Case 6:11-cv-00048-LED-JDL Document 254 Filed 07/30/12 Page 1 of 12 PageID #: 2992
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`SIPCO, LLC
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`REPORT AND RECOMMENDATION OF
`UNITED STATES MAGISTRATE JUDGE
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`V.
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`ABB, INC., et al,
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`Defendants.
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`CIVIL ACTION NO.
`6:11-CV-0048 LED-JDL
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`JURY TRIAL REQUESTED
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`Before the Court is the Schlage/Trane Defendants’ Motion for Summary Judgment of
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`Invalidity for Indefiniteness (Doc. No. 203) (“Motion”) regarding several claims in U.S. Patent
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`Nos. 6,437,692 (the “‘692 patent”) and 7,697,492 (the “‘492 patent”) (collectively the “patents-
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`in-suit”). Plaintiff SIPCO LLC (“SIPCO”) has filed a Response (Doc. No. 177) to which
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`Schlage/Trane has filed a Reply (Doc. No. 228). The Court heard argument at the Markman
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`hearing on March 22, 2012. Upon consideration of the parties’ arguments, the Court
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`RECOMMENDS that the Motion be DENIED.
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`BACKGROUND
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`I. The Patents at Issue
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`The patents-in-suit are generally directed towards monitoring or controlling remote
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`devices using wireless mesh communications technology. See, e.g., ‘692 patent at Abstract.
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`Figure 2 of the ‘692 patent, depicted below, shows an exemplary embodiment of the invention.
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`The exemplary embodiment includes “sensors/actuators” integrated with transceivers that
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`transmit low-power radio-frequency (“RF”) signals, standalone transceivers, and local gateways
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`1
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`that are capable of converting and further communicating information via a wide area network.
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`Id. at Abstract; id. at Fig. 2; id. at 4:23-24; id. at 5:45-48; id. at 6:15-30.
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`Further, a computer can send various control signals to the sensor/actuator and receive
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`sensor data transmitted from transceivers integrated into sensors. See, e.g., id. at Abstract.
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`Lastly, the patents-in-suit are no strangers to litigation. Several of the disputed claim terms,
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`including the sole term at issue here, have been previously construed by this Court or the Eastern
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`District of Pennsylvania. See Sipco LLC v. Toro Co., Civ. No. 08-0505, 2009 WL 330969
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`(E.D. Pa. Feb. 11, 2009); Sipco, LLC v. Datamatic, Ltd., 6:09-cv-532-LED-JDL, 2011 WL
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`1742669 (E.D. Tex. May 6, 2011).
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`II. The Claims at Issue
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`Schlage/Trane contends that claims 1, 3, 18, 24, 34, 49, 55, and 60 of the ‘692 patent and
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`claim 22 of the ‘492 are invalid under 35 U.S.C. § 112 ¶ 2. MOTION at 2. Specifically,
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`Schlage/Trane argues that (1) “relatively low power” and “low power” are insolubly ambiguous
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`2
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`and (2) “means for data transfer” is indefinite because the specification fails to recite sufficient
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`structure.1
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`LEGAL STANDARD
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`A party seeking to invalidate a patent must overcome a presumption that the patent is
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`valid. See 35 U.S.C. § 282; Microsoft Corp. v. i4i Ltd. Partnership, ---U.S. ----, 131 S.Ct. 2238,
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`2243 (2011); United States Gypsum Co. v. National Gypsum Co., 74 F.3d 1209, 1212 (Fed. Cir.
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`1996). This presumption places the burden on the challenging party to prove the patent’s
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`invalidity by clear and convincing evidence. Microsoft, 131 S.Ct. at 2243; United States Gypsum
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`Co., 74 F.3d at 1212. Close questions of indefiniteness “are properly resolved in favor of the
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`patentee.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1348 (Fed. Cir. 2005);
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`Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1380 (Fed. Cir. 2001).
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`Claims must particularly point out and distinctly claim the invention. “The specification
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`shall conclude with one or more claims particularly pointing out and distinctly claiming the
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`subject matter which the applicant regards as his invention.” 35 U.S.C. § 112 ¶ 2. The primary
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`purpose of the requirement of definiteness is to provide notice to those skilled in the art of what
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`will constitute infringement. See United Carbon Co. v. Binney Co., 317 U.S. 228, 236 (1942).
