Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 1 of 39
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Case No. 1:19-cv-00819-ADA
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`Case No. 1:19-cv-00873-ADA
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`Case No. 1:19-cv-00874-ADA
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`Case No. 1:19-cv-00898-ADA
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`Plaintiff,
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`v.
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`Defendant.
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`NEODRON LTD.,
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`DELL TECHNOLOGIES INC.,
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`NEODRON LTD.,
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`Plaintiff,
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`v.
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`HP, INC.,
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`Defendant.
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`NEODRON LTD.,
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`v.
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`Plaintiff,
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`MICROSOFT CORPORATION,
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`Defendant.
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`NEODRON LTD.,
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`v.
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`Plaintiff,
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`AMAZON.COM, INC.,
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`Defendant.
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 2 of 39
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`NEODRON LTD.,
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`v.
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`Plaintiff,
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`Case No. 1:19-cv-00903-ADA
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
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`Defendant.
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`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF ON
`THE DISPUTED TERMS OF THE TOUCH SENSOR PATENTS
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`(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 66 Filed 05/15/20 Page 3 of 39
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`TABLE OF CONTENTS
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`Page
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`I.
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`INTRODUCTION ..........................................................................................................1
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`II.
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`THE DISPUTED TERM OF U.S. PATENT NO. 8,946,574 (“MESH”) .........................1
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`III.
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`THE DISPUTED TERM OF U.S. PATENT NO. 9,086,770 (“GENERALLY
`STRAIGHT LINE”) .......................................................................................................5
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`IV.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 9,823,784 .........................................5
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`A.
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`B.
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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) .........................................................................................................5
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`“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” (claims 1-3) .....................................8
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`V.
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`THE DISPUTED TERM OF U.S. PATENT NO. 10,088,960
`(“INTERCONNECTING MESH SEGMENTS”) ............................................................8
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`VI.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 7,821,502 ....................................... 11
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`A.
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`B.
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`C.
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`“a substrate having a surface with an arrangement of electrodes mounted
`thereon” (’502 patent, claims 1-2, 5-8, 11-14, 16). ............................................ 12
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`“sensing area” (’502 patent, claims 1-2, 5-8, 11-14, 16). ................................... 15
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`“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) ..................................................................... 24
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`VII. CONCLUSION ............................................................................................................ 30
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 4 of 39
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`AquaTex Indus. v. Techniche Solutions,
`419 F.3d 1374 (Fed. Cir. 2005) .............................................................................................. 3
`
`Becton, Dickinson & Co. v. Tyco Healthcare Group, LP,
`616 F.3d 1249 (Fed. Cir. 2010) ............................................................................................ 10
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018) .............................................................................................. 7
`
`Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc.,
`815 F.3d 1314 (Fed. Cir. 2016) .............................................................................................. 2
`
`Helmsderfer v. Bobrick Washroom Equipment, Inc.,
`527 F.3d 1379 (Fed. Cir. 2008) ............................................................................................ 15
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370, 116 S. Ct. 1384,
`134 L. Ed. 2d 577 (1996) ..................................................................................................... 15
`
`Multiform Desiccants, Inc. v. Medzam Ltd.,
`133 F.3d 1473 (Fed. Cir. 1998) .............................................................................................. 2
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd.,
`521 F.3d 1351 (Fed. Cir. 2008) ............................................................................................ 12
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`Omega Eng’g, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003) ............................................................................................ 29
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................................ 3, 13, 14, 15
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`Power Mosfet Techs., L.L.C. v. Siemens AG,
`378 F.3d 1396 (Fed. Cir. 2004) ............................................................................................ 25
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`PPC Broadband, Inc. v. Corning Optical Commc’ns RF, LLC,
`815 F.3d 747 (Fed. Cir. 2016).............................................................................................. 13
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`Texas Digital Systems, Inc. v. Telegenix, Inc.,
`308 F.3d 1193 (Fed. Cir. 2002) ............................................................................................ 14
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 5 of 39
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`Defendants respectfully submit their responsive 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
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`(collectively the “touch sensor patents”).
