Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`NEODRON LTD.,
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`DELL TECHNOLOGIES INC.,
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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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`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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`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 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 2 of 14
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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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`NEODRON LTD.,
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`v.
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`Plaintiff,
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
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`Defendant.
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`Case No. 1:19-cv-00898-ADA
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`Case No. 1:19-cv-00903-ADA
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`PLAINTIFF NEODRON LTD.’S (“NEODRON’S”) RESPONSIVE CLAIM
`CONSTRUCTION BRIEF
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`GROUP 3 – TOUCH PROCESSING PATENTS
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 3 of 14
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`TABLE OF CONTENTS
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`I. DISPUTED TERM FOR THE ’286 PATENT _____________________________________________________ 1
`A.
`“sensor value(s)” (’286 Patent, claims 1, 3–5, 8–10, 12–13, 15–17, 20–21, 23–24) ____ 1
`1.
`Defendants’ proposal improperly imports limitations from the specification. _______________________ 2
`2.
`Claims provide no support for Defendants’ proposal. __________________________________________________ 4
`3.
`Extrinsic evidence does not support Defendants. _______________________________________________________ 5
`4.
`Defendants mischaracterize what occurred at the ITC. _________________________________________________ 5
`II. DISPUTED TERM FOR THE ’747 PATENT _____________________________________________________ 6
`A.
`claims 10, 16) ____________________________________________________________________________________________ 6
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`“to measure a parameter of the first variable resistance electrode” (’747 Patent,
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`i
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 4 of 14
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`TABLE OF EXHIBITS AND ABBREVIATIONS1
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`Ex Description
`Defendants’ Opening Claim Construction Brief on the Disputed
`-
`Terms of the Touch Processing Patents, Dkt. 62.
`33 Markman Ruling in Realtime Adaptive Streaming LLC v. Google
`LLC, et al. dated July 25, 2019
`
`Abbreviation
`Defs.’ Opening
`Br.
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`
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`1 Additional document abbreviations and the numbering of corresponding exhibits can be found
`on pages 4–5 of Docket No. 61, Neodron’s Opening Claim Construction Brief for the Group 1 –
`Touch Sensor Patents. All relevant exhibits, with the exception of Exhibit 33, can be found as
`exhibits to Docket No. 64, Omnibus Declaration of Reza Mirzaie. Exhibit 33 is attached to this
`brief.
`
`ii
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 5 of 14
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`I.
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`DISPUTED TERM FOR THE ’286 PATENT
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`A.
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`“sensor value(s)” (’286 Patent, claims 1, 3–5, 8–10, 12–13, 15–17, 20–21, 23–24)
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`Neodron’s Proposed Construction
`Plain and ordinary meaning, which is “sensor
`signal value(s).”
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`Defendants’ Proposed Construction
`Plain and ordinary meaning, i.e. “value
`indicating the strength of the sensor signal.”
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`“Sensor value” is a plain term, and both sides agree that it has a plain and ordinary meaning.
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`Nevertheless, Defendants assert that the Court must limit the scope of this term. Setting aside the
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`logical fallacy in arguing that a term should be construed to have its plain and ordinary meaning,
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`and at the same time arguing that the Court should limit the scope of the term, Defendants’
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`arguments for limiting the scope of this term lacks sound legal basis. For instance, Defendants
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`argue that “the stated purpose of the invention” limits claim scope. Defs.’ Opening Claim
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`Construction Br. on the Disputed Terms of the Touch Processing Patents, Dkt. 62 (“Defs. Opening
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`Br.”) at 3 But “limit[ing] claim scope based on the purpose of the invention … is impermissible.”