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`The definiteness standard is one of reasonableness under the circumstances, requiring that, in
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`light of the teachings of the prior art and the invention at issue, the claims apprise those skilled in
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`the art of the scope of the invention with a reasonable degree of precision and particularity. See
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`Shatterproof Glass Corp. v. LibbeyOwens Corp., 758 F.2d 613, 624 (Fed. Cir. 1985). To rule
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`1 The term “means for data transfer” only appears in claim 22 of the ‘492 patent. SIPCO dropped this claim from its
`list of asserted claims on February 6, 2012, three weeks before Schlage/Trane filed its Motion. See RESPONSE at 2
`n.3. SIPCO did not substantively respond to Schlage/Trane’s indefiniteness allegations regarding this term,
`Schlage/Trane did not continue to argue this term in its Reply, and neither party addressed the term at the March 22,
`2012 hearing. See generally REPLY. Because this term is no longer in dispute, the Court will not address
`Schlage/Trane’s arguments.
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`3
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`“on a claim of patent indefiniteness, a court must determine whether one skilled in the art would
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`understand what is claimed when the claim is read in light of the specification.” Bancorp. Servs.,
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`L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367, 1372 (Fed. Cir. 2004). “A determination of
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`indefiniteness is a legal conclusion that is drawn from the court’s performance of its duty as the
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`construer of patent claims, [and] therefore, like claim construction, is a question of law.” Amtel
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`Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1378 (Fed. Cir. 1999).
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`DISCUSSION
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`Schlage/Trane argues that “low power” and “relatively low power” must have separate
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`meanings and neither of those meanings is readily discernible to a person having ordinary skill in
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`the art. MOTION at 8-11. This Court has previously found that “low power” and “relatively low
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`power” are interchangeable and is not convinced it should disturb its previous holding. See
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`SIPCO v. Datamatic, 2011 WL 1742669 at *3-7. Further, as explained more fully in the Court’s
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`contemporaneous claim construction order, the Court finds that “low power” and “relatively low
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`power” mean “power having a limited transmission range.”
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`Schlage/Trane argues that “relatively low power” and “low power” “cannot possibly have
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`the same meaning” because equating the terms reads out the word “relatively.” MOTION at 8
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`(citing Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1119 (Fed.
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`Cir. 2004)) (emphasis as in MOTION). Schlage/Trane raises two arguments: (1) equating
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`“relatively low power” with “low power” improperly reads out the term “relatively” in
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`contravention of the claim construction tenet that “every word in a patent claim must have
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`meaning;” and (2) the doctrine of claim differentiation requires “relatively low power” and “low
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`power” to have different scopes. Neither of these arguments persuades the Court to disturb its
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`prior ruling that “relatively low power” and “low power” are interchangeable.
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`4
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`The Court in Innova/Pure Water recognized that “[w]hile not an absolute rule, all claim
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`terms are presumed to have meaning in a claim.” 381 F.3d at 1119. Further, “when an applicant
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`uses different terms in a claim it is permissible to infer that he intended his choice of different
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`terms to reflect a differentiation in the meaning of the terms.” Id. (citations omitted). Thus, the
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`patentee’s inclusion of the word “relatively” raises a presumption that “relatively low power” has
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`a different meaning than “low power;” however, it is not the case that the two terms “cannot
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`possibly” have the same meaning. See, e.g., Boss Indus., Inc. v. Yamaha Motor Corp. U.S.A.,
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`Inc., 333 F. App’x 531, 534 n.4 (Fed. Cir. 2009) (treating “base” and “base section” the same
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`where the parties did not differentiate between the terms).
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`Furthermore, the doctrine of claim differentiation raises a rebuttable presumption that
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`different terms have different scopes. Nevertheless, the doctrine of claim differentiation “is not a
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`hard and fast rule,” Commark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir.
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`1998), and this presumption may be overcome by the written description and prosecution history.
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`Kraft Foods, Inc. v. Int’l Trading Co., 203 F.3d 1362, 1368 (Fed. Cir. 2000); Andersen Corp. v.
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`Fiber Composites, LLC, 474 F.3d 1361, 1370 (Fed. Cir. 2007). In support of its claim
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`differentiation argument, Schlage/Trane points to claim 32, which requires a transmitter to
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`transmit “a low power radio frequency (RF) signal.” MOTION at 9. Dependent claim 34 only
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`differs from independent claim 32 in that it requires the transmitter to transmit “a relatively low-
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`power radio-frequency (RF) signal.” Compare ‘692 patent at 21:22-26 (claim 32) with id. at
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`21:52-54 (claim 34). Thus Schlage/Trane argues that the doctrine of claim differentiation
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`requires “relatively” to further limit “low power.” Lastly, Schlage/Trane asserts that “relatively
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`low power” must be interpreted as “low power” “compared (relative to) some other amount of
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`power.” MOTION at 9.
