Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 1 of 33 PageID #: 5881
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Case No. 6:12-cv-799
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`INVENSYS SYSTEMS, INC.,
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`Plaintiff,
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`v.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`§
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`MEMORANDUM OPINION AND ORDER
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`This Memorandum Opinion construes the disputed claim terms in U.S. Patent Nos.
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`Defendants,
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`and
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`MICRO MOTION INC., USA,
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`v.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Plaintiff,
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`Counterclaim-Defendant.
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`7,124,646 (“the ’646 Patent”); 7,136,761 (“the ’761 Patent”); 6,311,136 (“the ’136 Patent”);
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`7,505,854 (“the ’854 Patent”); 6,754,594 (“the ’594 Patent”); 7,571,062 (“the ’062 Patent”); and
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`8,000,906 (“the ’906 Patent”) (collectively, “the Invensys Patents”), asserted in this suit by
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`Invensys Systems, Inc. (“Invensys”). Also before the Court is Micro Motion’s Motion for
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`Summary Judgment of Indefiniteness (Docket No. 144).
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`On May 1, 2014, the parties presented arguments on the disputed claim terms at a
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`Markman hearing and also presented oral arguments on the motion for summary judgment. For
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 2 of 33 PageID #: 5882
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`the reasons stated herein, the Court ADOPTS the constructions set forth below and DENIES
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`Micro Motion’s Motion for Summary Judgment.
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`BACKGROUND
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`Plaintiff Invensys alleges Micro Motion and Emerson infringe the seven patents it asserts
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`here. Micro Motion brought counterclaims accusing Invensys of infringing two patents it has
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`asserted. All nine patents are generally related to Coriolis flowmeters—devices that measure the
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`properties (including mass, volume, and density) of fluids flowing through a conduit. Micro
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`Motion’s asserted patents are construed in a contemporaneously issued Memorandum Opinion
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`and Order.
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`Claim Construction
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`APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381
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`F.3d 1111, 1115 (Fed. Cir. 2004)). The Court examines a patent’s intrinsic evidence to define
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`the patented invention’s scope. Id. at 1313–1314; Bell Atl. Network Servs., Inc. v. Covad
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`Commc’ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). Intrinsic evidence includes the
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`claims, the rest of the specification and the prosecution history. Phillips, 415 F.3d at 1312–13;
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`Bell Atl. Network Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and
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`customary meaning as understood by one of ordinary skill in the art at the time of the invention.
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`Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir.
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`2003).
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`2
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 3 of 33 PageID #: 5883
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`Claim language guides the Court’s construction of claim terms. Phillips, 415 F.3d at
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`1314. “[T]he context in which a term is used in the asserted claim can be highly instructive.” Id.
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`Other claims, asserted and unasserted, can provide additional instruction because “terms are
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`normally used consistently throughout the patent.” Id. Differences among claims, such as
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`additional limitations in dependent claims, can provide further guidance. Id.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). In the specification, a patentee may define his own
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`terms, give a claim term a different meaning that it would otherwise possess, or disclaim or
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`disavow some claim scope. Phillips, 415 F.3d at 1316. Although the Court generally presumes
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`terms possess their ordinary meaning, this presumption can be overcome by statements of clear
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`disclaimer. See SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337,
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`1343-44 (Fed. Cir. 2001). This presumption does not arise when the patentee acts as his own
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`lexicographer. See Irdeto Access, Inc. v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed.
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`Cir. 2004).
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`The specification may also resolve ambiguous claim terms “where the ordinary and
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`accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of
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`the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at 1325. For
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`example, “[a] claim interpretation that excludes a preferred embodiment from the scope of the
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`claim ‘is rarely, if ever, correct.’” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 4 of 33 PageID #: 5884
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`F.3d 1367, 1381 (Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, “[a]lthough
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`the specification may aid the court in interpreting the meaning of disputed language in the
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`claims, particular embodiments and examples appearing in the specification will not generally be
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`read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir.
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`1988); see also Phillips, 415 F.3d at 1323.
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`The prosecution history is another tool to supply the proper context for claim
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`construction because a patentee may define a term during prosecution of the patent. Home
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`Diagnostics Inc. v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a term in prosecuting a patent”). The well-
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`established doctrine of prosecution disclaimer “preclud[es] patentees from recapturing through
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`claim interpretation specific meanings disclaimed during prosecution.” Omega Eng’g, Inc. v.