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`I.
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`INTRODUCTION
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`Neodron’s opening claim construction brief confirms that Neodron largely wants to sit
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`out the claim construction process. For most terms, Neodron continues to argue that no
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`construction is necessary and simply parrots the claim language while refusing to agree with
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`Defendants’ plain-meaning constructions, or Neodron plucks out dictionary definitions that are at
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`odds with the intrinsic record. As Defendants predicted, Neodron’s goal is flexibility and
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`malleability, as Neodron is faced with stretching its patent claims to try to cover the accused
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`products while simultaneously casting the claims narrowly to avoid spot-on prior art. But at the
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`end of the day, Neodron cannot legitimately dispute that Defendants’ constructions, with few
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`exceptions, reflect the plain and ordinary meaning in light of the patent specification and file
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`history. For those exceptions, Defendants have established there is no accepted plain and
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`ordinary meaning, or the applicants acted as their own lexicographer in defining a term. In every
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`instance, Defendants’ constructions are the correct ones, while Neodron’s reflect its desire to
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`avoid certainty in the claim construction process.
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`II.
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`THE DISPUTED TERM OF U.S. PATENT NO. 8,946,574 (“MESH”)
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`The parties agree that the scope of the term “mesh” within the context of the ’574 patent
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`claims would not include electrodes made of indium tin oxide (“ITO”). See Flasck Decl. ¶ 67
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`(“[T]he intrinsic record does not support the notion that a metal mesh could be made of the
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`widely used [ITO]. It is also my opinion that a POSITA would also not find that ITO electrodes
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`would not be considered metal mesh electrodes.”); see also Neodron Br. at 27 (“[A] POSITA
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`would not consider the widely used [ITO] as a metal ‘mesh.’”). Indeed, Neodron recognizes the
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 6 of 39
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`’574 patent expressly discloses that mesh electrodes are an alternative to ITO electrodes: “And
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`by using an alternative to the widely used [ITO] electrode designs, namely ‘mesh’ electrodes, the
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`inventors allowed ‘any display below the touch position-sensing panel [] to be visible with little
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`perceptible darkening or other loss of display quality.’” Neodron Br. at 3 (quoting ’574 patent,
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`4:16-19). However, Neodron’s construction that “mesh” merely be given its plain and ordinary
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`meaning does not inform the factfinder that materials like ITO are excluded from the claim’s
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`scope. Neodron’s arguments against Defendants’ construction also ignore the specification’s
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`repeated disclosures that electrodes made from metal may be formed of “wire” or “wiring.”
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`This underscores the need for construction here. “Since a full and complete
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`understanding of the scope of the claims is requisite to determining whether the patent is
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`infringed, technical terms or words of art or special usages in the claims, if in dispute, are
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`construed or clarified by the court before the construed claims are applied to the accused device.”
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`Multiform Desiccants, Inc. v. Medzam Ltd., 133 F.3d 1473, 1476 (Fed. Cir. 1998). The term
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`“mesh” is a technical term in the context of electrodes for touch sensors that needs to be
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`construed for the benefit of the jury. In situations like this, where simply instructing the jury to
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`apply the term’s plain and ordinary meaning does not “resolve the parties’ dispute,” the Court is
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`“obligated to provide the jury with a clear understanding of the disputed claim scope.” Eon
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`Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016).
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`The Court should therefore construe “mesh” to mean “set of thin wires that surround open spaces
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`in a net or network.”
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`Defendants’ construction of “mesh” is consistent with the intrinsic record. “Where, as
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`here, the disputed claim term is technical or a term of art, ‘the best source for understanding it is
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`the specification from which it arose, informed, as needed, by the prosecution history.’”
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 7 of 39
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`AquaTex Indus. v. Techniche Solutions, 419 F.3d 1374, 1380 (Fed. Cir. 2005) (quoting Phillips v.
