Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 1 of 17 PageID #: 1115
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
`
`
`Case No. 2:19-cv-00118-JRG
`
`JURY TRIAL DEMANDED
`
`
`
`v.
`
`
`APPLE INC.,
`
`
`Defendant.
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`PLAINTIFF QUEST NETTECH CORPORATION’S
`OPENING CLAIM CONSTRUCTION BRIEF
`
`
`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 2 of 17 PageID #: 1116
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`TABLE OF CONTENTS
`
`Page(s)
`
`
`I.
`
`CLAIM CONSTRUCTION STANDARD OF REVIEW .................................................1
`
`A.
`
`B.
`
`GOVERNING LAW ............................................................................................1
`
`LEVEL OF ORDINARY SKILL IN THE ART ...................................................1
`
`II.
`
`PATENT BACKGROUND AND TECHNOLOGY.........................................................1
`
`III.
`
`DISPUTED TERMS........................................................................................................2
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“[multiple account] electronic credit card” (claims 10, 11, 14-24, and 26-
`33) (No. 1) ...........................................................................................................2
`
`“operation of the [credit] card”(claims 10 and 33) (No. 2) ....................................5
`
`“financial transaction records relative to the multiple accounts” /
`“records relative to the multiple accounts”(claims 10 and 33) (No. 3)...................7
`
`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period of use” (claim 10) (No. 4) ............9
`
`“transfer of data stored in the memory to a new multiple account
`electronic credit card” (claim 10) (No. 5) ........................................................... 10
`
`IV.
`
`CONCLUSION ............................................................................................................. 12
`
`i
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 3 of 17 PageID #: 1117
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`01 Communique Lab., Inc. v. LogMeIn, Inc.,
`687 F.3d 1292 (Fed. Cir. 2012) .............................................................................................. 5
`
`AGIS Software Dev., LLC v. Huawei Device USA Inc.,
`No. 2:17-CV-513-JRG, 2018 WL 4908169 (E.D. Tex., Oct. 10, 2018) ........................ 1, 9, 10
`
`Corning Glass Works v. Sumitomo Elec. U.S.A., Inc.,
`868 F.2d 1251 (Fed. Cir. 1989) .............................................................................................. 4
`
`Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp.,
`616 F.3d 1357 (Fed. Cir. 2010) .............................................................................................. 6
`
`Genband USA LLC v. Metaswitch Networks Ltd.,
`No. 2:14-cv-33-JRG-RS, 2015 WL 1518007 (E.D. Tex. Apr. 2, 2015) .................................. 8
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014) .............................................................................................. 8
`
`Howemedica Osteonics Corp. v. Wright Med. Tech., Inc.,
`540 F.3d 1337 (Fed. Cir. 2008) ............................................................................................ 11
`
`Novatek, Inc. v. Sollami Co.,
`559 Fed. Appx. 1011 (Fed. Cir. 2014) ................................................................................... 3
`
`NTP, Inc. v. Research In Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005) .............................................................................................. 3
`
`Proveris Sci. Corp. v. Innovasystems, Inc.,
`739 F.3d 1367 (Fed. Cir. 2014) .............................................................................................. 3
`
`Resonate Inc. v. Alteon Websystems, Inc.,
`338 F.3d 1360 (Fed. Cir. 2003) ............................................................................................ 11
`
`Seoul Semiconductor Co. Ltd. v. Nichia Corp.,
`596 F. Supp. 2d 1005 (E.D. Tex. 2009) ................................................................................. 1
`
`TPQ Dev., LLC v. Merrill Lynch & Co.,
`No. 2:08-CV-471, 2012 WL 1940849 (E.D. Tex. May 29, 2012) ....................................... 4, 5
`
`Unwired Planet L.L.C. v. Google, Inc.,
`660 Fed. Appx. 974 (Fed. Cir. 2016) ..................................................................................... 2
`
`ii
`
`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 4 of 17 PageID #: 1118
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007) .............................................................................................. 8
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F. 3d 1576 (Fed. Cir. 1996) ......................................................................................... 8, 10
`
`
`
`iii
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 5 of 17 PageID #: 1119
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`Pursuant to P.R. 4-5(a) and the Court’s Docket Control Order of August 8, 2019 (Dkt.
