Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 1 of 24 PageID #: 4138
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`C.A. No. 6:12-cv-799-LED
`
`JURY TRIAL DEMANDED
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`INVENSYS SYSTEMS, INC.,
`
`v.
`
`Plaintiff,
`
`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
`
`and
`
`Defendants.
`
`MICRO MOTION INC., USA,
`
`v.
`
`Counterclaim-Plaintiff,
`
`INVENSYS SYSTEMS, INC.,
`
`Counterclaim-Defendant.
`
`PLAINTIFF’S RESPONSE TO OPENING CLAIM
`CONSTRUCTION BRIEF OF MICRO MOTION, INC.
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 2 of 24 PageID #: 4139
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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES .......................................................................................................... ii
`
`I.
`
`RESPONSE TO MICRO MOTION’S PROPOSED CONSTRUCTIONS FOR
`THE ’131 PATENT .............................................................................................................1
`
`A.
`
`B.
`
`C.
`
`Terms for Which Plain and Ordinary Meaning Is Insufficient................................1
`
`Frequency Calculation Terms..................................................................................4
`
`“Calculating dot products of said normalized pulsation and said signals
`from said first pick-off sensor and said second pick-off sensor to translate
`said signals to said center frequency”....................................................................10
`
`II.
`
`RESPONSE TO MICRO MOTION’S PROPOSED CONSTRUCTIONS FOR
`THE ’190 PATENT ...........................................................................................................11
`
`A.
`
`B.
`
`“Enhanced value[s]” ..............................................................................................11
`
`Means-Plus-Function Terms in the ’190 Patent.....................................................12
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 3 of 24 PageID #: 4140
`
`TABLE OF AUTHORITIES
`
`Cases
`AIA Eng’g Ltd. v. Magotteaux Int’l S/A,
`657 F.3d 1264 (Fed. Cir. 2011)........................................................................................... 7
`
`Allen Engineering Corp. v. Bartell Industries, Inc.,
`299 F.3d 1336 (Fed. Cir. 2002)..................................................................................... 4, 10
`
`Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech.,
`521 F.3d 1328 (Fed. Cir. 2008)......................................................................................... 18
`
`B. Braun Med., Inc. v. Abbott Labs.,
`124 F.3d 1419 (Fed. Cir. 1997)......................................................................................... 13
`
`Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc.,
`214 F.3d 1302 (Fed. Cir. 2000)......................................................................................... 11
`
`Inventio AG v. ThyssenKrupp Elevator Ams. Corp.,
`649 F.3d 1350 (Fed. Cir. 2011)........................................................................................... 7
`
`Laitram Corp. v. Rexnord, Inc.,
`939 F.2d 1533 (Fed. Cir. 1991)......................................................................................... 15
`
`Linear Group Servs., LLC v. Attica Automation, Inc.,
`No. 13-10108, 2014 WL 555184 (E.D. Mich. Feb. 12, 2014)............................................ 3
`
`Marine Polymer Techs., Inc. v. HemCon, Inc.,
`672 F.3d 1350 (Fed. Cir. 2012)......................................................................................... 15
`
`Med. Instrumentation & Diagnostics Corp. v. Elekta AB,
`344 F.3d 1205 (Fed. Cir. 2003)................................................................................... 13, 16
`
`Mettler-Toledo, Inc. v. B-Tek Scales, LLC,
`671 F.3d 1291 (Fed. Cir. 2012)................................................................................... 14, 16
`
`Noah Sys., Inc. v. Intuit, Inc.,
`675 F.3d 1302 (Fed. Cir. 2012)......................................................................................... 17
`
`O.I. Corp. v. TekMar Co.,
`115 F.3d 1576 (Fed. Cir. 1997)......................................................................................... 16
`
`O2 Micro Int’l, Inc. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2003)........................................................................................... 3
`
`SurfCast, Inc. v. Microsoft Corp.,
`No. 2:12-cv-333-JAW, 2014 WL 1057172 (D. Me. Mar. 14, 2014)................................. 3
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 4 of 24 PageID #: 4141
`
`Unique Concepts, Inc. v. Brown,
`939 F.2d 1558 (Fed. Cir. 1991)......................................................................................... 11
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)......................................................................................... 6, 7
`
`Other
`Douglas Downing, DICTIONARY OF MATHEMATICS TERMS 103-04 (3d ed. 2009)......................... 2
`
`Eric W. Weisstein, THE CRC CONCISE ENCYCLOPEDIA OF MATHEMATICS 489 (1998) ................. 2
`
`Wikipedia, Dot Product.................................................................................................................. 2
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 5 of 24 PageID #: 4142
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`The parties essentially agree on the proper construction of many of the terms in U.S.
