meaning. No construction
`required.
`
`The Court previously considered construction of this term in Amazon. Here, Lexos urges
`
`the same construction previously adopted by the Court, and Defendants incorporate the Amazon
`
`defendants’ arguments from the claim-construction briefing. See Dkt. No. 155 at 11–12; Dkt. No.
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`161 at 12. For the same reasons set forth in Amazon, the Court again adopts Lexos’s construction
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`of “computer code for modifying the display of the cursor image.” See Cl. Constr. Mem. Op. &
`
`Order, Dkt. No. 161-5 at 7–8.
`
`C.
`
`“cursor display instruction” (’102 Patent, Claim 72; ’449 Patent, Claims 1, 38,
`53; ’241 Patent, Claim 35)
`
`Lexos’s Construction
`“an instruction operable to modify the display,
`in conjunction with other information, of a cur-
`sor image”
`
`Defendants’ Construction
`
`Plain and ordinary meaning. No construction
`required.
`
`The parties’ arguments track those for “cursor display code.” As it did in Amazon, Lexos
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`cites the patents’ disclosure of a web browser retrieving a web page to be loaded on a terminal:
`
`The retrieved web page in accordance with one embodiment of the invention con-
`tains a set of predetermined instructions referred to herein as cursor display instruc-
`tions. 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
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`if the user terminal is capable of loading the coded image, animation, and/or sound-
`bite.
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`Dkt. No. 155 at 12–13 (quoting ’102 Patent at 4:31–45). Defendants incorporate the Amazon de-
`
`fendants’ arguments from the prior claim-construction proceeding. Dkt. No. 161 at 13.
`
`In Amazon, the parties’ dispute concerned Lexos’s use of “in conjunction with other infor-
`
`mation” in its proposed construction. The Amazon defendants asserted there was no reason to im-
`
`port that phrase into the claims. And Lexos ultimately agreed that language from its construction
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`is not “material.” See generally Cl. Constr. Order, Dkt. No. 161-5 at 9.
`
`Here, too, the Court agrees “in conjunction with other information” is not part of the correct
`
`construction. Otherwise, as it did in Amazon, the Court adopts the remainder of Lexos’s construc-
`
`tion for this term: “an instruction operable to modify the display of a cursor image.” See id. at 8–
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`9.
`
`D.
`
`“cursor image” and “initial cursor image” (’102 Patent, Claim 72; ’449 Patent,
`Claims 1, 27, 53; ’241 Patent, Claim 35)
`Lexos’s Construction
`
`“the appearance of the cursor on a user’s screen
`before the cursor image is modified into the ‘spe-
`cific image’”
`(Lexos Media contends that the terms “cursor
`image” and “initial cursor image” should be con-
`strued together and to mean the same thing)
`
`Defendants’ Construction
`“cursor image”: “the movable image on a
`display screen whose position is controlled by
`a user interface and that indicates the point
`where input can be received from the user in-
`terface”
`“cursor image” should be construed as a
`standalone term.
`“initial”: Defendants believe the adjective
`“initial” should be given its plain and ordi-
`nary meaning or, in the alternative: “first in
`time”
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`As they did in Amazon, the parties present different disputes to the Court. Lexos focuses
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`on this Court’s earlier holding that “the ‘cursor image’ recited in the claims is the image that
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`appears before the cursor image is modified into the specific image.” Dkt. No. 155 at 14 (quoting
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`Lexos Media IP, LLC v. APMEX, Inc., 2017 WL 1021366, at *2 (E.D. Tex. Mar. 16, 2017)). De-
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`fendants agree with the Court’s construction in Amazon, but suggest it should go further because
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`it “does not explicitly distinguish between the claimed cursor image and other, unclaimed non-
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`cursor images” with user-controllable positions. Dkt. No. 161 at 14. “A cursor,” Defendants argue,
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`“moves with a pointing device to indicate the point where input can be received from the user
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`interface.” Id.