`
`42), Plaintiff Quest NetTech Corporation (“NetTech”) hereby submits its Opening Claim
`
`Construction Brief. The asserted patent is U.S. Patent No. RE38,137 (the “’137 Patent,” Ex. A)
`
`(the “Asserted Patent”).
`
`I.
`
`CLAIM CONSTRUCTION STANDARD OF REVIEW
`
`A.
`
`GOVERNING LAW
`
`The governing legal standards relating to claim construction are described in the Court’s
`
`opinion in AGIS Software Dev., LLC v. Huawei Device USA Inc., No. 2:17-CV-513-JRG, 2018
`
`WL 4908169, at *3-5 (E.D. Tex., Oct. 10, 2018), and are hereby incorporated by reference. See
`
`also Seoul Semiconductor Co. Ltd. v. Nichia Corp., 596 F. Supp. 2d 1005 (E.D. Tex. 2009).
`
`B.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`The “Field of the Invention” is described generally as related to the field of financial data
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`systems. Ex. A, 1:10. The detailed descriptions of the inventions and the claims of the Asserted
`
`Patent draw on a combination of skills from the computer science and engineering arts. NetTech
`
`submits that a person of ordinary skill in the art (“POSITA”) covered by the Asserted Patent
`
`would have a bachelor’s degree in electrical or computer engineering with one to two years of
`
`experience in the fields of computer programming and/or computer hardware design, preferably
`
`with a focus on data processing or financial systems. Extensive experience and technical training
`
`may substitute for educational requirements, while advanced education might substitute for
`
`experience.
`
`II.
`
`PATENT BACKGROUND AND TECHNOLOGY
`
`U.S. Patent No. 5,859,419 (the “ʼ419 Patent”) issued from U.S. Patent Application No.
`
`08/535,712 (the “ʼ712 Application”), which was filed on September 28, 1995. A reissue
`
`
`
`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 6 of 17 PageID #: 1120
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`application was filed for the ʼ419 Patent. As a result, on June 10, 2003, the United States Patent
`
`and Trademark Office duly and legally issued the ’137 Patent.
`
`The Asserted Patent discloses a universal financial data card, also referred to as a
`
`“multiple account electronic credit card,” capable of allowing a user to conduct financial
`
`transactions using one or more accounts, including credit card accounts, stored on the device. Ex.
`
`A, 1:10-16; 2:5-10. The multiple account electronic credit card also electronically compiles and
`
`stores transaction data in real time as the transactions occur. Id. at 1:10-16. The multiple
`
`account electronic credit card may use a wireless connection to a card reader to authenticate the
`
`user, conduct transactions, and obtain transaction data. Id. at 2:39-54; 5:66-6:.10.
`
`III. DISPUTED TERMS
`
`A.
`
`“[multiple account] electronic credit card” (claims 10, 11, 14-24, and 26-33)
`(No. 11)
`
`NetTech’s Proposed Construction
`
`“an electronic device for conducting financial
`transactions using one or more of the multiple
`accounts stored on the device”
`
`
`Defendant’s Proposed Construction
`
`Plain and ordinary meaning / no
`construction required
`
`The term “[multiple account] electronic credit card” is recited in asserted claims 10, 11,
`
`14-24, and 26-33 of the ʼ137 Patent. Although this term appears in the preamble, it requires
`
`construction. The claims without the construction of the term “multiple account electronic credit
`
`card” merely refers to a generic device that downloads and stores transactions, and clearly, this is
`
`not the thrust of the invention. Because this term is limiting and limitations in the body of the
`
`claims rely on “multiple account electronic credit card” for antecedent basis and for structural
`
`limitations, a construction of this term is necessary. See Unwired Planet L.L.C. v. Google, Inc.,
`
`
`1 “No. __” refers to claim term number in Plaintiff’s Proposed Constructions submitted with the P.R. 4-3 Joint Claim
`Construction and Prehearing Statement. See Dkt. 59-1.
`
`2
`
`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 7 of 17 PageID #: 1121
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`660 Fed. Appx. 974, 986 (Fed. Cir. 2016) (“As we have explained, a term has patentable weight
`
`where it ‘recites essential structure or steps, or if it is necessary to give life, meaning, and vitality
`
`to the claim.’ . . . Here, the preamble introduces the term ‘an image.’ The term provides
`
`antecedent basis for a term in the body of the claims, ‘the image.’ . . . [The district court]
`
`explained that the term is ‘essential to understand limitations or terms in the claim body’—
`
`namely, the size difference between an image and the screen of a mobile device. . . . Not only
`
`does ‘an image’ provide antecedent basis for ‘the image’ later in the claims, it also ‘recites
`
`particular structure or steps that are highlighted as important by the specification.’”) (citations
`
`omitted). The preamble recites a structure, the multiple account electronic credit card, which is
`
`essential to understanding the limitations in the claim body.