`
`Patent No. 6,505,131 B1 (the “ ’131 patent”) and only dispute whether technical terms of art
`
`should be explained to the jury, although Defendant Micro Motion U.S.A., Inc. (“Micro
`
`Motion”) does seek to rewrite, not construe, at least one important claim limitation. As to U.S.
`
`Patent No. 5,555,190 (the “ ’190 patent”), Micro Motion consistently seeks to expand means-
`
`plus-function limitations beyond the structures disclosed in the specification, contrary to well-
`
`established precedent. In contrast, the constructions put forward by Plaintiff Invensys Systems,
`
`Inc. (“Invensys”) will assist
`
`the jury and are consistent with settled principles of claim
`
`construction. Accordingly, the Court should adopt Invensys’s constructions and hold that many
`
`of the claims in Micro Motion’s patents are indefinite under § 112(b).
`
`I.
`
`Response to Micro Motion’s Proposed Constructions for the ’131 Patent
`
`A.
`
`Terms for Which Plain and Ordinary Meaning Is Insufficient
`
`1.
`
`“Calculating dot products”
`
`Claim Term
`
`“calculating dot
`products”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Micro Motion’s
`Proposed
`Construction
`no need to separately
`construe; plain and
`ordinary meaning
`
`Invensys’ Proposed
`Construction
`
`calculating a single
`number from two
`equal-length
`sequences of numbers
`by multiplying the
`corresponding
`components in each
`sequence and adding
`together the results
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 6 of 24 PageID #: 4143
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`Invensys’s construction of “dot product” is simply the generic dictionary definition,
`
`which Micro Motion’s “plain and ordinary meaning” construction implicitly acknowledges is
`
`appropriate. A dot product is expressed by the formula:1
`
`X · Y = x1y2 + . . . + xnyn
`
`That is, each number in set X is multiplied by the number in the corresponding position in set Y,
`
`and the product of each of those calculations is added together.
`
`Micro Motion’s objections to Invensys’s definition are baseless. Invensys’s construction
`
`does not attempt to limit the dot product calculation to a “specific series” or a “specific
`
`sequence” as Micro Motion contends. Def.’s Opening Claim Constr. Br. at 13. To the contrary,
`
`Invensys’s construction merely requires “two equal
`
`length series of numbers,” without
`
`specifying the content of those sequences.2 See 2d Rodriguez Decl. ¶ 23 (Ex. D).
`
`Nor does Invensys dispute that the sequence of numbers in X and Y can be represented
`
`by expressions instead of specific numerical values. In fact, the formula Micro Motion provides
`
`yβ=WkXβ(k)=(Ab/2){cos((ω+ωd)k+Φ)+cos((ω-ωd)k+Φ)}
`
`is an example of a dot product (of W and X) where the components of the sequences W and X
`
`are expressed as functions of k (the sequence index). See ’131 pat. 9:26-30.
`
`Importantly,
`
`however, as discussed below this is not the dot product required by the independent claims of the
`
`’131 patent. See infra Part I.A.2.
