Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 1 of 23 PageID #: 1252
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`QUEST NETTECH CORPORATION,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`C.A. No. 2:19-cv-118-JRG
`
`JURY TRIAL DEMANDED
`
`APPLE INC.’S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
`
`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 2 of 23 PageID #: 1253
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`TABLE OF CONTENTS
`
`I.
`II.
`III.
`
`IV.
`
`B.
`
`INTRODUCTION .............................................................................................................. 1
`THE ’137 PATENT ............................................................................................................ 1
`CLAIM CONSTRUCTIONS.............................................................................................. 4
`A.
`“financial transaction records relative to the multiple accounts” (claim 10)
`and “records relative to the multiple accounts” (claim 33) ..................................... 4
`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period” (claim 10) ................................... 9
`“transfer of data stored in the memory to a new multiple account electronic
`credit card” (claim 10) .......................................................................................... 11
`“multiple account electronic credit card” (claims 10 and 33)............................... 13
`D.
`“operation of the [credit] card” (claims 10 and 33) .............................................. 17
`E.
`CONCLUSION ................................................................................................................. 18
`
`C.
`
`4138-3160-6306.3
`
`i
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 3 of 23 PageID #: 1254
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`TABLE OF AUTHORITIES
`
`Cases
`
`Astute Tech., LLC v. Learners Digest Int’l LLC,
`No. 2:12-CV-689-JRG, 2014 WL 1385191 (E.D. Tex. Apr. 2, 2014) ............................. 14
`
`Chef Am., Inc. v. Lamb–Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004)......................................................................................... 16
`
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009)........................................................................................... 7
`
`Express Mobile, Inc. v. Svanaco, Inc.,
`No. 2:17-cv-00130-JRG-RSP, 2018 WL 746472 (E.D. Tex. Feb. 7, 2018) ..................... 18
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)........................................................................................... 7
`
`Honeywell Int’l, Inc. v. ITT Indus.,
`452 F.3d 1312 (Fed. Cir. 2006)........................................................................................... 5
`
`IPXL Holdings, L.L.C. v. Amazon.com, Inc.,
`430 F.3d 1377 (Fed. Cir. 2005)......................................................................................... 10
`
`Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)........................................................................................... 9
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120 (2014) ........................................................................................................ 9
`
`Orion IP, LLC v. Mercedes-Benz USA, LLC,
`516 F. Supp. 2d 720 (E.D. Tex. 2007) .............................................................................. 16
`
`Philips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................... 14, 17
`
`Rembrandt Data Techs., LP v. AOL, LLC,
`641 F.3d 1331 (Fed. Cir. 2011)......................................................................................... 16
`
`SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc.,
`242 F.3d 1337 (Fed. Cir. 2001)........................................................................................... 5
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007)....................................................................................... 5, 7
`
`ii
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 4 of 23 PageID #: 1255
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`Statutes
`
`35 U.S.C. § 101 ............................................................................................................................. 16
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`Other Authorities
`
`The American Heritage Dictionary (1996) ................................................................................... 15
`
`The New Shorter Oxford English Dictionary (1993) ................................................................... 15
`
`iii
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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 5 of 23 PageID #: 1256
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`I.
`
`INTRODUCTION
`
`Defendant Apple Inc. (“Apple”) hereby submits its responsive claim construction brief.
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`Apple and Plaintiff Quest NetTech Corporation (“NetTech”) dispute the meaning of five claim
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`terms in asserted U.S. Patent No. RE38,137 (“the ’137 patent”). The disputes are resolved by
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`applying several well-established legal principles. First, the patent’s characterization of “the
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`present invention” compels the adoption of Apple’s constructions for the “[financial transaction]
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`records” and “memory is of sufficient size” terms. Second, the plain language of claim 10 itself
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`resolves the dispute over the meaning of the term “data” in Apple’s favor. Third, the prohibitions
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`against broadening claims beyond their plain meaning and construing terms to preserve validity
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`require that the term “multiple account electronic credit card” be given its plain and ordinary
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`meaning as Apple has proposed. And fourth, the prohibition against importing limitations from
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`the specification into the claims militates against adopting NetTech’s proposed construction for
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`“operation of the credit card.”
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`Apple’s constructions should be adopted because they stay true to the intrinsic record and
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`these principles.
`
`II.
`
`THE ’137 PATENT
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`The ’137 patent—titled “Programmable Multiple Company Credit Card System”—claims
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`priority to an application filed on September 28, 1995. The priority application issued as U.S.