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`Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 832 (Fed. Cir. 2003).2 Defendants also argue
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`that the ’286 patent specification’s “consistent[] and repeated[]” (Defs.’ Opening Br. at 3) use of
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`the word “strength” limits the scope of this plain term. That is also impermissible. Courts, without
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`clear and unambiguous disclaimer, “do not import limitations into claims from examples or
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`embodiments appearing only in a patent’s written description, even when a specification describes
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`very specific embodiments of the invention or even describes only a single embodiment.” JVW
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`Enters. v. Interact Accessories, Inc., 424 F.3d 1324, 1335 (Fed. Cir. 2005). Defendants also argue
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`2 GoLight, Inc. v. Wal-Mart Stores, 355 F.3d 1327, 1331 (Fed. Cir. 2004) (“The patentees were
`not required to include within each of their claims all of the[] advantages or features described
`as significant or important in the written description.”); E-Pass Technologies, Inc. v. 3Com
`Corp., 343 F.3d 1364, 1370 (Fed. Cir. 2003) (“An invention may possess a number of advantages
`or purposes, and there is no requirement that every claim directed to that invention be limited to
`encompass all of them.”).
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`1
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`that extrinsic evidence supports them, but that is untrue, as none of their dictionary definitions
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`even mentions the word “strength,” and their expert relies entirely on the dictionaries for his
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`“opinion.” The Court should reject Defendants’ proposal.
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`1.
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`Defendants’ proposal improperly imports limitations from the specification.
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`Defendants ask the Court to do what the Federal Circuit has “repeatedly warned against”:
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`confining the claims to the specific embodiments described in the specification. Phillips v. AWH
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`Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“[A]lthough the specification often
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`describes very specific embodiments of the invention, we have repeatedly warned against
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`confining the claims to those embodiments.”). Indeed, for a specification statement to be limiting,
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`“patentee must clearly set forth a definition” or “there must be a clear and unmistakable
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`disclaimer.” Thorner v. Sony Entertainment Am. LLC, 669 F.3d 1362, 1365-67 (Fed. Cir. 2012).
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`Nothing in the specification amounts to a “clear and unmistakable” statement that limits
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`the plain term “sensor value.” Defendants first point to the specification at 2:8-16 to argue that the
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`use of the phrase “the invention” followed by a description that uses the phrase “signal strength”
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`supports their construction. Defs.’ Opening Br. at 4. But even that first portion of the specification
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`Defendants identify is expressly just about “[o]ne aspect of the invention.” See id. And later in
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`that same column 2, the specification also states that “[i]n the above discussions, it should be
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`understood that the principle of having one signal greater than another has been somewhat
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`simplified for explanatory purposes.” ’286 patent at 2:60-63. Moreover, specification further
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`explains that “foregoing recital is not intended to list all of the features and advantages” of the
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`invention. ’286 patent at 3:56-60. There is no clear and unmistakable disclaimer here.
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`Defendants’ reliance on “the invention” language is also legally misplaced. Even where
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`the specification contains statements using “the present invention” language, the Federal Circuit
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`2
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 7 of 14
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`has repeatedly held that a limitation should not be imported. See, e.g., Voda v. Cordis Corp., 536
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`F.3d 1311, 1321 (Fed. Cir. 2008) (holding that the language “straight portion” is not a claim
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`limitation even though “portions of the written description…describe the contact portion ‘of the
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`catheter of the present invention’ as a ‘straight portion,’” and the phrase “straight portion” is
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`mentioned no fewer than 19 times in the “Summary of Invention” of the asserted patent, U.S. Pat.
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`No. 6,083,213); Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1326 (Fed. Cir. 2008) (holding that
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`the claims do not require the capillaries to be “uniform” even though “the Summary of the
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`Invention section of [the asserted patent state] that ‘[t]he apparatus of this invention provides a
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`flow restrictor in the storage container in the form of a tube having multiple uniformly shaped
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`capillaries…”); Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 909 (Fed. Cir. 2004); Rambus
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`Inc. v. Infineon Tech. AG, 318 F.3d 1081, 1094-5 (Fed. Cir. 2003).
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`Defendants point to various other portions of the specification, but none of those portions
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`amounts to clear and unmistakable language limiting claim scope either. Indeed, Defendants do
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`not even assert as much, and instead argue that “the specification exclusively describes” things
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`using the word “strength.” But the Federal Circuit has “expressly rejected the contention that if a
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`patent describes only a single embodiment, the claims of the patent must be construed as being
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`limited to that embodiment.” Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005).
