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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ADVANCED GROUND INFORMATION SYSTEMS,
`INC.,
`Plaintiff-Appellant
`
`v.
`
`LIFE360, INC.,
`Defendant-Appellee
`______________________
`
`2015-1732
`______________________
`
`Appeal from the United States District Court for the
`Southern District of Florida in No. 9:14-cv-80651-DMM,
`Judge Donald M. Middlebrooks.
`______________________
`
`Decided: July 28, 2016
`______________________
`
`GEORGE BADENOCH, Kenyon & Kenyon LLP, New
`York, NY, argued for plaintiff-appellant. Also represent-
`ed by MARK ALEXANDER CHAPMAN, ROSE CORDERO PREY,
`ALESSANDRA MESSING.
`
`DANIEL H. BREAN, The Webb Law Firm, Pittsburgh,
`PA, argued for defendant-appellee. Also represented by
`KENT E. BALDAUF, JR., BRYAN P. CLARK, CHRISTIAN D.
`EHRET.
`
`______________________
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` ADVANCED GROUND INFO. SYS., INC. v. LIFE360, INC.
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`Before MOORE, MAYER, and WALLACH, Circuit Judges.
`WALLACH, Circuit Judge.
`Advanced Ground Information Systems, Inc. (“AGIS”)
`appeals the decision of the United States District Court
`for the Southern District of Florida in Advanced Ground
`Information Systems, Inc. v. Life360, Inc., No. 14-cv-80651
`(S.D. Fla. Nov. 21, 2014) (J.A. 2–37), which found that
`claims 3 and 10 of U.S. Patent No. 7,031,728 (“the ’728
`patent”) and claims 5 and 9 of U.S. Patent No. 7,672,681
`(“the ’681 patent”) (together, the “patents-in-suit”) invoke
`35 U.S.C. § 112, ¶ 6, and that the claims are indefinite
`under 35 U.S.C. § 112, ¶ 2 (2006).1 Although the district
`court found these claims indefinite, it did not address the
`issue of
`invalidity because Appellee, Life360, Inc.,
`(“Life360”) did not request a finding of invalidity. The
`parties subsequently stipulated that these claims were
`invalid for indefiniteness, see J.A. 857, and the court
`entered its Final Judgment on May 12, 2015, see J.A. 1.
`For the reasons articulated below, we affirm the district
`court’s decision that the claims are indefinite, and accord-
`ingly conclude that the asserted claims are invalid.
`BACKGROUND
`AGIS is a technology company, software developer,
`and military contractor, as well as the owner of the pa-
`tents-in-suit. While the specifications of the patents-in-
`suit differ from one another, the patents-in-suit relate to
`methods, devices, and systems for establishing a commu-
`nication network for users (referred to as “participants” in
`
`1 Congress amended 35 U.S.C. § 112 when it passed
`the Leahy–Smith America Invents Act (“AIA”), and the
`amendments took effect on September 16, 2012. Pub. L.
`No. 112–29, § 4 125 Stat. 284, 296–97 (2011). Because the
`applications resulting in the patents-in-suit were filed
`before that date, we refer to the pre-AIA version of § 112.
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`ADVANCED GROUND INFO. SYS., INC. v. LIFE360, INC.
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`3
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`the patents-in-suit) of mobile devices, such as cellular
`phones.
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`I. The Patents-in-Suit
`A. The ’728 Patent
`The ’728 patent describes a cellular communication
`system that allows multiple cellular phone users to moni-
`tor others’ locations and statuses via visual display of
`such information on a map. ’728 patent, Abstract. For
`example, as illustrated in Figure 1 of the ’728 patent,
`users of a mobile device can see the locations of other
`users on the network (indicated by triangle 30 and square
`34 symbols):
`
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`Id. fig.1. Symbols generated on the users’ cellular phones
`represent the latitude and longitude of other users. Id.
`col. 3 ll. 35–40. Users in the communication network may
`initiate a phone call, send text messages, or send data or
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`pictures with other users on the network by touching a
`symbol representative of the other users on the screen.
`Id. col. 11 ll. 12–13, 38–42.
`B. The ’681 Patent
`The ’681 patent is a continuation-in-part of the ’728
`patent. It describes how “a designated administrator
`using a personal computer (PC) or other input device can
`reprogram all user and network participants’ cell phone
`devices to change, modify[,] or create new virtual switch
`names and new symbols for a different operating envi-
`ronment.” ’681 patent col. 2 ll. 3–7.