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`Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). The prosecution history must show that the
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`patentee clearly and unambiguously disclaimed or disavowed the proposed interpretation during
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`prosecution to obtain claim allowance. Middleton, Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed.
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`Cir. 2002); see also Springs Window Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 994 (Fed.
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`Cir. 2003) (“The disclaimer . . . must be effected with ‘reasonable clarity and deliberateness.’”)
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`(citations omitted)). “Indeed, by distinguishing the claimed invention over the prior art, an
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`applicant is indicating what the claims do not cover.” Spectrum Int’l, Inc. v. Sterilite Corp., 164
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`F.3d 1372, 1378–79 (Fed. Cir. 1988) (quotation omitted). “As a basic principle of claim
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`interpretation, prosecution disclaimer promotes the public notice function of the intrinsic
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`evidence and protects the public’s reliance on definitive statements made during prosecution.”
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`Omega Eng’g, Inc., 334 F.3d at 1324.
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 5 of 33 PageID #: 5885
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`Although “less significant than the intrinsic record in determining the legally operative
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`meaning of claim language,” the Court may rely on extrinsic evidence to “shed useful light on
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`the relevant art.” Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and
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`treatises may help the Court understand the underlying technology and the manner in which one
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`skilled in the art might use claim terms, but such sources may also provide overly broad
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`definitions or may not be indicative of how terms are used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid the Court in determining the particular meaning of a term in the
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`pertinent field, but “conclusory, unsupported assertions by experts as to the definition of a claim
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`term are not useful.” Id. Generally, extrinsic evidence is “less reliable than the patent and its
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`prosecution history in determining how to read claim terms.” Id.
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`The patent in suit may contain means-plus-function limitations that require construction.
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`Where a claim limitation is expressed in means-plus-function language and does not recite
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`definite structure in support of its function, the limitation is subject to 35 U.S.C. § 112 ¶ 6.
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`Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, § 112
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`mandates that “such a claim limitation be construed to cover the corresponding structure . . .
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`described in the specification and equivalents thereof.” Id. (citing 35 U.S.C. § 112 ¶ 6.).
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`Accordingly, when faced with means-plus-function limitations, courts “must turn to the written
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`description of the patent to find the structure that corresponds to the means recited in the
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`[limitations].” Id.
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`Construing a means-plus-function limitation involves two inquiries. The first step
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`requires “a determination of the function of the means-plus-function limitation.” Medtronic, Inc.
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`v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). Once a court has
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`determined the limitation’s function, “the next step is to determine the corresponding structure
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 6 of 33 PageID #: 5886
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`disclosed in the specification and equivalents thereof.” Medtronic, 248 F.3d at 1311. A
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`structure is corresponding “only if the specification or prosecution history clearly links or
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`associates that structure to the function recited in the claim.” Id. Moreover, the focus of the
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`corresponding structure inquiry is not merely whether a structure is capable of performing the
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`recited function, but rather whether the corresponding structure is “clearly linked or associated
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`with the [recited] function.” Id.
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`Summary Judgment
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`“Summary judgment is appropriate in a patent case, as in other cases, when there is no
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`genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
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`law.” Nike, Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 646 (Fed. Cir. 1994); FED. R. CIV.
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`P. 56(c). The moving party bears the initial burden of “informing the district court of the basis
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`for its motion” and identifying the matter that “it believes demonstrate[s] the absence of a
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`genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
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`moving party meets this burden, the nonmoving party must then set forth “specific facts showing
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`that there is a genuine issue for trial.” FED. R. CIV. P. 56(c); see also T.W. Elec. Serv., Inc. v.
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`Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
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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. P’ship, 131 S. Ct. 2238, 2243 (2011);
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`U.S. Gypsum Co. v. Nat’l Gypsum Co., 74 F.3d 1209, 1212 (Fed. Cir. 1996). This presumption
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`places the burden on the challenging party to prove the patent is invalid by clear and convincing
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`evidence. Microsoft, 131 S. Ct. at 2243; U.S. Gypsum Co., 74 F.3d at 1212. Close questions of
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`indefiniteness “are properly resolved in favor of the patentee.” Datamize, LLC v. Plumtree
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 7 of 33 PageID #: 5887
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`Software, Inc., 417 F.3d 1342, 1348 (Fed. Cir. 2005); Exxon Research & Eng’g Co. v. United
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`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 & Smith Co., 317 U.S. 228, 236
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`(1942). The definiteness standard is one of reasonableness under the circumstances, requiring
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`that, in light of the teachings of the prior art and the invention at issue, the claims apprise those
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`skilled in the art of the scope of the invention with a reasonable degree of precision and
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`particularity. See Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 624 (Fed.