`
`1 See, e.g., Eric W. Weisstein, THE CRC CONCISE ENCYCLOPEDIA OF MATHEMATICS 489 (1998)
`(Ex. A); Douglas Downing, DICTIONARY OF MATHEMATICS TERMS 103-04 (3d ed. 2009) (Ex.
`B); Wikipedia, Dot Product (Ex. C).
`2 Other limitations in the claims do specify the required inputs into the dot product calculation,
`See ’131 Pat. 11:36-39 (reciting in claim 1 “calculating dot products of said
`however.
`normalized pulsation and said signals from said first pick-off sensor and said second pick-off
`sensor” (emphasis added)).
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 7 of 24 PageID #: 4144
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`In addition, although “dot product” has an accepted meaning, most jurors will probably
`
`not have encountered dot products since they were in school (if then). Even though a technical
`
`term may be well known to skilled artisans, it should be construed if lay jurors would not
`
`normally be familiar with it. See SurfCast, Inc. v. Microsoft Corp., No. 2:12-cv-333-JAW, 2014
`
`WL 1057172, at *1 (D. Me. Mar. 14, 2014) (“The purpose of claim construction is to assist the
`
`finder of fact in evaluating claims of infringement.”); Linear Group Servs., LLC v. Attica
`
`Automation, Inc., No. 13-10108, 2014 WL 555184, at *7 (E.D. Mich. Feb. 12, 2014) (“The
`
`purpose of claim construction is to help the jury understand the meaning and scope of the claims
`
`as written.”).3
`
`2.
`
`“Demodulating . . . to a center frequency”
`
`Claim Term
`
`“demodulating . . . to a
`center frequency”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Invensys’ Proposed
`Construction
`
`indefinite as insolubly
`ambiguous
`
`Micro Motion’s
`Proposed
`Construction
`no need to separately
`construe; plain and
`ordinary meaning
`
`As set forth in detail in Invensys’s letter brief on indefiniteness, ECF No. 123-1, at 2-5,
`
`and its reply brief, ECF No. 136-1, at 2-3, the “demodulating . . . to a center frequency”
`
`limitation in all the independent claims of the ’131 patent is insolubly ambiguous.
`
`In sum, the
`
`demodulation required by the claims requires calculating a dot product, but one of the claimed
`
`inputs into the dot product (i.e., the normalized pulsation) is a single number, not a sequence of
`
`3 Moreover, to the extent the parties’ disagreement over the term “dot product” reflects differing
`understandings of the plain and ordinary meaning of this term, the Court should construe it.
`See O2 Micro Int’l, Inc. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008)
`(“A determination that a claim term ‘needs no construction’ or has the ‘plain and ordinary
`meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning or when
`reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”).
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 8 of 24 PageID #: 4145
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`numbers. See 2d Rodriguez Decl. ¶ 25 (Ex. D). This makes it mathematically impossible to
`
`perform the required calculation. See id. ¶ 28.
`
`Micro Motion’s only response is that “a dot product is calculated on the sequence of
`
`numbers represented by Wk and Xβ(k)” where “Wk is given as Wk=cos(ωdk).” Def.’s Ltr. Br. on
`
`Indefiniteness at 4, ECF No. 132-1. Wk and the formula Wk=cos(ωdk) are expressly defined as
`
`the “twiddle factor,” which is not the same as the “normalized pulsation” (defined as the
`
`equation ωd=2Π(12Fd)/Fs).
`
`’131 Pat. 9:5-9, 9:15-18. The claims of the ’131 patent require
`
`calculating the dot product of the sensor signals and the normalized pulsation, not the sensor
`
`signals and the twiddle factor. Thus, “the invention set forth in [the] claim[s] is not what the
`
`patentee regarded as his invention” as disclosed in the specification, rendering those claims
`
`indefinite. Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1349 (Fed. Cir. 2002).
