Case 2:22-cv-02324-JAR-ADM Document 99 Filed 12/04/23 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`LEXOS MEDIA IP, LLC,
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`Plaintiff,
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`v.
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`OVERSTOCK.COM, INC.,
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`Defendant.
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` Case No. 22-2324-JAR-ADM
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`MEMORANDUM AND ORDER
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`Plaintiff Lexos Media IP, LLC (“Lexos”) brings this patent infringement action against
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`Defendant Overstock.com, Inc. (“Overstock”), alleging infringement of three patents involving
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`technology that could be used to modify an Internet user’s cursor to display content such as an
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`image or other message to promote the online purchase and use of products and services. The
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`parties dispute the proper construction of two terms from the Asserted Patents: “cursor display
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`code” and “cursor display information.” The Court has fully considered the parties’ briefs,
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`including their supplemental briefs, and the oral arguments presented at the November 20, 2023
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`hearing. The Court construes these terms as described more fully below.
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`I.
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`Background
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`Lexos brings this patent infringement action against Overstock alleging infringement of
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`three patents for technology that could be used to modify an Internet user’s cursor to display
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`content such as an image or other message to promote the online purchase and use of products
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`and services. At a high level, Lexos alleges that Overstock’s zoom feature infringes its patents.
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`This feature allows a user to select a product image, which then generates a larger version of that
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`image to the right of the original image that the user can navigate. A shaded, semi-transparent
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`box is generated around the cursor.
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`Ebay Exhibit 1016, Page 1 of 14
`Ebay, Inc. v. Lexos Media IP, LLC
`IPR2024-00337
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`Case 2:22-cv-02324-JAR-ADM Document 99 Filed 12/04/23 Page 2 of 14
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`The three patents are: U.S. Patent Nos. 5,995,102 (“the ‘102 Patent”) and 6,118,449 (“the
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`‘449 Patent”), both of which are entitled “Server system and method for modifying a cursor
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`image”; and U.S. Patent No. 7,975, 241 (“the ‘241 Patent”), entitled “System for replacing a
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`cursor image in connection with displaying the contents of a web page.” Lexos alleges in the
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`Amended Complaint that Overstock directly infringed Claim 72 of the ‘102 Patent; Claims 1, 38,
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`and 53 of the ‘449 Patent; and Claim 35 of the ‘241 Patent (collectively, “the Asserted Patents”)
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`since at least 2016.
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`The application for the first patent—the ‘102 Patent—was filed on June 25, 1997.1 At
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`that time, there were three main forms of online advertising: (1) banner ads, (2) frames, and (3)
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`“self-appearing windows.”2 Given the drawbacks to these three methods, the inventors sought to
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`develop a way “to deliver advertising elements, i.e. logos, animations, sound, impressions, text,
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`etc., without the annoyance of totally interrupting and intrusive content delivery, and without the
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`passiveness of ordinary banner and frame advertisements which can be easily ignored.”3
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`The parties appear to agree that the three patents share the same inventors, figures, and
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`specification, and are generally directed towards using a computer cursor as an advertising
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`element. According to the ‘102 Patent,
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`[T]he present invention is directed to a system that provides online
`advertising content using the on-screen cursor which is generally
`controlled by an input of positioning device known as a ‘mouse’ or
`‘mouse pointer.’. . .
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`
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`. . .
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` .
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` . . The cursor or pointer may appear as a corporate or a brand logo
`which relates to advertising content within the web page being
`transmitted and displayed. The cursor or pointer image may also
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`1 ‘102 Patent, Doc. 73-1. Pinpoint citations to the patents reference column and line numbering.
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`2 Id. at 1:24–2:26.
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`3 Id. at 2:27–32.
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`2
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`appear in a specified shape or color that is intended to convey a
`message that relates to the advertising content within the web page
`being transmitted and displayed.4
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`
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`Claim 72 of the ‘102 Patent is representative of the claims at issue and includes both
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`disputed terms, set forth in bold:
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`72. A method for modifying an initial cursor image displayed on a
`display of a user terminal connected to at least one server,
`comprising:
`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 terminal in response to said
`request, said specified content information 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 display of said user
`terminal into the shape and appearance of said specific image in
`response to said cursor display instruction, wherein said
`specified content information includes 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 information that is to be displayed on said display of said
`user’s terminal, and wherein said cursor display instruction
`indicates 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.5
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`
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`The parties have complied with the deadlines in the Initial and Claim Construction Phase
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`Scheduling Order.6 This includes, inter alia, a Joint Claim Construction Statement under D.