`C. The Asserted Claims
`Claims 3 and 10 of the ’728 patent and claims 5 and 9
`of the ’681 patent (collectively, the “asserted claims”)
`recite a “symbol generator” that generates symbols repre-
`senting each user in the network on the display of a user’s
`cellular phone. Claim 3 of the ’728 patent is a system
`claim that recites a “symbol generator in [a central pro-
`cessing unit (‘CPU’)] that can generate symbols that
`represent each of the participants’ cell phones in the
`communication network on the display screen.” ’728
`patent col. 12 ll. 62–64 (emphasis added). Claim 5 of the
`’681 patent is a system claim similar to claim 3 of the ’728
`patent in all relevant respects, except that it recites a
`“symbol generator in [a] CPU that can generate symbols
`that represent each of the participants in the communica-
`tion network on the display screen,” ’681 patent col. 12 ll.
`62–64 (emphasis added), as opposed to “each of the partic-
`ipants’ cell phones,” ’728 patent col. 12 l. 63.
`Claim 10 of the ’728 patent and claim 9 of the ’681 pa-
`tent are apparatus claims that recite a “cellular phone for
`use in a communication network for a plurality of partici-
`pants comprising . . . a symbol generator connected to [a]
`CPU and [a] database for generating symbols on [a] touch
`screen display screen.” ’728 patent col. 14 ll. 28–47 (em-
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`phasis added); ’681 patent col. 13 l. 44–col. 14 l. 8 (same
`(emphasis added)). Both claims also recite that the
`cellular phone comprises “CPU Software.” See ’728 patent
`col. 14 ll. 48–49 (stating that the cellular phone comprises
`“CPU software for selectively polling other participants
`with a cellular phone”); ’681 patent col. 14 ll. 9–10 (stating
`that the cellular phone comprises “CPU software that
`causes the exchange of data with other participants with
`a cellular phone”).
`II. Procedural History
`Life360 is a startup company and the creator of a
`smartphone software application (the “Life360 mobile
`app”). J.A. 2382. The Life360 mobile app was designed to
`allow families to stay better connected––it “runs on [a]
`mobile device to allow [users] to view [their] family mem-
`bers on a map, communicate with them, and receive alerts
`when [their] loved ones arrive at home, school[,] or work.”
`Product Tour, https://www.life360.com/tour/ (last visited
`July 26, 2016). On May 16, 2014, AGIS filed a complaint
`in the district court alleging that the Life360 mobile app
`infringed claims 3, 7, and 10 of the ’728 patent and claims
`1, 5, and 9 of the ’681 patent. See J.A. 2–3.
`In response to AGIS’s Complaint, Life360 asserted
`that the claim terms “symbol generator” and “CPU soft-
`ware” in the asserted claims invoked means-plus-function
`claiming allowed under 35 U.S.C. § 112, ¶ 6, but the
`terms failed to disclose adequate structure and, therefore,
`are indefinite under 35 U.S.C. § 112, ¶ 2. J.A. 262–70.
`Paragraph 6 of 35 U.S.C. § 112 allows “[a]n element in a
`claim for a combination” to “be expressed as a means or
`step for performing a specified function without the
`recital of structure, material, or acts in support thereof,
`and such claim shall be construed to cover the correspond-
`ing structure, material, or acts described in the specifica-
`tion and equivalents thereof.” Pursuant to 35 U.S.C.
`§ 112, ¶ 6, if the specification of a patent does not disclose
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`“corresponding structure, material, or acts” for “perform-
`ing the specified function” in the claims, the patent will be
`found to be invalid for indefiniteness under 35 U.S.C.
`§ 112, ¶ 2 because it does not “distinctly claim[] the
`subject matter . . . the inventor . . . regards as the inven-
`tion.” 35 U.S.C. § 112, ¶ 2.
`On November 21, 2014, the district court issued the
`decision in dispute. See J.A. 2–37 (District Court’s
`Markman Order). In addition to construing various
`claims of the patents-in-suit, the district court found that
`the terms “symbol generator” and “CPU software” in the
`asserted claims––i.e., claims 3 and 10 of the ’728 patent
`and claims 5 and 9 of the ’681 patent––invoked 35 U.S.C.
`§ 112, ¶ 6, and were indefinite under 35 U.S.C. § 112, ¶ 2.
`See J.A. 9–20. In view of the district court’s decision as to
`indefiniteness, the parties stipulated that these claims
`were invalid. See J.A. 857.
`AGIS appeals the district court’s indefiniteness de-
`terminations. This court has jurisdiction over this appeal
`under 28 U.S.C. § 1295(a)(1) (2012).