`
`In addition, even if it were somehow possible to take a dot product of a single number,
`
`the result of that calculation could not be used to translate the sensor signals to a center
`
`frequency. Although Micro Motion argues that quadrature demodulation is used to determine
`
`the phase difference of the sensor signals, see Def.’s Ltr. Br. on Indefiniteness at 3, ECF No.
`
`132-1, because dependent claim 12 specifically covers calculating the phase difference,
`
`determining the phase difference cannot be the same thing as translating to a center frequency.
`
`See ’131 Pat. 12:37-39.
`
`Because it would be mathematically impossible for skilled artisans to perform the steps
`
`required to “demodulat[e] to a center frequency,” that term is indefinite. For the same reason,
`
`this phrase does not have a plain and ordinary meaning.
`
`B.
`
`Frequency Calculation Terms
`
`1.
`
`“Calculating a normalized frequency”
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 9 of 24 PageID #: 4146
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`Claim Term
`
`“calculating a normalized
`frequency”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Invensys’ Proposed
`Construction
`
`dividing the
`determined frequency
`by the desired
`sampling rate
`
`Micro Motion’s
`Proposed
`Construction
`normalizing the
`determined frequency
`using desired sample
`rate
`
`The parties agree that a normalized frequency is calculated using the determined
`
`frequency and the desired sampling rate.
`
`Invensys’s construction of “calculating a normalized
`
`frequency” explains how this calculation is ordinarily done. That
`
`is, a digital signal
`
`is
`
`represented as a sequence of numbers without any explicit notion of time. Thus, two identical
`
`sequences may actually represent different signals because the sample frequency is different.
`
`The digital signal processor must scale, or normalize, the frequencies so that the sampling
`
`frequency is equal to one. This is accomplished by dividing the determined frequency by the
`
`desired sampling rate.4
`
`In contrast,
`
`instead of explaining how the normalized frequency is calculated, Micro
`
`Motion’s proposed definition simply requires the “normalized frequency” to be “normalized.”
`
`This circular definition fails to add any useful information and will not assist the jury.
`
`Micro Motion’s only argument in support of its tautologous construction is that the ’131
`
`patent’s specification discloses two other equations that are supposedly used to calculate the
`
`normalized frequency. This is incorrect. The first equation Micro Motion cites
`
`ωd=2Π(12Fd)/Fs
`
`divides the determined frequency by the desired sampling rate (as set forth in Invensys’s
`
`construction). But the ’131 patent expressly states that that this formula is used to calculate the
`
`4 For example, at a sampling frequency of 1000Hz, a frequency of 400Hz would be expressed as
`0.4 (0.4 = 400Hz/1000Hz).
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 10 of 24 PageID #: 4147
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`“normalized pulsation,” not the “normalized frequency.” See ’131 Pat. 9:6-12 (“Process 700
`
`begins in step 701 by calculating a normalized pulsation, which is expressed in the following
`
`equation: ωd=2Π(12Fd)/Fs where: ωd=the normalized pulsation .
`
`.
`
`.
`
`.” (emphasis added)).
`
`“Normalized pulsation” and “normalized frequency” are distinct claim terms. See id. at 11:34-35
`
`(reciting in claim 1 “calculating a normalized pulsation of said normalized frequency of said
`
`signals” (emphasis added)).
`
`The second equation Micro Motion cites
`
`Fo=(1/2Π) arc cos(-a1/2)
`
`is not covered by Micro Motion’s own construction of “normalized frequency” because it does
`
`not use the determined frequency or the desired sampling rate. The only variable in this equation
`
`is a1, which is the “current adapted value of the notch filter parameter,” not the determined
`
`frequency or the desired sample rate.5 Id. at 10:21. Because a claim construction that does not
`
`cover the embodiments disclosed in the specification is “rarely, if ever, correct,” Micro Motion
`
`appears to tacitly concede that this equation is not used to calculate a normalized frequency
`
`(despite the specifications statements to the contrary). Vitronics Corp. v. Conceptronic, Inc., 90
`
`F.3d 1576, 1583 (Fed. Cir. 1996).
