Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 1 of 45
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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 69 Filed 05/15/20 Page 2 of 45
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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 1 – TOUCH SENSOR PATENTS
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`I.
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`A.
`B.
`C.
`II.
`A.
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`III.
`A.
`B.
`IV.
`A.
`V.
`A.
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 3 of 45
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`TABLE OF CONTENTS
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`“a substrate having a surface with an arrangement of electrodes mounted thereon”
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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–
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`Redefined: All Parties Now Expressly Agree “Mesh” Had a Well-Known Plain
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`In Any Event, Defendants’ Thirteen-Word Construction for the Well-Known
`Claim Term Finds Little Support in the Intrinsic Record and, Even Worse,
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`DISPUTED TERMS FOR THE ’502 PATENT .......................................................... 1
`(’502 Patent, claims 1, 2, 5–8, 11–14, 16) ........................................................................1
`“sensing area” (’502 Patent, claims 1, 2, 5–8, 11–14, 16) ................................................4
`14, 16) ...............................................................................................................................8
`DISPUTED TERM FOR THE ’574 PATENT .......................................................... 13
`“mesh” (’574 Patent, claims 1, 8, 15) .............................................................................13
`1. Defendants’ Brief Confirms this Claim Term Should Not be Reworded or
`Meaning and that the Patent Uses the “Mesh” According to Its Plain Meaning .....13
`2. Beyond This Confirmation, Defendants Only Present Legally and Factually
`Flawed Arguments for Construing the Term At All ...............................................14
`3.
`Could Only Create Ambiguities and Tension with the Intrinsic Record ................16
`DISPUTED TERM FOR THE ’960 PATENT .......................................................... 18
`“interconnecting mesh segments” (’960 Patent, claims 1, 9, 17) ...................................18
`1. Defendants’ Proposed Construction Incorrectly Strips “Mesh” of Having Key
`Aspects of Mesh Patterns Required by Any Reading of the Term .........................18
`Recited in the Claims to Some Lines or Traces that Were “Interconnected” .................21
`UNDISPUTED TERM FOR THE ’770 PATENT .................................................... 22
`“generally straight line” (’770 Patent, claim 7) ..............................................................22
`DISPUTED TERMS FOR THE ’784 PATENT ........................................................ 22
`2, 3) .................................................................................................................................24
`1. The Specification Describes Drive Electrodes That Are Substantially Area
`Filling Both on Their Own And in Comparison to The Sense Electrodes. .............25
`2. Amazon Does Not Argue That the Phrase “Substantially Area Filling Within
`the Sensing Region” Is, On Its Own, Indefinite. .....................................................28
`3. There Is No Dispute That “Relative To” In the Claims Has Its Ordinary
`Meaning And Imposes An Additional Comparative Limitation. ............................29
`4. The Only Question Is Whether the Claims Require Both The Absolute
`Limitation And The Relative Limitation. The Only Answer Is “Yes.” ..................30
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`Additionally, Defendants’ Flawed Arguments Overlook Another Improper Change
`They Import to the Claims: Inexplicably Changing the “Interconnecting” Segments
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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” (’784 Patent, claims 1,
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`B.
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 4 of 45
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`plurality of sense electrodes” (’784 Patent, claims 1, 2, 3) .............................................34
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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
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`ii
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 5 of 45
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`TABLE OF ABBREVIATIONS1
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`Description
`Defendants’ Opening Claim Construction Brief On the Disputed
`Terms of the Touch Sensor Patents, Dkt. 60.
`Plaintiff Neodron’s Opening Claim Construction Brief, Group 1 –
`Touch Sensor Patents, Dkt. 61
`Opposition Declaration Of Richard A. Flasck In Support Of
`Plaintiff Neodron Ltd.’s Opening Claim Construction Briefs (filed
`concurrently)
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`Abbreviation
`Defs.’ Opening Br.
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`Neodron’s Opening
`Br.
