Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 1 of 44
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`NEODRON LTD.,
`
`Plaintiff,
`
`Case No. 1:19-cv-00819-ADA
`
`v.
`
`DELL TECHNOLOGIES INC.,
`
`Defendant.
`
`NEODRON LTD.,
`
`Plaintiff,
`
`Case No. 1:19-cv-00873-ADA
`
`v.
`
`HP, INC.,
`
`NEODRON LTD.,
`
`Defendant.
`
`Plaintiff,
`
`Case No. 1:19-cv-00874-ADA
`
`v.
`
`MICROSOFT CORPORATION,
`
`Defendant.
`
`NEODRON LTD.,
`
`Plaintiff,
`
`Case No. 1:19-cv-00898-ADA
`
`v.
`
`AMAZON.COM, INC.,
`
`Defendant.
`
`WEST/289751846
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 2 of 44
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`NEODRON LTD.,
`
`v.
`
`Plaintiff,
`
`Case No. 1:19-cv-00903-ADA
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`
`Defendant.
`
`DEFENDANTS’ OPENING CLAIM CONSTRUCTION BRIEF ON
`THE DISPUTED TERMS OF THE TOUCH SENSOR PATENTS
`
`(U.S. PATENT NOS. 8,946,574; 9,086,770; 9,823,784; 10,088,960; and 7,821,502)
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 3 of 44
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`INTRODUCTION ............................................................................................................. 1
`
`THE DISPUTED TERM OF U.S. PATENT NO. 8,946,574 ............................................ 2
`
`A.
`
`“mesh” (’574 patent, claims 1, 8, 15) .................................................................... 2
`
`III.
`
`THE DISPUTED TERMS OF U.S. PATENT NO. 9,086,770 .......................................... 5
`
`A.
`
`“generally straight line” (’770 patent, claim 7) ..................................................... 6
`
`IV.
`
`THE DISPUTED TERMS OF U.S. PATENT NO. 9,823,784 ........................................ 10
`
`A.
`
`B.
`
`“wherein the plurality of drive electrodes are substantially area filling
`within the sensing region relative to the plurality of sense electrodes”
`(claims 1-3) .......................................................................................................... 11
`
`“together, the plurality of sense electrodes and the plurality of isolated
`conductive elements are substantially area filling within the sensing region
`relative to the plurality of sense electrodes” ........................................................ 15
`
`V.
`
`THE DISPUTED TERMS OF U.S. PATENT NO. 10,088,960 ...................................... 17
`
`A.
`
`“interconnecting mesh segments” (’960 patent, claims 1, 9, 17)......................... 18
`
`VI.
`
`THE DISPUTED TERMS OF U.S. PATENT NO. 7,821,502 ........................................ 23
`
`A.
`
`B.
`
`C.
`
`“a substrate having a surface with an arrangement of electrodes mounted
`thereon” (’502 patent, claims 1-2, 5-8, 11-14, 16)............................................... 24
`
`“sensing area” (’502 patent, claims 1-2, 5-8, 11-14, 16) ..................................... 28
`
`“wherein row sensing electrodes of sensing cells at opposing ends of at
`least one of the rows are electrically coupled to one another by respective
`row wrap-around connections made outside of the sensing area” (’502
`patent, claims 1-2, 5-8, 11-14, 16) ....................................................................... 32
`
`VII.
