Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 1 of 22
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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 73 Filed 06/05/20 Page 2 of 22
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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”) REPLY CLAIM CONSTRUCTION
`BRIEF
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`GROUP 1 – TOUCH SENSOR PATENTS
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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 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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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 3 of 22
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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) ................................................5
`UNDISPUTED TERM FOR THE ’574 PATENT .................................................... 10
`“conductive mesh [of] conductive material” (’574 Patent, claims 1, 8, 15) ...................10
`UNDISPUTED TERMS FOR THE ’960 PATENT .................................................. 10
`“conductive mesh of conductive material” (’960 Patent, claims 1, 9, 17) ......................10
`“interconnecting mesh segments” (’960 Patent, claims 1, 9, 17) ...................................10
`UNDISPUTED TERM FOR THE ’770 PATENT .................................................... 11
`“generally straight line” (’770 Patent, claim 7) ..............................................................11
`DISPUTED TERMS FOR THE ’784 PATENT ........................................................ 11
`2, 3) .................................................................................................................................11
`plurality of sense electrodes” (’784 Patent, claims 1, 2, 3) .............................................14
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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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`I.
`A.
`B.
`II.
`A.
`III.
`A.
`B.
`IV.
`A.
`V.
`A.
`B.
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 4 of 22
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`TABLE OF AUTHORITIES
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`Cases
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................. 1
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`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010; ................................................................................................. 2
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`KCJ Corp. v. Kinetic Concepts, Inc.,
`223 F.3d 1351 (Fed. Cir. 2000)................................................................................................. 4
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`Kroy IP Holdings, LLC, v. Safeway,
` Inc., No. 2:12-cv-800-WCB, 2014 WL 3735222 (E.D. Tex., July 28, 2014) ......................... 2
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`Merck & Co., Inc. v. Teva Pharm, USA, Inc.,
`395 F3d 1364 (Fed. Cir. 2005)................................................................................................ 10
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`Pause Tech., LLC v. Tivo, Inc.,
`419 F.3d 1326 (Fed. Cir. 2005)................................................................................................ 9
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................. 8
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`Thorner v. Sony Computer Ent. Am., LLC,
`669 F.3d at 1362 (2012) ........................................................................................................... 2
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`Verizon Servs. Corp. v. Cox Fibernet Va., Inc.,
`602 F.3d 1325 (Fed.Cir.2010)................................................................................................... 2
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` ii
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 5 of 22
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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.
`Defendants’ Responsive Claim Construction Brief On the
`Disputed Terms of the Touch Sensor Patents, Dkt. 66
`Plaintiff Neodron’s Opening Claim Construction Brief, Group 1 –
`Touch Sensor Patents, Dkt. 61
`Plaintiff Neodron’s Responsive Claim Construction Brief, Group 1
`– Touch Sensor Patents, Dkt. 69
`Declaration of Aris K. Silzars Regarding Claim Construction,
`April 17, 2020, Dkt. 62-3
`Opposition Declaration of Richard A. Flasck in Support of
`Plaintiff Neodron Ltd.’s Responsive Claim Construction Briefs,
`Dkt. 69-1
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`Abbreviation
`Defs.’ Opening Br.
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`Defs.’ Resp. Br.
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`Neodron’s Opening
`Br.
`Neodron’s Resp. Br
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`Silzars Decl.
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`Flasck Opp. Decl.
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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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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 6 of 22
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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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`As demonstrated above, this dispute boils down to one discrete issue: should this Court
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`replace the claim term “surface” with the Defendants’ proposed word “side.”
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`Defendants’ response brief makes clear that this Court need not and should not. Defendants
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`now expressly concede that they have no evidence of and “do not contend the patentee ‘disclaimed’
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`claim scope or acted as a ‘lexicographer.’” Defs.’ Resp. Br. at 14.
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`Therefore, the single, discrete issue has crystallized even further. Both sides agree the
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`actual claim term “surface” has an ordinary and plain meaning to a POSITA. The Defendants’
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`remaining argument now is: there is a legal dispute that this Court must resolve and the only way
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`to resolve that dispute is to replace the claim language.