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`The Court agrees with Defendants. Regarding Lexos’s construction, as Judge Gilstrap
`
`noted, “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
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`any particular instances of confusion. Thus, even though Lexos’s construction might be correct, it
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`is unnecessary.” Cl. Constr. Order, Dkt. No. 161-5 at 11.
`
`As the patents explain:
`
`Nearly all online computer interfaces utilize a wired or remote control positioning
`device such as a mouse or roller or track ball which controls the cursor’s movement
`on the screen. It is the cursor controlled by the mouse or positioning device which
`a user uses to “navigate” or move the cursor over objects, buttons, menus, scroll
`bars, etc., which appear on-screen and then clicking or in some cases double-
`clicking in order to activate a screen or task, or to commence an application or
`some function.
`
`’102 Patent at 3:25–35 (emphasis added); see also id. at 8:24–34 (“Fundamental to the graphical
`
`user interface is the pointing device, generally mouse 22 which allows the user to manipulate or
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`input information into the user terminal 14.”). In other words, cursors facilitate user input to a
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`computer. The Court therefore adopts a variation of Defendants’ construction and construes “cur-
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`sor image” as “a movable image on a display screen whose position can be controlled through a
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`user interface and that indicates where user input can be received.”1
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`E.
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`“following receipt of the content information” (’241 Patent, Claim 35)
`
`Lexos’s Construction
`Plain and ordinary meaning and requires no
`construction beyond the term “content infor-
`mation,” proposed above.
`
`Defendants’ Construction
`“upon receipt of the content information from a
`server and not based on the position or move-
`ment of the cursor on a video monitor”
`
`The first two limitations of Claim 35 recites:
`
`35. A system for modifying a cursor image, comprising:
`at least one client computer receiving content information from
`at least one server computer, said content information in-
`cluding at least one cursor display instruction specifying an
`appearance of a visual image,
`following receipt of the content information, the at least one cli-
`ent computer processing the at least one cursor display in-
`struction and modifying the cursor image to include the vis-
`ual image and displaying the modified cursor image . . . .
`
`’241 Patent at 20:61–21:3.
`
`Defendants assert their construction is the plain and ordinary meaning of the phrase in the
`
`context of the specification and the prosecution history. Dkt. No. 161 at 17. Regarding the speci-
`
`fication, they point to a disclosed embodiment that explains “[w]hen web page 60a loads, the Cur-
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`sor Display Instructions cause arrow 44 to change into a Fizzy cola shaped cursor 44a in conjunc-
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`tion with the Fizzy Cola banner advertisement.” Id. (citing ’241 Patent at 13:22–25). This, they
`
`say, means the cursor image changes upon receipt of the content information. Id. As for the pros-
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`ecution history, Defendants assert disclaimer based on arguments made to overcome U.S. Patent
`
`5,956,484 (Rosenberg) and U.S. Patent 6,018,345 (Berstis). Id. at 17–20.
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`1 No further construction is required for “initial.”
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`Lexos has the better position. To start, Defendants present no evidence that one possible
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`“ordinary meaning” of “following” is “upon.” Instead, they simply point to an embodiment from
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`the specification and map the claim language to their understanding of that embodiment.2 Even if
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`that understanding is correct, Defendants acknowledge the claims need not cover every disclosed
`
`embodiment, see Dkt. No. 161 at 17 (citing Helmsderfer v. Bobrick Washroom Equip., Inc., 527
`
`F.3d 1379, 1383 (Fed. Cir. 2008)), yet mapping claim language to embodiments to construe claims
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`undercuts this principle.
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`Moreover, Defendants do not explain why the embodiment to which they point would not
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`fall under the scope of Claim 35 using the ordinary meaning of “following receipt.” The claim
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`requires the common-sense notion that the cursor display instructions are not processed until they
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`are loaded, and nothing about the embodiment to which Defendants point is inconsistent with that
`
`interpretation.