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`Cir. 1985). To rule “on a claim of patent indefiniteness, a court must determine whether one
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`skilled in the art would understand what is claimed when the claim is read in light of the
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`specification.” Bancorp. Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367, 1372 (Fed. Cir.
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`2004). “A determination of indefiniteness is a legal conclusion that is drawn from the court‘s
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`performance of its duty as the construer of patent claims, [and] therefore, like claim construction,
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`is a question of law.” Atmel Corp. v. Info. Storage Devices, Inc., 198 F.3d 1374, 1378 (Fed. Cir.
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`1999).
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`I.
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`Claim Construction
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`ANALYSIS
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`A.
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`Agreed Terms
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`The parties have agreed to the construction of two terms. Docket No. 156.
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`7
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 8 of 33 PageID #: 5888
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`Agreed Claim Construction
`a proportional plus integral control algorithm
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`plain and ordinary meaning
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`Claim Term
`“a PI control algorithm” (’136 Patent: claim
`17)
`“collect data corresponding to a subsequent
`cycle of the sensor signal simultaneously with
`processing the data for the current cycle”
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`In view of the parties’ agreements on the proper construction of these terms, the Court
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`ADOPTS the parties’ constructions.
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`B.
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`Disputed Terms
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`“configure to” and “operable to” and variants thereof
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`Invensys’s Proposed Construction
`Plain and ordinary meaning.
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`Defendants’ Proposed Construction
`“configured to,” “operable to,” and “circuitry
`to” render the claims indefinite. If not
`indefinite, the terms “configured to” and
`“operable to” mean:
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`configured to or operable to (as the case may
`be) perform the recited function under the
`conditions of use for which it was intended
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`Regarding these terms, the parties’ dispute is whether these terms are indefinite, or
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`alternatively, if construction is necessary. Invensys argues that no construction is required
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`because these terms are easily understood by a jury. Docket No. 122 at 7. Further, Invensys
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`contends that Defendants’ proposal seeks to impermissibly add limitations to these terms. Id. at
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`7–8. Although primarily arguing that these terms render the claims indefinite,1 Defendants
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`propose an alternative construction that they contend clarifies that “configured to” requires more
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`than “merely being capable of being configured.” Docket No. 137 at 1. By adding words to the
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`exact disputed claim language, Defendants merely propose additional limitations that are not in
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`the plain language of the claims. Further, these terms are readily accessible to the jury.
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`Accordingly, the Court finds no construction is necessary for this term.
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`1 Defendants’ indefiniteness argument is addressed below. See infra at 27–28.
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 9 of 33 PageID #: 5889
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`“input module,” “output module,” and “processing device”
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`Invensys’s Proposed Construction
`These
`terms are not means-plus-function
`elements.
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`Plain and ordinary meaning.
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`Defendants’ Proposed Construction
`These terms should be construed as means-
`plus-function elements.
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`input module and output module
`The specification does not use the term “input
`module” or “output module”, and it does not
`identify structure corresponding to the input
`module and output module limitations.
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`processing device
`The structure in the specification, to the extent
`it is identified at all, is the algorithm set forth
`at 66:26-65 and in figures Figs. 9, 10, 26, 42,
`45, 52 and 53 of the ’646 patent, as well as the
`text accompanying those figures.
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`The parties dispute whether these terms should be construed as means-plus-function
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`terms under § 112, ¶ 6. Invensys contends that since the word “means” is not used, there is a
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`presumption that the term is not means-plus-function. Docket No. 122 at 24. Because the
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`Defendants failed to rebut that presumption and because the terms can be understood by a jury
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`without further explanation, Invensys argues these terms should be given their plain and ordinary
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`meaning. Id. Defendants contend that the presumption against means-plus-function construction
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`is rebutted here because “input module,” “output module,” and “processing device” are generic
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`terms that recite no corresponding structure for performing their recited functions. Docket No.
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`137 at 20. Defendants further argue that the patent specifications similarly fail to identify any
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`corresponding structure for these terms. Id. at 21.
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`“Processing device” is readily recognized by those skilled in the art as a processor,
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`thereby evidencing corresponding structure. Accordingly, “processing device” is not a means-
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`plus-function term, and because it is easily understood by a jury, needs no further construction.