`
`The claim term “multiple account electronic credit card” is a necessary component of the
`
`claimed invention as limitations in the body of the claim derive antecedent basis from the
`
`recitation in the preamble. See NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1305 (Fed.
`
`Cir. 2005) (holding a preamble is generally construed to be limiting if it “recites essential
`
`structure or steps, or if it is necessary to give life, meaning, and vitality to the claim”); see also
`
`Novatek, Inc. v. Sollami Co., 559 Fed. Appx. 1011, 1015 (Fed. Cir. 2014) (“For example,
`
`limitations in the body of the claim that rely upon and derive antecedent basis from the preamble
`
`may render the preamble a necessary component of the claimed invention; and therefore, a
`
`limitation on the claims.”) (citations omitted).
`
`This is further highlighted by the specification which discloses several embodiments of
`
`the invention that include a universal financial data card “capable of supporting multiple
`
`accounts of various types from diverse financial institutions.” Ex. A at 2:8-10; see Proveris Sci.
`
`Corp. v. Innovasystems, Inc., 739 F.3d 1367, 1372 (Fed. Cir. 2014) (“[T]he preamble may be
`
`3
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 8 of 17 PageID #: 1122
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`construed as limiting when it recites particular structure or steps that are highlighted as important
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`by the specification.”) (citations omitted). Further, “[t]he ability to manage accounts of different
`
`types and multiple accounts advantageously reduces the number of cards a user has to carry.” Ex.
`
`A at 5:17-20. The card holder may use the “[multiple account] electronic credit card” to store
`
`financial and transaction data related to the multiple accounts, authenticate the authorized card
`
`holder of the multiple accounts, and obtain goods and/or services. Id. at 4:64-5:13; 5:23-25;
`
`5:67-6:3. The specification also confirms that the inventor was working on a particular
`
`problem—the failure to integrate multiple accounts and integrate financial data storage systems
`
`capable of gathering transaction data in real time. See Ex. A, 1:18-58; see also Corning Glass
`
`Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989) (“Here, the ʼ915
`
`specification makes clear that the inventors were working on the particular problem of an
`
`effective optical communication system not on general improvements in conventional optical
`
`fibers.”).
`
`Plaintiff submits that “some construction of the disputed claim language will assist the
`
`jury to understand the claims.” TPQ Dev., LLC v. Merrill Lynch & Co., No. 2:08-CV-471, 2012
`
`WL 1940849, at *2 (E.D. Tex. May 29, 2012). Because the recitation of “[multiple account]
`
`electronic credit card” in the preamble serves as an antecedent basis for the limitations in the
`
`body of the claims, it is a necessary limitation that requires construction. The specification
`
`contemplates a multiple account electronic credit card capable of supporting multiple accounts,
`
`and accordingly, this claim term should be construed as “an electronic device for conducting
`
`financial transactions using one or more of the multiple accounts stored on the device.”
`
`4
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 9 of 17 PageID #: 1123
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`B.
`
`“operation of the [credit] card”(claims 10 and 33) (No. 2)
`
`Defendant’s Proposed Construction
`
`Plain and ordinary meaning / no construction
`required
`
`NetTech’s Proposed Construction
`
`“the operation of the multiple account
`electronic credit card, including the purchase
`of goods and services using one or more of
`the multiple credit card accounts, the
`authentication of an authorized user of one or
`more of the multiple credit card accounts,
`and the receipt and storage of financial
`transaction records relative to purchases
`made using one or more of the multiple
`credit card accounts”
`
`The term “operation of the [credit] card” appears in asserted claims 10 and 33 of the ʼ137
`
`Patent. Plaintiff proposes that this term means “the operation of the multiple account electronic
`
`credit card, including the purchase of goods and services using one or more of the multiple credit
`
`card accounts, the authentication of an authorized user of one or more of the multiple credit card
`
`accounts, and the receipt and storage of financial transaction records relative to purchases made
`
`using one or more of the multiple credit card accounts.” Defendant proposes that this term need
`
`not be construed or be given its plain and ordinary meaning.