`Flasck Opp. Dec.
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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 can be found as exhibits to Docket No. 64, Omnibus
`Declaration of Reza Mirzaie.
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`iii
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 6 of 45
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`I.
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`DISPUTED TERMS FOR THE ’502 PATENT
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`A. “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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`Neodron’s Proposed Construction
`Plain and ordinary meaning; no construction
`necessary: “a substrate having a surface with
`an arrangement of electrodes mounted
`thereon.”
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`Defendants’ Proposed Construction
`“a substrate having a side with an
`arrangement of electrodes mounted thereon”
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`Where a term is used in accordance with its plain meaning, courts need not replace it with
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`different language. Thorner, 669 F.3d at 1366-67 (“we do not redefine words. Only the patentee
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`can do that.”) (emphasis added).
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`This dispute presents an easy application of these rules. Though a larger claim phrase was
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`originally put at issue by Defendants, the parties now agree that the entire dispute turns on one
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`simple word. That is, whether this Court change the phrase in claims “a substrate having a surface
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`with an arrangement of electrodes mounted thereon,” to the Defendants’ nearly identical proposed
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`phrase, but with yet another substitution of their choosing, “a substrate having a side with an
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`arrangement of electrodes mounted thereon.”
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`This Court should not. Indeed, even a lay person with the patent in hand would easily
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`understand this term and need no redefining. See Flasck Opp. Dec.¶¶ 49-52; Exhibit 10 (defining
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`“surface” as, for example, “[t]he outside part . . . of something”); Exhibit 11 (defining “surface”
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`as, for example, “the exterior . . . of an object”). And because the term “surface” is not a difficult
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`technical term for which a construction would help the jury understand the true meaning of it. Kroy
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`IP Holdings, LLC, v. Safeway, Inc., No. 2:12-cv-800-WCB, 2014 WL 3735222, at *2 (E.D. Tex.,
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`July 28, 2014) (Bryson, J., sitting by designation) (holding proposed constructions would not
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`necessarily “add to the jury’s understanding of the terms” and, consequently, that terms should not
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`be changed or redefined.)
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`1
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 7 of 45
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`Instead of presenting sound argument, Defendants make an attempt to get their construction
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`by asserting false and irrelevant accusations. This includes suggesting that Neodron plans to distort
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`the plain reading of “a substrate having a surface with an arrangement of electrodes mounted
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`thereon” and also includes outright falsely accusing Neodron of some refusal to explain its
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`positions despite the hours of meet and confer calls on claim construction disputes.
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`At any rate, getting back to what is relevant: Neodron enthusiastically represents that it
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`only attempts to apply the plain meaning of the claim term “a substrate having a surface with an
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`arrangement of electrodes mounted thereon…” and nothing more or less.
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`Defendants’ arguments against this approach and for their claim-word replacement appears
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`to entirely rest on an interpretation of this disputed phrase that would require “a substrate having
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`one and only one side with an arrangement of electrodes mounted thereon…” E.g., Defs.’ Opening
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`Br. at 25-26 (reading a surface as “a single surface” and excluded a “double sided” surface.)
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`This point is irrelevant—and also contradicts basic tenets of claim construction. As an
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`initial matter, Defendants’ attempt to construe their own construction and substitution of “a side”
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`as “one and only one side” is improper. And Neodron already explained why using the word “side”
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`is no real substitute for the claim term chosen by the patentee. Neodron’s Opening Br. at 16-18.
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`But more to the point of the flawed questions Defendants interject, even if the patent
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`originally used the term “a side,” Defendants’ attempt to really read it as one and only one side”
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`still fails. That is because, the Federal Circuit “has repeatedly emphasized that an indefinite article
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`‘a’ or ‘an’ in patent practice carries the meaning of ‘one or more’ in open-ended claims containing
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`the transitional phrase comprising.” E.g., KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, at
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`1355 (Fed. Cir. 2000) (emphasis added). There is no debate that the claims here meet this
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 8 of 45
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`requirement of being “open-ended” and contain “the transitional phrase comprising,” so this
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`repeated holding applies to them.