`DISCUSSION
`Our analysis proceeds in two steps. First, we address
`whether “symbol generator” in the asserted claims is in
`means-plus-function form pursuant to 35 U.S.C. § 112,
`¶ 6. See Robert Bosch, LLC v. Snap–On Inc., 769 F.3d
`1094, 1097 (Fed. Cir. 2014). If we find that the relevant
`claim terms recite a means-plus-function limitation, we
`proceed to our second inquiry and “attempt to construe
`the disputed claim term by identifying the corresponding
`structure, material, or acts described in the specification
`to which the term will be limited.” Id. (internal quotation
`marks and citation omitted); see also O.I. Corp. v. Tekmar
`Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997) (“The price that
`must be paid for use of [a means-plus-function claim] is
`limitation of the claim to the means specified in the
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`written description and equivalents thereof.”). However,
`“[i]f the specification is not clear as to the structure that
`the patentee intends to correspond to the claimed func-
`tion, then the patentee has not paid that price but is . . .
`attempting to claim in functional terms unbounded by
`any reference to structure in the specification.” Med.
`Instrumentation & Diagnostics Corp. v. Elekta AB, 344
`F.3d 1205, 1211 (Fed. Cir. 2003). We address each step in
`turn.
`I. The Claim Term “Symbol Generator” Invokes 35 U.S.C.
`§ 112, ¶ 6
`The district court held that “symbol generator” and
`“CPU software” in claims 3 and 10 of the ’728 patent and
`claims 5 and 9 of the ’681 patent invoked 35 U.S.C. § 112,
`¶ 6, but were indefinite under 35 U.S.C. § 112, ¶ 2.
`“Symbol generator” appears in all of the asserted claims.
`Thus, if we find that claim term indefinite under 35
`U.S.C. § 112, ¶ 2, we need not independently address
`whether the claim term “CPU software” also renders clam
`10 of the ’728 patent and claim 9 of the ’681 patent invalid
`for indefiniteness.
`The district court’s construction of patent claims
`based on evidence intrinsic to the patent, including any
`finding that the claim language invokes 35 U.S.C. § 112,
`¶ 6, is reviewed de novo as a question of law. See Wil-
`liamson v. Citrix Online, LLC, 792 F.3d 1339, 1346 (Fed.
`Cir. 2015) (en banc) (citation omitted). In construing
`patent claims, if the district court makes underlying
`findings of fact based on extrinsic evidence, such findings
`are reviewed for clear error. Id. “Clear error only exists if
`we are left with a definite and firm conviction that a
`mistake has been committed.” Venture Indus. Corp. v.
`Autoliv ASP, Inc., 457 F.3d 1322, 1331 (Fed. Cir. 2006)
`(internal quotation marks and citation omitted).
`If a claim element “contains the word ‘means’ and re-
`cites a function,” this creates a presumption that the
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`claim is in means-plus-function form under 35 U.S.C.
`§ 112, ¶ 6. Envirco Corp. v. Clestra Cleanroom, Inc., 209
`F.3d 1360, 1364 (Fed. Cir. 2000) (citation omitted). “That
`presumption falls, however, if the claim itself recites
`sufficient structure to perform the claimed function.” Id.
`(citation omitted).
`“[T]he failure to use the word ‘means’ also creates a
`rebuttable presumption—this time that § 112, para. 6
`does not apply.” Williamson, 792 F.3d at 1348 (citation
`omitted). However, “if the challenger demonstrates that
`the claim term fails to recite sufficiently definite structure
`or else recites function without reciting sufficient struc-
`ture for performing that function,” this presumption may
`be rebutted. Id. (internal quotation marks, brackets, and
`citation omitted). “The standard is whether the words of
`the claim are understood by persons of ordinary skill in
`the art to have a sufficiently definite meaning as the
`name for structure.” Id. at 1349. In determining whether
`this presumption has been rebutted, the challenger must
`establish by a preponderance of the evidence that the
`claims are to be governed by § 112, ¶ 6. See Apex Inc. v.
`Raritan Comput. Inc., 325 F.3d 1364, 1372 (Fed. Cir.
`2003).
`Here, although the asserted claims do not include the
`word “means,” the district court determined that AGIS
`intended to invoke § 112, ¶ 6. See J.A. 10–11; see also
`’728 patent col. 12 l. 52–col. 13 l. 13 (claim 3), col. 14 ll.
