Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 1 of 34 PageID #: 1799
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CYWEE GROUP LTD.,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO. LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`NO. 2:17-CV-00140-RWS-RSP
`
`
`
`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 2 of 34 PageID #: 1800
`
`TABLE OF CONTENTS
`
`Page
`
`B.
`
`C.
`
`INTRODUCTION ............................................................................................................................ 1
`I.
`LAW OF CLAIM CONSTRUCTION AND INDEFINITENESS ......................................... 1
`II.
`BACKGROUND OF THE TECHNOLOGY ............................................................................. 3
`III.
`IV. DISPUTED CLAIM TERMS .......................................................................................................... 4
`A.
`“utilizing a comparison to compare the first signal set with the second signal
`set” (’438 Patent, Claim 1) .................................................................................................... 4
`“comparing the second quaternion in relation to the measured angular
`velocities ωx, ωy, ωz of the current state at current time T with the measured
`axial accelerations Ax, Ay, Az and the predicted axial accelerations Ax', Ay',
`Az' also at current time T” (’438 Patent, Claims 14 and 19) ........................................ 12
`“generating the orientation output based on the first signal set, the second
`signal set and the rotation output or based on the first signal set and the
`second signal set” (’978 Patent, Claim 10) ...................................................................... 14
`“three-dimensional (3D) pointing device”/ “3D pointing device” (’438
`Patent, Claims 1, 3, 4, 5, 14, 15, 16, 17, 19) (’978 Patent, Claim 1) ............................. 17
`“six-axis motion sensor” (’438 Patent, Claims 1, 5, 14, 15, 16, 17, 19) ...................... 23
`“using the orientation output and the rotation output to generate a
`transformed output associated with a fixed reference frame associated with a
`display device” (’978 Patent, Claim 10) ........................................................................... 24
`“global reference frame associated with Earth” (’978 Patent, Claim 10) ................... 26
`G.
`CONCLUSION ............................................................................................................................... 28
`
`D.
`
`E.
`F.
`
`V.
`
`-i-
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 3 of 34 PageID #: 1801
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`CyWee Grp. Ltd. v. Apple Inc.,
`No. 14-cv-01853-HSG, 2015 U.S. Dist. LEXIS 120133 (N.D. Cal. Sep. 9, 2015) .......................... 12
`
`Edwards Lifescis. LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009) ................................................................................................................ 19
`
`Eon-Net LP v. Flagstar Bancorp,
`653 F.3d 1314 (Fed Cir. 2011) ................................................................................................................... 2
`
`Fundamental Innovation Sys. Int’l LLC v. Samsung Elecs. Co.,
`No. 2:17-cv-145-JRG-RSP, 2018 U.S. Dist. LEXIS 15541
`(E.D. Tex. Jan. 31, 2018) .......................................................................................................................... 20
`
`Gen. Elec. Co. v. Nintendo Co.,
`179 F.3d 1350 (Fed. Cir. 1999) ................................................................................................................ 21
`
`Harcol Research, LLC v. Europea Sports Prods.,
`No. 2:13-CV-228-JRG-RSP, 2014 U.S. Dist. LEXIS 155307
`(E.D. Tex. Nov. 3, 2014) .......................................................................................................... 3, 6, 13, 15
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004) .................................................................................................................. 2
`
`Innovative Display Techs. LLC v. Hyundai Motor Co.,
`No. 2:14-CV-201-JRG, 2015 U.S. Dist. LEXIS 57810 (E.D. Tex. May 4, 2015) ...................... passim
`
`Intellectual Ventures II LLC v. FedEx Corp.,
`No. 2:16-CV-00980-JRG, 2017 U.S. Dist. LEXIS 196453
`(E.D. Tex. Nov. 29, 2017) ....................................................................................................................... 21
`
`Invensys Sys., Inc. v. Emerson Elec. Co.,
`No. 6:12-cv-799, 2014 U.S. Dist. LEXIS 108401 (E.D. Tex. Aug. 6, 2014) .................................. 7, 8
`
`K-2 Corp. v. Salomon S.A.,
`191 F.3d 1356 (Fed. Cir. 1999) ................................................................................................................ 28
`
`Linex Techs., Inc. v. Belkin Int’l, Inc.,
`No. 2:07-cv-222, 2009 U.S. Dist. LEXIS 10905 (E.D. Tex. Feb. 12, 2009) .................................... 27
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120 (2014) ............................................................................................................................ 2, 5
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ..................................................................................................... 2, 20, 26
