Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 1 of 36 PageID #: 4066
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`Case No. 12-CV-00799-LED
`
`INVENSYS SYSTEMS, INC.,
`
`Plaintiff,
`
`vs.
`
`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
`
`Defendants,
`
`and
`
`MICRO MOTION INC., USA,
`
`Counterclaim-Plaintiff,
`
`vs.
`
`INVENSYS SYSTEMS, INC.,
`
`Counterclaim-Defendant.
`
`RESPONSIVE CLAIM CONSTRUCTION BRIEF OF
`MICRO MOTION, INC. AND EMERSON ELECTRIC CO.
`REGARDING INVENSYS PATENTS
`
`4838-6320-5913.
`
`

`
`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 2 of 36 PageID #: 4067
`
`TABLE OF CONTENTS
`
`Page(s)
`
`I.
`
`INVENSYS’S PROPOSED CONSTRUCTIONS ARE WRONG .....................................1
`
`A.
`
`B.
`
`“Configured to” and “operable to” and variants thereof .........................................1
`
`Control Terms..........................................................................................................1
`
`1.
`
`Transition Terms .........................................................................................1
`
`a.
`
`b.
`
`c.
`
`d.
`
`“Determine the flow rate” and variants thereof...............................1
`
`“During a transition” and “during an onset” ...................................4
`
`“Maintains oscillation during a transition” and variants .................6
`
`“In response to detecting a system disturbance” and
`variants thereof ................................................................................9
`
`2.
`
`Drive Control Terms..................................................................................10
`
`a.
`
`b.
`
`c.
`
`“In response to the extent to which the flowtube is filled by
`the fluid flow”................................................................................10
`
`“Second drive signal is different from the first drive signal”........12
`
`“A PI control algorithm” ...............................................................14
`
`3.
`
`Mode Terms...............................................................................................14
`
`a.
`
`b.
`
`“Digital synthesis mode”...............................................................14
`
`“Positive feedback mode” .............................................................17
`
`C.
`
`Digital System Terms ............................................................................................19
`
`1.
`
`2.
`
`“Input module,” “output module,” and “processing devices”...................19
`
`“A digital control system” .........................................................................22
`
`D.
`
`Data Collection Terms...........................................................................................23
`
`1.
`
`2.
`
`“Data for a complete cycle of the periodic sensor”...................................23
`
`“Collect data corresponding to a subsequent cycle of the sensor
`signal simultaneously with processing the data for the current
`cycle”.........................................................................................................27
`
`i
`
`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 3 of 36 PageID #: 4068
`Case 6:l2—cv—00799—JRG Document 137 Filed 04/07/14 Page 3 of 36 Page|D #: 4068
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`3.
`3.
`
`“Zero offset”..............................................................................................27
`“Zero offset” ............................................................................................ ..27
`
`II.
`11.
`
`CONCLUSION .................................................................................................................30
`CONCLUSION ............................................................................................................... ..30
`
`ii
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`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 4 of 36 PageID #: 4069
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc.,
`214 F.3d 1302 (Fed. Cir. 2000) .................................................................................................4
`
`Halliburton Oil Well Cementing Co. v. Walker,
`329 U.S. 1 (1946) ......................................................................................................................1
`
`Intervet Am. v. Kee-Vet Labs.,
`887 F.2d 1050 (Fed. Cir. 1989) ...............................................................................................23
`
`Inventio AG v. Thyssenkrupp Elevator Ams. Corp.,
`649 F.3d 1350 (Fed. Cir. 2011) ...............................................................................................21
`
`Kozam v. Phase Forward, Inc.,
`No. MJG-04-1787, 2005 U.S. Dist. LEXIS 46850 (D. Md. Aug. 29, 2005) ..........................20
`
`Lighting World, Inc. v. Birchwood Lighting, Inc.,
`382 F.3d 1354 (Fed. Cir. 2004) ...............................................................................................20
`
`Phillips, v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) .................................................................................................4
`
`Ranpak Corp. v. Storopack, Inc.,
`No. 98-1009, 1998 U.S. App. LEXIS 16348 (Fed. Cir. July 15, 1998)
`(unpublished)...........................................................................................................................20
`
`Sipco, LLC v. Amazon.com, Inc.,
`No. 2:08-CV-359-JRG, 2012 U.S. Dist. LEXIS 150940 (E.D. Tex. Oct. 19,
`2012)..........................................................................................................................................1
`
`Versa Corp. v. Ag-Bag Int’l Ltd.,
`392 F.3d 1325 (Fed. Cir. 2004) ...............................................................................................23
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) ...................................................................................................4
`
`Welker Bearing Co. v. PHD, Inc.,
`550 F.3d 1090 (Fed. Cir. 2008) ...............................................................................................20
`
`Other Authorities
`
`76 Fed. Reg. 7167 (Feb. 9, 2011) ..................................................................................................20
`
`Merriam Webster’s Collegiate Dictionary (10th ed. 1996) ............................................................5
`
`iii
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`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 5 of 36 PageID #: 4070
`
`I.