`27–61 (claim 10); ’681 patent col. 12 l. 52–col. 13 l. 18
`(claim 5), col. 13 l. 44–col. 14 l. 27 (claim 9). According to
`the district court, “[a] plain reading of the term in context
`of the relevant claim language suggests the term ‘symbol
`generator’ is analogous to a ‘means for generating sym-
`bols’ because the term is simply a description of the
`function performed.” J.A. 10–11 (citation omitted). The
`district court also determined “the term is not used in
`common parlance or by persons of ordinary skill in the
`pertinent art to designate structure.” J.A. 11 (internal
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`quotation marks and citation omitted). Finally, the
`district court rejected the testimony of AGIS’s expert, Dr.
`Benjamin Goldberg, because he was “not aware whether
`the term symbol generator has a meaning in computer
`science.” J.A. 11 (internal quotation marks and citation
`omitted).
`AGIS challenges the district court’s determination,
`asserting that the district court “erred when it concluded
`that the ‘symbol generator’ elements in [the asserted
`claims] are subject to § 112, ¶ 6.” AGIS’s Br. 25. Specifi-
`cally, AGIS avers that Life360 failed to present sufficient
`evidence demonstrating that “symbol generator” invokes
`§ 112, ¶ 6. See id. at 26, 32. According to AGIS, “[t]he
`unrebutted expert evidence [of Dr. Goldberg] . . . showed
`that persons of ordinary skill would have understood the
`claimed symbol generator to have a sufficiently definite
`meaning as the name for structure.” Id. at 26–27 (inter-
`nal quotation marks and citation omitted); see also id. at
`27 (stating that “Dr. Goldberg testified that those skilled
`in the art would have understood a ‘symbol generator’ to
`refer to a well-known class of existing, available, standard
`modules of software code used to generate symbols on a
`display” (citations omitted)).
`The term “symbol generator” invokes the application
`of § 112, ¶ 6 because it fails to describe a sufficient struc-
`ture and otherwise recites abstract elements “for” causing
`actions, ’728 patent col. 14 ll. 45–47, or elements “that
`can” perform functions, ’681 patent col. 12 l. 62. Through
`the testimony of Dr. Goldberg, AGIS contends “those
`skilled in the art would have understood a ‘symbol gener-
`ator’ to refer to a class of structures instead of a particular
`structure.” AGIS’s Br. 27; see also id. at 28 (stating that
`“Dr. Goldberg’s unrebutted testimony that those skilled in
`the art would have understood what a ‘symbol generator’
`is, and would have known how to select and use one from
`the well-known class of software modules, demonstrates
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`that the words have a sufficiently definite meaning as the
`name for structure” (internal quotation marks and cita-
`tion omitted)). However, contrary to AGIS’s contention,
`Dr. Goldberg testified that the term “symbol generator” is
`a term coined for the purposes of the patents-in-suit. See
`J.A. 798. The term is not used in “common parlance or by
`persons of skill in the pertinent art to designate struc-
`ture,” such that it connotes sufficient structure to avoid
`the application of 35 U.S.C. § 112, ¶ 6. Lighting World,
`Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359
`(Fed. Cir. 2004), overruled on other grounds by William-
`son, 792 F.3d at 1348–49.
`We see no clear error in the district court’s findings
`regarding Dr. Goldberg’s testimony. Dr. Goldberg’s
`testimony that the terms “symbol” and “generator” are
`known within the field of computer science is not disposi-
`tive and does not require us to find that 35 U.S.C. § 112,
`¶ 6 does not apply. See J.A. 11 (stating that “Dr. Gold-
`berg testified he was aware of the terms ‘symbol’ and
`‘generator’ separately, but was unaware of [the] use [of]
`the specific term ‘symbol generator’ within the field of
`computer science” (citation omitted)). Irrespective of
`whether the terms “symbol” and “generator” are terms of
`art in computer science, the combination of the terms as
`used in the context of the relevant claim language sug-
`gests that it is simply an abstraction that describes the
`function being performed (i.e., the generation of symbols).
`See, e.g., ’728 patent col. 3 ll. 44–46 (“Each cellular
`phone/[Personal Digital Assistant (‘PDA’)/[Global Posi-
`tioning System (‘GPS’)]” is identified on the display of
`other phone systems by a symbol that is generated to
`indicate its identity.” (emphasis added)); see also ’681
`patent col. 7 ll. 14–17 (“Each cellular phone device is
`identified on the map display of the other participant/user
`cell phone devices by a display symbol that is generated on
`each user cell phone device display to indicate each user’s
`identity.” (emphasis added)).
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`Finally, the claim term “symbol generator,” by itself,
`does not identify a structure by its function, cf. Personal-
`ized Media Commc’ns v. ITC, 161 F.3d 696, 705 (Fed. Cir.