`
`-ii-
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`

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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 4 of 34 PageID #: 1802
`
`TABLE OF AUTHORITIES
`(Continued)
`
`
`
`Page(s)
`
`Omega Eng’g, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003) ................................................................................................................ 23
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ............................................................................................... 1, 2, 18, 23
`
`Profectus Tech. LLC v. Huawei Techs. Co.,
`No. 6:11-cv-474, 2014 U.S. Dist. LEXIS 53157 (E.D. Tex. Apr. 16, 2014) .................................... 23
`
`SyncPoint Imaging, LLC v. Nintendo of Am. Inc.,
`No. 2:15-cv-00247-JRG-RSP, 2016 U.S. Dist. LEXIS 677
`(E.D. Tex. Jan. 5, 2016) ............................................................................................................................ 22
`
`UltimatePointer, LLC v. Nintendo Co.,
`816 F.3d 816 (Fed. Cir. 2016) .................................................................................................................. 18
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) .................................................................................................................... 1
`
`Statutes
`
`35 U.S.C. § 112 ............................................................................................................................................... 2, 5
`
`-iii-
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`

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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 5 of 34 PageID #: 1803
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`
`I.
`
`INTRODUCTION
`
`At their core, the parties’ claim construction disputes present two key issues. First, a claim is
`
`invalid as indefinite if it fails to inform persons skilled in the art, with reasonable certainty, of the
`
`scope of the invention. This is so when a claim limitation is subject to multiple interpretations, but
`
`the patent provides no way to identify which interpretation is appropriate, and also when a claim
`
`limitation is mathematically impossible. Here, the claims of the patents-in-suit require comparing
`
`angular velocities with “axial accelerations,” which could be any one of three types of acceleration.
`
`The patents-in-suit provide no guidance as to the type of axial acceleration to be used, and each
`
`possibility results in a mathematically impossible comparison. These claim limitations are therefore
`
`indefinite, rendering each asserted claim invalid.
`
`Second, the remaining claim terms have plain meanings consistent with the guidance of the
`
`specification and prosecution history. For example, a “3D pointing device” is described throughout
`
`the patents-in-suit and extrinsic evidence, and even by CyWee’s own expert as something that moves
`
`a cursor or pointer on a display, not merely a device that calculates its own orientation. As another
`
`example, when prosecuting the patents-in-suit, the patentee distinguished a nine-axis motion sensor
`
`from a six-axis motion sensor by stating that the six-axis motion sensor would not include a
`
`magnetometer. Yet, CyWee seeks now to interpret “six-axis motion sensor” to cover structures with
`
`magnetometers. These claim limitations should be construed consistent with the intrinsic evidence.
`
`II.
`
`LAW OF CLAIM CONSTRUCTION AND INDEFINITENESS
`
`The Court is well-versed in the relevant law. Terms are construed from the perspective of a
`
`person of ordinary skill in the art (“POSA”) at the time of the invention. Phillips v. AWH Corp., 415
`
`F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). Terms “are generally given their ordinary and customary
`
`meaning.” Phillips, 415 F.3d at 1312 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
`
`(Fed. Cir. 1996)). The claims themselves provide significant guidance. Phillips, 415 F.3d at 1314.
`
`-1-
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 6 of 34 PageID #: 1804
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`“[A]ll claim terms are presumed to have meaning in a claim.” Innova/Pure Water, Inc. v. Safari Water
`
`Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed. Cir. 2004). Nevertheless, “the person of ordinary skill
`
`in the art is deemed to read the claim term not only in the context of the particular claim in which
`
`the disputed term appears, but in the context of the entire patent, including the specification.”
`
`Phillips, 415 F.3d at 1313. “The specification is the ‘single best guide to the meaning of a disputed
`
`claim term . . . .’” Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1320 (Fed Cir. 2011) (quoting
`
`Phillips, 415 F.3d at 1315). The prosecution history provides additional evidence of how the Patent
`
`Office and the patentee understood the claims. Phillips, 415 F.3d at 1317. Extrinsic evidence may
`
`also be considered, but not to vary the meaning of terms based on the intrinsic record. Id. at 1317–
`
`19.