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`Defendants’ attempt to sidestep this law by suggesting there is some disclaimer or
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`lexicography of the term fails. For starters, Defendants have long stated—and continue to represent
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`in their latest claim construction pleading—that they admit the term should be given its “plain and
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`ordinary meaning.” Defs.’ Opening Br. at 24.
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`Which is it? Is there some disclaimer or lexicography or should the term be afforded its
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`plain meaning? There is an easy answer here: the term should be given its plain meaning. Among
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`other things, even the very same statements Defendants misapply from the patent’s “Background”
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`also make clear that having one sensing layer or side is merely “optional[].” E.g., ’502 Patent at
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`2:34-44. (“The ideal touch surface would … optionally require only one sensing layer with no
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`crossovers in the sensing region[.]”) (emphasis added).
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`At best, Defendants’ proposal can only risk confusion. That is because the patent does also
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`use the term “side” in ways that are not synonymous. For example, the patent refers to “sides” to
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`refer to two distinct halves or portions on the same surface:
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 9 of 45
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`In this example, the row and column sensing electrodes of each
`sensing cell do not spiral around one another. In sensing cells in
`column x2 (e.g. sensing cell 84) the column sensing electrode runs
`continuously through the sensing cell as a spine, with the row
`sensing electrode comprising two conductive regions on either side
`of the column sensing electrode.
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`’502 Patent at 10:61-67 (emphasis added), Figure 3 (colorized). And, with regard to the
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`claims, they repeatedly use the phrase “outside” in a manner that is not synonymous with
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`surface. Flasck Opp. Dec.¶ 52. The claim term should not be disturbed or construed as
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`Defendants propose.
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`B. “sensing area” (’502 Patent, claims 1, 2, 5–8, 11–14, 16)
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`Neodron’s Proposed Construction
`“an area defined by the sensing cells”
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`Defendants’ Proposed Construction
`“an area defined by the sensing electrodes”
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 10 of 45
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`The “claim construction inquiry . . . begins and ends in all cases with the actual words of
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`the claim.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002). Indeed,
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`“the claims themselves provide substantial guidance as to the meaning of [] terms.” Phillips v.
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`AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005).
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`As Defendants recognize, the dispute between the parties is only: do the “sensing cells”
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`define the boundaries of the “sensing area”—or do “sensing electrodes” somehow define that area?
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`Here, the claim language itself resolves this dispute—and does so in Neodron’s favor. The
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`contextual claim language makes clear that presence of electrodes, namely column sensing
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`electrodes and row sensing electrodes, define the array of sensing cells. But it is the sensing cells
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`resulting from the intersection of those electrodes that define the disputed: sensing area,”—because
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`those resulting sensing cells are arranged in columns and rows to form the sensing area:
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`wherein the electrodes define an array of sensing cells arranged in
`columns and rows to form a capacitive sensing area of the sensor,
`each sensing cell including a column sensing electrode and a row
`sensing electrode, the column sensing electrodes of sensing cells in
`the same column being electrically coupled together and the row
`sensing electrodes of sensing cells in the same row being electrically
`coupled together
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`’502 Patent, claim 1 (emphases added); Flasck Opp. Dec.¶ 54. This is the reading that a POSITA
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`would observe from the claims.
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`The patent specification also confirms this point. It, too, describes the relationship between
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`the sensing cells and its role in defining the sensing area. See, e.g., ’502 Patent at 3:48-51 (“The
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`sensing cells may be arranged into three or four columns. This can provide a position sensor with
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`sufficient resolution over a typically sized sensing area for most applications.). (emphasis added).
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`In other words, the define the “edge” of the sensing area:
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`In sensing cells in columns at the edge of the sensing area (i.e.