`
`Alternatively, the Court should construe “normalized frequency” as the equation:
`
`Fo=(1/2Π) arc cos(-a1/2)
`
`The ’131 patent expressly defines this equation as the “normalized frequency” and that definition
`
`is inconsistent with the way skilled artisans would ordinarily use this term, demonstrating that
`
`5 The process for calculating the adapted notch filter parameter is not based on the determined
`frequency or the desired sample rate. See id. at 9:47-10:10 (explaining how to determine the
`adapted notch filter parameter).
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 11 of 24 PageID #: 4148
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`the inventor chose to act as his own lexicographer.6 See ’131 Pat. 10:11-20; see also AIA Eng’g
`
`Ltd. v. Magotteaux Int’l S/A, 657 F.3d 1264, 1278-79 (Fed. Cir. 2011) (holding that when the
`
`inventor uses a term in a manner that is inconsistent with its ordinary meaning he has acted as his
`
`own lexicographer); Inventio AG v. ThyssenKrupp Elevator Ams. Corp., 649 F.3d 1350, 1356-57
`
`(Fed. Cir. 2011) (“[W]e allow an inventor to provide, in the written description, express
`
`definitions for terms that appear in the claims, and those definitions govern the construction of
`
`the claims.”).
`
`2.
`
`“Calculating a normalized pulsation”
`
`Claim Term
`
`“calculating a normalized
`pulsation”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Micro Motion’s
`Proposed
`Construction
`converting the
`normalized frequency
`into angular form
`
`Invensys’ Proposed
`Construction
`
`calculating a
`parameter ωd using
`the formula
`ωd=2π(12×Fd)/Fs
`(where Fd is the
`estimated frequency
`and Fs is frequency of
`the samples)
`
`Invensys agrees that the “12” in its proposed construction represents the decimation rate,
`
`which can be set by the user.
`
`Invensys has no objection to replacing 12 with x or some other
`
`notation indicating the selected decimation rate.
`
`But although the decimation rate can be varied, it is a necessary component of the
`
`normalized pulsation calculation. The independent claims expressly require that the sensor
`
`signals be decimated, and thus, decimation is not merely a preferred embodiment as Micro
`
`Motion suggests. See ’131 Pat. 11:24-25. To the contrary, it appears that Micro Motion is
`
`6 In addition, neither parties’ proposed construction covers this equation, which as discussed
`above, raises serious problems under Vitronics.
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 12 of 24 PageID #: 4149
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`improperly attempting to omit
`
`the decimation rate from the formula for calculating the
`
`normalized pulsation.
`
`In addition, Invensys’s construction tracks the equation provided in the ’131 patent’s
`
`specification.
`
`In contrast,
`
`the term “angular
`
`form” does not appear anywhere in the
`
`specification. (Although Invensys agrees that “angular frequency” is typically represented by the
`
`equation ω=2πf, which is the same as Invensys’s proposed construction, but without the required
`
`decimation rate.)
`
`Introducing the term “angular form,” which does not appear anywhere in the
`
`’131 patent and will require explanation by the parties’ experts, will waste time at trial at best
`
`and confuse the jury at worst. See 2d Rodriguez Decl. ¶¶ 25-26 (Ex. D).
`
`3.
`
`“Center frequency”
`
`Claim Term
`
`“center frequency”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Invensys’ Proposed
`Construction
`
`a frequency greater
`than zero frequency
`and less than the
`operating frequency
`
`Micro Motion’s
`Proposed
`Construction
`a frequency less than
`the operating
`frequency
`
`The parties’ only dispute about this term is whether the “center frequency” can be zero.
`
`As the name itself implies, a “center frequency” in a filter is a central frequency between an
`
`upper and a lower cutoff frequency. Therefore, the center frequency must be greater than the
`
`lower limit.