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`4 Id. at 3:22–26, 3:64–4:3.
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`5 Id. at 24:10–36.
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`6 Doc. 32 at 2.
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`3
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`Kan. Patent Rule 4.3,7 Overstock’s opening brief,8 Lexos’s response,9 Overstock’s reply,10 and a
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`Joint Final Claim Construction Chart.11 The parties also submitted supplemental briefs on
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`November 13, 2023,12 addressing two recent claim construction decisions issued in related cases
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`in the Eastern District of Texas on the same patent claims.13
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`II.
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`Legal Standards
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`A patent claim is “the portion of the patent document that defines the scope of the
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`patentee’s rights.”14 “Victory in an infringement suit requires a finding that the patent claim
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`‘covers the alleged infringer’s product or process,’ which in turn necessitates a determination of
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`‘what the words in the claim mean.’”15 The Supreme Court held in Markman that “the
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`construction of a patent, including terms of art within its claim, is exclusively within the
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`province of the court.”16
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`In construing a term of art in a patent claim, the Court generally must give the words their
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`ordinary meaning— “the meaning that the term would have to a person of ordinary skill in the
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`art in question at the time of the invention.”17 Sometimes, discerning the ordinary meaning of
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`7 Doc. 70.
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`8 Doc. 73.
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`9 Doc. 75.
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`10 Doc. 80.
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`11 Doc. 92.
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`12 Docs. 91, 93.
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`13 Lexos Media IP, LLC v. Amazon.com, Inc., Nos. 22-CV-00169, 22-CV-00175, 22-CV-00273, 2023 WL
`5723642 (E.D. Tex. Sept. 5, 2023) [hereinafter “Amazon”]; Lexos Media IP, LLC v. Nike, Inc., No. 22-cv-0311, slip.
`op. (E.D. Tex. Nov. 2, 2023) [hereinafter “Nike”].
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`14 Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996).
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`15 Id. at 374 (quoting H. Schwartz, Patent Law and Practice 80 (2d ed. 1995)).
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`16 Id. at 372.
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`17 Data Engine Techs. LLC v. Google LLC, 10 F.4th 1375, 1381–82 (Fed. Cir. 2021) (quoting Phillips v.
`AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc)).
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`4
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`claim language is “readily apparent even to lay judges, and claim construction in such cases
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`involves little more than the application of the widely accepted meaning of commonly
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`understood words,” so courts may rely on “general purpose dictionaries.”18 But often, the Court
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`must examine terms “that have a particular meaning in a field of art.”19 Since the meaning of
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`such terms “is often not immediately apparent, and because patentees frequently use terms
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`idiosyncratically, the court looks to ‘those sources available to the public that show what a
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`person of skill in the art would have understood disputed claim language to mean.”20
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`The primary resource for claim construction is intrinsic evidence.21 Intrinsic evidence
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`includes the words of the claims themselves, the specification, and the prosecution history.22
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`Extrinsic evidence is “all evidence external to the patent and prosecution history, including
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`expert and inventor testimony, dictionaries, and learned treatises.”23 Extrinsic evidence is “less
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`significant than the intrinsic record in determining ‘the legally operative meaning of claim
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`language.’”24
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`III. Discussion
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`
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`The parties filed a Joint Claim Construction Statement prior to briefing, in which they
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`identified eight disputed terms to be briefed.25 The parties briefed their arguments on these eight
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`18 Phillips, 415 F.3d at 1314.
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`19 Id.
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`20 Id. (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir.
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`2004)).
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`21 Kara Tech. Inc. v. Stamps.com Inc., 582 F.3d 1341, 1348 (Fed. Cir. 2009).
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`22 Phillips, 415 F.3d at 1314.
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`23 Id. at 1317 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir.
`1995), aff’d, 517 U.S. 370 (1996)).