`columns x1 and x3, e.g. sensing cell 86) the row sensing electrode
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 11 of 45
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`runs continuously through the sensing cell with the column sensing
`electrode comprising two conductive regions on either side of the
`row sensing electrode.
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`’502 Patent at 10:67-11:5 (emphasis added). And the patent further makes clear that, unlike the
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`role of the sensing cells, the sensing electrodes do not have to run to the “very edge” of the sensing
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`area:
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`It is noted that although one is shown in FIG. 3, a connection outside
`of the sensing area between the row sensing electrodes at opposing
`ends of row y1 is not required because the spines connecting
`between the column sensing electrodes of columns x2 and x3 need
`not extend to the very edge of the sensing area and a connection
`running along the top edge of the sensing area could be used to
`connect between the row sensing electrodes in row y1 (not shown).
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`’502 Patent at 7:3-10 (emphasis added); Flasck Opp. Dec. ¶¶ 55-59.
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`Defendants’ construction appears to just read out the sensing cell and its role from the
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`claim, improperly collapsing that role and incorrectly assigning it to another, already existing claim
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`term, sensing electrodes. Beyond the grammatical errors inherent in that proposal, it is also
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`strongly disfavored as a matter of law because it would render “sensing cells” superfluous. E.g.,
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`Pause Tech., LLC v. Tivo, Inc., 419 F.3d 1326 1334 (Fed. Cir. 2005) (“By aruing that the ‘time
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`interval’ can vary after the determination is made and the buffer begins receiving signals, Pause
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`attaches no significance to the word ‘predetermine.’ In construing claims, however, we must give
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`each claim term the respect that it is due.”).
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`Indeed, rather than suggest that they do not read out a term, Defendants basically assert
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`that this is true. In their mind, one passage from the patent that states the spines described in the
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`patent specification “need not extend to the very edge of the sensing area” somehow “confirms
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`that the sensing area does not extend beyond … the sensing electrodes.” Defs.’ Opening Br. at 29.
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`In fact, they come right out and say that Neodron’s proposal is flawed because it does not equate
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 12 of 45
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`the boundaries of the sensing area and the electrodes. Id. at 31. But again, that runs right into
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`contrary Federal Circuit law, which holds that a “claim construction that gives meaning to all the
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`terms of the claim is preferred over one that does not do so.” Merck & Co., Inc. v. Teva Pharm,
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`USA, Inc., 395 F3d 1364, 1372 (Fed. Cir. 2005).
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`It is Defendants’ proposed construction that is incorrect as a matter of law. At best, due to
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`the claimed relationship between sensing cells including at least one row sensing electrode and
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`one column sensing electrode, some passages and embodiments in the patent teaches that a sensing
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`area may be defined by the electrodes, if those electrodes are commensurate with the sensing cells.
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`But some examples or embodiments is not sufficient to change the nature of the claim term.
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`To the contrary, without clear and unambiguous disclaimer or lexicography, courts “do not
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`import limitations into claims from examples or embodiments appearing only in a patent’s written
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`description, even when a specification describes very specific embodiments of the invention or
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`even describes only a single embodiment.” See JVW Enters., 424 F.3d at 1335 (emphasis added).
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`But here, Defendants have not suggested any such lexicography or disclaimer. Adopting their
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`construction would, therefore, invite reversible error. Accordingly, this Court should adopt
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`Neodron’s construction and reject Defendants’ incorrect one.
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 13 of 45
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`C. “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)
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`Neodron’s Proposed Construction
`Plain and ordinary meaning, which is
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`Defendants’ Proposed Construction
`Plain and ordinary meaning, which is
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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
`connections that wrap around and are made
`outside of the sensing area.”
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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.”
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`Based on the above side-by-side comparison of the parties’ competing proposals, the
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`parties appear to dispute little, if anything, about the claim scope. And Neodron did not initially
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`see any need to clarify or construe any terms, especially because Defendants say they merely seek
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`a “plain and ordinary” meaning that leaves all words of the claim intact. The problem is: it is now
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`clear their construction does not leave all the terms intact.