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`Likewise, Defendants’ argument that the patent “repeatedly and consistently” (Defs.’
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`Opening Br. at 7) uses the word “strength” also do not support Defendants, as none of those are
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`clear and unmistakable disclaimer as to the term at issue, “sensor value.” Defendants
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`mischaracterize GPNE Corp. v. Apple Inc., 830 F.3d 1365, 1370-71 (Fed. Cir. 2016) to support
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`their argument (Defs.’ Opening Br. at 7). Unlike here, GPNE involved a patent that “repeatedly
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`and consistently characterize[d] a claim term in a particular way,” and “[t]he prosecution history
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`3
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`also support[ed]” the construction at issue. GPNE, 830 F.3d at 1370-71. In contrast, Defendants
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`do not even contend that prosecution history supports them here. And the ‘286 specification does
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`not use “sensor value” in any particular way, much less in repeated and consistent way. In fact,
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`Defendants concede that “the term ‘sensor value’ appears nowhere in the specification.” Defs.’
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`Opening Br. at 4. Accordingly, there is no clear and unmistakable disclaimer regarding “sensor
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`value” through repeated and consistent use, or otherwise. The Court should not import the
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`“strength” language from the specification.
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`2.
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`Claims provide no support for Defendants’ proposal.
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`Defendants identify ordinary numerical comparisons or mathematical operations in the
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`claims to argue that their “strength” language should be adopted. That is nonsensical. For example,
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`Defendants argue that claim 1’s recitation of one sensor value “surpassing” another sensor value
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`must mean that the claim is talking about “strength” of a signal. Defs.’ Opening Br. at 7. That is
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`like arguing that a person weighing 500 pounds surpassing a person weighing 250 pounds must
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`mean that the 500-pound person’s “strength” must surpass that of the 250-pound person; that may
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`sometimes be true, but that is not always the case. Other arguments advanced by Defendants
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`suffers from the same fallacy—e.g., “increasing” / “decreasing” sensor values (id. at 7-8) does not
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`necessarily mean increasing / decreasing the strength of the sensor signal; it can simply mean
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`increasing the sensor value from a value of 0 to a value of 1, or from a value of 1 to a value of 0.
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`Similarly, “selected amount,” “predetermined amount,” or a value that “falls below” another value
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`does not specifically require “value indicating the strength,” as Defendants argue. Defendants
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`appear to see any word recited in the claims as supporting their “strength” language. That is false.
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`4
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`3.
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`Extrinsic evidence does not support Defendants.
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`Like for words in the claims, Defendants see any dictionary definition as supporting their
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`“strength” language. But none of their dictionaries actually uses the word “strength.” Instead, the
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`two dictionaries Defendants cite uses the term “quantity” to define “value.” See Defs.’ Opening
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`Br. at 9. “Quantity” does not imply “strength.” Dictionaries do not support Defendants’
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`construction. Defendants also cites to their expert declaration, but their expert relies exclusively
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`on the dictionaries. Accordingly, expert declaration provides no help to Defendants either. See
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`also, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1318-19 (Fed. Cir. 2005) (en banc) (holding that
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`extrinsic evidence is generally less reliable than intrinsic evidence).
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`4.
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`Defendants mischaracterize what occurred at the ITC.
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`In an effort to avoid ALJ Elliott’s ruling that directly contradicts Defendants’ construction,
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`Defendants rewrites what actually occurred at the ITC. For instance, while acknowledging that the
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`ITC case involved a related patent with the same specification as here, Defendants argue that the
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`ITC case involved “different claim language.” Defs.’ Opening Br. at 9-10. That is false. Both this
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`case and the ITC case involves “sensor values.” See Defs.’ Opening Br. at 10 (reciting ‘790 patent
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`claim 1, which recites “the respective first sensor values”). Moreover, Defendants argue that the
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`primary legal issue in the ITC was to address “indefiniteness problem” (Defs.’ Opening Br. at 9).