`
`CONCLUSION ................................................................................................................ 34
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 4 of 44
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Abbott Labs. v. Sandoz, Inc.,
`544 F.3d 1341 (Fed. Cir. 2008)................................................................................................32
`
`Adjustacam, LLC v. Amazon.com, Inc.,
`No. 6:10-cv-329 (E.D. Tex., April 10, 2012) ..........................................................................33
`
`Brazabra Corp. v. CE Soir Lingerie Co., Inc.,
`No. 1-18-cv-00683, Dkt. No. 35 (W.D. Tex. Aug. 15, 2019)........................................7, 14, 17
`
`Digital Retail Apps Inc. v. H-E-B, LP,
`No. 6:19-cv-0067 (W.D. Tex., Jan. 23, 2020) ...................................................................24, 25
`
`Enzo Biochem, Inc. v. Applera Corp.,
`599 F.3d 1325 (Fed. Cir. 2010)..................................................................................................7
`
`Intel Corp. v. Tela Innovations, Inc.,
`No. 3:18-CV-02848-WHO, 2019 WL 5697922 (N.D. Cal. Nov. 4, 2019) ...........................7, 8
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)............................................................................................7, 17
`
`Irdeto Access, Inc. v. Echostar Satellite Corp.,
`383 F.3d 1295 (Fed. Cir. 2004)............................................................................................4, 20
`
`Liberty Ammunition, Inc. v. U.S.,
`835 F.3d 1388 (Fed. Cir. 2016)..................................................................................................7
`
`MV3 Partners LLC v. Roku, Inc.,
`No. 6-18-cv-00308 (W.D. Tex., Oct. 2, 2019) .........................................................................32
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ...................................................................................................................6
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................24
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)........................................................................................ passim
`
`PPC Broadband, Inc. v. Corning Optical Commc’ns RF, LLC,
`815 F.3d 747 (Fed. Cir. 2016)............................................................................................27, 28
`
`Salazar v. Procter & Gamble Co.,
`414 F.3d 1342 (Fed. Cir. 2005)................................................................................................21
`
`TorPharm. Inc. v. Ranbaxy Pharms., Inc.,
`336 F.3d 1322 (Fed. Cir. 2003)................................................................................................21
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 5 of 44
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`TABLE OF AUTHORITIES
`(Cont’d)
`
`Page(s)
`
`Versata Software Inc. v. Zoho Corp.,
`213 F. Supp. 3d 829 (W.D. Tex. 2016)................................................................................9, 14
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)..................................................................................................33
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 6 of 44
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`Defendants respectfully submit their opening claim construction brief for the disputed
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`terms of U.S. Patent Nos. 8,946,574; 9,086,770; 9,823,784; 10,088,960; and 7,821,502
`
`(collectively the “touch sensor patents”).1 The agreed constructions for these patents are set out
`
`in the Joint Claim Construction Statement.
`
`I.
`
`INTRODUCTION
`
`In this series of cases, Neodron asserts more than 150 claims of 13 patents against seven
`
`groups of defendants. Despite the obvious need to narrow the scope and breadth of these cases
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`before fact and expert discovery and trial, Defendants have identified below only the key claim
`
`terms requiring construction. For most terms, Defendants’ constructions reflect the plain and
`
`ordinary meaning to one of ordinary skill in the art,2 as informed by the patent specification and
`
`file history. Where Defendants’ constructions depart from the plain and ordinary meaning, it is
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`only because (a) the claim term in dispute has no accepted plain and ordinary meaning, (b) the
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`applicants acted as their own lexicographer in defining a term, or (c) the claim term is indefinite.
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`For the reasons demonstrated below, the Court should adopt Defendants’ correct constructions.
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`Neodron’s proposed constructions—and its positions during the meet-and-confer process
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`leading up to claim construction briefing—are a different story. Neodron frequently claims that
`
`1 The asserted touch sensor patents also include U.S. Patent No. 9,965,106, but the parties have
`not identified any disputed terms from that patent that require resolution by the Court.
`Defendants are filing a separate opening claim construction brief to cover the disputed terms of
`the touch processing patents, which includes U.S. Patent Nos. 8,451,237; 8,102,286; and
`10,365,747.
`
`2 A person of ordinary skill in the art at the time of the applications of the patents addressed in
`this brief would have had at least a Bachelor’s Degree in Physics, Electrical or Computer
`Engineering, or Computer Science or the equivalent, plus at least two years of experience in the
`field of touch sensors, signal processing, human-computer interaction or interfaces, graphical
`user interfaces, or a related field. Additional education could substitute for work experience and
`vice-versa.