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`Patent No. 5,859,419 (“the ’419 patent”) on January 12, 1999. Subsequently, the patent owner
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`filed an application seeking reissue of the ’419 patent on January 11, 2001. That application gave
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`rise to the ’137 patent, which issued on June 10, 2003. The ’137 patent expired on September 28,
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`2015.
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`The ’137 patent is directed to a “universal financial data card for compiling and storing
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`financial transaction records pertaining to a plurality of financial accounts.” ’137 patent at
`
`1
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`

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`Abstract. Credit cards, of course, were nothing new in 1995 when the priority application for the
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`’137 patent was filed. The specification acknowledges that “familiar” credit cards like those from
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`Visa and MasterCard were well-known—their only alleged flaw being that the “amount and types
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`of data” they store was “limited.” Id. at 1:17-23. More specifically, the specification recites two
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`purported problems of prior art credit cards.
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`First, the ’137 patent states that prior art cards were “typically associated with a single
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`account or a single financial institution,” which made it “necessary to carry multiple cards” in
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`order to utilize multiple accounts. Id. at 1:30-35. The patent’s purported solution is an electronic
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`credit card that is “capable of storing financial and transaction data related to multiple accounts.”
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`Id. at 1:63-67.
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`Second, the ’137 patent states that “none of the prior art credit cards are capable of storing
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`transaction data, i.e., data related to transactions involving the account associated with that card.”
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`Id. at 1:20-25. Here, the patent’s stated solution is a standard “memory circuit” on the card that
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`“stores account data pertaining to the plurality of financial accounts and the financial transaction
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`records pertaining to the plurality of financial accounts.” Id. at 1:34-39; see also id. at 7:4-14
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`(referring to standard Intel flash memory). What the specification alleges as the invention, then,
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`is simply the storage of transaction information that was commonly kept in accounting software
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`on a small electronic device the size of a Visa card. Id. at 1:59-67; 6:67-7:4.
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` The preferred embodiment of the alleged invention of the ’137 patent is the “universal
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`financial data card” (“UFDC”) depicted in Figure 2:
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`2
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`

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`The ’137 patent focuses on the information that the UFDC stores, rather than what the
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`UFDC is. The UFDC is comprised of nothing more than a collection of conventional computer
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`components. All of the components recited in the ’137 patent claims are depicted as generic boxes
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`in Fig. 2: a standard “processor” (302), “memory circuit” (300), “wireless interface” (318), etc.
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`Figure 6 “shows examples of data fields that make up a financial transaction record to be stored
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`within the memory space of the universal financial data card” (id. at 3:34-36):
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`3
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 8 of 23 PageID #: 1259
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`III.
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`CLAIM CONSTRUCTIONS
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`A.
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`“financial transaction records relative to the multiple accounts” (claim 10) and
`“records relative to the multiple accounts” (claim 33)
`
`Apple’s Proposed Construction
`
`NetTech’s Proposed Construction
`
`“records of all financial transactions conducted with the
`multiple account electronic credit card”
`
`Plain and ordinary meaning
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`The fundamental dispute between the parties for the “records” terms is whether the claimed
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`multi-account card is limited to the ’137 patent’s stated invention of storing records of all
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`transactions conducted with the card. The ’137 patent’s Summary of the Invention explains
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`exactly what the “present invention” is in its very first sentence:
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`“The present invention relates to a smart universal financial data card which allows
`its holder to keep track of all his financial data and financial transaction data in
`a highly portable package.”
`
`4
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`

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`’137 patent at 2:5-8 (emphasis added). The sentences that immediately follow go on to further
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`reinforce that concept by explaining in detail that the purported invention requires storing “all” of
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`the cardholder’s transaction data. Indeed, it specifies that “[a]ll transactions related to the
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`accounts stored in the universal financial data card are also kept track of thereon.” Id. at 2:17-19
`
`(emphasis added).
`
`Where, as here, the intrinsic evidence “describes the features of the ‘present invention’ as
`
`a whole, this description limits the scope of the invention.” Verizon Servs. Corp. v. Vonage
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`Holdings Corp., 503 F.3d 1295, 1308 (Fed. Cir. 2007) (citing Honeywell Int’l, Inc. v. ITT Indus.,
`
`452 F.3d 1312, 1318–19 (Fed. Cir. 2006); SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys.,
`
`Inc., 242 F.3d 1337, 1343 (Fed. Cir. 2001)). Because the ’137 patent’s specification defines storing
`
`all data as the invention, the claimed system “must be limited” to include that feature. Id.
