Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 1 of 14 PageID #: 1286
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`QUEST NETTECH CORPORATION,
`
`
`Plaintiff,
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`
`Case No. 2:19-cv-00118-JRG
`
`JURY TRIAL DEMANDED
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`PLAINTIFF QUEST NETTECH CORPORATION’S
`REPLY CLAIM CONSTRUCTION BRIEF
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`
`
`
`
`v.
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`
`APPLE INC.,
`
`
`Defendant.
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`

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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 2 of 14 PageID #: 1287
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`TABLE OF CONTENTS
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`Page(s)
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`DISPUTED TERMS ........................................................................................................... 1 
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`A. 
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`B. 
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`C. 
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`D. 
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`E. 
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`“[multiple account] electronic credit card” ............................................................. 1 
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`“operation of the [credit] card” ............................................................................... 3 
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`“financial transaction records relative to the multiple accounts” /
`“records relative to the multiple accounts” ............................................................. 3 
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`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period of use” .......................................... 7 
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`“transfer of data stored in the memory to a new multiple account
`electronic credit card” ............................................................................................. 8 
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`CONCLUSION ................................................................................................................... 9 
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`I. 
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`II. 
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`i
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 3 of 14 PageID #: 1288
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
`
`Alloc, Inc. v. Int’l Trade Comm’n,
`342 F.3d 1361 (Fed. Cir. 2003)..................................................................................................5
`
`Biosonix, LLC v. Hydrowave, LLC,
`230 F. Supp. 3d 598 (E.D. Tex. 2017) ...................................................................................4, 5
`
`Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp.,
`616 F.3d 1357 (Fed. Cir. 2010)..................................................................................................3
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................................4
`
`NTP, Inc. v. Research In Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005)..................................................................................................1
`
`Rembrandt Data Techs., LP v. AOL, LLC,
`641 F.3d 1331 (Fed. Cir. 2011)..................................................................................................2
`
`
`
`ii
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`

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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 4 of 14 PageID #: 1289
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`Pursuant to P.R. 4-5(c) and the Court’s First Amended Docket Control Order (Dkt. 73),
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`Plaintiff Quest NetTech Corporation (“NetTech”) submits its Reply Claim Construction Brief.
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`I.
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`DISPUTED TERMS
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`A.
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`“[multiple account] electronic credit card”
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`Defendant does not dispute that this claim term is limiting, that the introduction of this
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`term in the preambles of independent claims 10 and 23 serves as the antecedent basis for
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`limitations in the body of the claims, and that this term breathes life into the claims. See NTP,
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`Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1305 (Fed. Cir. 2005). However, Defendant
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`argues that it should be construed according to its plain and ordinary meaning.
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`Defendant posits that “multiple account electronic credit card” should be construed
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`according to its plain and ordinary meaning, but does not identify the plain and ordinary meaning
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`of the term. The reason is obvious: the claimed “multiple account electronic credit card” does not
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`have a plain and ordinary meaning to one of ordinary skill in the art because it is a coined term to
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`describe the inventive device. Lacking a plain and ordinary meaning to point to, Defendant offers
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`dictionary definitions of “credit card” and argues that since jurors would understand the terms
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`“multiple account” and “electronic,” they would understand the claim term “multiple account
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`electronic credit card.” Dkt. 75 at 18-19.1 But the term “multiple account electronic credit card”
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`in the claims does not refer to a common “credit card” that somehow contains multiple accounts
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`and is electronic. To the contrary, the specification explains that a “credit card” is in the prior art,
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`stating that “there exist[] known financial data storage methods and apparatus that enable them to
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`serve as cash substitutes” such as “familiar credit card[s].” Dkt. 70-2 at 1:17-20. The
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`specification further acknowledges that with the prior art credit card, “the amount and types of
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`1 References to page numbers of Docket Nos. 70 and 75 found throughout this brief refer to page numbers as found
`in the ECF docket entries.
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 5 of 14 PageID #: 1290
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`data stores are typically quite limited.” Id. at 1:22-24. Using the prior art understanding of “credit
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`card” to construe “multiple account electronic credit card” would contradict the specification and
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`defeat the purpose of the present invention by reading out the essential structure of the invention
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`as a portable electronic device that enables the user to make purchases using one or more
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`accounts stored on the device.
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`Defendant’s argument that NetTech’s construction “attempts to broaden the claims from
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`the narrower term ‘credit card,’ which has a well-understood plain and ordinary meaning, with
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`the broader, vague term ‘device’” is flawed because the specification shows that the inventive
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`device is not structured as a “credit card.” Figure 2 depicts the inventive device as including a
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`processor, memory circuit, and wireless interface among other components. Dkt. 70-2 at Fig. 2.