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 7 of 44
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`no construction is necessary and merely parrots the claim language in its “constructions,” while
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`refusing to agree with Defendants’ constructions or, worse yet, refusing to confirm why and how
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`it disagrees with Defendants’ positions. In the rare instance where Neodron provides an actual
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`construction, its proposals contradict the intrinsic evidence, inject ambiguity, and consist
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`primarily or solely of attorney argument. Neodron’s goal is obvious—it wants to keep the
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`asserted claims as flexible and as malleable as possible, so it can try to take different positions on
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`infringement versus invalidity, both in these cases and in the pending IPRs, which have now
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`been filed on all but four of the asserted patents. But flexibility and malleability are not the goals
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`of claim construction, so the Court should reject Neodron’s attempt to inject ambiguity and
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`uncertainty into the claim construction process.
`
`II.
`
`THE DISPUTED TERM OF U.S. PATENT NO. 8,946,574
`
`Touch capacitive sensors have been around for several decades. The ’574 patent is
`
`directed to a specific touch sensor configuration. The ’574 patent requires that the drive and
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`sense electrodes are disposed on either side of the same substrate and may be formed of
`
`conductive lines that interconnect “to define a conductive grid or mesh pattern made up of an
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`array” of mesh cells, which can be, for example square-shaped, trapezoid-shaped, or diamond-
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`shaped. ’574 patent at 3:64-4:1, 4:44-48, 14:49-54.
`
`A.
`
`“mesh” (’574 patent, claims 1, 8, 15)
`
`Defendants’ Construction
`Set of thin wires that surround open spaces
`in a net or network
`
`Neodron’s Construction
`Plain and ordinary meaning; no construction
`necessary: “mesh”
`
`Defendants’ construction is consistent with the intrinsic record and is necessary to aid the
`
`jury in understanding this term as used in the art of touch sensor technology. Independent claims
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`1, 8, and 15 recite that the drive and/or sense electrodes “be[] made of a conductive mesh [of]
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`conductive material comprising metal.” ’574 patent at 14:52-54, 15:18-19, 16:20-22 (emphasis
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`added). Because the claims expressly require the mesh be made of metal, materials that are not
`
`considered to be a metal, such as indium tin oxide (“ITO”), are excluded from the scope of the
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`claims. Declaration of Aris K. Silzars Regarding Claim Construction (“Silzars Decl.”), ¶¶ 57-59.
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`A person of ordinary skill would have understood that ITO is a semiconducting oxide and not a
`
`metal. Such a person would also have known that ITO would not have sufficient conductivity
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`and would be too brittle to be formed into a mesh, while thin wires are commonly used as ITO
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`alternatives to form mesh electrodes. Id. Therefore, the claimed “mesh” can be formed from a
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`set of thin wires but cannot be made from ITO.
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`The specification also uses the term consistent with understanding of a person of ordinary
`
`skill and supports Defendants’ construction that a “mesh” is “set of thin wires that surround open
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`spaces in a net or network.” The specification discloses that the described mesh embodiments
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`“relate to conductor elements and patterns of copper” but
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`that “other metals suitable for use as wire pattern
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`material” can be used. ’574 patent at 14:32-35. The
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`specification consistently describes a “mesh” being
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`formed to surround open spaces in a net or network. For
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`example, Figure 2a (to the right) is described as follows: “The electrode pattern 10 may be
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`formed by a number of straight conductive lines 11 arranged to interconnect at connection points
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`to define a conductive grid or mesh pattern made up of an array of square shaped mesh cells 13
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`arranged in a layer.” ’574 patent at 3:64-4:1.
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`The defining feature of the “mesh” as used in the patent is the “mesh cell,” a term used
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`repeatedly throughout the specification. The mesh cells can be “square shaped,” e.g., id. at 4:1,
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`“trapezoid shaped,” e.g., id. at 4:45, or “diamond shaped,” e.g., id. at 4:47, and the lines that
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`make up the mesh cell can be straight, e.g., id. at 3:65-66, or sinusoidal, e.g., id. at 5:5-8. A
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`person of ordinary skill would understand that the mesh cells form a net or network that surround
`
`open spaces as depicted in Figure 2a, for example. Silzars Decl., ¶¶ 55-56 Regardless of the
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`shape of the mesh cell, it always is formed of a set of thin wires that surround open spaces in a
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`net or network, consistent with the meaning of the term to a person of ordinary skill in this art
`
`and as reflected in Defendants’ construction. See Irdeto Access, Inc. v. Echostar Satellite Corp.,
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`383 F.3d 1295, 1303 (Fed. Cir. 2004) (“repeatedly, consistently, and exclusively” using a term in
`
`a certain way can manifest “the patentee’s clear intent to so limit the term”); see also Phillips v.