`
`Where a claim term’s plain and ordinary meaning does not resolve the parties’ dispute, it is
`
`inappropriate to rely on such meaning or decline to construe the term. O2 Micro Int’l Ltd. v. Beyond
`
`Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008). When the parties “present a fundamental
`
`dispute regarding the scope of a claim term, it is the court’s duty to resolve it.” Id. at 1362–63.
`
`The claims must particularly point out and distinctly claim the subject matter which the
`
`applicant regards as the invention. 35 U.S.C. § 112 ¶ 2. A patent is indefinite “if its claims, read in
`
`light of the specification delineating the patent, and the prosecution history, fail to inform, with
`
`reasonable certainty, those skilled in the art about the scope of the invention.” Nautilus, Inc. v. Biosig
`
`Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). Section 112 requires patent claims to have the precision
`
`necessary “to afford clear notice of what is claimed, thereby ‘apprising the public of what is still
`
`open to them.’” Id. at 2128–29 (citation omitted). A claim term is indefinite when it has multiple
`
`divergent, but equally plausible interpretations. See, e.g., Innovative Display Techs. LLC v. Hyundai Motor
`
`Co., No. 2:14-CV-201-JRG, 2015 U.S. Dist. LEXIS 57810, at *72–73 (E.D. Tex. May 4, 2015);
`
`-2-
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 7 of 34 PageID #: 1805
`
`
`Harcol Research, LLC v. Europea Sports Prods., No. 2:13-CV-228-JRG-RSP, 2014 U.S. Dist. LEXIS
`
`155307, at *21–22 (E.D. Tex. Nov. 3, 2014).
`
`III. BACKGROUND OF THE TECHNOLOGY
`
`A.
`
`U.S. Patent No. 8,441,438
`
`The ’438 Patent (Ex. 1)1 is directed to a 3D pointing
`
`device that utilizes orientation sensors to output the movement
`
`of the device in relation to a reference frame of a display device.
`
`’438 Patent, Abstract. As shown in Figure 1, when the user
`
`moves a 3D pointing device (110), a cursor on the screen (122)
`
`moves relative to the orientation, direction, and distance traveled
`
`by the device. Id., 1:29–2:40.
`
`As shown in Figure 4, the 3D pointing device includes
`
`a six-axis motion sensor module containing a rotation sensor
`
`(342) and accelerometer (344). Id., 7:59–61. The six-axis
`
`sensor module is connected to a processing and transmitting
`
`module containing a data transmitting unit (346) and a
`
`computing processor (348). Id. To calculate the deviation of the 3D pointing device in relation to a
`
`reference frame, the gyroscope generates a set of angular velocity readings and the accelerometer
`
`generates a set of acceleration readings. Id., 7:64–8:17. These readings are transmitted from the
`
`sensors via the data transmitting unit to the computing processor. Id., 8:18–30. A “predicted”
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`acceleration is obtained from the set of angular velocities and the amount the device has moved (i.e.,
`
`deviated) is calculated using these values in a manner that purportedly minimizes the inherent errors
`
`of each sensor. Id., 8:18–58.
`
`1 Unless otherwise stated, all exhibits referenced herein are attached to the Declaration of Elizabeth
`L. Brann, filed concurrently herewith.
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 8 of 34 PageID #: 1806
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`
`B.
`
`U.S. Patent No. 8,552,978
`
`The ’978 Patent (Ex. 2) is related to the ’438 Patent and is generally directed to the same
`
`subject matter. Like the ’438 Patent, the ’978 Patent is
`
`directed to a 3D pointing device that utilizes
`
`orientation sensors to output the movement of the
`
`device in relation to the reference frame of a display
`
`device. ’978 Patent, Abstract.
`
`Unlike the ’438 Patent, the ’978 Patent uses a
`
`set of measured and predicted magnetism readings to
`
`calculate the deviation of the device. To do so, the ’978 Patent discloses the use of a nine-axis sensor
`
`module containing a rotation sensor (342), accelerometer (344), and magnetometer (345). Id., 9:65–
`
`10:1. Similar to the method disclosed in the ’438 Patent, the angular velocities from the gyroscope,
`
`acceleration readings from the accelerometer, magnetic readings from the magnetometer, and a set
`
`of “predicted” magnetisms are used to obtain the updated “state” of the 3D pointing device in a way
`
`that purportedly minimizes the inherent errors of each sensor. Id., 10:50–11:30.