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`Not true. Even Defendants’ own opening brief itself admits that “the parties in the ITC agreed that
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`‘sensor value’ and ‘signal value’ were interchangeable” (id. at 10), which eliminated any
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`antecedent basis issue that formed the reason for the indefiniteness argument that Defendants had
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`initially asserted in the beginning of the claim construction process in the ITC. As explained more
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`fully in Neodron’s opening claim construction brief, the issue regarding the term “sensor value”
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`5
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 10 of 14
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`in the ITC and in this case is virtually the same. ALJ Elliott’s ruling was entirely correct. “Sensor
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`value” should be construed as “sensor signal value.”
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`II.
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`DISPUTED TERM FOR THE ’747 PATENT
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`A.
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`“to measure a parameter of the first variable resistance electrode” (’747 Patent,
`claims 10, 16)
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`Neodron’s Proposed Construction
`Plain and ordinary meaning; no construction
`necessary: “to measure a parameter of the
`first variable resistance electrode.”
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`Samsung’s Proposed Construction
`Plain and ordinary meaning: “to measure a
`value determined by the resistance of the
`first variable resistance electrode.”
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`Samsung agrees that the parties’ dispute concerns the phrase “to measure a parameter.” See
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`Defs.’ Opening Br. at 12. And specifically, the parties’ entire dispute is whether the word
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`“parameter” should carry its plain and ordinary meaning (Neodron’s proposal) or be construed as
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`“value determined by the resistance” (Samsung’s proposal).
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`Samsung’s construction should be rejected because “parameter” has a plain and ordinary
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`meaning, and the ’747 patent uses parameter according to that plain meaning. See Omega Eng’g,
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`v. Raytek., 334 F.3d 1314, 1323 (Fed. Cir. 2003) (the Federal Circuit indulges “a ‘heavy
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`presumption’ that claim terms carry their full ordinary and customary meaning”). Samsung does
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`not dispute this. Nor does Samsung contend that its construction—“value determined by the
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`resistance”—is the plain meaning of “parameter.” Indeed, the applicants wrote and the examiner
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`allowed the claims using that word. The Court should not rewrite the claim differently from what
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`the applicants wrote and the examiner allowed. See Thorner v. Sony, 669 F.3d 1362, 1366-67 (Fed.
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`Cir. 2012) (“we do not redefine words. Only the patentee can do that.”).
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`Nor is the Court is required to construe “parameter” simply because Samsung wants to. As
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`the Federal Circuit instructed, “there are limits to the court’s duties at the claim construction stage.
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`For example, courts should not resolve questions that do not go to claim scope, but instead go to
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`6
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 11 of 14
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`infringement, or improper attorney argument.” Eon Corp. IP Holdings v. Silver Spring Networks,
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`815 F.3d 1314, 1319 (Fed. Cir. 2016). Indeed, “district courts are not (and should not be) required
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`to construe every limitation present in a patent’s asserted claims.” O2 Micro Int’l v. Beyond
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`Innovation Tech. 521 F.3d 1351, 1362 (Fed. Cir. 2008).
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`Samsung vaguely contends that plain and ordinary meaning “does not resolve the parties’
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`dispute.” Defs.’ Opening Br. at 13. But Samsung fails to articulate what that dispute is or explain
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`why it requires clarification from the Court. In similar circumstances, courts have rejected
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`defendants’ proposals and found no construction necessary. See Realtime Adaptive Streaming LLC
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`v. Google LLC, et al., CV 18-3629-GW(JCx), Dkt. 84 at 34–35 (C.D. Cal. Jul. 25, 2019) (Ex. 33
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`at 35-36) (noting that given the “lack of clarity” about “the actual root dispute . . . (including how
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`that dispute relates to dispositive issues in this case such as infringement or invalidity contentions),
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`the Court declines Defendants’ insistence to construe these terms at this time” (footnote omitted)).
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`Indeed, there does not appear to be any real dispute on some of Samsung’s rewording—though
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`Neodron cannot be entirely sure what Samsung means by its recording of the claims.
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`Samsung’s arguments based on the claims and specification (Defs.’ Opening Br. at 13–15)
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`fail for a simple reason: they do not show lexicography or disclaimer. Samsung does not identify
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`any clear and unmistakable relinquishment of claim scope. For example, the patentee never
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`redefined or “parameter” to mean “value determined by the resistance.”