`
`AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005) (quoting Irdeto Access, 383 F.3d at 1300)
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`(“Even when guidance is not provided in explicit definitional format, the specification may
`
`define claim terms by implication such that the meaning may be found in or ascertained by a
`
`reading of the patent documents.”).
`
`The patent also distinguishes between electrodes formed of mesh and electrodes formed
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`of ITO:
`
`While clear conductors such as ITO may be used for electrodes,
`opaque metal electrodes also may be used. The opaque metal
`electrodes may be made of a conductive mesh of thin conductors,
`which may be of copper, silver or other conductive materials. The
`thin conductors may be made very thin as to be substantially
`invisible to the naked eye.
`
`’574 patent at 1:51-56 (emphasis added). Thus, the specification establishes that ITO is not used
`
`to form the claimed “mesh.”
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`Unlike Neodron’s non-construction, relevant dictionary definitions of “mesh” confirm
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`that Defendants’ construction correctly captures the plain and ordinary meaning of the term. The
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`New Oxford American Dictionary (2nd ed. 2005) defines “mesh” as “material made of a network
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`of wire or thread.” Silzars Decl., Ex. 2 at 1063; see also id., Ex. 3, The Am. Heritage Dictionary
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`at 1101 (4th ed. 2000) (“the cords, threads, or wires surrounding . . . the open spaces in a net or
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`network”). Even the dictionary Neodron cites confirms that a “mesh” is made from a network of
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`wire. See id., Ex. 4 (Lexico definition of “mesh” as “Material made of a network of wire or
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`thread”). Defendants’ construction of “mesh” therefore reflects that term’s plain and ordinary
`
`meaning.
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`Accordingly, based on the intrinsic and extrinsic record, a person of ordinary skill in the
`
`art would understand that “mesh” means a “set of thin wires that surround open spaces in a net or
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`network.”
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`III.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 9,086,770
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`The claims of the ’770 patent are directed to “a touch position-sensing panel” that uses a
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`particular type and arrangement of electrodes on two sides of a substrate to form the sensing
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`area. See ’770 patent, Abstract; claim 7. The electrodes are arranged in two layers (one on each
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`side of the substrate) laid out in different directions. Id. The electrodes are formed from a
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`conductive mesh material by creating cuts in the mesh so that adjacent electrodes are separated
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`by gaps that run the length of the sensing area. Id. at 6:39-7:19, 12:1-4. This arrangement
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`results in electrodes that are generally quadrilateral, which the specification distinguishes from
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`prior art interdigitated (i.e., interlocked or digitized) electrodes. Id. at 8:32-54, 11:31-47. The
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`patent discloses prior art interdigitated electrodes in connection with Figure 3 and discloses
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`quadrilateral electrodes in connection with Figures 4-6.
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`The specification discloses that the prior art electrodes have protruding digits that alternate with
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`the adjacent electrodes to produce an “interdigitated” pattern as shown in Figures 3A-3C. Id. at
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`7:41-49 (describing interdigitated drive electrodes with respect to Figure 3A); see also id. at
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`7:57-8:3 (describing interdigitated sense electrodes with respect to Figure 3B).
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`A.
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`“generally straight line” (’770 patent, claim 7)
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`Defendants’ Construction
`Indefinite
`
`Neodron’s Construction
`Plain and ordinary meaning; no construction
`necessary
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`The ’770 patent differentiates the purportedly inventive “generally quadrilateral”
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`electrodes from prior art “interdigitated electrodes.” The boundaries of both types of electrodes
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`are formed by gaps that run between the electrodes, and independent claim 7 specifies that the
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`gaps “run[] in a generally straight line from one side of the sensing area to an opposing side of
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`the sensing area.” But the claim term “generally straight line” cannot differentiate with
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`reasonable certainty between the gaps of the claimed electrodes and the prior art gaps that define
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`interdigitated electrodes. Claim 7 therefore is indefinite. Nautilus, Inc. v. Biosig Instruments,
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`Inc., 572 U.S. 898, 901 (2014) (“[A] patent is invalid for indefiniteness if its claims, read in light
`
`of the specification delineating the patent, and the prosecution history, fail to inform, with
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`reasonable certainty, those skilled in the art about the scope of the invention.”).