`
`In fact, Micro Motion’s ’190 patent use the term “center frequency” this way in
`
`both the specification and claims of the ’190 patent. See ’190 Pat. 10:55-59 (“Adaptive notch
`
`filter 204, discussed in detail below, enhances the signal values by effectively filtering all
`
`frequencies outside a band centered about the fundamental frequency of the vibrating flow
`
`tubes.”); id. at 45:26-37 (claims 3 and 4), 47:64-48:7 (claims 20 and 21). Although the upper
`
`limit can be an arbitrarily high frequency, the lower frequency cannot be less than zero because a
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 13 of 24 PageID #: 4150
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`zero frequency would already mean that there is no vibration at all. Put another way, because it
`
`is not possible to vibrate slower than a frequency of zero, the lower limit of the frequency range
`
`cannot be less than zero. Accordingly, because the center frequency must be greater than the
`
`lower limit, and the lower frequency limit cannot be less than zero, the center frequency must be
`
`greater than zero.7
`
`Importantly,
`
`the only time the ’131 patent’s specification uses the term “center
`
`frequency” is to acknowledge the distinction between a center frequency and a zero frequency
`
`and that translating to the zero frequency is not part of the demodulation step:
`
`The I component and the Q component are then used to translate the signals to a
`center frequency if the operating frequency of the signals is greater than a
`transition frequency. After demodulation, the signals may be decimated a second
`time to improve the resolution of the signals a second time.
`
`The dominant frequency of the signals is then isolated and precisely
`measured. The translation to a zero frequency is then calculated for both the I
`component and the Q components of the signals. . . .
`
`’131 Pat. 3:39-48 (emphasis added). Micro Motion’s argument that the estimated frequency
`
`could hypothetically be exactly the same as the dominant frequency (i.e., the actual flowtube
`
`vibration frequency) resulting in a “center frequency” of zero is without merit.
`
`It completely
`
`ignores the specification’s statement that the precise determination of the dominant frequency
`
`does not occur until after demodulation and translation to the center frequency. In fact, until the
`
`dominant frequency has been precisely determined, the estimated frequency would not be
`
`identical to the dominant frequency, which as Micro Motion concedes is the only circumstance
`
`in which the “dominant frequency minus the estimate frequency” would equal zero. Def.’s
`
`Opening Claim Constr. Br. at 20. Indeed, if the frequency at which the flowtubes were vibrating
`
`7 Of course, in most cases the lower limit of the filter will be greater than zero.
`never be less than zero.
`
`It simply can
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 14 of 24 PageID #: 4151
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`(i.e., the dominant frequency) is already known, one can omit most of the claimed steps and
`
`directly determine the phase difference between the two sensor signals.
`
`C.
`
`“Calculating dot products of said normalized pulsation and said signals from
`said first pick-off sensor and said second pick-off sensor to translate said
`signals to said center frequency”
`
`Claims Nos.
`
`’190
`
`’131
`1, 13, 26
`
`Invensys’ Proposed
`Construction
`
`indefinite as insolubly
`ambiguous
`
`Claim Term
`
`“calculating dot products
`of said normalized
`pulsation and said signals
`from said first pick-off
`sensor and said second
`pick-off sensor to
`translate said signals to
`said center frequency”
`
`Micro Motion’s
`Proposed
`Construction
`calculating dot
`products of a sequence
`of data representing
`the normalized
`pulsation and
`sequence of data
`representing said
`signal from said first
`pick off sensor and
`said second pick of
`sensor to shift the
`frequency content of
`the signals
`
`As discussed above, see supra Part I.A.2, in Invensys’s letter brief on indefiniteness, ECF
`
`No. 123-1, , at 2-5, and its reply brief, ECF No. 136-1, at 2-3, this limitation is indefinite. It is
`
`also worth noting that Micro Motion’s proposed construction is a blatant attempt to rewrite the
`
`claims. Rewriting claim terms is prohibited by established Federal Circuit precedent and is a
`
`tacit admission that the claim as written is invalid. See Allen Eng’g, 299 F.3d at 1349 (“It is not
`
`our function to rewrite claims to preserve their validity.”).