`
`(emphasis added).
`
`The patentee’s statement that “the present invention” is a card that stores all transaction
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`data follows naturally from the ’137 patent’s Background of the Invention section, which criticizes
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`“prior art credit card[s]” (such as “the familiar credit card[s], known [as Visa, Mastercard], and
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`the like”) because they are not “capable of storing transactional data.” Id. at 1:19-26.
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`“Consequently, while these cards are useful as cash substitutes, they do not satisfactorily serve as
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`apparatus for storing data pertaining to one’s financial conditions and activities.” Id. at 1:34-37.
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`For the stored transaction data to be useful in assessing the user’s financial condition, it must be a
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`complete set of data, as the Summary of the Invention goes on to explain. Id. at 2:5-26.
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`The need for the transaction data to be complete is further illustrated by the ’137 patent’s
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`explanation that the financial transaction records stored on the card are immune from “data
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`tampering” and “cannot be manipulated by the holder of UFDC 201 independent of a transaction.”
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`5
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 10 of 23 PageID #: 1261
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`Id. at 5:27-31. Because the transaction records form a complete, untampered set, they “may be
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`used to satisfy any documentation requirements.” Id. at 5:33-36. And, because the data set is
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`complete, the user can “obtain historical transaction records to assist in his financial planning”
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`such as “a monthly statement or a yearly statement for each of the financial accounts,” “[s]earch[]
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`transactions by categories (e.g., entertainment, groceries, and transportation),” and find any
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`“specific transaction amount or ascertain the amount spent at a particular establishment,” “all
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`directly from the financial data stored in UFDC 201.” Id. at 5:54-65.
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`Additionally, the bulk of the ’137 patent specification is directed to how to store a complete
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`set of transaction data at a time when memory sizes were quite limited. It was a “challenge in the
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`design of an efficient universal financial data card” to efficiently store “a large amount of data
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`relating to multiple financial accounts from different financial institutions, as well as their growing
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`financial transaction records.” Id. at 13:26-30. The entirety of columns 10-18 and Figures 7-9
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`illustrate memory architectures that can efficiently arrange and store the transaction data. This
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`emphasis reiterates that the ’137 patent is directed to storing a complete set of records.
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`All of NetTech’s arguments against Apple’s proposed construction are unavailing.
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`First, the bulk of NetTech’s argument is inapposite because it is premised on the incorrect
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`assertion that Apple’s construction is based on “only one statement” (at col. 2:17-19) that “merely
`
`refers to an embodiment and does not contain language limiting the invention as a whole to this
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`embodiment.” NetTech Brief at 8-9.1 But as explained above, the Summary of the Invention
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`section of the ’137 patent expressly states that “[t]he present invention” is a card that “allows its
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`holder to keep track of all his financial data.” Id. at 2:5-8. These are the very words recited in the
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`1 Unless otherwise noted, all cites to “NetTech Brief” refer to NetTech’s corrected opening brief
`(ECF No. 70), not NetTech’s originally filed opening brief (ECF No. 66).
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`6
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 11 of 23 PageID #: 1262
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`patent at issue in the Verizon case that NetTech itself cites—and as such, that case actually supports
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`Apple’s proposed construction. 503 F.3d at 1308 (“When a patent thus describes the features of
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`the ‘present invention’ as a whole, this description limits the scope of the invention”). The fact
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`that the ’137 patent reiterates a few sentences later that “[a]ll transactions related to the accounts
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`stored in the universal financial data card are also kept track of thereon” provides further support
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`that this is the alleged invention. ’137 patent at 2:17-19.
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`NetTech’s citation to Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367 (Fed. Cir. 2014)
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`is similarly unavailing, because Hill-Rom states that the plain meaning does not control when there
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`has been a disclaimer or disavowal, and so the specification “is clearly limited to a particular form
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`of the invention.” 755 F.3d at 1372 (citing Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322,
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`1330 (Fed. Cir. 2009) (“[W]hen the preferred embodiment is described in the specification as the
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`invention itself, the claims are not necessarily entitled to a scope broader than that embodiment”).
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`Hill-Rom recognizes, as is the case for the ’137 patent, that “disclaimer applies when the patentee
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`makes statements such as ‘the present invention requires...’ or ‘the present invention is’ ….” Id.