`
`INVENSYS’S PROPOSED CONSTRUCTIONS ARE WRONG
`
`A.
`
`“Configured to” and “operable to” and variants thereof
`
`Invensys admits that “configured to” and “operable to” have no special meaning in the
`
`art. Thus, the “plain and ordinary meaning” of these claim terms would conceivably cover every
`
`structure capable of performing the recited functions, even those not enabled by the patents or
`
`contemplated by the inventors. As Micro Motion explained in its letter briefs regarding
`
`indefiniteness (Dkt. Nos. 121-1 & 135-1), these claim terms are indefinite because they are
`
`means-plus-function limitations without sufficiently-identified corresponding structure, or, to the
`
`extent the limitations are not construed as means-plus-function, they are invalid under
`
`Halliburton Oil Well Cementing Co. v. Walker, 329 U.S. 1 (1946), because they use purely
`
`functional language without complying with § 112(f) or its predecessor, § 112(6).
`
`If not indefinite, then “configured to” and “operable to” should be construed to mean
`
`“configured to or operable to (as the case may be) perform the recited function under the
`
`conditions of use for which it was intended.” This Court has previously acknowledged that the
`
`plain language of the claim term “configured to” requires “not merely being capable of being
`
`configured but rather being actually configured.” Sipco, LLC v. Amazon.com, Inc., No. 2:08-
`
`CV-359-JRG, 2012 U.S. Dist. LEXIS 150940, at *147 (E.D. Tex. Oct. 19, 2012) (emphasis
`
`added). As in Sipco, the jury here should be informed that “configured to” and “operable to” are
`
`not words of mere theoretical capability, but rather they require that the device be programmed
`
`so that it will perform the specific function in the manner specified by the patent. Only Micro
`
`Motion’s proposed construction would serve this purpose.
`
`B.
`
`Control Terms
`
`1.
`
`Transition Terms
`
`a.
`
`“Determine the flow rate” and variants thereof
`
`1
`
`

`
`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 6 of 36 PageID #: 4071
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`Invensys contends that the claim element “determine the flow rate during a transition
`
`from substantially empty to substantially full” (and variants) should be construed according to its
`
`“plain and ordinary meaning.” However, Invensys’s brief itself shows that its supposed “plain
`
`and ordinary meaning” renders the claim scope fatally indefinite. Micro Motion1 contends that
`
`the claim language means exactly what it says – the flowmeter must determine the flow rate (not
`
`an estimate of the flow rate), and it must do so throughout the transition from empty to full (not
`
`merely during some portion of the transition).
`
`Invensys’s brief attempts to rebut Micro Motion’s position with the following argument:
`
`(1) both the patented flowmeter and the particular prior art flowmeter described in the patent
`
`made measurements of the flow rate (Br. at 11 (describing experiment set forth in patent)); (2)
`
`the patented flowmeter has “significantly greater accuracy than prior art analog flowmeters”
`
`(id.); but (3) the patented flowmeter “still has an error rate greater than zero.” (Id. at 12) Thus,
`
`Invensys argues, while both the patented flowmeter and the prior art analog flowmeter
`
`“determined the flow rate,” neither did so with 100% accuracy. From this, Invensys argues that
`
`“determine the flow rate” cannot mean to determine the flow rate with 100% accuracy.
