Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 1 of 8 PageID #: 6140
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`No. 2:15-cv-01278-JRG-RSP
`
`CONSOLIDATED INTO
`
`No. 2:15-cv-01274-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`
`
`BLITZSAFE TEXAS, LLC,
`
`
`Plaintiff,
`
` v.
`
`VOLKSWAGEN GROUP OF AMERICA,
`INC. and VOLKSWAGEN GROUP OF
`AMERICA CHATTANOOGA
`OPERATIONS, LLC,
`
`
`Defendants.
`
`
`
`
`
`
`
`DEFENDANTS VOLKSWAGEN GROUP OF AMERICA, INC. AND VOLKSWAGEN
`GROUP OF AMERICA CHATTANOOGA OPERATIONS, LLC’S OBJECTIONS TO
`THE COURT’S CLAIM CONSTRUCTION OPINION AND ORDER (D.E. 146)
`
`
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 2 of 8 PageID #: 6141
`
`INTRODUCTION
`
`Pursuant to the Federal Rules of Civil Procedure and this court’s local rules, parties may
`
`file objections to a non-dispositive, pretrial order issued by a magistrate judge within fourteen
`
`days after being served with a copy of the order. Fed. R. Civ. P. 72(a); E.D. Tex. L.R. CV-72(b);
`
`see also E.D. Tex. L.R. CV-6(a). Defendants VWGoA and VWGoA Chattanooga (“VWGoA/
`
`VWGoA Chattanooga”) accordingly respectfully object to the rulings in the September 13, 2016
`
`Memorandum Opinion and Order (D.E. 146) of Magistrate Judge Payne construing the claims of
`
`U.S. Patent Nos. 7,489,786 and 8,155,342 asserted by plaintiff (“Blitzsafe”) against VWGoA/
`
`VWGoA Chattanooga, as follows.
`
`Term 1:
`
`The Claimed “Interface” Must Be “Functionally And Structurally Separate”
`From The Car Stereo
`
`Consistent with the claim language, the specification, the prosecution history, and the
`
`prior arguments and rulings in the New Jersey district court, the court construed the claimed
`
`“interface” as including “a microcontroller and that is a functionally and structurally separate
`
`component from the car stereo.” See D.E. 146 at 18–23 (emphasis added). The court also ruled
`
`that this construction “does not require the interface to be external to the ‘car stereo,’ or
`
`physically separate from the ‘physical devices’ that make-up the ‘car stereo.’” Id. at 21.
`
`VWGoA/VWGoA Chattanooga object to the court’s ruling that the proper construction
`
`of this term “does not require the interface to be external to the ‘car stereo,’ or physically
`
`separate from the ‘physical devices’ that make-up the ‘car stereo.’” There is no support in the
`
`intrinsic evidence for drawing a distinction between “structurally” separate and “physically”
`
`separate (as in the court’s ruling). The intrinsic evidence cited by the court only describes the
`
`properties of the claimed car stereo. It does not mention the interface or its relationship to the
`
`car stereo components. See id. (citing ’786 patent, col. 5:1–13). The court also has not
`
`
`
`1
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 3 of 8 PageID #: 6142
`
`considered intrinsic evidence from relevant IPR proceedings in which Blitzsafe argued that the
`
`’786 patent is valid because the claims describe “three components: a car stereo, an interface,
`
`and a portable device/MP3 player,” whereas the prior art described only “two components.” See
`
`D.E. 133 at 11–12 & nn. 14–16 (“Petitioner’s arguments fail when the claims are construed to
`
`require an interface functionally and structurally separate from both the car stereo and after-
`
`market audio device.”). An interface that is “structurally separate” from the car stereo must also
`
`be “external” to, and “physically separate” from, the car stereo components, and the Opinion and
`
`Order should be overruled to the extent it rules otherwise.
`
`Term 2:
`
`“Integration Subsystem” Is A Microprocessor Programmed To Perform The
`Method Of Figure 24
`
`The court ruled that the term “integration subsystem” is properly construed as “a
`
`subsystem that includes a microcontroller configured to integrate an external device with a car
`
`audio/video system.” D.E. 146 at 23–31.
`
`VWGoA/VWGoA Chattanooga object to this ruling. The specification identifies the
`
`“integration subsystem” as “a discrete structure comprised of multiple structural components”
`
`including a microcontroller “‘programmed in accordance with the flowchart discussed below
`
`with respect to FIG 24.’” See id. at 29–30 (quoting ’342 patent, col. 34:63–35:1). The claims
`
`should be construed accordingly, and the court should adopt the alternate construction proposed
`
`by the defendants: “a microprocessor programmed to perform the method of FIG. 24.”