`
`IV. DISPUTED CLAIM TERMS
`A.
`
`“utilizing a comparison to compare the first signal set with the second signal
`set” (’438 Patent, Claim 1)
`
`Plaintiff’s Proposal
`“determining or assessing differences based on a
`previous state associated with the first signal set
`and a measured state associated with the second
`signal set while calculating deviation angles”
`
`Defendants’ Proposal
`
`Indefinite
`
`Although the mathematics underlying the claimed “utilizing a comparison to compare the
`
`first signal set with the second signal set” are complex, the reasons the term is indefinite are simple.
`
`The term is indefinite because all parties agree it is subject to multiple interpretations, and each of
`
`those interpretations is mathematically impossible. A patent “must be precise enough to afford clear
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`notice of what is claimed” to avoid public uncertainty about infringement. Nautilus, 134 S. Ct. at
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`2128–29. To balance these concerns when considering definiteness under 35 U.S.C. § 112 ¶ 2, a
`
`claim, when viewed in light of the specification and prosecution history, must inform POSAs about
`
`the scope of the invention with reasonable certainty. Id. at 2129. Because the ’438 Patent does not
`
`indicate which interpretation of “utilizing a comparison . . .” is correct, and because each
`
`interpretation is mathematically impossible, this term does not inform POSAs about the scope of
`
`the invention with reasonable certainty.
`
`“[U]tilizing a comparison . . .” appears in Claim 1 of the ’438 Patent. The claimed 3D
`
`pointing device has a six-axis motion sensor module comprising a rotation sensor that “detect[s] and
`
`generat[es] a first signal set comprising angular velocities ωx, ωy, ωz” and an accelerometer that
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`“detect[s] and generat[es] a second signal set comprising axial accelerations Ax, Ay, Az.” ’438 Patent,
`
`Claim 1. A “computing processor” then “communicates with the six-axis motion sensor module to
`
`calculate a resulting deviation comprising resultant angles . . . by utilizing a comparison” to compare
`
`the first signal set—the angular velocities measured by the rotation sensor—with the second signal
`
`set—the axial accelerations measured by the accelerometer. Id.
`
`A POSA would not have understood the meaning of this limitation with reasonable certainty
`
`for at least three reasons. First, the specification and claims of the ’438 Patent ubiquitously reference
`
`“axial accelerations.” See ’438 Patent, 4:8–19; 4:59–65; 6:16–20; 8:4–8; 11:8–15; 13:6–13; March 9,
`
`2018 Responsive Declaration of M. Ray Mercer, Ph.D (filed concurrently) (“Mercer Decl.”) ¶¶ 70–
`
`74. The ’438 Patent states that “axial accelerations” are detected and generated by an accelerometer.
`
`In general, an accelerometer reports a combined measurement that reflects the contributions of
`
`three different types of accelerations—(i) linear accelerations; (ii) centrifugal accelerations; and (iii)
`
`gravitational accelerations. Mercer Decl. ¶ 72; Declaration of Joseph J. LaViola, Jr., Ph.D (filed
`
`February 23, 2018, Dkt. No. 66-6) (“LaViola Decl.”) ¶¶ 29–30. Linear accelerations measure the rate
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`in change of velocity of an object traveling along a straight path. Mercer Decl. ¶ 52. Centrifugal
`
`accelerations measure the rate in change of velocity of an object rotating about a point. Mercer Decl.
`
`¶ 55. Gravitational accelerations measure an object’s acceleration due to gravitational force. Mercer
`
`Decl. ¶ 48. A POSA would recognize that an “axial acceleration” could be any of these three
`
`accelerations or some combination from among the three. Id. ¶¶ 66, 70–74. In fact, CyWee’s expert,
`
`Joseph LaViola, admits that “axial accelerations can have multiple interpretations depending on the
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`3 types of forces (gravity, linear, centrifugal) that can act on an accelerometer,” noting expressly that
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`this is an “ambiguity” in the claim term. LaViola Decl. ¶ 29.