`
`But nothing in the discussion in the ’646 patent on which Invensys relies (’646 patent at
`
`51:38-52:11) equates the terms “measuring approximately” with “determining,” and Invensys’s
`
`argument does nothing to clarify the “plain and ordinary meaning” of “determining the flow
`
`rate.” “Determine the flow rate” cannot mean simply “determine an approximate value of the
`
`flow rate” – as Invensys appears to suggest – for Invensys readily admits that both the patented
`
`flowmeter and the prior art flowmeter did that. Invensys suggests in its letter brief opposing
`
`Micro Motion’s request regarding indefiniteness (Dkt. No. 131-1) that there is no requirement
`
`that a particular claim element distinguish over the prior art. (Id. at 3-4.) While that is certainly
`
`1 Micro Motion, Inc. and Emerson Electric Co., jointly.
`
`2
`
`

`
`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 7 of 36 PageID #: 4072
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`true as a general statement, it has no applicability here. First, the patent itself makes it clear that
`
`both the prior art flow meter and the patented flowmeter produced an approximate value of the
`
`flow rate. (’646 patent, Fig. 44.) Indeed, Invensys expressly argued, in responding to Micro
`
`Motion’s petition for inter partes review of this patent, that “it is plainly unreasonable to interpret
`
`the claims of the patent so broadly as to cover the very technology it criticizes and upon which it
`
`explicitly suggests improvement.” (See Ex. A (’646 Preliminary IPR Response) at 11-12.) But
`
`second, and more important, the remaining elements of the ’646 claims are standard features of
`
`every flowmeter. For example, the “traditional analog flowmeter” described in the ’646 patent at
`
`10:31-11:41 contains every element except the allegedly superior ability to determine flow rate.2
`
`Thus, the only possible basis to distinguish the claimed invention from the prior art is the
`
`“determining the flow rate” element.
`
`Likewise, the claim term cannot mean “determine the flow rate better than the prior art,”
`
`because there is no basis for determining where to draw that line. Indeed, as Invensys’s brief
`
`points out, the level of error (at least in the test described in the patent) varies depending on the
`
`flow rate, among other factors. (Br. at 12, n.7 (citing ’646 patent, at 52:6-11).)3 And the ’646
`
`patent itself admits that the accuracy of the tested prior art flowmeter at high flow rates (0.15%)
`
`is better than the accuracy of the patented flowmeter at low flow rates (0.25%). (Id.)
`
`Nor can it mean “determine the flowrate using a flowmeter with a digital drive.” Though
`
`Invensys attaches great importance to the digital nature of the claimed invention of the ’646
`
`
`2 Invensys concedes that the analog flowmeter described in the specification and shown in Fig. 4 is “admitted prior
`art.” See Ex. B (’854 Preliminary IPR Response) at 13-14; see also Ex. A (’646 Preliminary IPR Response) at 28
`(distinguishing prior art based solely on the “determining” limitation).
`3 In addition, the ’646 patent only shows tests of a single prior art flowmeter, not identified by name. There is no
`basis for concluding the disclosed flowmeter is better than every prior art flowmeter, and, if so, how much better.
`
`3
`
`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 8 of 36 PageID #: 4073
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`patent, the claims of the ’646 patent say nothing whatsoever about digital components, much less
`
`a “digital drive.” There is thus no basis for limiting the ’646 claims to a digital system.4
`
`In short, Invensys’s apparent construction is hopelessly vague – there is no way to
`
`determine, under Invensys’s construction, when a flowmeter is covered by the claims and when
`
`it is not. If the Invensys construction is adopted, then the claims are invalid as indefinite.
`
`The only unambiguous construction of “determine the flow rate” is the construction
`
`offered by Micro Motion – i.e., “ascertain exactly the actual flow rate of the flowing liquid.”