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`24 Id. (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
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`25 The parties previously agreed on constructions for the following claim terms: “cursor image data,”
`“modified cursor image,” “promotional material,” “said specific image includes/including content corresponding to
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`5
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`disputed terms. Then, after briefing concluded, judges in the Eastern District of Texas issued
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`decisions in related cases filed by Lexos against different defendants, construing many of the
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`same patent terms. The parties filed supplemental briefs addressing these decisions, and state in
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`their Final Claim Construction Chart that they have reached agreement on six of the eight
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`previously-identified disputed terms:
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`• “cursor image” and “initial cursor image”
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`• “corresponding to” as used in the phrase “cursor image data corresponding to a/said
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`specific image”
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`• “modifying”/“transforming” [said cursor image/initial cursor image] (including “modify
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`[said cursor image]” and “modifying [a cursor image]”)
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`• “specific image”
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`• “server”
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`• “tracks a movement of”
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`As to these terms, the parties agree that this Court should follow the constructions adopted by the
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`Eastern District of Texas in Amazon and Nike.26
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`The parties, however, disagree about whether the Court should follow Amazon and Nike
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`in construing the terms “cursor display code,” and “cursor display information,” which adopted
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`the same constructions Lexos proposes here:
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`at least a portion of said information that is to be displayed on said display of said user’s terminal,” “specified
`content information,” “content information,” and “visual image.” See Doc. 70 at 2–3.
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`26 Doc. 92-1.
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`6
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`Disputed Claim
`Term
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`“cursor display
`code”
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`See ‘102 Patent,
`Claim 72; ‘449
`Patent, Claims 1, 38,
`and 53.
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`“cursor display
`instruction”
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`See ‘102 Patent,
`Claim 72; ‘449
`Patent, Claims 1, 38,
`and 53; ‘241 Patent,
`Claim 35.
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`
`Plaintiff’s Proposed
`Claim Construction
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`“computer code for modifying
`the display of the cursor image”
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`
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`“an instruction operable to modify
`the display of a cursor image”
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`
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`Defendant’s Proposed
`Claim Construction
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`Plain and Ordinary Meaning.
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`In the alternative, the plain
`meaning should be construed as
`“code that, in response to
`receiving cursor display
`instruction, interfaces with the
`operating system to cause it to
`modify the cursor image”
`Plain and Ordinary Meaning.
`
`In the alternative, the plain
`meaning should be construed as
`“parameters or other data used
`by the cursor display code
`to modify the cursor image”
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`Lexos relies on the claim language and specification, as well as the Amazon and Nike
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`orders, to support its proposed constructions of the disputed terms. Although Lexos
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`acknowledges that the ‘102 and ‘449 Patents use both of these terms in the claim language and
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`specifications, it argues that the distinction between them should not be exaggerated. Overstock
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`argues that Lexos’s proposed constructions broaden the scope of the invention by erasing any
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`distinction between “cursor display code” and “cursor display instruction.” Like Lexos,
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`Overstock argues that the claim language and specification support its proposed alternative
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`constructions, which purport to create clear distinctions between the two terms. Overstock
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`contends that the terms refer to different functions—a “cursor display instruction” instructs the
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`“cursor display code” how to modify the operating system’s cursor. Overstock further contends
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`that the defendants in Amazon and Nike did not advance the same arguments as Overstock does
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`here; therefore, the Court should not rely on them.
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`7
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`A.
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`Related Cases
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`The Court begins its analysis by examining how the Amazon court construed these
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`terms,27 and whether and to what extent this Court is bound by the Amazon constructions. As for
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`the first term, the court explained in Amazon that “Lexos characterized its concern as clarifying
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`that ‘cursor display code’ is not code for displaying the cursor, but rather code for modifying the
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`display of the cursor image.”28 The defendants did not object to that characterization at the
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`Amazon hearing, and the court found that “[d]espite the fact that Lexos’s proposed construction
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`is already accounted for elsewhere in the surrounding claim language, the Court sees some
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`benefit and no harm in articulating the cursor display code’s purpose separately.”29 It therefore
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`construed the term as proposed by Lexos: “computer code for modifying the display of the
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`cursor image.”30 Similarly, with respect to “cursor display information,” the court adopted most
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`of Lexos’s proposed construction, removing certain language to which the defendants objected
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`that is not at issue here.31 The court therefore construed “cursor display instruction” as “an
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`instruction operable to modify the display of a cursor image.”32
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`The Federal Circuit has explained that “[r]elated judicial holdings can be an appropriate
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`form of non-binding extrinsic evidence in a claim construction analysis.”33 But that court has
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`27 The Nike court followed these Amazon constructions, noting that the parties raised the same arguments in
`that case. Nike, No. 22-cv-0311, slip. op. at 8 (E.D. Tex. Nov. 2, 2023). Therefore, the Court need not separately
`consider Nike.