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 10 of 33 PageID #: 5890
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`However, “module” is not as readily recognized in the art. While “module” has
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`sometimes avoided means-plus-function construction in specific contexts, module has also been
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`considered a nonce word and subject to § 112, ¶ 6. Compare, e.g., Beneficial Innovations, Inc. v.
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`Blockdot, Inc., No. 2:07-cv-263, 2010 WL 1441779, at *16 (E.D. Tex. Apr. 12, 2010) (holding
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`that § 112, ¶ 6 did not apply when construing a term including “module” in the context of a
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`software system); PalmTop Productions, Inc. v. Lo-Q PLC, 450 F. Supp. 2d 1344, 1364–65
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`(N.D. Ga. 2006) (rejecting application of means-plus-function construction to “communications
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`module” in the context of a telecommunications patent) with Ranpak Corp. v. Storopack, Inc.,
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`No. 98-1009, 1998 WL 513598, at *2 (Fed. Cir. 1998) (applying § 112, ¶ 6 where “settable
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`control module” invoked merely a black box without recitation of structure to perform the
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`specified function). Here, “module” is “simply a nonce word or a verbal construct that is not
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`recognized as the name of structure and is simply a substitute for the term ‘means for,’” therefore
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`invoking § 112, ¶ 6. Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1360
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`(Fed. Cir. 2004). Although Defendants argue no structure is recited in either the claims or the
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`specification, Figure 5 and its accompanying description demonstrate the structure necessary to
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`“receive a sensor signal” and “output the drive signal.” ’761 Patent, at 11:45–12:4. In relation to
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`Figure 5, the specification describes analog-to-digital (“A/D”) converters as supplying the digital
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`signals to the controller and digital-to-analog (“D/A”) converters as producing a drive signal,
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`thus providing a corresponding structure. Id. at 11:61–12:2.
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`
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`Accordingly, “input module” and “output module” are construed as means-plus-function
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`terms. The functions recited in the claims are to “receive a sensor signal” and to “output the
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`drive signal,” respectively. The structure is the analog-to-digital (“A/D”) converters (510) and
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`digital-to-analog (“D/A”) converters (515) of Figure 5.
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 11 of 33 PageID #: 5891
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` “Maintains oscillation during a transition” and variants thereof
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`Invensys’s Proposed
`Construction
`Plain and ordinary meaning.
`
`Plain and ordinary meaning.
`
`Term
`“control system operable to
`modify the drive signal and
`thereby maintain oscillation of
`the flowtube during a
`transition of the flowtube from
`a first state in which the
`flowtube is substantially
`empty of liquid to a second
`state in which the flowtube is
`substantially full of liquid . . .”
`
`“control system operable to
`modify the drive signal and
`thereby maintain oscillation of
`the
`flowtube
`during
`a
`transition of the flowtube from
`a substantially empty state to a
`substantially full state”
`“control system operable to
`modify the drive signal and
`thereby maintain oscillation of
`the
`flowtube
`during
`a
`transition . . .”
`
`Plain and ordinary meaning.
`
`oscillation
`“maintaining
`during an onset of liquid flow
`through
`the
`substantially
`empty flow tube”
`
`“maintaining oscillation of the
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`11
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`Defendants’ Proposed
`Construction
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“The control system modifies
`the drive signal, and, except
`for programmed pauses
`between setpoint adjustments,
`the drive signal maintains
`oscillation of the flow tube at
`amplitude setpoints set by the
`controller throughout the
`transition from the point in
`time the flowtube is
`substantially empty of liquid
`until the flowtube is
`substantially full of liquid.
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“The control system modifies
`the drive signal, and, except
`for programmed pauses
`between setpoint adjustments,
`the drive signal maintains
`oscillation of the flow tube at
`amplitude setpoints set by the
`controller throughout the
`transition from the point in
`time the flowtube is
`substantially empty of liquid
`until the flowtube is
`substantially full of liquid.
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Except for programmed
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 12 of 33 PageID #: 5892
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`flowtube during an onset of
`fluid
`flow
`through
`the
`flowtube”
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`Plain and ordinary meaning.
`
`“maintaining oscillation of the
`flowtube while separate
`batches of the liquid fluid flow
`are processed through the
`flowtube, wherein the
`flowtube is substantially
`empty of liquid between the
`separate batches”
`
`Plain and ordinary meaning.