`
`This claim term should be construed to incorporate the exemplary operations as disclosed
`
`in the specification. See 01 Communique Lab., Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1296 (Fed.
`
`Cir. 2012) (“The claim language makes clear that the location facility in fact does perform the
`
`functions in question. The district court correctly incorporated those functions into its claim
`
`construction.”). The construction of this term would be helpful to the jury to understand the
`
`claims. TPQ Dev., LLC, 2012 WL 1940849, at *2.
`
`Plaintiff’s proposed construction of the term includes the operations of the multiple
`
`account electronic credit card disclosed in the specification, including “the purchase of goods
`
`and services using one or more of the multiple credit card accounts, the authentication of an
`
`5
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 10 of 17 PageID #: 1124
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`authorized user of one or more of the multiple credit card accounts, and the receipt and storage of
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`financial transaction records relative to purchases made using one or more of the multiple credit
`
`card accounts.” See, e.g., Ex. A, 5:23-26 (“More importantly, these financial transaction records
`
`are automatically compiled and stored as UFDC 201 is being used to obtain goods and/or
`
`services, thereby obviating the need to independently enter data after the transaction occurs.”);
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`5:66-6:3 (“When UFDC 201 is in communication with card reader 202, the user may
`
`authenticate his identity as the rightful user of UFDC 201 prior to using it to obtain goods or
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`services.”); 5:14-17 (“The ability of the inventive UFDC 201 to store, in an organized manner,
`
`financial transaction records related to multiple accounts from different financial institutions
`
`represents an advantage over prior art cards.”). This construction provides an understanding of
`
`the features of the multiple account electronic credit card which would further assist the jury in
`
`understanding the scope of the invention as disclosed by the patent. See Funai Elec. Co., Ltd. v.
`
`Daewoo Elecs. Corp., 616 F.3d 1357, 1366 (Fed. Cir. 2010) (“The use of comparative and
`
`functional language to construe and explain a claim term is not improper. A description of what a
`
`component does may add clarity and understanding to the meaning and scope of the claim. The
`
`criterion is whether the explanation aids the court and the jury in understanding the term as it is
`
`used in the claimed invention.”).
`
`Accordingly, Plaintiff respectfully requests that the Court adopt Plaintiff’s proposed
`
`construction for the “operation of the [credit card]” term.
`
`6
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 11 of 17 PageID #: 1125
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`C.
`
`“financial transaction records relative to the multiple accounts” / “records
`relative to the multiple accounts”(claims 10 and 33) (No. 3)
`
`NetTech’s Proposed Construction
`
`Plain and Ordinary Meaning
`
`Defendant’s Proposed Construction
`
`“records of all financial transactions conducted with
`the multiple account electronic credit card”
`
`The terms “financial transaction records relative to the multiple accounts” and “records
`
`relative to the multiple accounts” appear in claims 10 and 33 of the ʼ137 Patent. For example,
`
`claim 10 of the ʼ137 Patent recites “a memory for storing financial transaction records relative to
`
`the multiple accounts, and for storing holder information and secondary account information.” A
`
`person of ordinary skill in the art would have reasonable certainty about the scope of the terms
`
`“financial transaction records relative to the multiple accounts” and “records relative to the
`
`multiple accounts” in the context of the claims without the need for further construction. This
`
`term should be construed according to its plain and ordinary meaning.
`
`Defendant’s construction reads a narrowing limitation into the claims by adding the
`
`requirement that the “financial transaction records” include “records of all financial transaction
`
`conducted with the multiple account electronic credit card.” This limitation is inconsistent with
`
`the claim language and is not compelled by the specification. The word “all” does not appear in
`
`the claims to describe the financial transaction records stored on the multiple account electronic
`
`credit card. The specification contains several discussions of the financial transaction records
`
`transmitted to or stored on a multiple account electronic credit card which do not require that
`
`those records include “all financial transaction conducted with the multiple account electronic
`
`credit card.” See, e.g., Ex. A, 2:30-32, 2:42-51, 2:55-60, 5:12-14, 5:23-26.
`
`In addition, the claims themselves are inconsistent with Defendant’s proposed
`
`construction. For instance, claim 10 states that the “memory is of sufficient size to store
`
`financial transaction records related to a predetermined time period of use.” Ex. A, 21:49-51.