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`On this term, Defendants have refused to accept Neodron’s proposal, which is perfectly
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`consistent with the claim language itself, but makes clearer to a jury that a “wrap-around
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`connection” is a connection that wraps or runs around the outside of the sensing area. On the other
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`hand, Defendants’ recent refusal to accept this language only confirmed that the clarification might
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`be necessary, because Defendants re-quote the claim language, but appear to treat any connection
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`as a “wrap-around” connection.
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`Ignoring the fatal flaws in their proposal, Defendants now offer three reasons why
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`Neodron’s construction is wrong. Each fails under closer scrutiny.
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`Incredibly, Defendants’ first attack is to say that Neodron’s construction is wrong because
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`“it largely repeats the words of the claim.” Defs’ Br. at 32-33. But this turns controlling law on its
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 14 of 45
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`head, because district courts “are not (and should not be) required to construe every limitation
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`present in a patent’s asserted claims.” O2 Micro Int’l v. Beyond Innovation Tech., 521 F.3d 1351,
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`1362 (Fed. Cir. 2008). To the contrary, where a term is used in accordance with its plain meaning,
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`the court should not replace it with different language. Thorner v. Sony Computer Ent. Am. LLC,
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`669 F.3d 1362, 1366-67 (Fed. Cir. 2012) (“we do not redefine words. Only the patentee can do
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`that.”) (emphasis added). Here, even Defendants concede, at least superficially, that the term
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`should be afforded that plain meaning. So, it just does not make sense to then argue that one
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`construction is incorrect because it largely uses the words the patentee chose.
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`Defendants’ second attack fares no better. Defendants argue that Neodron is “importing
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`limitations,” namely, that the claimed “connection wrap around the sensing area.” Defs’ Br. This
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`is not true—and it only confirms Neodron’s entire point here.
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`Defendants’ say, on page 33 of their brief, that “[n]othing in the claim requires that the
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`connection wrap around the sensing area, as Neodron’s proposal would require.” Defs’ Br. at 33.
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`This is precisely Neodron’s point—and has been all along. This Court should assist in resolving
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`this now-crystallized dispute about the scope of the claims because Defendants now appear to
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`come clean in treating the claimed species, “wrap-around connections,” no differently than its
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`genus, “connections.” In other words, they do not give any meaning to the term “wrap-around.”
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`But this invites error, because “interpretations that render some portion of the claim language
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`superfluous are disfavored.” Power Mosfet Techs., 378 F.3d at 1410; see also Merck & Co. v. Teva
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`Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed.Cir.2005) (“A claim construction that gives meaning
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`to all the terms of the claim is preferred over one that does not do so). This alone is sufficient to
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`resolve the dispute and resolve it according to the construction Neodron offers.
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 15 of 45
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`To be sure, on this dispute, Neodron’s proposal is the only one consistent with and faithful
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`to the full intrinsic record here. For example, Fig. 3 of the ’502 Patent shows an embodiment that
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`has row wrap-around connections (e.g., element 38), which lie “outside of the sensing area…to
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`ensure the respective row sensing electrodes of the other rows are connected together.” 6:53-7:10.
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`This is the place in which the wrap-around connection is described. And it makes precisely clear
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`that the species of “connections” recited are “connections” configured to “runs[] around the
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`outside of the sensing area to connect the electrode 34 providing the row sensing electrodes in
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`columns x1 and x2 of row y2 with the electrode 36 providing the row sensing electrodes in columns
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`x3 and x4 of row y2.
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`’502 Patent Fig. 3 (colorized). Thus, “all row sensing electrodes in this row are electrically
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`connected together. Similar wrap-around connections outside of the sensing area are made to
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`ensure the respective row sensing electrodes of the other rows are connected together.” Id. at 6:62-
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`7:3; see also Flasck Dec. ¶¶ 60-63.