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`28 Amazon, Nos. 22-CV-00169, 22-CV-00175, 22-CV-00273, 2023 WL 5723642, at *4 (E.D. Tex. Sept. 5,
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`2023).
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`29 Id.
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`30 Id.
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`31 The court omitted the following language at the end of Lexos’s proposed construction: “in conjunction
`with other information.” Id. at *4–5.
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`32 Id. at *5.
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`33 MEMS Tech. Berhad v. Int’l Trade Comm’n, 447 F. App’x 142, 153 (Fed. Cir. 2011) (citing V–
`Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1312 (Fed. Cir. 2005)).
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`8
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`provided limited guidance on the preclusive effect of Markman decisions in related cases
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`concerning the same patent.34 District courts are split on the issue. “[S]ome district courts have
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`held that prior Markman rulings were ‘sufficiently “final” to merit application of collateral
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`estoppel—even though the matter to which they were necessary was never reduced to a final
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`judgment after verdict,’” while “others . . . have reached the opposite conclusion on similar
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`facts.”35
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`Other courts strike a middle ground. For example, in the Eastern District of Texas, prior
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`orders in related cases on the same patents-in-suit are “entitled to reasoned deference under the
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`broad principals of stare decisis and the goals articulated by the Supreme Court in Markman,
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`even though stare decisis may not be applicable per se.”36 Other district courts decline to apply
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`collateral estoppel but give prior Markman rulings “deferential treatment unless clearly
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`erroneous.”37
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`Lexos argues that this Court should defer to the Amazon and Nike courts’ construction of
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`“cursor display code” and “cursor display instruction,” by applying the approach used in the
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`Eastern District of Texas. Overstock contends that the Court should not defer to those
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`constructions because the defendants in Amazon and Nike did not present the same arguments it
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`raises here—that Lexos’s proposed terms violate the presumption that different patent terms have
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`34 See RF Del., Inc. v. Pac. Keystone Techs., Inc., 326 F.3d 1255, 1260–62 (Fed. Cir. 2003) (finding no
`issue preclusion under regional circuit law because neither claim construction nor partial summary judgment order
`were “final” and prior case settled after those decisions were issued, so there was no judgment on the merits).
`
`35 DE Techs., Inc. v. IShopUSA, Inc., 826 F. Supp. 2d 937, 941 (W.D. Va. 2011) (quoting TM Pats., L.P. v.
`IBM, 72 F. Supp. 2d 370, 377 (S.D.N.Y. 1999)) (collecting cases).
`
`36 Barkan Wireless IP Holdings, LP v. T-Mobile US, Inc., No. 21-cv-34, 2021 WL 4399514, at *3 (E.D.
`Tex. Sept. 26, 2021) (quoting Maurice Mitchell Innovations, LP v. Intel Corp., No. 04-cv-450, 2006 WL 1751779,
`at *4 (E.D. Tex. June 21, 2006)) (citations omitted).
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`37 DE Techs., Inc., 826 F. Supp. 2d at 941 (quoting Parker-Hannifin Corp. v. Baldwin Filters, Inc., 724 F.
`Supp. 2d 810, 816 (N.D. Ohio 2010)) (citations omitted); Parker-Hannifin Corp., 724 F. Supp. 2d at 815–16.
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`different meanings38—nor did they propose the alternative constructions Overstock proposes
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`here.
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`The Court finds that although Amazon is instructive and provides important context for
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`this Court’s construction of the two remaining disputed terms, it is neither binding nor
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`preclusive. Moreover, the law utilized in the Eastern District of Texas is not binding on this
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`Court. And, as that court acknowledges, “prior orders in related cases do not bar the Court from
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`conducting additional construction in order to refine earlier claim constructions.”39 Because
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`Overstock presents arguments in this case that were not before the courts in Amazon and Nike,
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`the Court will consider those arguments in the first instance and determine whether the intrinsic
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`evidence supports them.
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`
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`
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`B.