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`Independent claim 7 is indefinite because there is no common understanding among those
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`of ordinary skill in the art about what a “generally straight line” is relative to the distinguished
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 12 of 44
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`art, and the patent does not define one. “Generally straight line” is a term of degree. See Liberty
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`Ammunition, Inc. v. U.S., 835 F.3d 1388, 1395-96 (Fed. Cir. 2016) (term of degree “necessarily
`
`calls for a comparison against some baseline”). Claims reciting terms of degree are indefinite if
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`they fail to provide ‘“objective boundaries for those of skill in the art’ when read in light of the
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`specification and the prosecution history.” Liberty Ammunition, 835 F.3d at 1395-96 (quoting
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`Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370-71 (Fed. Cir. 2014)); Enzo Biochem,
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`Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010) (term of degree requires “some
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`standard for measuring that degree”); Brazabra Corp. v. CE Soir Lingerie Co., Inc., No. 1-18-cv-
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`00683, Dkt. No. 35 at 9-13 (W.D. Tex. Aug. 15, 2019) (“a substantial area” indefinite because
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`there is no objective measure to assess the boundary of the term in the intrinsic and extrinsic
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`evidence); Intel Corp. v. Tela Innovations, Inc., No. 3:18-CV-02848-WHO, 2019 WL 5697922,
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`at *12 (N.D. Cal. Nov. 4, 2019) (“physically and electrically separated by a [conductor] line end
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`spacing of minimum size” indefinite).
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`The Intel decision is particularly instructive. In Intel, the district court considered the
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`definiteness of the term “physically and electrically separated by a [conductor] line end spacing
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`of minimum size.” 2019 WL 5697922, at *10. The court observed that although the “intrinsic
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`evidence reveals where ‘line end spacing’ is located and why ‘minimum size’ is desirable,” it
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`provided “no objective way to determine what ‘minimum size’ means.” Id. at 12 (italics in
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`original). The court also rejected the patentee’s argument that a person of ordinary skill would
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`understand “minimum spacing” in terms of the design rules for producing a semiconductor
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`device, because “[t]he design rules for any given semiconductor device cannot serve as the
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`objective bounds for determining minimum size; the patent must do that.” Id. (emphasis added).
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 13 of 44
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`Here, the ’770 patent suffers from similar flaws. The patent discloses no objective
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`boundaries for determining what constitutes a gap that runs in a “generally straight line” between
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`electrodes. In Figures 3A-C and the accompanying text, the patent discloses prior art
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`interdigitated electrodes with gaps shaped like a square wave that runs in a straight line from one
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`side of the sensing area to the other. The specification explains why “generally straight” gaps
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`might be desirable by criticizing interdigitated electrodes based on the precision of the gaps
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`required to form them: “the interdigitated pattern may make it difficult to employ in touch
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`sensors with certain space or shape requirements that may prevent or limit the very precise cuts
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`required in the conductive mesh.” ’770 patent at 8:33-36. The specification also criticizes prior
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`art interdigitated electrodes as not suitable for all dimensions of electrodes. Id. at 8:36-45.
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`However, as in Intel, the patent does not explain what “generally straight” means, nor how it is
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`different from the prior art.
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`The specification teaches that these problems of precision are solved by using electrodes
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`with generally quadrilateral electrodes: “To address these challenges, the teachings of the
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`disclosure recognize that it is possible to use generally quadrilateral electrodes without one or
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`more digits in an orthogonal pattern.” Id. at 8:45-48; 12:17-20; 13:34-38 (“Additionally,
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`forming quadrilaterally shaped drive and sense electrodes in a conductive mesh may not require
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`the same cutting precision required for electrodes of particular shapes, for example electrodes
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`comprising one or more digits.”). The patent discloses examples of generally quadrilateral
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`electrodes in Figures 4, 5, and 6, which show gaps that run in a perfectly straight line from one
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`side of the sensing area to the other.