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`Defendants’ prosecution-history argument is stronger, but not strong enough to find dis-
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`claimer. In a response to a final office action, the applicants characterized Berstis as
`
`determin[ing] whether [a] cursor pointer is over a link by querying a local browser.
`If the system determines that the cursor is over a link, an alternate predetermined
`cursor design, preferably a design that resembles buttons on a remote control and/or
`a keyboard, is displayed. Thus, in Berstis, “[t]he cursor has the so called normal
`appearance when it is in a position in the interface where no link is present. Once
`the cursor is moved over a link the presentation of the cursor switches . . . .” In
`other words, the cursor only changes appearance in response to a link presented on
`a local region of the interface.
`
`Amendment, Dkt. No. 159-12 at 18–19 (citations omitted). The applicants characterized Rosen-
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`berg as:
`
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`2 The language cited by Defendants does not include “upon receipt.”
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`a method and apparatus for providing force feedback over a network. In the de-
`scribed system, display information and force feedback information is transmitted
`to a client machine. Once the data is received by the client machine, the force feed-
`back requires a trigger such as a force object, and is executed “[i]f the pointer icon
`on the display device 64 is at a position (or time) that correlates to a desired force
`feedback to the user 52 . . .” Rosenberg describes various triggers and conditions
`that can be programmed for the force feedback, such as using a force button, “tex-
`ture”, “viscosity”, “keep out” regions, “snap-in” regions, “spring” regions, “Force
`To Left” regions, etc.
`
`Id. at 19 (citations omitted). The applicants then argued:
`
`[N]either reference teaches, suggests, or contemplates displaying the at least one
`image in accordance with the at least one cursor display instruction following re-
`ceipt of the content information, as recited in amended independent claim 7. As
`discussed above, Berstis is limited to changing a design of the cursor only based on
`the position of the cursor, i.e., when it is over a link, and not upon receipt of content
`information. Further, even if it is conceded that force feedback information is com-
`parable to cursor display instructions (which it is not), Rosenberg also fails to teach
`or suggest that any action is taken following receipt of content information as re-
`cited in independent claim 7. Rosenberg is limited to providing force feedback only
`in response to the position and movement of the cursor, and not when the content
`information is received.
`
`Id. at 20–21.
`
`This is not clear and unmistakable disclaimer. A skilled artisan could interpret these argu-
`
`ments as distinguishing Berstis and Rosenberg as not receiving the content information—that is,
`
`as not meeting the first limitation of Claim 35. And if neither Bertis nor Rosenberg ever receive
`
`the claimed content information, it stands to reason they will never process the information “fol-
`
`lowing receipt” as required by the second limitation. In other words, the applicants appear to be
`
`arguing neither Berstis nor Rosenberg meet either the first or second limitation of Claim 35. Given
`
`that, the applicants’ arguments are not sufficient to justify the negative limitation proposed by
`
`Defendants nor narrow the ordinary meaning of “following” to “upon.” Accordingly, the Court
`
`13 / 20
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`Ebay Exhibit 1015, Page 13 of 20
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`

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`Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 14 of 20 PageID #: 4914
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`will give this phrase a “plain and ordinary meaning” construction.
`
`F.
`
`“modified cursor image” (`449 Patent, Claims 1, 5, 38; ’241 Patent, Claim 35)
`
`Lexos’s Construction
`The term “modified cursor image” as used in
`Claims 1 and 38 of the `449 Patent means “the
`cursor image in the shape and appearance of a
`specific image.”
`The term “modified cursor image” as used in
`Claim 35 of the `241 Patent means “the cursor
`image modified to include at least the visual
`image.”
`
`Defendants’ Construction
`
`“cursor image” should be construed as set forth
`separately.
`Plain and ordinary meaning for “modified,” or
`in the alternative, the adjective “changed.”
`
`Construction of this term is addressed with the Court’s construction of “cursor image” and
`
`“initial cursor image” in Part IV.D. supra.