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`5
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`The Court finds that there is a reasonably strong presumption that “relatively low power”
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`and “low power” have different meanings. Despite this presumption, the prosecution history and
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`the specification reflect a clear understanding that “relatively low power” and “low power” refer
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`to the same limitation. See Anderson Corp., 474 F.3d at 1369-70; see also Multiform Desiccants,
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`Inc. v. Medzam, Ltd., 133 F.3d 1473 ,1480 (Fed. Cir. 1998) (finding that “claims that are written
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`in different words may ultimately cover the same subject matter”). First, the prosecution history
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`shows that the patentee and the patent examiner (“Examiner”) used “relatively low power” and
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`“low power” interchangeably to distinguish the ‘692 patent from a prior art satellite system
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`(“Lamberson”). In doing so, the patentee argued “the present invention is directed only to the
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`transmission of information over relatively short distances (i.e. using relatively low power radio-
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`frequency) . . . .” EX. N. TO SIPCO’S OPENING CLAIM CONSTRUCTION BRIEF (Doc. No. 202-14)
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`(“‘692 PATENT HISTORY”) at 16 (Response to Office Action of June 4, 2001). Further, the
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`patentee stated “it is clear that Lamberson does not provide a system configured for low-power
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`radio-frequency transmissions . . . . Instead, Lamberson relies upon satellite transmission, not
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`the low-power RF transmissions recited in claim 1, in order to remotely access sensor
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`information and pass command signals to equipment for execution of a specific action.” Id. at 17
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`(emphasis added). Notably, claim 1 recites “relatively low-power,” but not “low power.”
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`Compare id. with ‘692 patent at 18:55-61 (claim 1).
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`Moreover, in arguing for reconsideration of the Examiner’s final rejection, the patentee
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`further equated the terms: “Furthermore, the inventor is permitted to be his own lexicographer,
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`because the Applicants have provided adequate limitations (i.e., low power RF transceivers
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`encompassing only relatively low power transmissions over a relatively limited area) of the
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`6
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`present invention, the use of the term low power RF transceiver is proper.” ‘692 PATENT
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`HISTORY at 56 (Request for Reconsideration of Final Office Action).
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`The patentee continued this pattern of equating “low power” with “relatively low power”
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`in its appeal to the Board of Patent Appeals and Interferences after receiving a final rejection.
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`See ‘692 PATENT HISTORY at 110 (BPAI Appeal Brief) (noting that claim 1 recites a “plurality of
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`relatively low-power radio-frequency (RF) transceivers”); id. at 111 (referring still to claim 1,
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`noting that “the plurality of low-power RF transceivers communicate with each other . . .”); id. at
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`113 (referring to the “plurality of low power RF transceivers” of claim 1). Id. at 114-115 (noting
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`that “Lamberson relies upon satellite transmissions, not the low-power RF transmissions recited
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`in claim 1 . . .”). Moreover, the patentee again made the comparison explicit: “Furthermore, the
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`Applicants have clearly provided adequate limitations (i.e. low power RF transceivers
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`encompassing only relatively low power transmissions over a relatively limited area) relative to
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`the use of the term low-power RF transceiver is proper in the present application.” Id. at 116.
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`Lastly, the interchangeable nature of “low power” and “relatively low power” is reflected
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`by the Examiner’s statement in the Notice of Allowance:
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`These detailed features including the use of low powered radio frequency (in
`general known for localized communication) transmitters/transceivers and/or
`repeater transceivers for communicating between the sensor/actuator and the
`gateway; the use of transmitter/transceiver/gateway identification codes and
`information fields in the data; the use of data and protocol translators in the
`sensor/actuator and gateway, respectively; client access to the remote computer
`data; multiple programs residing on the remote computer the provides a
`corresponding control command signal in response to an application system input
`from a sensor.
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`‘692 PATENT HISTORY at 149 (Notice of Allowance). Thus, although there is a presumption that
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`“relatively low power” and “low power” have different meanings, the prosecution history
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`reflects an understanding between the Examiner and the patentee that the terms refer to the same
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`limitation.