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`However, the ’770 patent fails to inform a person of ordinary skill in the art how to
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`determine whether gaps with other shapes (i.e., other than the perfectly straight gaps in Figs. 4-6)
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 14 of 44
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`run in a “generally straight” line from one side of the sensing area to the other as recited in the
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`claim. For example, is a gap with a lower amplitude square wave running straight across the
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`sensing area a generally straight line? What about a gap shaped like a sine wave, or a zigzag?
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`Each of these examples can, in some sense, be described as a shape that runs in a straight line
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`across the sensing area, but so too can the gaps shaped in the criticized interdigitated form of the
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`prior art. See Silzars Decl., ¶¶ 36-39. This is a critical problem because a skilled artisan must
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`not only know what falls within the scope of the claim term, but what falls outside of it. Versata
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`Software Inc. v. Zoho Corp., 213 F. Supp. 3d 829, 836 (W.D. Tex. 2016). Because a person of
`
`ordinary skill cannot determine with reasonable certainty which gaps with shapes run in a
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`“generally straight line” that are sufficiently distinct from the criticized prior art, the claim term
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`is indefinite.
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`The ’770 patent specification is of no help and, in fact, exacerbates the ambiguity of the
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`term. For example, whereas “rectangular” and “quadrilateral” describe a shape that has four
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`sides, the specification uses the term “generally quadrilateral” and “generally rectangular” to
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`describe the purported invention. See ’770 patent at 8:46-47 (“the teachings of the disclosure
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`recognize that it is possible to use generally quadrilateral electrodes”) (emphasis added); see also
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`9:6-10 (“Drive electrodes . . . are generally quadrilateral in shape, and in particular, are generally
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`rectangular.”). The ’770 patent’s use of the word “generally” makes it unclear whether an
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`electrode configuration that is “generally” rectangular or quadrilateral even has four sides. For
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`example, is a pentagon without digitized edges “generally” a quadrilateral? See id. at 11:38-39
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`(“electrode configuration that includes generally quadrilateral, or non-digitized, electrodes”)
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`(emphasis added).
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 15 of 44
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`The specification’s discussion of the gaps between electrodes is equally unhelpful,
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`providing no objective indication about whether any specific shape, threshold, or other
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`characteristics is required for an electrode gap to run in a “generally straight line.” For example,
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`the claims recite that the gaps range between “5 micrometers and less than 20 micrometers.”
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`’770 patent at 14:24-25. A person of ordinary skill would understand that even small variations
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`in electrode configurations matter when the gaps are only micrometers across. Silzars Decl., ¶¶
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`37-38. At this size, small differences have large impacts on the nature of the electrodes, which
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`impacts performance. Id. And as the specification acknowledges, patterns of the electrode
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`layers “may improve accuracy of the reported touch coordinate.” ’770 patent at 8:30:31. As
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`such, “generally straight line” as recited in claim 7 provides no guidance as to how precisely or
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`imprecisely the gaps must be cut to be “generally” straight lines. Silzars Decl. ¶¶ 39-41.
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`Notably, although Neodron disagrees this term is indefinite, it offers no construction to
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`identify any boundaries for this term, much less one that provides objective boundaries to allow
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`one to determine when this limitation is or is not met. Neodron refers to an undisclosed “plain
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`and ordinary meaning” for this term, but has not explained what that is. Given the lack of
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`teaching in the patent and the Federal Circuit decisions finding similar terms of degree indefinite,
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`the Court should find that “generally straight line” in claim 7 is indefinite.
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`IV.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 9,823,784
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`The ’784 patent is directed to a drive and sense electrode configuration in a “two-
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`electrode layer construction” for a mutual capacitance touch sensor. See ’784 patent at 9:62-63;
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`1:22-24. Drive electrodes are arranged on a lower surface of a substrate with narrow sense
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`electrodes on an upper surface of a substrate. Id. at 10:49-52; 13:7-15. Isolated conductive
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`elements may be used to fill in the area between the sense electrodes. Id. at 14:33-38.
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 16 of 44
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`The claims of the ’784 patent are indefinite because they include two similar vague
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`terms, both relating to “substantially area filling” electrodes “relative to” something else, and
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`both of which are indefinite.