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`Analysis of Disputed Terms
`
`Both parties argue that the claim language supports their proposed constructions of
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`“cursor display code” and “cursor display instruction.” Lexos points the Court to language in
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`Claim 1 of the ‘449 Patent, which states that the system comprises, inter alia, “cursor display
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`code, said cursor display code operable to modify said cursor image.”40 Both parties point the
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`Court to language in Claim 1 of the ‘449 Patent and Claim 72 of the ‘102 Patent providing that
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`“said cursor display code is operable to process said cursor display instruction to modify said
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`cursor image to said cursor image in the shape and appearance of said specific image.”41
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`According to Lexos, a person with ordinary skill can read and interpret this language without
`
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`38 See, e.g., CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir.
`2000) (“In the absence of any evidence to the contrary, we must presume that the use of these different terms in the
`claims connotes different meanings.”).
`
`39 Barkan Wireless IP Holdings, L.P., 2021 WL 4399514, at *3 (alteration omitted) (quoting TQP Dev.,
`LLC v. Intuit Inc., No. 2:12-CV-180-WCB, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014)).
`
`40 ‘449 Patent, Doc. 73-2, at 18:45–47
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`41 ‘449 Patent at 18:64–67; ‘102 Patent at 24:57–60.
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`further construction. Indeed, both counsel at the hearing appeared to agree that, according to the
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`claim language, the cursor display instruction instructs the cursor display code, if necessary,
`
`which then tells the user’s computer what to do with the cursor display.
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`
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`Overstock argues that even though Lexos’s proposed constructions mirror the claim
`
`language, they remove any distinction between the two terms since they state that they are both
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`used to modify the display of a cursor image. Overstock cites the rule that different claim terms
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`are presumed to have different meanings.42 It argues that if “code” and “instruction” become
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`synonymous, Lexos is able to point to different parts of the same website to satisfy both
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`limitations, which means it can forgo identifying the code that is installed on the user’s machine.
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`
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`The Court disagrees with Overstock that Lexos’s proposed constructions erase any
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`distinction between the two terms. Overstock contends that the constructions make the terms
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`synonymous because they both “become anything ‘operable to modify the display of a cursor
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`image.’”43 But there are different words at the beginning of Lexos’s proposed constructions that
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`distinguish them. “Cursor display code” is not “anything operable to modify the display of a
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`cursor image,” it is “computer code for modifying the display of a cursor image.” Likewise,
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`“cursor display instruction,” is not “anything operable to modify the display of a cursor image,”
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`it is “an instruction operable to modify the display of a cursor image.”
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`While Lexos’s proposed constructions add no meaning to the words “code” and
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`“instruction” as used in the patent claims, they are clearly not synonymous. Both terms are used
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`in the claim language and therefore they are presumed to carry different meanings under
`
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`42 See CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000)
`(“In the absence of any evidence to the contrary, we must presume that the use of these different terms in the claims
`connotes different meanings.”).
`
`43 Doc. 91 at 8.
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`established principles.44 In fact, the claim language uses them together and makes clear that they
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`work together to modify the cursor image. Although Lexos argues that Overstock exaggerates
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`the distinction between these terms, it does not dispute that they are both used in the patent and
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`therefore have different meanings.45 As the Amazon court noted, Lexos’s proposed constructions
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`instead aim to clarify the purpose of the words rather than add meaning to them, as their
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`proposals were otherwise “accounted for elsewhere in the surrounding claim language.”46
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`Nonetheless, the Court agrees with the Amazon decision that these constructions offer some
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`benefit in making the purpose clear, and do little harm.47
`
`
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`Overstock proposes alternative constructions aimed at drawing clearer distinctions
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`between the two terms than Lexos’s proposed constructions provide. But the Court finds that
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`neither the claim nor specification language supports its proposed alternative constructions. For
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`example, it proposes that “cursor display code,” be construed as “code that, in response to
`
`receiving cursor display instruction, interfaces with the operating system to cause it to modify
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`the cursor image.” But the intrinsic evidence does not include the language “in response to,” or
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`“interfaces with the operating system,” nor does Overstock offer any other support for this
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`particular definition. Similarly, the intrinsic evidence does not support Overstock’s proposed
`
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`44 See, e.g., CAE Screenplates Inc., 224 F.3d at 1317; Becton, Dickinson & Co. v. Tyco Healthcare Grp.,
`LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010).