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`Second, given the multiple types of axial accelerations, it would not be clear to a POSA how
`
`to compare the first signal set of angular velocities with the second signal set of axial accelerations. A
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`POSA would not know which acceleration (linear, centrifugal, or gravitational) is being compared
`
`with angular velocities, and the specification does not indicate which meaning is correct, leaving no
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`way for a POSA to resolve the admitted ambiguity in the claim term.
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`Such claim terms are indefinite. In Innovative Display, the court held the term “more in the
`
`width direction” to be indefinite, finding “divergent interpretations [of that term were] plausible”
`
`and that the plaintiff “failed to adequately demonstrate that its preferred interpretation [was]
`
`necessarily the correct one.” 2015 U.S. Dist. LEXIS 57810, at *73. Similarly, in Harcol Research, the
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`court held that the term “[a] method of large and rapid energy supply to a healthy individual . . .”
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`was indefinite because the meaning of that phrase could change situationally. 2014 U.S. Dist. LEXIS
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`155307, at *22. Similarly, here it is undisputed that there are multiple types of axial accelerations, and
`
`the specification does not indicate which of these types of axial accelerations is being compared with
`
`the angular velocities.
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`Third, from a practical perspective, regardless of how “axial accelerations” is interpreted, a
`
`POSA would also have understood that it is impossible to decompose the acceleration reading
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 11 of 34 PageID #: 1809
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`measured by an accelerometer into separate linear, rotational, and gravitational acceleration
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`components. Accelerometer measurements do not contain information regarding the source(s) or
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`type(s) of force(s) underlying the measured accelerations. Mercer Decl. ¶¶ 67, 75–81; see LaViola
`
`Decl. ¶¶ 30–31, 34. The specification of the ’438 Patent recognizes these technical limitations:
`
`Furthermore, the reading of the accelerometer may be accurate only
`when the pointing device is static since due to the limitation on
`known accelerometers that these sensors may not distinguish the
`gravitational acceleration from the acceleration of the forces
`including centrifugal forces or other types of additional
`accelerations imposed or exerted by the user.
`
`’438 Patent at 3:10–13 (emphasis added); see LaViola Decl. ¶¶ 30–31. CyWee also acknowledged
`
`these limitations in its discovery responses:
`
`Prior to 2010, motion sensors had limited applicability to portable
`electronic devices due to a variety of technological hurdles. For
`example, different types of acceleration (e.g., linear, centrifugal,
`gravitational) could not be readily distinguished from one
`another, and rapid, dynamic, and unexpected movements caused
`significant errors and inaccuracies. . . .
`
`For example, it is impossible for MEMS accelerometers to
`distinguish different types of acceleration (e.g., linear,
`centrifugal, gravitational).
`
`
`Ex. 3 at 9–10 (emphasis added). CyWee alleges that an accurate result can be calculated if “non-
`
`gravitational accelerations and forces” are “estimated and subtracted from the MEMS accelerometer
`
`measurement,” id., but the ’438 Patent does not disclose how to accomplish these corrections. See
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`Mercer Decl. ¶ 77.
`
`
`
`Finally, even assuming acceleration could be decomposed into components, a
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`mathematically meaningful comparison between an object’s angular velocities and axial accelerations
`
`is impossible, rendering the limitation indefinite for that additional reason. See Invensys Sys., Inc. v.
`
`Emerson Elec. Co., No. 6:12-cv-799, 2014 U.S. Dist. LEXIS 108401, at *17–18 (E.D. Tex. Aug. 6,
`
`2014) (claim limitation is indefinite when it requires a mathematically impossible calculation). The
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`angular velocity of an object is the rate of the object’s rotational movement around an axis. Mercer
`
`Decl. ¶ 85. If an “axial acceleration” is interpreted to include either linear or gravitational
`
`acceleration components, it is mathematically impossible to compare an axial acceleration with an
`
`angular velocity. This is because linear and gravitational accelerations relate to types of motion that
`
`differ fundamentally from the type of motion measured as an object’s angular velocity. See id. ¶¶ 68,
`
`82–93, 101. As such, the angular velocity, linear acceleration, and gravitational acceleration
`
`experienced by an object are mutually independent. See id.