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`AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc)). The ’574 patent discloses the
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`“conductive material” forming the electrodes—the same wording used in the claims—may be
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`made from a metal “used in conductive wiring.” Id. at 3:28-31; see also id. at 11:25-28
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`(describing the electrodes as being formed of “wiring”); 14:32-35 (disclosing “other metals
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`suitable for use as wire pattern material” can be used to form the electrodes).
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`Likewise, the specification repeatedly describes the mesh as being formed of “thin” or
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`“narrow” material. See, e.g., id. at 1:52-56 (describing the “conductive mesh” as being made of
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`“thin conductors”); 3:31-56 (repeatedly describing the electrodes as being formed of “narrow
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`metal lines” and “narrow conductive lines”), 12:64-67 (“Any of the examples shown in FIGS. 4
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`to 14 may be used for either one or both the electrode layers that may be implemented using
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`narrow metal conductive lines.”).
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`Further, the ’574 patent expressly distinguishes between electrodes made of clear
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`conductive materials like ITO and opaque metals. See, e.g., ’574 patent at 1:51-55 (“[w]hile clear
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`conductors such as ITO may be used for electrodes, opaque metal electrodes also may be used,”
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`which “may be made of a conductive mesh of thin conductors”). In view of the specification, the
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`claim is clear that clear, conductive materials cannot be used to form a “mesh.” Neodron and
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`Mr. Flasck agree that ITO, one type of clear, transparent material, would not be used to make a
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`metal mesh electrode. See Neodron Br. 27; Flasck Declaration, ¶ 67. Yet, Mr. Flasck cites
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`portions of the specification using the terms “conductive material” and “thin conductors” to
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`argue that the use of the words “thin wires” in Defendants’ construction “suggests that only
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`certain types of materials may be used in a ‘mesh.’” Flasck Declaration, ¶ 67; see also Neodron
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`Br. 27. This contradiction further evidences the necessity for an explicit construction that will
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 8 of 39
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`help the jury understand that materials like ITO are excluded from the claim’s scope. Based on
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`its arguments and expert’s declaration, Neodron’s proposal encompasses all clear conductive
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`materials except ITO. The words “thin wires” are necessary to convey to the factfinder that
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`transparent conductors, such as ITO and others, cannot be used to form a “mesh,” consistent with
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`the specification.
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`Neodron’s own cited dictionaries belie its criticism that the terms “net” or “network”
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`“appear[] inconsistent with the plain meaning.” Neodron Br. 27. For instance, the Merriam-
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`Webster dictionary Neodron cites uses both “net” and “network” to define a “mesh” in the first
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`entry: “one of the similar spaces in a network” and “the fabric of a net.” “Mesh,” Merriam-
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`Webster. And the first entry of “mesh” in the Lexico dictionary, “[m]aterial made of a network
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`of wire or thread,” closely tracks Defendants’ construction. “Mesh,” Lexico. These dictionaries
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`and others demonstrate that Defendants’ construction is consistent with the plain meaning of
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`“mesh.” American Heritage Dictionary at 1101 (defining “mesh” as “[t]he cords, threads, or
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`wires surrounding” “the open spaces in a net or network”); New Oxford Am. Dictionary at 1063
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`(defining “mesh” as “material made of a network of wire or thread”). Indeed, a “net or network”
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`encompasses the “web-like pattern or interlaced and intricate structures” that Neodron contends
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`is the plain meaning of “mesh.” Neodron Br. at 27.
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`Neodron also attempts to argue that Samsung’s decision not to construe “mesh” in U.S.
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`Patent Nos. 9,965,106 and 10,365,747—two patents unrelated to the ’574 patent—is evidence
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`that “mesh” should not be construed here. Neodron Br. at 26. This fact is irrelevant. Samsung
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`was not accused of infringing the ’574 patent, and the Defendants accused of infringing the ’574
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`patent were not accused of infringing the ’106 patent or the ’747 patent.
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 9 of 39
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`The Court should therefore construe “mesh” as “set of thin wires that surround open
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`spaces in a net or network.”