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`No one would mistake this device for a “credit card.”
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`Finally, Defendant’s argument that NetTech seeks its construction to preserve validity is
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`false. NetTech stated that construction of this term is necessary to properly capture the thrust of
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`the invention and to provide antecedent basis and structure to the claims. Dkt. 70 at 6-7. The fact
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`that the claims, properly construed, cover a device that does more than download and store
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`transactions is not a reason to reject the construction as preserving validity. The case cited by
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`Defendant, Rembrandt Data Techs., LP v. AOL, LLC, is wholly irrelevant because there, the
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`plaintiff sought to insert the phrase “said transmitter section” to correct “an obvious
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`administrative or typographical error not subject to reasonable debate.” 641 F.3d 1331, 1339
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`(Fed. Cir. 2011). As the Court stated in its order denying Defendant’s motion to dismiss,
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`NetTech seeks claim construction of this claim term as it is “necessary to fully understand the
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`inventive concept of the ʼ137 Patent.” Dkt. 74 at 2. Accordingly, NetTech submits that “multiple
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`2
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 6 of 14 PageID #: 1291
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`account electronic credit card” should be construed as “an electronic device for conducting
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`financial transactions using one or more of the multiple accounts stored on the device.”
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`B.
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`“operation of the [credit] card”
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`NetTech proposes that this term means “the operation of the multiple account electronic
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`credit card, including the purchase of goods and services using one or more of the multiple credit
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`card accounts, the authentication of an authorized user of one or more of the multiple credit card
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`accounts, and the receipt and storage of financial transaction records relative to purchases made
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`using one or more of the multiple credit card accounts” in order to provide an understanding of
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`the features of the multiple account electronic credit card which would further assist the jury in
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`understanding the scope of the invention as disclosed by the patent. See Funai Elec. Co., Ltd. v.
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`Daewoo Elecs. Corp., 616 F.3d 1357, 1366 (Fed. Cir. 2010).
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`Defendant attacks the proposed construction by raising non-existent ambiguities. Any
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`reasonable juror would understand that Plaintiff’s construction requires that the “operation of the
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`credit card” includes at least all of the operations in its proposed construction and does not
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`preclude additional operations. Importantly, Defendant does not argue that any of the operations
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`listed in the construction are incorrect, nor does it argue that other operations should have been
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`included in the construction. Defendant merely attempts to challenge the correctness of the
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`proposed construction without taking a position as to the specifics of the construction.
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`Accordingly, Plaintiff respectfully requests that the Court adopt Plaintiff’s proposed
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`construction for the “operation of the [credit card]” term.
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`C.
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`“financial transaction records relative to the multiple accounts” / “records
`relative to the multiple accounts”
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`Defendant seeks to inject an additional limitation into “financial transaction records
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`relative to the multiple accounts” and “records relative to the multiple accounts” to require that
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`3
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 7 of 14 PageID #: 1292
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`the claimed memory stores all financial transaction records and all records relative to the
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`multiple accounts. There is no basis for modifying the claims in this way.
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`Defendant bases its entire argument on the specification’s use of the term “the present
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`invention” in a single sentence, but the entire sentence undermines Defendant’s argument that
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`the patentee intended to limit the invention to a single embodiment that stores all of the holder’s
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`financial transaction data. The specification states:
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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.
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`Dkt. 70-2 at 2:5-8 (emphasis added). This sentence does not state that the present invention is or
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`requires storage of all financial data and financial transaction data, but merely that the invention
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`relates to a card which allows a user to keep track of all of his financial data and financial
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`transaction data. Nothing in this sentence requires the inventive card to store all financial data or
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`financial transaction data, or compels a holder to use the inventive card to keep track of all of
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`that data in order to practice the invention. This sentence does not clearly and unambiguously
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`disclaim a multiple account electronic credit card that stores less than all financial transaction
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`data. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014)
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`(“Disavowal requires that ‘the specification [or prosecution history] make[] clear that the
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`invention . . . is clearly limited to a particular form of the invention. . . . For example, we have
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`held that disclaimer applies when the patentee makes statements such as ‘the present invention
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`requires . . .’ or ‘the present invention is . . .’ or ‘all embodiments of the present invention
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`are . . . .’”) (emphases added); Biosonix, LLC v. Hydrowave, LLC, 230 F. Supp. 3d 598, 602
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`(E.D. Tex. 2017) (“‘A specification may only be used to limit a claim if a patentee has
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`disavowed or disclaimed scope of coverage by using words or expressions of manifest exclusion
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`4
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 8 of 14 PageID #: 1293
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`or restriction, representing a clear disavowal of claim scope.’”) (citing Alloc, Inc. v. Int’l Trade
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`Comm’n, 342 F.3d 1361, 1377 (Fed. Cir. 2003)).