`
`
`
`If an “axial acceleration” is interpreted instead as the centrifugal acceleration, a POSA would
`
`have recognized that additional data is necessary to compare a centrifugal acceleration to an angular
`
`velocity. See id. ¶¶ 94–101. The centrifugal acceleration of an object depends on the magnitude of
`
`acceleration and the object’s instantaneous radius of rotation—i.e., the distance of the object from
`
`the center of the circle created by the object’s motion. As such, this radius must be known in order
`
`to compare an object’s instantaneous centrifugal acceleration to its instantaneous angular velocity.
`
`See id. The ’438 Patent does not consider or discuss this radius, and a POSA would understand that
`
`neither a rotation sensor nor an accelerometer is capable of ascertaining this radius. Id. ¶¶ 86, 95–99.
`
`
`
`These issues are further complicated when the rotational movements are complex. Except
`
`for rotation induced by a single rigid body, the radius of rotation is generally variable and the
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`rotational motions can also be compound—each with a different radius of rotation. See Mercer Decl.
`
`¶¶ 55–59; 80–81; 98–99. Again, the ’438 Patent does not disclose how to deal with such compound
`
`rotational movements. Id.. Therefore, the comparison still requires a mathematically impossible
`
`calculation, rendering the limitation indefinite. See Invensys Sys., 2014 U.S. Dist. LEXIS 108401 at
`
`*17–18.
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`Case 2:17-cv-00140-WCB-RSP Document 67 Filed 03/09/18 Page 13 of 34 PageID #: 1811
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`CyWee fails to address these problems. Instead, Dr. LaViola claims they are “immaterial”
`
`because the ’438 Patent discloses an Extended Kalman filter in Equations 5–11. LaViola Decl. ¶¶
`
`29–35, 39, 41–42; Opening Br. at 7–10.
`
`As an initial matter, neither claim 1 nor the ’438 Patent recite the term “Kalman filter” or
`
`“Extended Kalman filter.” See ’438 Patent; 39:22–40:16. Contrary to CyWee’s arguments, a POSA
`
`would not read the ’438 Patent (including Equations 5–11) and conclude that it teaches an Extended
`
`Kalman filter. Mercer Decl. ¶¶ 143–146. In fact, Equations 5–11 are rife with undisclosed functions
`
`and variables. Id., ¶¶ 119–129. As just one example, the ’438 Patent defines Equation 11 as “an
`
`exemplary method of data association of an exemplary equation” (’438 Patent, 14:19–20) which
`
`provides no information on what the equation actually does. Even more confusingly, CyWee’s
`
`expert, Dr. LaViola, testified both that Equation 11 is the “actual equation that will do the
`
`comparison” (Ex. 4, 61:20–22) and that “it’s slightly unclear what Equation 11 is doing.” Id., 129:15–
`
`17.
`
`Dr. LaViola’s statements are not relevant because there is no dispute that a POSA would not
`
`understand which “axial acceleration” is being utilized in the comparison between the “axial
`
`accelerations” and the “angular velocity.” CyWee’s argument that these multiple, equally plausible
`
`interpretations are “immaterial” because the comparison is still “possible” misses the point.
`
`Regardless of whether the comparison is possible (which it is not), the differences are material
`
`(indeed, critical) because the comparison differs depending on the interpretation chosen, and
`
`nowhere does the ’438 Patent indicate which interpretation is correct.
`
`CyWee’s argument is also technically inaccurate. A Kalman filter is a tool used to estimate
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`the value of a variable when noise has been introduced. Mercer Decl. ¶ 148. An Extended Kalman
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`filter is a non-linear version of a Kalman filter and deals with system and measurement noise. Id.,
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`¶¶ 148–150. CyWee’s expert in the CyWee Grp. Ltd. v. Apple Inc. litigation, Sheikh Iqbal Ahamed,
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`described “noise” as resulting from the effects of temperature and frequency on the electronic signal
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`generated by the accelerometer. Ex. 5 at 10–12. An Extended Kalman filter is not designed to
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`partition accelerometer readings into linear, centrifugal, and gravitational acceleration components in
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`order to compare axial accelerations with angular velocities. Mercer Decl. ¶ 150. The ’438 Patent and
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`Dr. LaViola further do not disclose how an Extended Kalman filter would do so. Id., ¶¶ 150–152.