`
`For example, Micro Motion replaces the term “normalized pulsation” with the phrase “a
`
`sequence of data representing the normalized pulsation.” (emphasis added). But the ’131
`
`patent’s specification (and even Micro Motion’s proposed construction of “normalized
`
`pulsation” as “angular form”) describes the normalized pulsation as a single value, not a
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`“sequence of data.” See ’131 Pat. 9:6-9 (“[N]ormalized pulsation . . . is expressed in the
`
`following equation: ωd=2Π(12Fd)/Fs . . . .”); see also 2d Rodriguez Decl. ¶¶ 25-26 (Ex. D).
`
`Micro Motion’s construction also writes the “center frequency” limitation out of the
`
`claims. Under Micro Motion’s construction any shift (i.e., translation) in the frequency of the
`
`signals would meet this limitation, even though the claim expressly requires the signals to be
`
`shifted to a “center frequency.” The scope of a patent should not be broadened by deleting
`
`limitations during claim construction. See Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562
`
`(Fed. Cir. 1991); see also Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302,
`
`1307 (Fed. Cir. 2000) (rejecting a claim construction that would have rendered a claim term
`
`“superfluous”).
`
`II.
`
`Response to Micro Motion’s Proposed Constructions for the ’190 Patent
`
`A.
`
`“Enhanced value[s]”
`
`Claim Term
`
`“enhanced value[s]”
`
`Claims Nos.
`
`’131
`
`Invensys’ Proposed
`Construction
`
`’190
`1, 18, 35 values with virtually
`all noise signals
`eliminated
`
`Micro Motion’s
`Proposed
`Construction
`no need to separately
`construe; plain and
`ordinary meaning
`
`The ’190 patent’s specification limits the ordinary meaning of the term “enhanced.”
`
`Essentially, Micro Motion argues that the “enhanced value” limitation would be met as long as
`
`there is some improvement (no matter how slight) in the quality of the signal, even though the
`
`specification requires significantly more than a minor increase in signal quality. See Def.’s
`
`Opening Claim Constr. Br. at 16.
`
`In fact, the portions of the specification Micro Motion cites
`
`actually support Invensys’s construction. For example, the specification states that the signals
`
`are “filtered of most noise and harmonics,” “all frequencies outside a band centered about the
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 16 of 24 PageID #: 4153
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`fundamental frequency” are filtered, and “all noise signals but for a narrow band” are filtered.8
`
`’190 Pat. 5:58-59, 10:57-58, 19:28-29 (emphasis added).
`
`In addition, another portion of the
`
`specification (which Micro Motion does not cite) expressly says that “virtually all noise signals
`
`[are] eliminated.” Id. at 5:3-4 (emphasis added); see also id. at 1:60-63 (“Measurements in a
`
`Coriolis mass flowmeter must be made with great accuracy since it is often a requirement that
`
`the derived flow rate information have an accuracy of at least 0.15% of reading.”).9 Simply
`
`giving the phrase “enhanced value” its ordinary meaning would improperly permit this term to
`
`cover any minor improvement in signal quality, even though the specification repeatedly and
`
`consistently refers to significant improvements in signal quality in which most of the noise has
`
`been eliminated.
`
`B.
`
`Means-Plus-Function Terms in the ’190 Patent
`
`As an initial matter,
`
`Invensys merely provided references to the ’190 patent’s
`
`specification as support for its constructions. Obviously, lengthy passages from the specification
`
`will not help the jury understand the claims, although the embodiments in the specification
`
`define the scope of the means-plus-function claims.
`
`In addition, throughout this section, Invensys will argue (in accordance with established
`
`precedent) that the patents only cover the structures disclosed in the specification.
`
`Invensys
`
`acknowledges, however, that the patent also covers equivalent structures.