`
`7
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`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 12 of 17 PageID #: 1126
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`This limitation contemplates that the memory may not be large enough to store records for all
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`transactions performed with the credit card as required by Defendant’s proposed construction,
`
`rendering Defendants’ proposed construction internally inconsistent with the remainder of claim
`
`10.
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`Defendant cannot point to any definition by the patentee or unambiguous disavowal of
`
`claim scope to support this limitation. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367,
`
`1371 (Fed. Cir. 2014) (“We depart from the plain and ordinary meaning of claim terms based on
`
`the specification in only two instances: lexicography and disavowal.”) (citations omitted). The
`
`specification contains only one statement that “[a]ll transactions related to the accounts stored in
`
`the universal financial data card are also kept track of thereon,” Ex. A, 2:17-19, but this merely
`
`refers to an embodiment and does not contain language limiting the invention as a whole to this
`
`embodiment. Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir.
`
`2007) (“When a patent thus describes the features of the ‘present invention’ as a whole, this
`
`description limits the scope of the invention.”). Indeed, later in the specification, the Patentee
`
`discloses an embodiment that contains only enough memory to store transactions for a certain
`
`period of time, i.e., not all transactions. Ex. A, 7:19-24. Accordingly, given that the specification
`
`discloses embodiments that do not require that the memory contain records of all transactions,
`
`Defendant’s proposed construction is improper because it would read out these embodiments.
`
`See Genband USA LLC v. Metaswitch Networks Ltd., No. 2:14-cv-33-JRG-RS, 2015 WL
`
`1518007, at *7 (E.D. Tex. Apr. 2, 2015) (“Although the specification discloses embodiments in
`
`which a unique IP address is allocated . . . that feature of particular embodiments should not be
`
`imported into the claims.”); Vitronics Corp. v. Conceptronic, Inc., 90 F. 3d 1576, 1583 (Fed. Cir.
`
`1996) (stating that a claim construction that excludes a preferred embodiment is “rarely, if ever,
`
`8
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 13 of 17 PageID #: 1127
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`correct and would require highly persuasive evidentiary support”); see also AGIS Software Dev.,
`
`LLC, 2018 WL 4908169, at *3 (E.D. Tex. Oct. 10, 2018) (“Although the specification may
`
`indicate that certain embodiments are preferred, particular embodiments appearing in the
`
`specification will not be read into the claims when the claim language is broader than the
`
`embodiments.”).
`
`Because the plain meaning of “financial transaction records relative to the multiple
`
`accounts” and “records relative to the multiple accounts” would be reasonably clear to a person
`
`of ordinary skill in the art, Plaintiff requests that the Court construe these terms in accordance
`
`with its plain and ordinary meaning.
`
`D.
`
`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period of use” (claim 10) (No. 4)
`
`NetTech’s Proposed Construction
`
`Plain and ordinary meaning
`
`Defendant’s Proposed Construction
`
`“wherein said memory is of sufficient size to store
`records of all financial transactions conducted with
`the multiple account electronic credit card related to
`a predetermined time period of use”
`
`The term “wherein said memory is of sufficient size to store financial transaction records
`
`related to a predetermined time period of use” appears in claim 10 of the ʼ137 Patent. Plaintiff
`
`submits that this term does not require construction and be given its plain and ordinary meaning.
`
`Defendant’s proposed construction is “wherein said memory is of sufficient size to store records
`
`of all financial transactions conducted with the multiple account electronic credit card related to
`
`a predetermined time period of use.” Like the terms “financial transaction records relative to the
`
`multiple accounts” and “records relative to the multiple accounts” discussed above, Defendant’s
`
`construction attempts to create a non-infringement position by construing this term to mean the
`
`memory must be of sufficient size to store “all financial transactions conducted with the multiple
`
`account electronic credit card related to a predetermined time period of use.” Presumably,
`
`9
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`

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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 14 of 17 PageID #: 1128
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`Defendant seeks to exclude devices that have a limit on the number of financial transactions
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`records that are stored for a predetermined period of time.
`
`Like the claim terms “financial transaction records relative to the multiple accounts” and
`
`“records relative to the multiple accounts,” the specification discloses “[a]ll transactions related
`
`to the accounts stored in the universal financial data card are also kept track of thereon” with
`
`respect to only a single embodiment The specification goes on to disclose another embodiment
`
`where “enough memory is provided to store the financial data related to one calendar year of
`
`use” without requiring that the memory store financial data for all transactions. Ex. A, 7:19-21.