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`The fallacy of Defendant’s argument is demonstrated in two ways. First, the very same
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`sentence also states that the card allows the holder to store all of his “financial data,” which is
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`different from “financial transaction data.” Is Defendant’s position that the claims are not
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`infringed unless the holder decides to store all of his financial data (all saving accounts, all
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`checking accounts, all credit card accounts, all securities accounts, etc.) on the card? No, because
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`that position would be absurd, but it is no less absurd than interpreting the same language to
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`require all of the holder’s financial transaction data to be stored on the card.
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`Second, perhaps in an attempt to ameliorate this absurdity, Defendant’s construction
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`requires only that all financial transactions conducted with the multiple account electronic credit
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`card be stored on the card, but the emphasized limitation is nowhere in the “present invention
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`relates to” sentence or in the remainder of the intrinsic record cited by Defendant. Recognizing
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`that the “present invention relates to” sentence would require that the multiple account electronic
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`credit card download transaction information for credit card transactions conducted using the
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`holder’s traditional credit card, Defendant injects yet another unfounded limitation into its
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`construction to try to make the “all” limitation more palatable. The entirety of its proposed
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`construction is illegitimate and should be rejected.
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`Contrary to Defendant’s contention, the issue that the present invention sought to address
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`was not the lack of a system that stores all transaction data. See generally Dkt. 70-2 at 1:10-47.
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`The specification discloses that there existed in the prior art financial data storage methods and
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`apparatuses, but the challenge that the inventor sought to address was the lack of a method and
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`apparatus for “a universal financial data system and card that not only serves as a portable cash
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`5
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 9 of 14 PageID #: 1294
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`substitute but also has the intelligence to gather transaction data as transactions occur to update
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`its accounts,” and “storing financial and transaction data related to multiple accounts.” See Dkt.
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`70-2 at 1:59-67. This does not require storage of all transaction data.
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`Defendant’s citations to the specification in support of its construction do not support
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`Defendant’s assertion that the invention must store “all transaction data” or “must be a complete
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`set of data.” Dkt. 75 at 9. For example, in arguing that the specification discloses that the
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`invention requires that financial data transactions records are immune from “data tampering,”
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`Defendant omits key words. Defendant states that “the financial transaction records stored on the
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`card are immune from ‘data tampering’ and ‘cannot be manipulated by the holder of UFDC 201
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`independent of a transaction,” but Defendant conveniently omits that the specification states in
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`full, “[p]referably, the financial transaction records stored in UFDC 201 cannot be manipulated
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`by the holder of UFDC 201 independent of a transaction.” Dkt. 70-2 at 5:28-31 (emphasis
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`added). Further, Defendant states that the specification discloses that “[b]ecause the transaction
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`records form a complete, untampered set, they ‘may be used to satisfy any documentation
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`requirements.” This is not supported by the specification. See id. at 5:33-36 (“Because the
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`transaction data UFDC 201 is advantageously secure from user manipulation, that data may be
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`used to satisfy any documentation requirements regarding those transactions.”) (emphasis
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`added). A complete set of data is not required.
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`Defendant dismisses NetTech’s argument that the specification discloses embodiments
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`that do not require all financial transaction records to be stored on the multiple account electronic
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`credit card by stating that any such citations from the specification refer to the preceding
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`description of the present invention.2 However, NetTech’s brief refers to exemplary
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`2 NetTech notes that with respect to this argument, Defendant attempts to misrepresent that the specification
`discloses “’the present invention’ is” by omitting the words “relates to” from the specification. Again, the
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`6
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 10 of 14 PageID #: 1295
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`embodiments disclosed by the specification. See Dkt. 70-2 at 2:27-29 (“In one embodiment, the
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`invention relates to a universal financial data card for compiling and storing financial transaction
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`records pertaining to a plurality of financial accounts.”) (emphasis added); see also id. at 2:55-57
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`(“In yet another embodiment, the invention relates to a method for compiling and storing
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`financial transaction records pertaining to a plurality of financial accounts.”) (emphasis added).
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`Accordingly, Defendant’s arguments are unavailing.
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`Defendant has failed to demonstrate that the specification contains a clear and
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`unmistakable disclaimer of claim scope such that it is necessary to require that all of the user’s
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`financial transaction data must be stored on the claimed multiple account electronic credit card.
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`Accordingly, Defendant’s proposed construction should be rejected.
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`D.