`
`“wherein the control system is
`further operable to modify the
`drive signal and thereby
`maintain oscillation of the
`flowtube while separate
`batches of the liquid fluid flow
`are processed through the
`flowtube, wherein the
`flowtube is substantially
`empty of liquid in between the
`separate batches”
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`12
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`pauses between setpoint
`adjustments, maintaining
`oscillation of the flow tube at
`amplitude setpoints set by the
`controller throughout
`transition from the point in
`time when the flowtube is
`substantially empty until the
`flowtube is no longer
`substantially empty.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Except for programmed
`pauses between setpoint
`adjustments, maintaining
`oscillation of the flow tube at
`amplitude setpoints set by the
`controller throughout the
`processing of a first batch of
`liquid fluid flow, the transition
`between the first and second
`batches that includes a period
`when the flowtube is
`substantially empty of liquid
`fluid flow, and the processing
`of a second batch of liquid
`fluid flow.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“The control system modifies
`the drive signal, and, except
`for programmed pauses
`between setpoint adjustments,
`the drive signal maintains
`oscillation of the flow tube at
`amplitude setpoints set by the
`controller throughout the
`processing of a first batch of
`liquid fluid flow, the transition
`between the first and second
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 13 of 33 PageID #: 5893
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`“maintaining oscillation of the
`flowtube when the flowtube is
`substantially filled by the fluid
`flow”
`
`Plain and ordinary meaning.
`
`batches that includes a period
`when the flowtube is
`substantially empty of liquid
`fluid flow, and the processing
`of a second batch of liquid
`fluid flow.
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“maintaining oscillation of the
`flow tube at amplitude
`setpoints set by the controller
`during that portion of the
`onset of fluid flow when the
`flowtube is substantially filled
`by the flowing fluid.”
`
`Although there are several terms in dispute here, the relevant substance of the argument
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`
`
`for each is the same and they can therefore be analyzed together. For each term, Invensys argues
`
`that no construction is necessary, since the meaning is accessible to both those skilled in the art
`
`and to lay members of the jury. Docket No. 122 at 14. Invensys further contends that
`
`Defendants’ proposals add a requirement that oscillation must be maintained at multiple
`
`amplitude setpoints, contrary to the specification of the patents. Id. at 14 – 15. Defendants
`
`respond that Invensys’s proposal of applying the plain and ordinary meaning is overly broad and
`
`would cover prior art traditional analog flowmeters. Docket No. 137 at 6–7. Defendants assert
`
`that in order to differentiate the patented invention from prior art and based on the specification
`
`of the asserted patents, these terms must include a requirement that the amplitude of oscillation
`
`be maintained at one or more setpoints set by the controller. Id. at 8–9.
`
`
`
`The claims at issue here provide no justification to explicitly add the requirement of
`
`setpoints as proposed by Defendants. In the context of maintaining oscillation, the claims
`
`require the control system to “modify the drive signal and thereby maintain oscillation.” E.g.,
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`
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`13
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 14 of 33 PageID #: 5894
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`’761 Patent, at 56:12–17. This is also the concept taught by the specification. Id. at Abstract
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`(“An output module is operable to output the drive signal to the flowtube and a control system is
`
`operable to modify the drive signal and thereby maintain oscillation of the flowtube . . . .”).
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`While embodiments of the specification may teach that certain setpoints can be used to modify
`
`the drive signal, the setpoints are not specifically required by the claims. E.g., id. at 2:9–26.
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`Accordingly, no construction is necessary for these terms.
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`“during an onset” and “during a transition”
`
`Invensys’s Proposed Construction
`Plain and ordinary meaning.
`
`
`
`Defendants’ Proposed Construction
`from the point in time the flowtube is
`substantially empty of liquid until the flowtube
`is no longer substantially empty of liquid
`
`Encompassed in the disagreement over the previous terms is the parties’ dispute over the
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`meaning of “during” as used within those terms. Invensys contends that the use of “during” in
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`the preceding terms is easily understandable and that Defendants’ proposed construction invites
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`confusion. Docket No. 122 at 15–16. Defendants argue that their proposed construction
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`captures the meaning of the claim, which requires first oscillating the tube when it is
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`substantially empty and continuing to oscillate the tub during liquid flow onset, which
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`necessarily means the tube is no longer substantially empty. Docket No. 137 at 5.