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`Second, NetTech contends that the specification describes financial transaction records
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`that “do not require that those records include ‘all financial transaction conducted with the multiple
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`account electronic credit card.’” NetTech Brief at 7 (citing ’137 patent at 2:30-32, 2:42-51, 2:55-
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`60, 5:12-14, 5:23-26). This is incorrect. The first three passages NetTech cites (all from column
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`2) all follow from, and would have been understood to refer to, the immediately preceding
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`discussion in the patent which states that “the present invention” is a multi-account card that stores
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`“[a]ll transactions.” ’137 patent at 2:5-25. To the extent NetTech contends that it is necessary for
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`the patent to repeat that the invention requires storing all financial transaction records each of the
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`40+ times that phrase is used in the specification, such a requirement is not supported by the law.
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`7
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 12 of 23 PageID #: 1263
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`And the last two passages NetTech cites (from column 5) simply state that “the balance (or credit
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`limit if appropriate) is also kept track of for each account” on the card (col. 5:12-14) and that “the[]
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`financial transaction records are automatically compiled and stored as UFDC 201 is being used to
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`obtain goods and/or services” (col. 5:23-26). If anything, tracking an account balance and
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`automatically storing transaction records at the time of purchase support Apple’s proposed
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`construction, not NetTech’s. Tellingly, none of NetTech’s citations—nor any others in the ’137
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`patent—disclose storing fewer than all transactions conducted with the multi-account card.
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`Third, NetTech asserts that the claims are inconsistent with Apple’s construction because
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`another limitation in independent claim 10 (the subject of the following term addressed in this
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`brief) states that the “memory is of sufficient size to store financial transaction records related to
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`a predetermined time period of use,” which NetTech says “contemplates that the memory may not
`
`be large enough to store records for all transactions performed with the credit card.” NetTech
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`Brief at 7-8. NetTech’s argument fails because there would be no inconsistency in these claim
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`limitations if Apple’s construction were adopted. If adopted, Apple’s construction of the “memory
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`of sufficient size” term would simply require that the memory store records of all the financial
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`transactions made during the predetermined time period of use. Apple’s construction of the
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`“financial transaction records relative to the multiple accounts” limitation as “records of all
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`financial transactions conducted with the multiple account electronic credit card” does not mean
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`that the card must have infinite memory. Rather, it reflects the fact that the “records” limitation
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`simply means that the card must store all of the transactions that it is used to conduct up until the
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`time when the card’s memory is full. Thus, the “records” limitations are agnostic as to how large
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`the memory is or the time at which it might full up.
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`8
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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 13 of 23 PageID #: 1264
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`NetTech’s contention that the disclosure at column 7:19-24 suggests that Apple’s
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`construction would “read out [an] embodiment” also is incorrect. That disclosure relates to the
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`“memory is of sufficient size” limitation in claim 10 which imposes additional restrictions—
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`beyond the requirement of storing all transactions conducted with the card—on the size of the
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`memory. Thus, Apple does not seek to read out any embodiments—NetTech simply relates the
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`memory size disclosure at column 7:19-24 to the wrong claim language.
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`Fourth, NetTech argues that construction is not necessary because a POSITA would have
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`“reasonable certainty” about the claim scope even without a construction. NetTech Brief at 7.
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`This argument is unsupported by any case law. Apple does not dispute that a POSITA would have
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`understood the meaning of the term. Rather, there is a dispute between the parties as to what
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`meaning a POSITA would have understood the term to have. Accordingly, the Court should
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`resolve it. Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008).
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`For all of the foregoing reasons, the claim terms “financial transaction records relative to
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`the multiple accounts” (claim 10) and “records relative to the multiple accounts” (claim 33) should
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`be construed to mean “records of all financial transactions conducted with the multiple account
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`electronic credit card.”
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`B.
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`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period” (claim 10)
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`Apple’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”2
`
`NetTech’s Proposed
`Construction
`
`Plain and ordinary
`meaning
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`2 Absent adoption of Apple’s construction, a POSITA would not have reasonable certainty as to
`what the “predetermined time period of use” limitation means because memory size is measured
`in bits and bytes (e.g., a 1 Gigabyte hard drive), not time periods. See Nautilus, Inc. v. Biosig
`
`9
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`

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`The parties dispute whether the “memory is of sufficient size” limitation requires the
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`claimed multi-account card to store records of all transactions conducted with the card related to a
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`predetermined time. The Court should construe the “memory is of sufficient size” limitation to
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`require storage of all financial transactions conducted with the multiple account electronic credit
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`card during a predetermined time period of use. This is so for all the same reasons explained above
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`with respect to the “records” limitations as well as the additional reasons that follow.