`
`Term 3:
`
`An Audio Signal That Is Already “Decoded” Does Not Require Additional
`Decoding
`
`The court construed the term “generated by the portable device . . .” as “produced by the
`
`portable device as decoded audio signals for playing on the car audio/video system” (id. at 31–
`
`35), but ruled that the “decoded audio signal” may be further decoded by the car audio/video
`
`system. See id. at 35.
`
`
`
`2
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 4 of 8 PageID #: 6143
`
`VWGoA/VWGoA Chattanooga object to this ruling, because the portions of the intrinsic
`
`evidence relied on in the court’s Opinion and Order do not support this proposition. Instead,
`
`they describe processing data such as track and artist information for display by the car stereo,
`
`not further decoding of an already-decoded audio signal. See id. (citing ’342 patent, col. 34:31–
`
`38).
`
`Term 4:
`
`A “Continuously Transmitted” Signal Cannot Be “Interrupted” Or
`Transmitted Only At “Intervals”
`
`The court construed the term “device presence signal” as “a continuously transmitted
`
`signal indicating an audio device is present.” See id. at 35–40. The Opinion and Order,
`
`however, states that the “continuously transmitted signal” can be “interrupted at times,” or
`
`transmitted at any, unspecified “rhythmic or arrhythmic intervals.” Id. at 40.
`
`VWGoA/VWGoA Chattanooga object to this ruling, because the cited intrinsic evidence
`
`states consistently that the device presence signal is transmitted “continuously” (see, e.g., id. at
`
`38–39), and does not support the proposition that a signal can be “interrupted” or transmitted
`
`only at “intervals” and at the same time also be “continuously transmitted.”
`
`Term 7:
`
`A Device Is “Capable Of Being Moved About” Even If It Cannot Be
`“Carried By A Person”
`
`The court construed “portable” as “capable of being moved about” and specifically as
`
`capable of being “carried by a person.” D.E. 146 at 46–48.
`
`VWGoA/VWGoA Chattanooga object to this ruling. Although the claims refer to
`
`specific portable devices that are capable of being carried by a person (see id. at 48 (quoting D.E.
`
`101-4 at 26)), the construction improperly reads limitations into the claim term “portable.”
`
`Term 8:
`
`The Court Should Construe The Term “Pre-Programmed”
`
`The court construed the claim term describing a “pre-programmed” microcontroller/code
`
`portion as having its plain and ordinary meaning, which the Order characterizes as
`
`
`
`3
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 5 of 8 PageID #: 6144
`
`“unambiguous” and “easily understandable by a jury.” See id. at 48–50.
`
`VWGoA/VWGoA Chattanooga object to this ruling because it does not define what the
`
`plain and ordinary meaning is and does not resolve the parties’ disputes as to when or how the
`
`microcontroller/code must be “pre-programmed.”
`
` The ruling
`
`improperly
`
`leaves
`
`this
`
`determination for the jury to decide. See O2 Micro Int’l Ltd. v. Beyond Innovation Technology
`
`Co., Ltd., 521 F.3d 1351, 1361–62 (Fed. Cir. 2008) (“A determination that a claim term ‘needs
`
`no construction’ or has the ‘plain and ordinary meaning’ may be inadequate when a term has
`
`more than one ‘ordinary’ meaning or when reliance on a term’s ‘ordinary’ meaning does not
`
`resolve the parties’ dispute.”). The court should adopt the construction proposed by the
`
`defendants.
`
`Term 9:
`
`The Court Should Construe The Term “Car Audio/Video System”
`
`The court declined to construe the term “car audio/video system,” ruling that it “is
`
`unambiguous, is easily understandable by a jury, and should be given its plain and ordinary
`
`meaning.” See D.E. 146 at 51–56.
`
`VWGoA/VWGoA Chattanooga object to this ruling because it does not resolve the
`
`parties’ disputes. See O2 Micro, 521 F.3d at 1362. The term “car audio/video system” should be
`
`construed consistently with the construction adopted for the related term “car stereo.”
`
`Term 10:
`
`The Court Should Construe The Term “Format Incompatible With . . .”