`
`8 Contrary to Micro Motion’s assertion, this last embodiment is fully consistent with Invensys’s
`construction. “[A]ll noise signals but for a narrow band” means that “virtually all” noise has
`been eliminated. ’190 Pat. 19:28-29 (emphasis added).
`9 Micro Motion itself relies on a portion of the specification stating that the “[a]daptive notch
`filter 204,” which generates the enhanced values, “enhances the signal values by effectively
`filtering all frequencies outside a band centered about the fundamental frequency of the
`vibrating flow tubes.” ’190 Pat. 10:55-59; see also Def.’s Opening Claim Constr. Br. at 22.
`Thus, Micro Motion has essentially admitted that the function “generating a sequence of
`discrete enhanced values” is synonymous with effectively filtering all noise (otherwise the
`adaptive notch filter would not correspond to the claimed function).
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 17 of 24 PageID #: 4154
`
`1.
`
`“Digital notch filtration means, responsive to the generation of said
`sequence of discrete sampled values, for generating a sequence of
`discrete enhanced values”
`
`Claim Term
`
`“digital notch filtration
`means, responsive to the
`generation of said
`sequence of discrete
`sampled values, for
`generating a sequence of
`discrete enhanced values”
`
`Claims Nos.
`
`’131
`
`’190
`1, 2, 18,
`19
`
`Invensys’ Proposed
`Construction
`
`Adaptive Notch Filters
`204, 1300, 1302, and
`1310; 4:63-6:47;
`22:12-24:23; 39:45-
`41:62
`
`Micro Motion’s
`Proposed
`Construction
`adaptive notch filter
`
`a. The only structures that correspond to the “generating a sequence of discrete enhanced
`
`values” function are the two embodiments. Although the parties agree that the “digital notch
`
`filtration means” corresponds to the “adaptive notch filters,” they appear to disagree about what
`
`types of “adaptive notch filters” are disclosed in the specification and covered by the claims.
`
`Micro Motion appears to contend that an “adaptive notch filter” is any “filter with variable
`
`parameters.” ’190 Pat. 6:34. This construction is insufficient for at least two reasons.
`
`First, “structure disclosed in the specification is ‘corresponding’ structure only if the
`
`specification or prosecution history clearly links or associates that structure to the function
`
`recited in the claim.” B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997);
`
`see also Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1211 (Fed. Cir.
`
`2003) (holding that when “the specification is not clear as to the structure that . . . correspond[s]
`
`to the claimed function” the inventor is impermissibly “attempting to claim in functional terms
`
`unbounded by any reference to structure”). The portion of the ’190 patent’s specification Micro
`
`Motion cites for its definition is not linked to the function of “generating a sequence of discrete
`
`enhanced values,” however. See id. at 6:33-34. Thus, the generalized “adaptive notch filter”
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`Case 6:12-cv-00799-JRG Document 138 Filed 04/07/14 Page 18 of 24 PageID #: 4155
`
`Micro Motion cites (i.e., any filter with variable parameters) cannot be the structure that
`
`generates the enhanced values required in the claims.
`
`Second, Micro Motion’s construction omits critical structural components necessary to
`
`perform the claimed function of generating enhanced values:
`
`The adaptive notch filter 204 eliminates a band of frequencies (a notch) centered
`about the fundamental frequency of the vibrating flow tubes. The resultant signal
`is all noise outside the notch centered about the fundamental frequency of the
`vibrating flowtubes. This noise signal is then subtracted from the signal applied
`as input to the notch filter 204 . . . . The result of the subtraction, which
`represents the fundamental frequency of the vibrating flowtubes filtered of most
`noise signals, in then applied to path 262 as the output of the notch filter 204.
`
`‘190 Pat. 10:59-11:3. That is, in order to enhance the signal, the filtered notch must be
`
`subtracted from the original
`
`input signal.
`
`Simply referring to an “adaptive notch filter”
`
`(especially one that is broadly defined as any filter with variable