`
`Micro Motion acknowledges that there is one embodiment in the specification that does not meet
`
`this claim language under one specific set of test conditions, because, under those specific test
`
`conditions, it did not ascertain the flow rate exactly. But this does not mean that that would hold
`
`true under all test conditions. And even if that were shown, while a construction that excludes a
`
`preferred embodiment is “rarely, if ever correct,” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
`
`1576, 1583 (Fed. Cir. 1996), the Federal Circuit has approved such constructions where the
`
`intrinsic evidence compelled it. E.g., Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214
`
`F.3d 1302 (Fed. Cir. 2000). In addition, when there is genuine ambiguity in the meaning of a
`
`term, it should be construed to preserve the validity of the patent. Phillips, v. AWH Corp., 415
`
`F.3d 1303, 1327 (Fed. Cir. 2005). Here, the only construction that does not render the claim
`
`invalid is the construction proposed by Micro Motion. That construction should be adopted.
`
`b.
`
`“During a transition” and “during an onset”
`
`Invensys does not offer any argument relating to the term “during a transition,” although
`
`it was raised by Micro Motion as part of the joint claim construction statement. The dispute
`
`regarding this term is whether “during a transition” from substantially empty to substantially full
`
`
`4 When Invensys wanted to claim a digital system, it knew how to do so. For example, claim 1 of the ’761 patent
`contains no “digital” language, while dependent claim 4 recites that the control system is a “digital control system.”
`
`4
`
`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 9 of 36 PageID #: 4074
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`means “at any point during the transition” (which appears to be Invensys’s construction) or
`
`whether it means “throughout the transition.”
`
`If Invensys’s apparent construction (“at any point during a transition”) were adopted, that
`
`construction would be inconsistent with the patents’ specifications. Both the ’761 patent and the
`
`’906 patent claim maintaining oscillation of the flowtube “during a transition” from substantially
`
`full to substantially empty. Both patents include and discuss Figures 40A through 40H which
`
`compare the performance of the meter described in those patents to a prior art Foxboro Coriolis
`
`flowmeter. Each of those figures shows what is described as “bar 4000” which is labeled “stall
`
`point of Foxboro’s analogue transmitter” and which the patents describe as showing that
`
`“traditional analogue meters tend to stall in the presence of low levels of aeration.” (’761 patent
`
`at 48:55-57.) But those same figures show that the prior art “traditional analogue flowmeter” was
`
`able to keep oscillating for some period of time while the flowtube was transitioning from full to
`
`empty. Thus, Invensys’s construction of “maintains oscillation during a transition” would not
`
`distinguish the claimed invention of over the admitted prior art. The term “during” should be
`
`construed consistent with its dictionary definition of “throughout the duration of,” and the phrase
`
`“during a transition,” therefore, should be construed to mean “throughout a transition.” (Ex. C
`
`(Merriam Webster’s Collegiate Dictionary, 360, (10th ed. 1996)).)
`
`The Court should also construe “during an onset” in claim 5 of the ’761 patent in
`
`accordance with Micro Motion’s proposal to mean “from the point in time the flowtube is
`
`substantially empty of liquid until the flowtube is no longer substantially empty of liquid.” This
`
`is supported by the claim language itself. The claim first calls for oscillating the tube when it is
`
`substantially empty. Then, the claim requires maintaining oscillation “during an onset of liquid
`
`fluid flow,” which necessarily means the tube must no longer be “substantially empty.” In
`
`5
`
`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 10 of 36 PageID #: 4075
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`addition, dependent claim 8 recites that “maintaining oscillation . . . during an onset” includes
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`“maintaining oscillation of the flowtube when the flowtube is substantially filled.” This
`
`confirms that “during an onset” extends to the period when the tube is no longer substantially
`
`empty of fluid. Invensys makes the absurd argument that Micro Motion’s construction would
`
`“require an infringing flowtube to begin oscillating during fabrication,” but that is not a
`
`reasonable reading of Micro Motion’s proposed construction. (Br. at 15-16.)
`
`c.
`
`“Maintains oscillation during a transition” and variants
`
`Invensys’s “plain and ordinary meaning” proposed construction of the claim term
`
`“maintains oscillation” and its variants fails for the same reasons that applied to the term
`
`“determine the flow rate.” See supra at 2-5. As described in the ’761 patent, aeration can cause
`
`the “damping” in the flowtube, thereby reducing the amplitude of oscillation of the flowtube.