`
`G.
`
`“modifying”/“transforming” [said cursor image/initial cursor image] (’102
`Patent, Claim 72; ’449 Patent, Claim 38, 53; ’241 Patent, Claim 35 (including
`“modify [said cursor image]” and “modifying [a cursor image]”)
`
`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 re-
`quired.
`
`The Court previously construed this term in Amazon. See generally Cl. Constr. Order, Dkt.
`
`No. 161-5 at 14–15. Lexos again seeks clarification that both “modifying” and “transforming” the
`
`cursor image mean either changing or replacing the cursor image. Dkt. No. 155 at 19. Defendants
`
`rely on the Amazon defendants’ arguments. Dkt. No. 161 at 21–22. There, the defendants called
`
`use of these terms “consistent with everyday parlance, which is confirmed by Lexos’s attempt to
`
`convert [the terms] into other workaday terms—‘changing’ and ‘replacing.’” See Cl. Constr. Order,
`
`Dkt. No. 161-5 at 14–15.
`
`14 / 20
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`Ebay Exhibit 1015, Page 14 of 20
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 15 of 20 PageID #: 4915
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`For the same reasons set forth in Amazon, the Court concludes these are well-understood
`
`terms that each include within their scope the notion of changing or replacing the cursor image.
`
`Subject to that guidance, the Court will give these terms a “plain and ordinary meaning” construc-
`
`tion.
`
`H.
`
`“promotional material” (’241 Patent, Claim 35)
`
`Lexos’s Construction
`
`Plain and ordinary meaning. No construction
`required.
`
`Defendants’ Construction
`Plain and ordinary meaning, though this term re-
`fers to printed matter and is entitled to no patent-
`able weight.
`
`Claim 35 recites “wherein the visual image includes promotional material.” ’241 Patent at
`
`21:4–6 (emphasis added). Again pointing to the Amazon defendants’ position, Defendants argue
`
`the term is not entitled to patentable weight under the printed-matter doctrine. Dkt. No. 161 at 22.
`
`Lexos, however, contends “the patentable weight to be accorded [the] term must be resolved an-
`
`other day in an appropriate procedural and substantive context.” Dkt. No. 155 at 20.
`
`For the reasons explained by Judge Gilstrap in Amazon, the Court concludes this term is
`
`subject to the printed-matter doctrine and not entitled to patentable weight. See Cl. Constr. Order,
`
`Dkt. No. 161-5 at 20–22 (explaining consideration of the printed-matter doctrine is proper at claim
`
`construction and “promotional material” is directed to printed matter not functionally related to its
`
`substrate).
`
`I.
`
`“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
`An “explicitly defined image, which is static
`and representative of at least a portion of the
`subject or topic being displayed on the screen”
`
`The parties’ competing constructions present two disputes. First, Lexos resists limiting a
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`15 / 20
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`Ebay Exhibit 1015, Page 15 of 20
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`

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`Case 2:22-cv-00311-JRG Document 187 Filed 11/02/23 Page 16 of 20 PageID #: 4916
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`“specific image” to a “static” image as Defendants propose. Second, Defendants require the “spe-
`
`cific image” to be “representative of at least a portion of the subject or topic being displayed on
`
`the screen.” These are the same disputes set forth by the parties in Amazon. See Cl. Constr. Order,
`
`Dkt. No. 161-5 at 15–17.
`
`The Court again rejects that the “specific image” must be “static.” As Judge Gilstrap ex-
`
`plained:
`
`The specification uses “image” broadly enough to include both a “dynamic” and “static”
`image, as evidenced by its characterization of the moving straw as a “dynamic cursor im-
`age.” Regarding the baseball bat example, the specification shows the otherwise static im-
`age can be “enhanced” with related animation. In other words, the static image is improved
`with animation; it is not a different image. Accordingly, a skilled artisan would not under-
`stand “image” as used in the specification and claims as only a “static” image.