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`To recap, the previously discussed “records” limitations refer to the records for all
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`transactions conducted with the card until the card’s memory is full. The above-discussed
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`“records” limitations do not, though, specify when the memory will in fact be full. That limitation
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`is suggested by the separate “memory is of sufficient size” limitation. The “memory is of sufficient
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`size” limitation adds the requirement that the card’s memory be “of sufficient size” to store all the
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`financial transaction records “related to a predetermined time period of use.” An example of this
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`limitation is depicted in the embodiment discussed at column 7:10-24 of the ’137 patent. This
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`example explains that a “128 Kx8 (one megabit) flash memory circuit” could be selected to
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`“support approximately three transactions per day for an entire year.” Id. at 7:10-24. In this
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`embodiment, one megabit is the “sufficient size” of the memory and one year is the “predetermined
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`time period of use.”
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`Apple’s proposed construction of the “records” terms simply reflects that the ’137 patent’s
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`repeated disclosure that the invention is a multi-account card that stores the financial transaction
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`records for all transactions conducted with the card until the card’s memory is full (see supra). It
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`follows logically that the card must also store all of the financial transaction records for the
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`Instruments, Inc., 134 S. Ct. 2120 (2014) and IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430
`F.3d 1377 (Fed. Cir. 2005).
`
`10
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`

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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 15 of 23 PageID #: 1266
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`“predetermined time period” when one has been set. It simply would not make sense for the card
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`to be capable of storing all transaction records for the useful life of the card but not be capable of
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`storing all transaction records for a particular, predetermined useful life.
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`NetTech’s argument for the “records” terms above undermines its argument for the
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`“memory of sufficient size” term. NetTech argued that the “records” terms should be broadly
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`construed to encompass storing fewer than all transaction records. NetTech Br. at 7-8. In
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`particular, NetTech contended that the “records” term “contemplates that the memory may not be
`
`large enough to store records for all transactions performed with the credit card as required by
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`Defendant’s proposed construction, rendering Defendant’s proposed construction internally
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`inconsistent with the [memory of sufficient size limitation] of claim 10.” Id. at 8 (emphasis in
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`original). In making this argument, NetTech impliedly conceded that the “memory is of sufficient
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`size” term does require storing all financial transaction records related to a predetermined time
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`period.
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`C.
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`“transfer of data stored in the memory to a new multiple account electronic
`credit card” (claim 10)
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`Apple’s Proposed Construction
`
`NetTech’s Proposed Construction
`
`“transfer of the financial transaction records, holder
`information, and/or secondary account information to a
`new multiple account electronic credit card”
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`Plain and ordinary meaning
`
`The “transfer” limitation should be construed to aid the jury in understanding that the
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`“data” being transferred is the same data referred to earlier in the claim at issue, and not merely
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`any data.
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`Apple’s construction is supported by the plain language and context of the claim. Claim
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`10 recites only three kinds of data stored in the multiple account electronic credit card’s memory:
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`“financial transaction records,” “holder information,” and “secondary account information.” The
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`11
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`claim later recites the “transfer of data stored in the memory to a new multiple account electronic
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`credit card.” Thus, the plain language of the claim supports Apple’s construction.
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`Apple’s construction is also supported by the specification. As the ’137 patent
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`specification explains, this transfer is expected to occur when the initial card’s memory is at, or
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`near, full capacity in order to allow a new card to be used in place of the old one. ’137 patent at
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`7:19-24 (“it is contemplated that enough memory is provided to store the financial data related to
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`one calendar year of use. At the end of the calendar year, the data in memory circuit 300 may be
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`transferred to a new universal financial data card, allowing the old card to be stored away to
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`preserve the historical financial data of the user”). The data necessary for operation of the new
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`card is “holder information” and/or “secondary account information.” Where, for example, the
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`new card has a larger memory than the old card, “financial transaction records” may also be
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`transferred from the old card to the new card.
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`NetTech’s reliance on column 7:19-24 of the ’137 patent for the proposition that
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`transferring any kind of data meets the claim limitation is misplaced. NetTech Brief at 11. For
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`one, that specification passage makes clear that it is “financial data” that is transferred, and even
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`reiterates that the transfer facilitates the preservation of “the historical financial data of the user.”