`1998) (stating that the claim term “digital detector” does
`not invoke § 112, ¶ 6 because “[e]ven though the term
`‘detector’ does not specifically evoke a particular struc-
`ture, it does convey to one knowledgeable in the art a
`variety of structures known as ‘detectors’”), nor do the
`asserted claims suggest that the term “symbol generator”
`connotes a definite structure, see Media Rights Techs.,
`Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed.
`Cir. 2015) (finding that the term “compliance mechanism”
`invokes § 112, ¶ 6, because the asserted claims “simply
`state that the ‘compliance mechanism’ can perform vari-
`ous functions” (emphasis added)). Accordingly, because
`the term “symbol generator” does not describe anything
`structural, the district court was correct to conclude that
`the asserted claims which recite the term “symbol genera-
`tor” are subject to 35 U.S.C. § 112, ¶ 6.
`II. The Claim Term “Symbol Generator” Is Indefinite
`Under § 112, ¶ 2
`Because the claim term “symbol generator” is a
`means-plus-function term as described by paragraph 6 of
`§ 112, we must “construe the disputed claim term by
`identifying the corresponding structure, material, or acts
`described in the specification to which the claim term will
`be limited.” Robert Bosch, 769 F.3d at 1097 (internal
`quotation marks and citation omitted). If a patentee
`“employs means-plus-function language in a claim, [the
`patentee] must set forth in the specification an adequate
`disclosure showing what is meant by that language.”
`Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371,
`1382 (Fed. Cir. 2009) (internal quotation marks and
`citation omitted). “If the specification does not contain an
`adequate disclosure of the structure that corresponds to
`the claimed function, the patentee will have failed to
`particularly point out and distinctly claim the invention
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`[under § 112, ¶ 2], which renders the claim invalid for
`indefiniteness.” Id. (internal quotation marks and cita-
`tion omitted).
`We agree with the district court’s determination that
`the “term ‘symbol generator’ is indefinite.” J.A. 13 (foot-
`note omitted). Although the district court recognized that
`“the specification [] describe[s], in general terms, that
`symbols are generated based on the latitude and longi-
`tude of the participants,” it nonetheless determined that
`the specification “fails to [disclose] an ‘algorithm’ or
`description as to how those symbols are actually ‘generat-
`ed.’” J.A. 12 (citation omitted).
`“[I]n a means-plus-function claim in which the dis-
`closed structure is a computer[] or microprocessor[] pro-
`grammed to carry out an algorithm, [as is the case here],
`the disclosed structure is . . . [a] special purpose comput-
`er programmed to perform the disclosed algorithm.”
`Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521
`F.3d 1328, 1333 (Fed. Cir. 2008) (internal quotation
`marks and citation omitted); see ’728 patent col. 3 ll. 57–
`61 (stating that “[w]hen the cellular phone/PDA/GPS
`System user uses his stylus or finger to touch one or more
`of the symbols or a location on the cellular phone display,
`the system’s software causes the status and latitude and
`longitude information concerning that symbol or location
`to be displayed”). In the case of computer-implemented
`functions, we require that the specification “disclose an
`algorithm for performing the claimed function.” See Net
`MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1367 (Fed.
`Cir. 2008). The specification can express the algorithm
`“in any understandable terms including as a mathemati-
`cal formula, in prose, . . . as a flow chart, or in any other
`manner that provides sufficient structure.” Finisar Corp.
`v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008)
`(citation omitted).
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`The specifications of the patents-in-suit do not dis-
`close an operative algorithm for the claim elements recit-
`ing “symbol generator.” The function of generating
`symbols must be performed by some component of the
`patents-in-suit; however, the patents-in-suit do not de-
`scribe this component. Although the specification of the
`’728 patent suggests that these symbols are generated via
`“a map database and a database of geographically refer-
`enced fixed locations . . . with a specified latitude and
`longitude[,] . . . [and] [a] database with the constantly
`updated GPS location,”’ 728 patent col. 3 ll. 35–41, this
`only addresses the medium through which the symbols
`are generated. A patentee cannot claim a means for
`performing a specific function and subsequently disclose a
`“general purpose computer as the structure designed to
`perform that function” because this “amounts to pure
`functional claiming.” Aristocrat Techs., 521 F.3d at 1333.
`Accordingly, because the specifications of the patents-in-
`suit do not disclose sufficient structure for the “symbol
`generator” function and the asserted claims include this
`term, the asserted claims are indefinite under 35 U.S.C. §
`112, ¶ 2.
`
`CONCLUSION
`For the foregoing reasons, the decision of the United
`States District Court for the Southern District of Florida
`is
`
`AFFIRMED
`
`