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`III. THE DISPUTED TERM OF U.S. PATENT NO. 9,086,770 (“GENERALLY
`STRAIGHT LINE”)
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`Defendants withdraw their indefiniteness challenge to the term “generally straight line.”
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`IV.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 9,823,784
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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
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`Neodron’s Construction
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`Indefinite
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`Plain and ordinary meaning; no construction
`necessary
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`Neodron’s opening brief confirms why claims 1-3 are invalid. Neodron concedes that the
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`term “relative to” is used “as a comparison.” Neodron Op. Br. at 36. Neodron concedes that this
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`comparison must specifically be between the “drive lines” and the “sense lines.” Id. at 37
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`(quoting Ex. 26, 5/16/2012 Amendment at 10). But Neodron is unable to provide any framework
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`for identifying what that comparison requires—i.e., when the “drive electrodes” become
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`substantially area filling relative to the sense electrodes as they change in area or what that
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`means beyond being “substantially area filling” on their own.
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`Neodron cites the patentee’s discussion of Hotelling in the prosecution history, but that
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`discussion does nothing to clarify the issue. The patentee’s discussion states only the
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`unremarkable proposition that if the drive and sense electrodes have “the same basic
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`arrangement,” then the “substantially area-filling . . . relative to” term cannot be satisfied. Id.
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`This leaves unanswered the critical question set out in Defendants’ opening brief: what does it
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`mean to be “substantially area-filling” relative to something else? If the drive electrodes cover
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`40% of the first side compared to sense electrodes that cover only 10% of the second side, those
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 10 of 39
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`are different arrangements. But do the drive electrodes “substantially fill the area within the
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`sensing region relative to” the sense electrodes? If not, is the limitation satisfied if the electrodes
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`are 70% compared to 40%? The patent provides no answer.
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`Neodron’s argument that “substantially area filling” in isolation is not indefinite is
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`inapposite. The issue is not what it means to be “substantially area filling.” The issue is what it
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`means to be substantially area filling “relative to” something else. None of Neodron’s brief
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`addresses that issue. Instead, Neodron attempts to divorce the two halves of the term, arguing
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`that “substantially” does not render the term indefinite, and “relative to” is used as a comparison.
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`See id. at 36-37.
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`For the same reason, Neodron’s citations to the specification do not clarify what the term
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`means as a whole. See id. at 36 (citing ’784 patent at 8:5-7 (“The area filling design of the
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`driven electrodes leads to an almost invisible electrode pattern.”) (emphasis added), 12:5-7
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`(“[T]he bars in Layer 1 [driven electrodes] can be seen to be substantially area filling; almost all
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`of the surface area is flooded with electrode.”) (emphasis added)). These discussions of the drive
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`electrodes provide no meaningful explanation of what it means for the drive electrodes to be
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`substantially area filling “relative to” the sense electrodes.
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`Neodron’s arguments about visibility of the “drive electrodes” also fail to explain what it
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`means for the drive electrodes to be “substantially area filling . . . relative to” the sense
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`electrodes. In Neodron’s view, the “purpose” of having the drive electrodes “substantially fill
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`the sensing area is to prevent the electrodes from being visible.” Id. at 36. But Neodron’s
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`citations about visibility concern only the drive electrodes. ’784 patent at 4:34-36; 8:4-7; 12:5-
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 11 of 39
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`12; see also Defendants’ Op. Br. at 12-13.1 Invisibility is achieved—without the sense
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`electrodes—by “flood[ing]” Layer 1 with drive electrodes. See ’784 patent at 12:6-7. These
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`passages lend no insight into how the area required for the drive electrodes in Layer 1
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`substantially fills the area “relative to” the areas covered by the sense electrodes in Layer 2. In
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`the end, these citations are missing the one thing Neodron agrees is required by the claims: a
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`“comparison” with the sense electrodes. Even Neodron’s own expert, Mr. Flasck, admits such a
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`comparison is required. Flasck Decl., ¶ 81 (“[A] POSITA would have no difficulty
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`understanding that the term ‘relative to’ is used in this context in its ordinary sense, i.e. as a
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`relative comparison of two things.”).