`
`Defendant’s proposed construction unduly limits the scope of the term to one embodiment and
`
`reads out other embodiments in the specification. See Vitronics Corp., 90 F.3d at 1583 (stating
`
`that a claim construction that excludes a preferred embodiment is “rarely, if ever, correct and
`
`would require highly persuasive evidentiary support”); see also AGIS Software Dev., LLC, 2018
`
`WL 4908169, at *29 (“Disclosures in the specification cited by Defendants pertain to specific
`
`features of particular disclosed embodiments that should not be imported into the claims.”).
`
`Accordingly, this claim term should be construed in accordance with its plain and
`
`ordinary meaning.
`
`E.
`
`“transfer of data stored in the memory to a new multiple account electronic
`credit card” (claim 10) (No. 5)
`
`NetTech’s Proposed Construction
`
`Plain and ordinary meaning
`
`Defendant’s Proposed Construction
`
`“transfer of the financial transaction records, holder
`information, and/or secondary account information to
`a new multiple account electronic credit card”
`
`The term “transfer of data stored in the memory to a new multiple account electronic
`
`credit card” appears in claim 10 of the ʼ137 Patent. This term does not require construction and
`
`the meaning of this term is clear on its face to a POSITA. Defendant proposes that this term
`
`10
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`

`

`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 15 of 17 PageID #: 1129
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`should be construed to mean “transfer of the financial transaction records, holder information,
`
`and/or secondary account information to a new multiple account electronic credit card.”
`
`Defendant attempts to limit this claim term by requiring that the “data” be limited to
`
`“financial transaction records, holder information, and/or secondary account information.”
`
`Defendant’s proposal is not supported by the claim or the intrinsic evidence. While another
`
`limitation of claim 10 of the ʼ137 Patent recites that the memory circuit stores financial
`
`transaction records, holder information, and secondary account information, “data” is not limited
`
`to merely these types of data. Had the Patentee intended to limit “data” to financial transaction
`
`records, holder information, and/or secondary account information, he could have written this
`
`limitation into the claims. However, the claim language is broader and there is “no persuasive
`
`evidence that the claim should be interpreted other than by its plain language.” See Howemedica
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`Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337, 1347 (Fed. Cir. 2008). Accordingly,
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`the same level of detail that may be seen in another claim limitation need not be employed for
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`this claim term. See Resonate Inc. v. Alteon Websystems, Inc., 338 F.3d 1360, 1365-66 (Fed. Cir.
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`2003) (holding that it is not necessary that the same level of detail be employed for each
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`limitation in a claim).
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`The specification only requires that the data in the memory circuit may be transferred to a
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`new multiple account electronic credit card to allow the old card to be stored away. See Ex. A,
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`7:21-24. The claim and the specification do not require that any particular type of data be
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`transferred. See Ex. A, 7:19-24 (“the data in the memory circuit 300 may be transferred to a new
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`universal financial data card, allowing the old card to be stored away to preserve the historical
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`financial data of the user”). As long as data is transferred from the memory circuit of the old card
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`to the new card, the limitation is met. Defendant’s unduly limiting construction should be
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`11
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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 16 of 17 PageID #: 1130
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`denied.
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`IV. CONCLUSION
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`For the foregoing reasons, NetTech respectfully requests that the Court adopt its
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`proposed constructions for the disputed terms and phrases of the ’137 Patent.
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`Dated: February 3, 2020
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`BROWN RUDNICK LLP
`
`
`
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Justine Minseon Park
`NY Bar No. 5604483
`Email: apark@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Justin Kurt Truelove
`Texas Bar No. 24013653
`Email: kurt@truelovelawfirm.com
`TRUELOVE LAW FIRM, PLLC
`100 West Houston
`Marshall, Texas 75670
`Telephone: (903) 938-8321
`Facsimile: (903) 215-8510
`
`ATTORNEYS FOR PLAINTIFF,
`QUEST NETTECH CORPORATION
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`12
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`Case 2:19-cv-00118-JRG Document 66 Filed 02/03/20 Page 17 of 17 PageID #: 1131
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 3, 2020, all counsel of record who are
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`deemed to have consented to electronic service are being served with a copy of this document via
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`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Alfred R. Fabricant
` Alfred R. Fabricant
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