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`CyWee’s argument that its patents use Kalman filters to solve these issues also directly
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`contradicts its prior position that its patents do not cover Kalman filters. Ex. 5 at 20–22. Indeed, if
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`CyWee were correct that the patents cover Kalman filters, the patents would be invalid because
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`Kalman filters and Extended Kalman filters have been known in the art since the 1960s—as
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`CyWee’s expert concedes. Ex. 4, 42:18–25; 80:11–15 (“Q. Do you know when extended Kalman
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`filters came around? A. To the best of my knowledge, they came around sometime in the ’60s.”);
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`Mercer Decl. ¶¶ 153–154.
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`Indeed, Dr. LaViola was unable to articulate any distinctions between an Extended Kalman
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`filter in its traditional form and the Extended Kalman filter purportedly disclosed in the ’438 Patent
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`beyond how the ’438 Patent’s filter was “set up”, which he testified was set forth in Equations 1–4
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`of the ’438 Patent:
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`You have to have Equations 1 through 4 in order to be able to
`populate Equations 5 through 11. If you don’t have that, then you
`don't know what your process model would be. In some sense, the
`patent’s description of the process model and the measurement that
`you’re getting is more important than Equations 5 through 11
`themselves, because if Equations 5 through 11 are in the standard
`ordinary skill in the art, people understand. Right? But what the
`patent is doing is, is describing, you know, how you’re actually
`setting it up with the current framework and the current set of
`measurements and stuff. That’s where the real difference lies in
`a standard extended Kalman filter in its traditional form.
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`Ex. 4, 139:18–140:10 (emphasis added). Yet Dr. LaViola also testified that each of Equations 1–4
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`were known in the art prior to the invention of the ’438 Patent. Id., 45:4–20; 58:23–59:16.
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`CyWee devotes the remainder of its brief to a variety of straw man arguments that are either
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`misleading or entirely miss the point. First, CyWee argues that the ’438 Patent is confined to “rigid-
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`body” motion because the 3D pointing device has a rigid body. Opening Br. at 14. But nowhere
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`does the ’438 Patent limit the 3D pointing device to a rigid body, and, even if it did, the body of the
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`3D pointing device is immaterial to this issue. Mercer Decl. ¶¶ 131–37. Instead, the motion of the
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`3D pointing device is induced by multiple, non-rigid bodies—the user’s hand, arm, and shoulder. Id.
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`¶¶ 80, 98–99, 131–137 1. Indeed, CyWee’s expert, Dr. LaViola, conceded that accurately calculating
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`the motion of an object depends in part on: (i) whether what is affecting the movement has a rigid
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`or non-rigid body; and (ii) whether the movement is being induced by multiple bodies. Ex. 4 at
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`29:9–19, 32:2–25. Dr. LaViola also conceded that the value read by the sensors discloses nothing
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`about the characteristics of what is affecting the object’s motion. Id. at 35:18–36:17. Yet the
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`comparison recited in the claims must be able to account for compound motion induced by these
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`non-rigid bodies, and the ’438 Patent does not state how this comparison could be accomplished.
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`Mercer Decl., ¶¶ 133–137.
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`Second, CyWee argues that Samsung conceded its understanding of “axial accelerations” in
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`other claim limitations. It is not disputed that a POSA would understand that the term “axial
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`accelerations” could have multiple, equally plausible interpretations. Innovative Display, 2015 U.S.
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`Dist. LEXIS 57810, at *70–71 (“[I]f a person of ordinary skill would determine that there are
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`multiple equally plausible but materially dissimilar constructions of a claim term, the claim would fail
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`the ‘reasonable certainty’ standard, even if none of the competing constructions are ‘insolubly
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`ambiguous.’”). Both CyWee and its expert have conceded this fact. LaViola Decl. ¶ 29. These
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`multiple interpretations change the scope of the “comparison” limitation depending on which
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`interpretation is selected, and comparing the three types of axial accelerations, alone or in
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`combination, with angular velocities is both practically and mathematically impossible.
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`Finally, CyWee argues that a comparison of angular velocities and axial accelerations is not
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`necessary (despite the plain claim language) based on the Northern District of California’s decision
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`in CyWee v. Apple. CyWee’s characterization of that court’s decision is at best misleading. In that
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`case, CyWee proposed that the term “utilizing a comparison to compare the first signal set with the
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`second signal set” be construed as “calculating using the first signal set and the second signal set.”
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`The court held that this construction was inadequate, since it did not “incorporate or even reference
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`the specific definition of