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`Finally, Neodron’s case law addresses the wrong issue. Neodron’s cited authority relates
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`to whether a “term of degree” or term such as “substantially” renders a claim indefinite.
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`Defendants have never argued that this term is indefinite because it utilizes a term of degree. But
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`neither can this term escape indefiniteness merely because it includes the term “substantially.”
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`All claim terms—including terms of degree—must reasonably have “objective boundaries,”
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`which are missing from the claims here. Berkheimer v. HP Inc., 881 F.3d 1360, 1364 (Fed. Cir.
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`2018) (“Our case law is clear that the objective boundaries requirement applies to terms of
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`degree.”). As discussed above, the central flaw here comes from the added requirement that
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`substantiality be measured relative to the sense electrodes, without any guidance as to what that
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`means.
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` 1
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` Neodron calls out this “area-filling design” as a “particular feature of the patented invention”
`that it contends “teaches a novel design for a capacitive touch sensor.” Neodron Op. Br. at 7-8.
`But notably, the Examiner rejected the Applicant’s attempt to overcome the prior art using this
`term. See Defendants’ Op. Br. Ex. D, 4/11/2013 Final Rejection at 2-3.
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 12 of 39
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`The record must provide adequate boundaries for a person of ordinary skill to understand
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`the scope of the term “substantially area filling . . . relative to” with reasonable certainty. The
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`intrinsic record of the ’784 patent fails to do so. Consequently, claims 1-3 are indefinite.
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`B.
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`“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” (claims 1-3)
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`Defendants’ Construction
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`Neodron’s Construction
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`Indefinite
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`Plain and ordinary meaning; no construction
`necessary
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`According to Neodron, this limitation is “virtually identical” to the first term and “this
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`claim term was added in the same amendment and for the same purpose.” Neodron Op. Br. at
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`38. As explained in detail in Defendants’ brief, this term suffers from flaws specifically brought
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`about by the nature of the comparison it is making (A + B > A), which contradict the Examiner’s
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`understanding of the term. See Defendants’ Op. Br. at 15-17. Because Neodron makes no
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`further attempt to resolve these infirmities, the claims are indefinite for the reasons Defendants
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`have already articulated.
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`V.
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`THE DISPUTED TERM OF U.S. PATENT NO. 10,088,960
`(“INTERCONNECTING MESH SEGMENTS”)
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`The parties agree about what “interconnecting mesh segments” are not—they do not
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`include “a continuous layer of conductive electrode material.” The parties, however, disagree
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`about what “interconnecting mesh segments” are. The specification discloses that
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`interconnecting mesh segments are “interconnected fine lines of highly conducting wire or
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`traces,” yet Neodron disagrees with this statement as reflected in Defendants’ construction.
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`Instead, Neodron’s proposal uses vague language like “conductive electrode material” to create
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`ambiguity as to whether transparent conductors like ITO could form the mesh, despite agreeing
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`with regard to the ’574 patent that ITO cannot form a mesh. See Neodron Br. 27. Neodron’s
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 13 of 39
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`circular definition of “interconnecting mesh segments” by reference to a “mesh pattern” and
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`improper importation of the word “pattern” into the claims would not help the jury in any way.
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`Defendants’ construction comes directly from the intrinsic evidence. The claims recite
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`sense and drive electrodes that are made of “a first conductive mesh” and “a second conductive
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`mesh,” respectively. Each of the claimed conductive meshes “comprises a plurality of
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`interconnecting mesh segments occupying at least a portion of an area of the” respective
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`electrodes. Thus, the claims require the “plurality of interconnecting mesh segments” to make
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`up the “conductive mesh” of each drive and sense electrode. The specification does not use the
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`term “interconnecting mesh segments” anywhere outside of the claims, but it unequivocally
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`states that in the “‘mesh or filligrane’ approach,” each electrode is formed “out of a plurality of
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`interconnected fine lines of highly conducting wire or traces.” ’960 patent at 26:37-39 (emphasis
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`added); see also id. at 6:24-29 (distinguishing continuous electrodes of “electrically conduction
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`material, such as ITO or a metal” from “a mesh or filigree pattern of interconnected lines of
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`highly conductive material which collectively define each electrode.” (emphasis added)). As Dr.