`
`45 Despite conceding that the two terms have different meanings, Lexos’s counsel stated at oral argument
`that “technical people who are knowledgeable in this area” have told him there is not a “bright line distinction”
`between the two terms. The Court disregards this conclusory assertion as Lexos has offered no evidence to support
`it. Nor is there any indication that these sources qualify as persons with ordinary skill in the art. As stated
`repeatedly throughout this opinion, a presumption applies here that different claim terms have different meanings,
`and there is no basis in the claim language for rebutting that presumption here. Counsel acknowledged as much at
`the hearing.
`
`46 Amazon, Nos. 22-CV-00169, 22-CV-00175, 22-CV-00273, 2023 WL 5723642, at *4 (E.D. Tex. Sept. 5,
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`2023).
`
`47 See id.
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`Case 2:22-cv-02324-JAR-ADM Document 99 Filed 12/04/23 Page 13 of 14
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`construction of “cursor display instruction” as “parameters or other data used by the cursor
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`display code to modify the cursor image.”
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`Overstock’s constructions primarily rely on Figures 2 and 3 of the Asserted Patents, and
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`the descriptions thereof. Overstock embarks on a multi-step explanation derived from these
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`figures to support its proposed constructions. But these figures are presented as embodiments in
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`the patents.48 The Federal Circuit has instructed that “it is improper to read limitations from a
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`preferred embodiment described in the specification—even if it is the only embodiment—into
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`the claims absent a clear indication in the intrinsic record that the patentee intended the claims to
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`be so limited.”49
`
`Overstock fails to present clear evidence from the intrinsic record that Lexos intended the
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`embodiments represented by Figures 2 and 3 to be “strictly coextensive” with the claims.50
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`Instead, the claim language itself makes clear that “said cursor display code is operable to
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`process said cursor display instruction to modify said cursor image to said cursor image in the
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`shape and appearance of said specific image.”51 This is consistent with the examples provided in
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`the specification, but the Court declines to further limit the constructions according to the
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`embodiments provided in the specification.52
`
`
`48 See ‘102 Patent at 7:16–19 (“FIG. 2 . . . is representative of a client-server network system connected via
`the Internet according to one embodiment of the present invention.”), 9:66–10:1 (“One embodiment of this method
`in accordance with the present invention is set forth in greater detail in the flowchart illustrated in FIG. 3.”).
`
`49 Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004) (citations omitted); see also
`Phillips v. AWH Corp., 415 F.3d 1303, 1323–24 (Fed. Cir. 2005) (en banc) (discussing “the distinction between
`using the specification to interpret the meaning of a claim and importing limitations from the specification into the
`claim”).
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`50 See Phillips, 415 F.3d at 1323.
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`51 ‘449 Patent at 18:64–67; ‘102 Patent at 24:57–60.
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`52 Because the Court finds that the intrinsic evidence does not support Overstock’s proposed alternative
`constructions, it need not consider the extrinsic evidence it relies on—a portion of Lexos’s oral argument in another
`related case in 2017 where counsel stated that the Asserted Patents overcame certain prior art defenses because the
`cursor display instruction and cursor display code come from “outside the web server provider” that worked together
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`The Court therefore adopts Lexos’s proposed constructions, consistent with the decisions
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`in Amazon and Nike. The Court will add the further caveat in this case that the two disputed
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`terms are not synonymous. The only impact of this Court’s decision to adopt Lexos’s proposed
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`constructions is to clarify that both terms are used to modify the display of the cursor image, and
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`that they have different meanings. These constructions do not further define “computer code,”
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`“code,” or instruction,” as these terms have not been submitted to the Court as disputed terms
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`that require construction and the Court declines to further define them without input from the
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`parties.
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`IT IS THEREFORE ORDERED BY THE COURT that the Court adopts the
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`following constructions of the remaining two disputed terms in this matter:
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`• “cursor display code”—computer code for modifying the display of the cursor
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`image
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`• “cursor display instruction”—an instruction operable to modify the display of a
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`cursor image
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`These terms are not synonymous.
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`IT IS SO ORDERED.
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`Dated: December 4, 2023
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`
`
`
`
`
`
`S/ Julie A. Robinson
`JULIE A. ROBINSON
`UNITED STATES DISTRICT JUDGE
`
`
`in a particular way to tell the operating system to modify the cursor display. The prior art, in contrast, only changed
`the image of the cursor due to something internal to the user’s computer. See Doc. 73-9 at 28:13–29:1.
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`IPR2024-00337
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