`
`The ’761 patent claims that it performs better during aeration – and, in particular, when the
`
`flowtube transitions from substantially empty to substantially full – than “traditional”
`
`flowmeters. But the claims do not recite this alleged improvement. Instead, just as with the term
`
`“determine the flow rate,” the specification shows that both the prior art analog flowmeter and
`
`the claimed flowmeter “maintained oscillation” during the transition of the flowmeter from
`
`substantially empty to substantially full.
`
`The patents describe a test that compares the flowmeter of the claimed invention with a
`
`prior art “traditional analog flowmeter” (which is again not identified). (’761 patent at 51:48-
`
`52:21.) This test showed that both the prior art “traditional” meter and the disclosed meter
`
`produced results during the transition of the flowtube from substantially empty to substantially
`
`full. (’761 patent at 52:3-21 (describing results of test); see also Ex. D (Micro Motion tutorial
`
`excerpt).) The fact that both meters produced results shows that both must have been oscillating
`
`during at least a portion of this transition. Thus, Invensys’s proposed “ordinary meaning” of
`
`6
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`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 11 of 36 PageID #: 4076
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`“during” and “maintains oscillation” would be broad enough to cover both the traditional analog
`
`flowmeter and the claimed flowmeter, even though the whole point of the described test is to
`
`show the difference between the claimed invention and the prior art.
`
`This is confirmed by testing that was performed independently by Micro Motion’s expert,
`
`Dr. Harry Direen. (Ex. E (Direen Decl.).) Dr. Direen tested a prior art analog Micro Motion
`
`Model 9739 flowmeter while the flowtube transitioned from substantially empty to substantially
`
`full. (Id. ¶¶ 8-12; see also Ex. F (CD-R containing video of Dr. Direen’s testing).) Dr. Direen’s
`
`testing showed – consistent with the results in the ’761 patent – that the “traditional analog”
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`Micro Motion 9739 flowmeter oscillated continuously throughout the transition of the flowtube
`
`from substantially empty to substantially full. (Ex. E ¶ 11.) Certainly, the magnitude of the
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`oscillation diminished at times during the transition, but the important point is that the flowtube
`
`continued to oscillate – i.e., “maintained oscillation” – during the transition.
`
`The meaning of “maintained oscillation” cannot therefore simply be to keep the
`
`flowtubes oscillating. Just as with the “determine the flowrate” limitation, Invensys admitted the
`
`force of Micro Motion’s argument in the inter partes review proceeding. In Invensys’s
`
`preliminary response, Invensys referred to this testing and argued that “it is plainly unreasonable
`
`to interpret the claims of the patent so broadly as to cover the very technology it criticizes and
`
`upon which it explicitly suggests improvement.” (See Ex. G (’761 Preliminary IPR Response) at
`
`11-12.) For that reason, Invensys argued that the “broadest reasonable interpretation” of this
`
`limitation must “require the maintaining an oscillation that produces a mass flow rate useful to
`
`measure the actual flow rate of the liquid during the transition.” (Id. at 12 (emphasis added).)
`
`The language proposed by Invensys in the IPR is not supported anywhere in the patent. In
`
`addition, as noted above, there is no basis in the patent for drawing a line between the accuracy
`
`7
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`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 12 of 36 PageID #: 4077
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`of the mass flow rate generated by the prior art analog flowmeter and the patented flowmeter.
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`According to the testing in the patent, both produce results with accuracies within 0.15%.
`
`In fact, the patent describes what it means by “maintaining oscillation.” In each of the
`
`nine occasions where the ’761 patent specification uses the words “maintain . . . oscillation,” it
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`describes maintaining oscillation at a “desired, “user controlled,” “fixed,” “constant,” or
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`“certain” amplitude, not merely as keeping the flowtube vibrating at any amplitude. (See ’761
`
`patent at 2:42-47; 5:15-20; 7:11-18; 37:45-49; 39:30-32; 48:63-64; 50:2-8; 50:15-24; and 51:26-
`
`27.) The claimed invention actively adjusts the desired magnitude of oscillation using a
`
`“setpoint” procedure, which supposedly allows the disclosed meter to perform better than
`
`traditional analog flowmeters. The setpoint procedure is shown in Fig. 42 and described in the
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`’761 patent at 50:1-51:19. That procedure selects “the highest sustainable setpoint given a
`
`maximum available current level” in circumstances where the optimum current value is not
`
`available. (’761 patent at 50:29-32). In normal operation, the controller uses feedback to adjust
`
`the drive current to attempt to maintain the magnitude of oscillation, as measured by the pickoff
`
`sensors, at a fixed level, say 0.3 V sensor signal amplitude. (Id. at 50:36-44.)