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`Silzars explains, semiconductors like ITO are not “highly conductive.” Ex. 1, Silzars Decl. ¶ 57.
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`Contrary to Neodron’s contention, Defendants’ construction does not read “mesh” out of
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`the claims. See Neodron Br. at 28. The “interconnecting mesh segments” are what form the
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`claimed conductive meshes. Substituting Defendants’ construction into the claims, they recite
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`“the [first/second] conductive mesh comprises a plurality of [interconnected fine lines of highly
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`conducting wire or traces, instead of a continuous layer of conductive electrode material,]
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`occupying at least a portion of an area of the [sense/drive] electrodes.” Indeed, Neodron’s
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`proposal would create redundancy within the claim, essentially stating that the mesh comprises a
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`plurality of lines forming a mesh pattern. Neodron’s proposal thus improperly renders the
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 14 of 39
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`conductive mesh terms superfluous. See Becton, Dickinson & Co. v. Tyco Healthcare Group,
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`LP, 616 F.3d 1249, 1257 (Fed. Cir. 2010) (“Claims must be interpreted with an eye toward
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`giving effect to all terms in the claim.” (internal quotations omitted)). Moreover, Neodron does
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`not explain to how Defendants’ construction reads out “mesh” when the construction includes a
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`verbatim quote from the specification’s description of a mesh electrode.
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`Neodron’s and Mr. Flasck’s criticism that Defendants’ construction could encompass the
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`prior art design in Figure 21 shows their lack of understanding of this claim term. See Neodron
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`Br. at 29; Flasck Decl., ¶ 72 (“[I]t would appear that Defendants’ proposal for this claim term
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`may result in prior art designs, that a POSITA would not recognize as mesh, to be call[ed] within
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`the scope of the claim limitation.”). Defendants agree that Figure 21 does not disclose a mesh.
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`But there is no way “a juror might be confused” about whether Figure 21 meets this limitation
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`under Defendants’ construction. Neodron Br. at 29. In describing Figure 21, the ’960 patent
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`discloses:
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`It will be understood the X and Y electrodes do not literally
`intersect, but are offset in the vertical or Z direction, orthogonal to
`the plane of the drawing, being separated by a dielectric layer—
`typically a substrate panel which bears the X electrodes on one
`side and the Y electrodes on the other side
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`’960 patent at 2:59-64 (emphasis added). The ’960 patent could not be clearer that the electrodes
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`in Figure 21 are not “interconnected,” as required by Defendants’ construction. Moreover,
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`nothing in either the ’960 patent or U.S. Patent No. 6,452,514 (from which Figure 21 is derived)
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`indicates that the X and Y electrodes in Figure 21 are made of fine lines of highly conducting
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`wire or traces.
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`Neodron’s lack of understanding of this claim term is further evident in its discussion of
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`the background of the ’960 patent. Neodron asserts that 20 figures and “nearly 30 columns” of
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`the ’960 patent teach “forming the electrodes out of a mesh of conductive wires that visually
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 15 of 39
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`resemble a screen-like structure.” Neodron Br. at 11. To the contrary, the ’960 patent only
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`discloses one figure, namely Figure 17, dedicated to the “mesh” embodiment, which is discussed
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`in two paragraphs. See, e.g., Ex. M (6/5/2018 Notice of Allowance at 2) (“The scope of the
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`claims is specifically limited and narrowly tailored to the specific electrode arrangement as
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`shown in Fig. 17.”). Aside from two more paragraphs in the Summary of the Invention, the rest
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`of the disclosure has nothing to do with forming mesh electrodes. See, e.g., ’960 patent at 18:10-
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`12 (“The electrodes comprising the electrode pattern [of Figure 12] are of a transparent
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`conductive material, in this case Indium Tin Oxide (ITO).”); 26:8-11 (Figure 12 depicts drive
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`and sense electrodes made of a “continuous layer of electrode material”).