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`Samsung’s arguments that the claims and specification are consistent with their
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`construction do not support adopting it. A “value determined by the resistance” is an example of a
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`“parameter”—but not necessarily coextensive.3 Every example in the ’747 claims and
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`3 Again, Samsung does not articulate any real dispute such as some “parameter” that must be
`excluded from the scope of the claims. Indeed, it should not because the claims recite
`“parameter.” Should Samsung actually identify the dispute, Neodron will respond.
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`7
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 12 of 14
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`specification is consistent the plain meaning of “parameter” and shows it is used under that plain
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`meaning. For example, dependent claim 15 recites “wherein the measured parameter is current
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`flowing through the first variable resistance electrode.” And the current flowing through the
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`electrode is certainly a parameter of that electrode.
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`Samsung’s reliance on Neodron’s preliminary response in IPR proceedings does not
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`support its construction. Neodron’s preliminary response applied the plain meaning of “parameter”
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`and the cited portions are not even about this claim term. Neodron agrees that the ’747 is directed
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`to resistive force sensors. But that concept is reflected in the claim term “first variable resistance
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`electrode.” It is not part of the plain meaning of “parameter” and there is no need to redefine that
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`term to incorporate concepts from other limitations.
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`To the contrary, Samsung’s own IPR petition on the ’747 undermines the construction it
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`seeks now. Samsung did not propose any construction for “parameter” and agreed that the term
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`should carry its plain and ordinary meaning. The IPR was governed by the same Phillips claim
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`construction standard as this case, and Samsung was required to propose constructions it believed
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`to be correct. See 37 C.F.R. § 42.104(b)(3) (“[T]he petition must set forth . . . [h]ow the challenged
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`claim is to be construed.”). Yet Samsung did not propose any construction, much less “value
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`determined by the resistance.” To the extent Samsung argues that a construction unnecessary to
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`resolve the invalidity disputes, the same is true now. The Court should reject Samsung’s proposal
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`and adopt Neodron’s.
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`Dated: May 15, 2020
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`Respectfully submitted,
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`/s/ Reza Mirzaie
`Reza Mirzaie (CA SBN 246953)
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`8
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 13 of 14
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`Email: rmirzaie@raklaw.com
`Marc A. Fenster (CA SBN 181067)
`Email: mfenster@raklaw.com
`Brian D. Ledahl (CA SBN 186579)
`Email: bledahl@raklaw.com
`Paul A. Kroeger (CA SBN 229074)
`Email: pkroeger@raklaw
`Philip X. Wang (CA SBN 262239)
`pwang@raklaw.com
`Neil A. Rubin (CA SBN 250761)
`Email: nrubin@raklaw.com
`Amy E. Hayden (CA SBN 287026)
`Email: ahayden@raklaw.com
`Shani Williams (SBN 274509)
`Email: swilliams@raklaw.com
`Kristopher R. Davis (IL SBN 6296190)
`Email: kdavis@raklaw.com
`Christian W. Conkle (CA SBN 306374)
`Email: cconkle@raklaw.com
`Kent N. Shum (CA SBN 259189)
`Email: kshum@raklaw.com
`Jonathan Ma (CA SBN 312773)
`Email: jma@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Blvd. 12th Floor
`Los Angeles, CA 90025
`Phone: (310) 826-7474
`Fax: (310) 826-6991
`
`Matthew D. Aichele (VA SBN 77821)
`Email: maichele@raklaw.com
`RUSS AUGUST & KABAT
`800 Maine Avenue, SW, Suite 200
`Washington, DC 20024
`Phone: (310) 826-7474
`Fax: (310) 826-6991
`
`Attorneys for Plaintiff Neodron Ltd.
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`9
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`Case 1:19-cv-00819-ADA Document 68 Filed 05/15/20 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to
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`have consented to electronic service are being served with a copy of this document via the
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`Court’s CM/ECF system per Local Rule CV-5(b)(1) on May 15, 2020.
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`
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`/s/ Reza Mirzaie_______
`Reza Mirzaie
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