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`7
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`Furthermore, the specification makes no attempt to distinguish between “relatively low
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`power” and “low power:”
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`Control system 200 consists of one or more sensor/actuators 212, 214, 216, 222,
`and 224 each integrated with a transceiver. The transceivers are preferably RF
`(Radio Frequency) transceivers, that are relatively small in size and transmit a
`relatively low power RF signal.
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`Control system 200 also includes a plurality of standalone transceivers 211, 213,
`215, and 221. Each stand-alone transceiver 211, 213, 215, and 221 and each of
`the integrated transceivers 212, 214, 216, 222, and 224 may be configured to
`receive an incoming RF transmission (transmitted by a remote transceiver) and to
`transmit an outgoing signal. This outgoing signal may be another low power RF
`transmission signal, a higher power RF transmission signal, or alternatively may
`be transmitted over a conductive wire, fiber optic cable, or other transmission
`media.
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`‘692 patent at 5:47-6:7. Thus, the specification and the prosecution history support a finding that
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`“relatively low power” and “low power” are interchangeable. See SIPCO v. Datamatic, LTD,
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`2011 WL 172669, at *4 (finding the same).
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`Having found that “low power” and “relatively low power” are used interchangeably
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`throughout the ‘692 patent, the Court construes the terms to mean “power having a limited
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`transmission range.” SIPCO largely restates the arguments it made before the Court in the
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`previous litigation. SIPCO argues that “‘[l]ow power’ in the context of radio frequency (RF
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`communications) has a plain meaning to those of ordinary skill in the art.” RESPONSE at 7.
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`SIPCO further asserts that that the specification clearly identifies RF devices that are intended
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`for communication within a ‘limited’ or nearby area.” Id. SIPCO argues that during prosecution
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`of the ‘692 patent, the Examiner agreed that the “low-power” devices in the invention are
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`“known for localized communication.” Id. SIPCO also points to unrebutted expert testimony
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`that one of ordinary skill in the art would understand the meaning of “low power.” Id. at 7-8
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`(citing EX. M TO SIPCO’S OPENING CLAIM CONSTRUCTION BRIEF, DECLARATION OF DR.
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`8
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`EDWARD KNIGHTLY (DOC. NO. 202-13) (“KNIGHTLY DEC.”) at ¶ 9. Lastly, SIPCO provides
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`evidence that “Z-Wave wireless technology – the very same wireless technology used by
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`Schlage/Trane – is commonly described as ‘low power.’” RESPONSE at 8 (citing Ex. C to
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`RESPONSE, “Z-WAVE WEBSITE PRINTOUT,” (Doc. No. 177-3)).
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`Schlage/Trane counters that because “low power” is a term of degree, the patent must
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`provide “some standard for measuring that degree.” MOTION at 10 (quoting Enzo Biochecm, Inc.
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`v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010)). Schlage/Trane simply argues that the
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`‘692 patent does not explain “what is meant by the term ‘low power.’” Id. Schlage/Trane also
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`asserts that “relatively” adds a relationship component: the amount of power is being compared
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`to some other amount of power and the specification fails to provide guidance on such a
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`comparison. Id. at 9. Schlage/Trane also argues that the distinctions made by SIPCO during
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`prosecution regarding “high frequencies” and “low power” confuse the issue and further
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`compound the indefiniteness issue. Id. at 10-11. Lastly, Schlage/Trane notes that this Court’s
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`prior construction “power having a limited transmission range” does not clarify the issue because
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`every transmission has a limited range. Id. at 11.
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`Having considered the parties’ arguments, the Court sees no need to disturb its previous
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`ruling in Sipco v. Datamatic. See SIPCO v. Datamatic, 2011 1742669 at *4-6. A person having
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`ordinary skill in the art would understand “relatively low power” and “low power” in the context
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`of the ‘692 patent to mean “power having limited transmission range.” Because the Court has
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`already conducted an extensive analysis of the term, the Court will not repeat its analysis here.
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`Nevertheless, in light of Schlage/Trane’s arguments, some further explanation is warranted.
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`Schlage/Trane provides only attorney argument that references to “frequency” in the prosecution
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`history distort the meaning of the terms “low power” and “relatively low power.” MOTION at
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`9
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`10-11. The Court is not persuaded that the prosecution history’s references to frequency
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`outweigh the clear statements made by the Examiner combined with unrebutted expert testimony
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`provided by SIPCO.