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 16 of 45
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`This should dispose of the dispute. But if any more proof were needed, the file history
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`provides even further and clearer insight about what the meaning of “wrap-around” connections
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`really is—and this should resolve any doubt. During prosecution, counsel made clear that not every
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`mere “connection” in that genus qualifies as the “wrap-around” species of connections—and also
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`sets forth the purpose of that species of “row wrap-around connections,” which is to couple the
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`opposing ends of the row electrodes together:”
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`Claims 1-3, 7-15 and 19-24 were rejected under 35 U.S.C. § 102(b)
`over Mabusth (U.S. Patent No. 4,550,221). Applicant respectfully
`traverses the rejection because the cited reference does not teach all
`the elements of the claims.
`
`For example, claim 1 recites, in part, “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.”
`
`Mabusth shows only one end of a column of electrode plates 44
`coupled to something other than an adjacent electrode plate.
`(Mabusth; FIG. 4.) Adjacent electrode plates within the column are
`connected together with conductors 46 located on the bottom
`surface of the substrate. (Mabusth; FIG. 4; col. 4, lines 49-55) The
`conductors 46 are positioned completely within the sensing area of
`the electrode pattern. (Mabusth; FIG. 4)
`
`Thus, Mabusth does not show or teach electrodes of sensing cells at
`opposing ends of a row (or column) connected using a wrap-
`around connection, in contrast to the above quoted elements of
`independent claim 1. Additionally, since Mabusth does not show
`or teach such a wrap-around connection, Mabusth also does not
`teach or show that such connections are made outside the
`sensing area, as also quoted above in claim l.
`
`
`Ex. 29 at 6-7 (emphasis added).
`
`It does not get much clearer than this. This discussion confirms that “row wrap-around
`
`connections” connect to the opposing ends of a row electrode, where the “connection” is routed
`
`and runs around the outside the touch sensing area. Thus, this court should resolve the “dispute”
`
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 17 of 45
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`one way or another, through accepting Neodron’s proposal or any explanation that would commit
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`both sides to giving that term meaning.
`
`Finally, Defendants’ assertion that Neodron’s proposal is “contrary to how wrap-around
`
`connections are described in the patent” rests on demonstrably false premises. With fancy graphics,
`
`that “connection 40” of Figure 3 is the “only possible” thing that a POSITA would understand to
`
`be a “column wrap-around connection” and that Neodron’s position would exclude this only
`
`embodiment. These contentions are an obvious distraction points to another term, from a
`
`dependent claim and, therefore, does not avoid the dispositive problems Defendants already face.
`
`But in any event, neither contention is correct on the facts anyway. Flasck Decl. paragraphs
`
`7-9. Among other things, the patent does not even call that connection a “column wrap-around
`
`connection.” Moreover, a POSITA with the patent’s teachings in hand would already understand
`
`that the “column wrap-around” connection would be the same as the “row wrap-around
`
`connection,” but applied to a column. Id. And perhaps most importantly, the very figure they claim
`
`excludes wrap around connections that “run around” outside the sensing area of the sensor
`
`actually shows it doing just that:
`
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 18 of 45
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`Defs. Opening Br. at 34.
`
`Defendants’ proposal—and all their distractions that came with it—should be rejected.
`
`
`
`II.
`
`DISPUTED TERM FOR THE ’574 PATENT
`
`A. “mesh” (’574 Patent, claims 1, 8, 15)
`
`Neodron’s Proposed Construction
`Plain and ordinary meaning; no construction
`necessary: “mesh.”
`
`
`1.