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`
`
`“During” is a very easily accessible word that any lay member of the jury can easily
`
`comprehend without assistance. Defendants’ proposal is unnecessarily complex and complicates
`
`an easily understood phrase. Accordingly, no construction is necessary for this term.
`
`“Determine the flow rate during a transition” and variants thereof
`
`Term
`“determine, based on the
`sensor signal, the flow rate of
`the flowing liquid during a
`
`Invensys’s Proposed
`Construction
`Plain and ordinary meaning.
`
`Defendants’ Proposed
`Construction
`This limitation is indefinite.
`
`If it is not indefinite, it should
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`
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`14
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`

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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 15 of 33 PageID #: 5895
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`transition of the flowtube from
`a first state in which the
`flowtube is substantially
`empty of the flowing liquid to
`a second state in which the
`flowtube is substantially full
`of the flowing liquid”
`
`“determine, based on the
`sensor signal, the flow rate of
`the liquid flowing through the
`flowtube during a transition
`from the second state to the
`first state”
`
`“determine the flow rate of the
`flowing liquid when separate
`batches of the flowing liquid
`pass through the flowtube,
`wherein the flowtube is
`substantially empty of the
`flowing liquid in between the
`separate batches”
`
`Plain and ordinary meaning.
`
`Plain and ordinary meaning.
`
`Plain and ordinary meaning.
`
`“determine, based on the
`sensor signal, the flow rate of
`the liquid flowing through the
`flowtube during a transition
`from the second state to the
`first state”
`
`
`
`15
`
`be construed to mean:
`
`“Ascertain exactly the actual
`flow rate of the flowing liquid
`throughout the transition from
`the point in time the flowtube
`is substantially empty of liquid
`until the flowtube is
`substantially full of liquid.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Ascertain exactly the actual
`flow rate of the flowing liquid
`throughout the transition from
`the point in time the flowtube
`is substantially full of liquid
`until the flowtube is
`substantially empty of liquid.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Ascertain exactly the actual
`flow rate of the flowing liquid
`throughout the passage
`through the flowtube of a first
`batch of flowing liquid, the
`transition between the first and
`second batches that includes a
`period when the flowtube is
`substantially empty of flowing
`liquid, and the passage
`through the flowtube of a
`second batch of flowing
`liquid.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Ascertain exactly the actual
`flow rate of the flowing liquid
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 16 of 33 PageID #: 5896
`
`“determining a total amount of
`the flowing liquid”
`
`Plain and ordinary meaning.
`
`Plain and ordinary meaning.
`
`“determining the flow rate of
`the flowing liquid when
`separate batches of the
`flowing liquid pass through
`the flowtube, wherein the
`flowtube is substantially
`empty of the flowing liquid
`between the separate batches.”
`
`
`
`throughout the transition from
`the point in time the flowtube
`is substantially full of liquid
`until the flowtube is
`substantially empty of liquid.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Ascertaining exactly the
`actual total amount of the
`flowing liquid that has passed
`through the flowtube since the
`flowing liquid started
`flowing.”
`This limitation is indefinite.
`
`If it is not indefinite, it should
`be construed to mean:
`
`“Ascertaining exactly the
`actual flow rate of the flowing
`liquid throughout the passage
`through the flowtube of a first
`batch of flowing liquid, the
`transition between the first and
`second batches that includes a
`period when the flowtube is
`substantially empty of flowing
`liquid, and the passage
`through the flowtube of a
`second batch of flowing
`liquid.”
`
`Again, several terms have been raised by the parties based on substantially similar
`
`arguments. The primary disagreement here concerns the accuracy to which each measurement
`
`must be “determined” in each of these terms. Invensys argues that neither the claims nor
`
`anything else in the intrinsic record indicates a requirement for 100% certainty in determining
`
`any the relevant measures, as Defendants propose. Docket No. 122 at 10–11. Invensys further
`
`contends that the patents-in-suit only claim significantly improved accuracy over prior art analog
`
`
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`16
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`Case 6:12-cv-00799-LED Document 203 Filed 08/06/14 Page 17 of 33 PageID #: 5897
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`flowmeters, not infallibility, and in fact disclose acceptable degrees of error. Id. at 11–12.
`
`Defendants argue that the claim language requires, for example, “determining the flow rate,”
`
`rather than “determining an approximate value of the flow rate.” Docket No. 137 at 2.
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`Additionally, according to Defendants, the claim cannot merely mean “determining the flow rate
`
`better than prior art,” since such an interpretation would be ambiguo