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`While the patentee made some reference to “frequency,” the patentee was clear that “low
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`power” references the range of transmission in comparison to the prior art, which disclosed a
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`“very high power satellite system:”
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`Moreover, it is also well-known that the RF spectrum is divided into several
`ranges or bands, each band representing an increase in frequency (power) from
`very low frequency (VLF) to extremely high frequency (EHF). It is further well-
`known that satellite transmissions typically occur in a range of RF that
`encompasses the microwave spectrum (i.e. the super high frequency (SHF) and
`EHF bands). Thus, categorizing the present invention as a relatively low power
`RF transceiver, as opposed to the very high power satellite system disclosed in
`Lamberson, is entirely appropriate and adequately distinguishing to one of
`ordinary skill in the art.
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`‘692 PATENT HISTORY at 55-56 (Request for Reconsideration of Final Office Action). Further,
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`the applicant later explained that “the FCC (Federal Communication Commission) governs and
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`regulates RF transmissions. Different FCC regulations apply to communication devices
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`depending upon the output power level of the devices (e.g., the distances the devices are
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`designed to communicate).” Id. at 115-16 (emphasis added) (BPAI Appeal Brief). Further, in
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`allowing the claims, the Examiner explained that the claimed embodiments in the ‘692 patent are
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`directed toward “low powered radio frequency (in general known for localized communications)
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`transmitters/transceivers.” Id. at 149. In essence, the Examiner recognized that a person of
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`ordinary skill in the art would understand the limited transmission range of the claimed “low
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`power” transceivers. In re Sang Su Lee, 277 F.3d 1338, 1345 (Fed. Cir. 2002) (the Examiner is
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`presumed to act from the viewpoint of a person of ordinary skill in the art); SIPCO v. Datamatic,
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`2011 WL 1742669 at *6.
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`10
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`Furthermore, Schlage/Trane’s indefiniteness arguments ring hollow in the face of
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`SIPCO’s unrebutted expert testimony. SIPCO provides testimony that a person having ordinary
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`skill in the art “would readily understand that power affects a device’s transmission range and
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`‘low-power’ is a commonly-used term in the field of RF communications, particularly in mesh
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`networks . . . .” KNIGHTLY DECL. at ¶ 9; See also Ex. C to RESPONSE, “Z-Wave Website
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`Printout,” (Doc. No. 177-3)) (describing Z-wave networking devices as “low-power”); see also
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`Exxon Research, 265 F.3d at 1375 (“If the meaning of the claim is discernible, even though the
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`task may be formidable and the conclusion may be one over which reasonable persons will
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`disagree, we have held the claim sufficiently clear to avoid invalidity on indefiniteness
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`grounds.”).
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`Likewise, Schlage/Trane’s argument that the Court’s construction, “power having a
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`limited transmission range,” does not clarify the issue “because all transmissions have limited
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`range” is unpersuasive. See MOTION at 7-8. As the Court previously explained in Datamatic,
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`the ‘692 specification and the prosecution history confirm that the patentee explicitly claimed
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`transceivers/transmitters that are “nearby” or within a “limited area.” SIPCO v Datamatic, 2011
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`WL 1742669 at *5-6; see also ‘692 PATENT HISTORY at 74. Thus, while Schlage/Trane may be
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`correct that all “transmissions” technically have a limited transmission range in that they do not
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`extend indefinitely, the meaning of the term is clear from the context of the intrinsic record.
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`Further, while the limited range of the claimed “relatively low-power” transceivers is not
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`described with mathematical precision, the term, read in context of the intrinsic record, is as
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`precise as the subject matter permits. See, e.g., BJ Services, Co. v. Halliburton Energy Services,
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`Inc., 338 F.3d 1368, 1373 (Fed. Cir. 2003); Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806
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`F.2d 1565, 1576 (Fed. Cir. 1986).
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`For the reasons stated above, the Court RECOMMENDS that Defendants’ Motion be
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`CONCLUSION
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`DENIED.
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`Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may
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`serve and file written objections to the findings and recommendations contained in the Report. A
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`party’s failure to file written objections to the findings, conclusions and recommendations
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`contained in this Report within fourteen (14) days after being served with a copy shall bar that
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`party from de novo review by the district judge of those findings, conclusions and
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`recommendations and, except on grounds of plain error, from appellate review of unobjected-to
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`factual findings and legal conclusions accepted and adopted by the district court. Douglass v.
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`United States Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996).
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`12
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` ___________________________________
` JOHN D. LOVE
` UNITED STATES MAGISTRATE JUDGE
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`So ORDERED and SIGNED this 30th day of July, 2012.
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