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`“wherein said memory is of sufficient size to store financial transaction
`records related to a predetermined time period of use”
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`As stated above with regard to the terms “financial transaction records relative to the
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`multiple accounts” and “records relative to the multiple accounts,” Defendant seeks to inject the
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`“all” requirement into the term “wherein said memory is of sufficient size to store financial
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`transaction records related to a predetermined time period” so that “all transaction records”
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`related to a predetermined time period of use must be stored in memory. Dkt. 75 at 14.
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`Defendant explicitly relies on the same evidence and flawed reasoning cited for the
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`previous claim term, and then states, without intrinsic support, that the “memory is of sufficient
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`size” limitation assumes that all financial transaction data for the predetermined time period is
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`stored on the card. This is bootstrapping—Defendant assumes that all financial transaction data
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`is stored on the card to prove that this claim limitation should require that the memory is of
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`specification specifically discloses “relates to” with regard to its descriptions of the present invention and the
`exemplary embodiments. See Dkt. 70-2 at 1:10; id. at 2:5; id. at 27; id. at 55.
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`7
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 11 of 14 PageID #: 1296
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`sufficient size to store all transaction data on the card. Defendant has no support for its
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`construction other than the same evidence cited for the previous term.
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`Defendant creates a strawman argument, stating that “[i]t simply would not make sense
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`for the card to be capable of storing all transaction records for the useful life of the card but not
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`be capable of storing all transaction records for a particular, predetermined useful life.” Dkt. 75
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`at 15. To the contrary, NetTech argues that the invention of the patent does not require storage of
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`all transaction records. Dkt. 70 at 11-13. Indeed, the specification discloses an embodiment
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`where “enough memory is provided to store the financial data related to one calendar year of
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`use,” but does not require the memory to store the financial data for all transactions as Defendant
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`argues. See Dkt. 70-2 at 7:19-21.
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`Defendant attempts to raise an indefiniteness argument for the first time in a footnote and
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`then argues that its construction—which injects limitations that do not define “a predetermined
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`time period of use”—somehow remedies the indefiniteness. Defendant’s arguments are untimely
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`and not well taken and should be rejected.
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`E.
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`“transfer of data stored in the memory to a new multiple account electronic
`credit card”
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`Defendant’s argument that the “data” be limited to “financial transaction records, holder
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`information, and/or secondary account information” is not supported by the claims or the
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`specification. Defendant argues that the plain language of the claim supports Defendant’s
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`construction because earlier in the claim, it recites “a memory for storing financial transaction
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`records relative to the multiple accounts, and for storing holder information and secondary
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`account information.” See Dkt. 75 at 15. While NetTech does not dispute that the memory
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`contains these three types of data, the claim does not limit the transfer of data to these three data
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`types, nor does it require that all three types of data be transferred. Rather, the claims simply
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`8
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 12 of 14 PageID #: 1297
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`require that the memory contain “a software facility” that “enables transfer of data stored in the
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`memory to a new multiple account electronic credit card.” Dkt. 70-2 at 21:51-53. If the software
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`has this data-transfer capability, the claims are met, and there is no need to use a claim term
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`reciting a software facility to limit the types of data which may be transferred.
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`Defendant also fails to explain how the transfer of data stored in the memory “when the
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`initial card’s memory is at, or near, full capacity,” supports its construction. Neither the claims
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`nor the specification require that transfer occur when the memory is full. They merely support
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`the concept that the data may be transferred from an old card to a new one. See Dkt. 70-2 at 7:21-
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`24. Further, Defendant assumes that the only data necessary for operation of the new card is
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`“holder information” and/or “secondary account information.” See Dkt. 75 at 16. Defendant’s
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`construction does not contemplate that data transfer to the new card may entail, for example, data
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`necessary for operation of the new card. Further, Defendant does not explain why a user would
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`want to transfer financial transaction records from the old card to the new card merely because
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`the new card has a larger memory. The specification anticipates that the old card “be stored away
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`to preserve the historical financial data of the user.” Dkt. 70-2 at 7:21-24.
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`Accordingly, NetTech requests that the Court reject Defendant’s proposal and construe
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`this term according to its plain and ordinary meaning.
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`II.
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`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 27, 2020
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`
`
`BROWN RUDNICK LLP
`
` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`
`
`
`9
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 13 of 14 PageID #: 1298
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`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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`10
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`Case 2:19-cv-00118-JRG Document 76 Filed 02/27/20 Page 14 of 14 PageID #: 1299
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on February 27, 2020, all counsel of record who
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`are deemed to have consented to electronic service are being served with a copy of this document
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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`
`
`
`
` /s/ Alfred R. Fabricant
` Alfred R. Fabricant
`
`
`
`
`
`