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`The construction of “interconnecting mesh segments” need not reference a “pattern,” as
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`Neodron proposes. This term is not found anywhere in the claim. Neodron’s inclusion of the
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`word “pattern” transforms the term “mesh” to merely a “mesh pattern.” It also contradicts
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`Neodron’s position with respect to the ’574 patent that “mesh” has a plain meaning to a person
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`of ordinary skill in the art. See Neodron Br. at 26. Indeed, the specification explicitly states
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`what a mesh or filigrane pattern is, and it is what Defendant’s construction says: “a plurality of
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`interconnected fine lines of highly conducting wire or traces.” ’960 patent 26:37-39.
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`The Court should therefore construe the term “interconnecting mesh segments” as
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`“interconnected fine lines of highly conducting wire or traces, instead of a continuous layer of
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`conductive electrode material.”
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`VI.
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`THE DISPUTED TERMS OF U.S. PATENT NO. 7,821,502
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`The following three claim terms remain in dispute for the ’502 patent.
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 16 of 39
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`A.
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`“a substrate having a surface with an arrangement of electrodes mounted
`thereon” (’502 patent, claims 1-2, 5-8, 11-14, 16).
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`Defendants’ Construction
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`Neodron’s Construction
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`Plain and ordinary meaning in light of the
`specification, i.e. “a substrate having a side
`with an arrangement of electrodes mounted
`thereon”2
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`Plain and ordinary meaning; no construction
`necessary: “a substrate having a surface with
`an arrangement of electrodes mounted thereon”
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`Despite Neodron’s attempts at obfuscation, there is a need for the Court to construe this
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`term because the parties dispute the plain and ordinary meaning of “surface.” Defendants
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`contend that “surface” means a side of the substrate, such as the top or bottom side, consistent
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`with its plain meaning and use in the patent. Def. Br. at 24. In contrast, without explicitly
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`stating as much or citing any support in the intrinsic record, Neodron has now made clear that it
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`contends “surface” has a different meaning; that is, the “outside” or “exterior” of the substrate,
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`which would include both the top and bottom of the substrate. Neodron Br. at 16. The Court
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`must resolve this dispute, because it matters a great deal to the scope of the claims. O2 Micro
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`Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1361 (Fed. Cir. 2008) (“A
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`determination that a claim term ‘needs no construction’ or has the ‘plain and ordinary meaning’
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`may be inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a
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`term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”).
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`Defendants’ construction is correct because it is the only plain and ordinary meaning that
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`is consistent with the specification and the file history. As established in Defendants’ opening
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`brief, the ’502 patent specification uses the term “surface” to mean a side of a substrate rather
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`than the entire outside or exterior of a substrate. Def. Br. at 25-27. For example, the Summary
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`
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` 2
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` Neodron’s opening brief incorrectly omits the “plain and ordinary meaning” portion of
`Defendants’ construction.
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`Case 1:19-cv-00819-ADA Document 66 Filed 05/15/20 Page 17 of 39
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`of the Invention contrasts the touch device of the ’502 patent, which uses only one side of the
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`substrate, from the prior art that used both sides:
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`Because the position sensor is based on sensing electrodes on only
`a single surface, it can be cheaper to manufacture than known
`double-sided position sensors. This also means the sensing
`electrodes can be deposited directly onto a surface for which the
`opposing surface is inaccessible (e.g. a display screen).
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`’502 patent at 3:1-7 (emphases added). Other passages from the specification and file history are
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`in accord. See id. at Abstract, 1:34-37, and 2:21-25; ’502 file history at Ex. E, 11/24/2009 Appl.
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`Resp. at 6 and Ex. F, 5/19/2010 Appl. Resp. at 6.
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`Neodron concedes the ’502 patent uses “surface” as a synonym for “side” in “some
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`portions of the patent specification.” Neodron Br. at 17 (emphasis in original). But tellingly,
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`Neodron fails to identify any portion of the specification or file