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`Id. at 7:19-24. Additionally, it states that it is the “data in memory circuit 300” that is transferred,
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`and several lines earlier it explains that memory circuit 300 “stor[es] the aforementioned financial
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`data.” Id. at 7:5-6, 7:19-24.
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`There is simply no other kind of data recited in the claims, and no written description
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`support in the specification for any other kind of data beyond the types of financial data recited
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`earlier in claim 10. Indeed, the Summary of the Invention explains that the “present invention” is
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`a multi-account card that “allows its holder to keep track of all his financial data and financial
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`12
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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 17 of 23 PageID #: 1268
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`transaction data in a highly portable package,” not any data that has no connection to conducting
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`card transactions. Id. at 2:5-8.
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`Absent construction, NetTech would thus be free to confuse the jury by arguing that the
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`transfer of any kind of data—including data having no relationship to the ’137 patent or electronic
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`payments—satisfies the claim language. This could lead to absurd results. For example, NetTech
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`may seek to accuse the transfer of a photograph from one accused iPhone product to another, even
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`though the picture has nothing to do with electronic payments or the accused Apple Pay software.
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`NetTech summarily concludes that the patentee did not intend to limit “data” to financial
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`transaction records, holder information, and/or secondary account information because the claim
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`uses the term “data” rather than reciting all three kinds of information again. NetTech Brief at 11.
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`But this use of the term “data” in the “transfer” limitation is explained by the fact that the three
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`types of data stored on the card’s memory are different kinds of data, some of which are “records”
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`and some of which are “information.” Thus, the use of the encapsulating term “data” reflects an
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`intent to include all of the “records” and “information” discussed above, commensurate with
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`Apple’s construction.
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`Thus, the claim term “transfer of data stored in the memory to a new multiple account
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`electronic credit card” should be construed to mean “transfer of the financial transaction records,
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`holder information, and/or secondary account information to a new multiple account electronic
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`credit card.”
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`D.
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`“multiple account electronic credit card” (claims 10 and 33)
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`Apple’s Proposed Construction
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`NetTech’s Proposed Construction
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`Plain and ordinary meaning / no construction
`required
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`“an electronic device for conducting financial
`transactions using one or more of the multiple
`accounts stored on the device”
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`13
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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 18 of 23 PageID #: 1269
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`The term “multiple account electronic credit card” requires no construction because a claim
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`term’s plain and ordinary meaning generally controls unless there is clear, contravening evidence
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`from the specification or prosecution history. Philips v. AWH Corp., 415 F.3d 1303, 1312 (Fed.
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`Cir. 2005) (en banc). NetTech conflates the question of whether “multiple account electronic
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`credit card” (a term which first appears in the preamble of claims 10 and 33) is limiting with the
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`question of whether the term requires construction. NetTech’s brief focuses entirely on why it
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`contends the preamble is limiting, and provides no explanation as to either: 1) why it should be
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`construed at all; or 2) why its proposed construction is correct. NetTech’s failure to present any
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`support for its proposed construction is fatal to its position.
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`Apple does not dispute that the term “multiple account electronic credit card” (and
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`subsequent shorthand references in the claims to “the credit card”) is limiting. This in no way,
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`however, means that the term requires construction, let alone the particular construction that
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`NetTech proposes. To the contrary, the plain and ordinary meaning should control. See, e.g.,
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`Astute Tech., LLC v. Learners Digest Int’l LLC, No. 2:12-CV-689-JRG, 2014 WL 1385191, at *23
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`(E.D. Tex. Apr. 2, 2014) (construing “visual aid(s)” to have plain meaning because “the Court is
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`not convinced that the parties’ construction are more helpful to the jury as opposed to the plain
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`meaning.”).
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`NetTech’s proposed construction should be rejected for two primary reasons: (1) it seeks
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`to improperly broaden the scope of the claims beyond their plain meaning; and (2) it relies on a
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`claim construction doctrine repeatedly rejected by the Federal Circuit.
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`First, NetTech’s proposed construction attempts to broaden the claims from the narrower
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`term “credit card,” which has a well-understood plain and ordinary meaning, with the broader,
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`vague term “device.” This is inconsistent with the intrinsic evidence, as the ’137 patent repeatedly
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`Case 2:19-cv-00118-JRG Document 75 Filed 02/21/20 Page 19 of 23 PageID #: 1270
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`and extensively refers to the purported invention as a specific “card,” and the very title of the ’137
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`patent makes clear that the purport