`
`If the magnitude of oscillation begins to decline, the drive current will be increased to
`
`increase oscillation magnitude and maintain the sensor signal amplitude at the 0.3 V setpoint.
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`However, if the magnitude of oscillation has been damped as a result of gas in the flowtube, then
`
`increasing the drive current may not be sufficient to maintain the magnitude of oscillation such
`
`that sensor signal amplitude is maintained at the desired 0.3 V. Under such circumstances (when
`
`the drive current approaches a max threshold), the setpoint adjustment procedure will reduce the
`
`desired sensor signal amplitude from 0.3 V to some lower value, say 0.26 V, which the
`
`flowmeter can maintain without the drive current approaching the maximum threshold. Thus,
`
`8
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`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 13 of 36 PageID #: 4078
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`the ’761 patent maintains oscillation during the transition from empty to full by modifying the
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`drive signal to attempt to maintain the magnitude of oscillation such that sensor signal amplitude
`
`is maintained at desired setpoints.
`
`The only way to construe the claim to be valid is to limit it to what Invensys allegedly
`
`invented – maintaining the amplitude of oscillation at one or more setpoints set by the controller.
`
`d.
`
`“In response to detecting a system disturbance” and variants
`thereof
`
`Contrary to Invensys’s brief, Micro Motion does not agree with Invensys’s construction
`
`of “detecting a system disturbance.” Rather, Micro Motion’s position is that “detecting a system
`
`disturbance” is fatally indefinite. “System disturbance” does not have an ordinary meaning to
`
`one of skill in the art, and the specification of the ’854 patent does not provide a clear definition.
`
`Invensys’s construction – “detecting an undesirable change in flowtube oscillation” –
`
`does not help. First, it is subject to the same problems as the language in the specification: it is
`
`unclear what constitutes “an undesirable change in flowtube oscillation.” Second, it is not
`
`supported by the language in the specification. Contrary to Invensys’s argument, the
`
`specification does not say that two-phase flow is a system disturbance. Rather, the specification
`
`says that two-phase flow is merely one of three examples of instances in which different modes
`
`may be used during operation of the flowmeter:
`
`Although the techniques just described are useful in start-up of the
`flowtube 215, it should be clear from the flow diagram 1600 of
`FIG. 16 that similar techniques may be used during an operation of
`the flowmeter as well. For example, during a time when the
`flowmeter is in full operation (i.e., synthesis mode) (1610), some
`difficulty may arise which causes the flowmeter (measurements) to
`become unstable.
`
`For example, there may be some external disturbance to the
`system, or there may be some unanticipated object/material that
`flows through the flowtube. As another example, conditions such
`as two-phase flow and/or three-phase flow, particularly if initiated
`
`9
`
`

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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 14 of 36 PageID #: 4079
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`quickly or unexpectedly, might degrade or interrupt an operation of
`the flowmeter.
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`(’854 patent at 29:12-24.) This passage begins by saying that, even though much of the
`
`specification describes start up, similar techniques may also be used during operation. Then, the
`
`passage identifies three examples: (1) where the flowmeter measurements become unstable; (2)
`
`where there is some external disturbance or some unanticipated object/material; and (3) during
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`two-phase and/or three-phase flow. Of these three examples, only the second makes reference to
`
`a “disturbance.” Thus, to the extent the term “system disturbance” is amenable to construction, it
`
`must relate to the embodiment described in example 2 – where there is “some external
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`disturbance to the system, or . . . some unanticipated object/material that flows through the
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`flowtube.” Thus, the controller must be capable of detecting that such a condition has occurred
`
`and must transition modes based on this detection.
`
`2.