`
`Defendants’ Proposed Construction
`“set of thin wires that surround open
`spaces in a net or network”
`
`Defendants’ Brief Confirms this Claim Term Should Not be Reworded or
`Redefined: All Parties Now Expressly Agree “Mesh” Had a Well-Known
`Plain Meaning and that the Patent Uses the “Mesh” According to Its Plain
`Meaning
`
`Defendants’ brief only proves Neodron’s point. All parties now agree that:
`
`•
`
`•
`
` a POSITA would understand the claim term “mesh” had a known plain meaning in the
`technical field of this patent (Defs.’ Opening Br. at 3-4);
`
`the patent uses the term “mesh” consistent with its plain meaning (id.); and
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 19 of 45
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`•
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`the patentee never acted as his own lexicographer and never disclaimed any portion
`from the scope of the plain meaning of “mesh.”
`
`These points conclusively demonstrate that the term needs no construction. Under
`
`controlling law, “district courts are not (and should not be) required to construe every limitation
`
`present in a patent’s asserted claims.” O2 Micro Int’l v. Beyond Innovation Tech., 521 F.3d 1351,
`
`1362 (Fed. Cir. 2008) (emphasis in original). To the contrary, there is a “heavy presumption” that,
`
`where a term has a known plain or customary meaning, claim terms carry that “full ordinary and
`
`customary meaning, unless [the accused infringer] can show the patentee expressly relinquished
`
`claim scope.” Epistar Corp. v. ITC, 566 F.3d 1321, 1334 (Fed. Cir. 2009). Here, there is no dispute
`
`that the patentee did not relinquish any such scope.
`
`In sum, where a term is used in accordance with its plain meaning, the court should not
`
`replace it with different language. Thorner v. Sony Computer Ent. Am. LLC, 669 F.3d 1362, 1366-
`
`67 (Fed. Cir. 2012) (“[W]e do not redefine words. Only the patentee can do that.” (emphasis
`
`added)). Mesh needs no construction.
`
`2.
`
`Beyond This Confirmation, Defendants Only Present Legally and Factually
`Flawed Arguments for Construing the Term At All
`
`For their part, Defendants fail to acknowledge the legal import of the dispositive points
`
`above. Instead, they offer a few reasons why, despite these points, the term should be re-worded
`
`anyway. All fail.
`
`First, Defendants wrongly suggest that there should be a re-wording to “aid the jury in
`
`understanding this term as used in the art of touch sensor technology” and that there is something
`
`wrong with using the claim term, or offering a “non-construction,” as they put it. Defs.’ Opening
`
`Br. at 2. This suggestion is based solely on attorney argument and finds no support in the law or
`
`the factual record. And under the law, there is nothing wrong with the Court construing the term
`
`
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`Case 1:19-cv-00819-ADA Document 69 Filed 05/15/20 Page 20 of 45
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`to have its plain and ordinary meaning. Instead, given the undisputed points above, the technical
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`experts should apply the actual claim term for infringement or validity purposes. That is because
`
`“mesh” has a now-undisputedly known plain “meaning that the term would have to a [POSITA]
`
`in question at the time of the invention” and, thus, like many other terms in the claim, the next step
`
`should “involve[] little more than the application of the widely accepted meaning of commonly
`
`understood words.” Phillips, 415 F.3d at 1313-14 (emphasis added).
`
`Second, Defendants also suggest that the parties disagree about the term’s plain meaning—
`
`and that Neodron’s “non-construction” is not consistent with the full scope of that plain meaning.
`
`Defs.’ Opening Br. at 3-5. But this also fails. As an initial matter, despite spending four pages
`
`discussing this term in their brief, Defendants fail to show any real contradiction with the term’s
`
`plain meaning or the intrinsic record. And, notably, the only quotes from the patent that support
`
`any contention Defendants make are about the fact that the claimed “mesh” does not cover “ITO”
`
`because its plain meaning is an alternative to ITO. Id. at 3 (under the term’s plain meaning, mesh
`
`“cannot be made from ITO”); (Indium Tin Oxide (“ITO”) “would not have sufficient conductivity”
`
`and would be “too brittle” to be for