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`A.
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`“wherein the plurality of drive electrodes are substantially area filling within
`the sensing region relative to the plurality of sense electrodes” (claims 1-3)
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`Defendants’ Construction
`Indefinite
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`Neodron’s Construction
`Plain and ordinary meaning; no construction
`necessary
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`The first disputed term requires not only that drive electrodes be “substantially area
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`filling,” but that they be substantially area filling “relative to the plurality of sense electrodes.”
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`Id. at 20:1-3 (claim 1); 20:20-22 (claim 2); 20:41-43 (claim 3). The patent provides no
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`explanation, however, of what it means to be “substantially area filling” relative to something
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`else. There is nothing to clarify whether the comparative language adds a requirement (e.g., that
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`the drive electrodes be both substantially area filling and more area filling than the sense
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`electrodes) or lowers the threshold (e.g., requiring only that the drive electrodes be area filling
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`compared to the sense electrodes, regardless of whether they are area filling on their own.)
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`These interpretations lead to very different outcomes. If the area filled by the drive
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`electrodes covers 40% of the first side, one of ordinary skill would likely deem that not
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`“substantially area filling.” Silzars Decl. ¶ 90. But viewed “relative to” the area filled by the
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`“sense electrodes,” 40% might be “substantially area filling,” depending on the meaning of
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`“relative to.” If the sense electrodes fill only 10% of the second side, are the drive electrodes
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`covering 40% of the first side now “substantially area filling within the sensing region relative to
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`the plurality of sense electrodes”? Under an interpretation that the term requires the drive
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`electrodes to be substantially area filling within the sensing area: no. But under an interpretation
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`that the drive electrodes need only be more area filling than the sense electrodes: yes. To change
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 17 of 44
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`the hypothetical again, if the sense electrodes instead fill 35%, would the drive electrodes taking
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`up 40% then be “substantially” area filling relative to the sense electrodes? There are numerous
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`possible variations of these relative percentages, and there is no way for one of ordinary skill to
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`determine with reasonable certainty what the “relative to” language means. Id.
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`No part of the specification clarifies this issue. Neither the phrase “area filling . . . relative
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`to” nor the phrase “relative to the sense electrodes” even appears in the specification. The
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`portions of the specification that discuss the concept of “substantiality” do not address how that
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`threshold for the drive electrodes changes relative to the sense electrodes. Rather, the
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`specification discusses drive electrodes that “substantially entirely cover” the first layer—the
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`concept of being substantially area filling on their own, with no reference to the sense electrodes.
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`For example, the specification states: “[T]he drive electrodes substantially entirely cover the first
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`layer with individual ones of the drive electrodes being separated from neighboring drive
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`electrodes by small gaps.” ’784 patent at 4:24-27; 5:61-64; 6:12-15; 6:22-25.
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`The few references to a comparison between “drive” and “sense” electrodes do not relate
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`to this term at all. There are passages, for example, suggesting a preference in some
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`embodiments to isolate the sense electrodes from capacitive effects (e.g., noise) by having the
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`drive electrodes “cover the first layer” almost “entirely” (id. at 5:18-21)—leaving no room for
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`discussing drive electrodes that need only “substantially” fill the area “relative to” sense
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`electrodes in a second layer. See also id. at 4:39-43 (“flooding” of the entire “first layer with
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`conductive material” allows for sense electrodes to be narrower than the physical “object” being
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`sensed). Nor is there any discussion of how these advantages or purpose could be achieved by
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`only having drive electrodes that are substantially area filling relative to the sense electrodes.
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`Other passages simply disclose a preference to have wider drive electrodes than sense electrodes.
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`Case 1:19-cv-00819-ADA Document 60 Filed 04/17/20 Page 18 of 44
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`See, e.g., id. at 6:57-59; 8:27-29. These discussions leave unknown what it means to be
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`substantially area filling relative to something else, and what the difference is between that and
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`being area-filling alone.
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`The silence likely arises because this comparative limitation was added during
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`prosecution, but the specification remained directed at the original claim language. The claim as
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`originally drafted required that the drive electrodes