`
`Drive Control Terms
`
`a.
`
`“In response to the extent to which the flowtube is filled by the
`fluid flow”
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`Invensys first describes “in response to the extent to which the flowtube is filled by the
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`fluid flow” as having both plain and ordinary meaning, and then contradictorily as having no
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`meaning at all. Invensys then cites to irrelevant portions of the specification for support that the
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`phrase has no meaning. Thus, instead of assisting in the understanding of claim 6, Invensys adds
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`confusion. Micro Motion’s construction aids in understanding claim 6 and should be adopted.
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`Invensys first states that the construction of “in response to the extent to which the
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`flowtube is filled by the fluid flow” should be “plain and ordinary meaning.” However, it is far
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`from having a plain and ordinary meaning. For example, what is the “extent”? How is the
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`“extent” determined? How is it determined when to make a “response”? Invensys fails to cite to
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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 15 of 36 PageID #: 4080
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`any portion of the ’906 patent that provides guidance on interpreting the phrase, and it is
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`therefore clear that “plain and ordinary meaning” cannot be the proper interpretation.
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`Failing to support a construction of plain and ordinary meaning, Invensys then provides a
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`contradictory interpretation that leaves the term under construction with no meaning. The claim
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`limitation that is the subject of the construction is recited in context in claim 6 as “adjusting the
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`drive gain to maintain oscillation of the flowtube in response to an extent to which the flowtube
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`is filled by the fluid flow.” Thus, the plain language of this limitation requires more than simply
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`determining “yes or no” whether the flowtube is filled with liquid, but rather requires
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`determining “the extent to which” (e.g., 80%? 99%? 32%?) the flowtube is filled with liquid.
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`Invensys states that “all that is required is a sufficient adjustment of the drive gain to maintain
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`oscillation,” but this statement strips the entire “in response to an extent to which the flowtube is
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`filled” clause of any meaning at all. An interpretation that effectively deletes an entire clause of
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`the claim cannot possibly be correct.
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`Moreover, the citations to the ’906 patent relied on by Invensys are not relevant to its
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`argument. Invensys cites column 54, lines 34-36, but that is simply the very claim language at
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`issue and does not shed any light on the proper construction. Invensys also cites to a section of
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`the ’906 patent discussing aeration, including how mass flow rate may be corrected when
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`aeration is detected and how a stall may occur due to aeration. (’906 patent, 46:20-31, 52-64.)
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`Neither correction of mass flow rate nor a discussion of conditions leading to stall provides
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`support for the statement that “all that is required is a sufficient adjustment of the drive gain to
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`maintain oscillation.”
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`Indeed, Invensys’s interpretation is belied by claim 6 itself. The phrase “in response to”
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`clearly invokes a cause and effect relationship between a determination (of “an extent to which
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`Case 6:12-cv-00799-JRG Document 137 Filed 04/07/14 Page 16 of 36 PageID #: 4081
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`the flowtube is filled by the fluid flow”) and a corresponding response (“adjusting the drive
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`gain”). This determination-response relationship is captured by Micro Motion’s construction of
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`“ascertaining the extent to which the flowtube is filled by fluid flow, and, if a change in that
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`extent is ascertained, adjusting the drive gain to maintain oscillation as required by claim 5.”
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`b.
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`“Second drive signal is different from the first drive signal”
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`The issue here is what the word “different from” means. Micro Motion’s contention is
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`that it means a different type or “mode” of signal. Invensys appears to construe the term to mean
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`different in any respect. The intrinsic record supports Micro Motion’s position.
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`Invensys cites to a two-sentence paragraph in the ’062 patent for its only support that
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`different drive modes are not necessary for claims 40 and 45. However, this citation is not
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`relevant to the claims at issue, but relates to an embodiment that uses drive signals for two
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`drivers. The cited paragraph in its entirety is: “The control and measurement system may
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`generate different drive signals for the two drivers. The drive signals may have, for example,
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`different frequencies or amplitudes.” (’062 patent at 3:27-29, emphasis added.) The “drive
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`signals” of the second sentence describe the drive signals of the first sentence in this two-
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`sentence paragraph, and the drive signals are for two