`
`The court declined to construe the “format incompatible with . . .” claim terms because
`
`“the phrases are unambiguous, are easily understandable by a jury, and should be given their
`
`plain and ordinary meaning.” D.E. 146 at 56–59.
`
`VWGoA/VWGoA Chattanooga object to this ruling because it does not resolve the
`
`parties’ disputes, see O2 Micro, 521 F.3d at 1362, and is not consistent with the ruling in the
`
`Order that the term “incompatible” has a specific meaning to a person of skill in the art.
`
`
`
`4
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 6 of 8 PageID #: 6145
`
`Term 11:
`
`“Video Information” Should Not Be Construed As “Visual Images”
`
`The court construed the term “video information” as “visual images.” See D.E. 146 at
`
`59–61.
`
`VWGoA/VWGoA Chattanooga object to this ruling because it is not consistent with the
`
`ordinary meaning of the term or the intrinsic evidence. The court’s construction is broader than
`
`the ordinary meaning of “video,” because although a video is one example of a “visual image,”
`
`other visual images, such as a painting or a photograph, are not a “video.” The intrinsic evidence
`
`relied on by the court does not provide a definition for this term or suggest that it should be given
`
`a construction inconsistent with its ordinary meaning. See id. at 61 (citing ’786 patent, col.
`
`12:37–39).
`
`Term 12:
`
`The Court Should Construe The “Connector” and “Connectable” Claim
`Terms
`
`Finally, the court ruled that the “connector” / “connectable” claim terms should be “given
`
`their plain and ordinary meaning” because these terms “are well-known to those of ordinary skill
`
`in the art, and were not redefined” by the patent. Id. at 61–65.
`
`VWGoA/VWGoA Chattanooga object to this ruling because it does not resolve the
`
`parties’ disputes. See O2 Micro, 521 F.3d at 1362. In addition, the intrinsic evidence does not
`
`support a plain and ordinary meaning of “connectable” as excluding “a connector that is capable
`
`of being ‘disconnected.’” See D.E. 146 at 63. The dictionary definition cited by the defendants
`
`describes a “connector” as a “detachable device” (see id. at 62 (citing D.E. 88-1 at 10)); the
`
`claims use the term “connectable,” meaning “able” to be connected or disconnected; and the
`
`specification describes after-market devices that can be disconnected from the car stereo. See,
`
`e.g., id. at 64.
`
`
`
`5
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 7 of 8 PageID #: 6146
`
`Dated: September 30, 2016
`
`
`
`
`
`Respectfully submitted,
`
`Deron R. Dacus
`Texas State Bar No. 00790553
`Peter A. Kerr
`Texas State Bar No. 24076478
`The Dacus Firm, P.C.
`821 ESE Loop 323
`Suite 430
`Tyler, TX 75701
`Telephone: (903) 705-1117
`Facsimile: (903) 705-1117
`Email: ddacus@dacusfirm.com
`E-mail: pkerr@dacusfirm.com
`
`Michael J. Lennon
`NY State Bar No. 1160506
`Sheila Mortazavi (admitted pro hac vice)
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Telephone: (212) 425-7200
`Facsimile: (212) 425-5288
`Email: michaellennon@andrewskurthkenyon.com
`Email: sheilamortazavi@andrewskurthkenyon.com
`
`Susan A. Smith (admitted pro hac vice)
`ANDREWS KURTH KENYON LLP
`1350 I Street, NW, Suite 1100
`Washington D.C. 20005
`Telephone: (202) 662-2700
`Facsimile: (202) 662-2739
`Email:
`susansmith@andrewskurthkenyon.com
`
`
`
`
`
`By /s/ Deron R. Dacus
`
`Attorneys for Defendants and Counterclaim-
`Plaintiffs VOLKSWAGEN GROUP OF
`AMERICA, INC. and VOLKSWAGEN GROUP
`OF AMERICA CHATTANOOGA OPERATIONS,
`LLC
`
`
`
`
`6
`
`

`

`Case 2:15-cv-01274-JRG-RSP Document 175 Filed 09/30/16 Page 8 of 8 PageID #: 6147
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that this 30th day of September, 2016, a copy of the foregoing document
`
`was filed electronically in compliance with Local Rule CV-5(a). Therefore, this document was
`
`served on all counsel who are deemed to have consented to electronic service. Local Rule CV-
`
`5(a)(3)(A).
`
`
`
`
`
`
`
`
`
`
`
` /s/ Deron R. Dacus
`
`
`
`
`
`
`
`
`