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`This obviously is not true—both on the law and the facts. On the law, while Defendants
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`cite and quote from the oft-cited O2 Micro case, they leave out the point that the Federal Circuit
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`panel in O2 Micro, like so many before and after it, made:“[D]istrict courts are not (and should
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`not be) required to construe every limitation present in a patent's asserted claims.” O2 Micro Int’l
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`Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008) And since O2
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`Micro, the Federal Circuit has clarified, time and again, that rejecting one side’s proposal for a
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`change of claim language in a disputed claim term “by adopting the ‘plain and ordinary meaning’”
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`of the term can and often does fully and finally resolve the dispute. Finjan, Inc. v. Secure
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`1
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 7 of 22
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`Computing Corp., 626 F.3d 1197, 1207-08 (Fed. Cir. 2010;; see also Verizon Servs. Corp. v. Cox
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`Fibernet Va., Inc., 602 F.3d 1325, 1334 (Fed.Cir.2010) (finding no O2 Micro problem where the
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`parties “did not invite the jury to choose between alternative meanings”).
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`On the facts, Defendants’ entire premise for contending a real legal dispute exists in the
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`first place rests on a false premise. That premise is: with its “plain and ordinary” meaning
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`construction that leaves the term “surface” in the claim, Neodron is really asserting that must mean
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`an “entire surface” or an “entire outside of the substrate.” Not so. Defendants have no support for
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`this false premise. And though they make an atypically aggressive assertion that Neodron attempts
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`“obfuscation,” they concede two lines later that Neodron has never even “stat[ed] as much.” Defs’
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`Resp. Br. at 12.
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`Contrary to Defendants’ attorney argument, even a lay person with the patent in hand
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`would easily understand this term and need no redefining. See Flasck Opp. Dec.¶¶ 49-52; Exhibit
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`10 (defining “surface” as, for example, “[t]he outside part . . . of something”); Exhibit 11 (defining
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`“surface” as, for example, “the exterior . . . of an object”). And because the term “surface” is not
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`a difficult technical term for which a construction would help the jury understand the true meaning
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`of it. Kroy IP Holdings, LLC, v. Safeway, Inc., No. 2:12-cv-800-WCB, 2014 WL 3735222, at *2
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`(E.D. Tex., July 28, 2014) (Bryson, J., sitting by designation) (holding proposed constructions
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`would not necessarily “add to the jury’s understanding of the terms” and, consequently, that terms
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`should not be changed or redefined.)
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`Setting aside these fatally flawed legal and factual premises, this Court need only reject
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`Defendants’ attempt to replace the simple and clear term “a substrate having a surface” with “a
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`substrate having a side” and it will undoubtedly have resolved any legal dispute that currently
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`exits. Thorner v. Sony Computer Ent. Am., LLC, 669 F.3d at 1362, 1366-67 (2012) (“we do not
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`2
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 8 of 22
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`redefine words. Only the patentee can do that.”) (emphasis added). The rest of the issues pertaining
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`to that claim phrase should not be resolved based on Defendants’ attorney argument. Instead, will
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`be on the parties and their respective experts to do, ion infringement and validity.
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`At any rate, Defendants’ additional arguments only confirm that their construction is not
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`correct. On this point, Defendants argue that their “construction is correct because it is the only
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`plain and ordinary meaning that is consistent with the specification and the file history.” Defs.’
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`Opp. Br. at 12. But in support of this contention, they merely point to a two-sentence cropped
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`portion of the Summary, not the file history, which discusses “a first aspect” of the claimed
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`inventions. ’502 Patent at 2:46-3:7 (emphasis added). And even then, it does not prove their point,
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`because it merely uses the claim language itself and even contrasts that with an “opposing surface”
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`which “can” be unnecessary in the electrode deposition process. Indeed, the very next sentence
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`following their two-sentence cropping states that “can also be deposited on an inside surface of a
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`device housing.” Id.
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`In response to Defendants’ vague accusations of “obfuscation” or unclarity, Neodron
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`enthusiastically represents that it only attempts to apply the plain meaning of the claim term “a
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`substrate having a surface with an arrangement of electrodes mounted thereon…” and nothing
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`more or less. Defendants’ arguments against this approach and for their claim-word replacement
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`appears to entirely rest on an interpretation of this disputed phrase that would require “a substrate
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`having one and only one side with an arrangement of electrodes mounted thereon…” E.g., Defs.’
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`Opening Br. at 25-26 (reading a surface as “a single surface” and excluding a “double sided”
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`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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`3
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 9 of 22
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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 reread it as one and only one side” still
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`fails. That is because the Federal Circuit “has repeatedly emphasized that an indefinite article ‘a’
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`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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`requirement of being “open-ended” and contain “the transitional phrase comprising,” so this
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`repeated holding applies to them: “a surface” includes “one or more surfaces.”
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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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`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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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 10 of 22
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`’502 Patent at 10:61-67 (emphasis added), Figure 3 (colorized). And, with regard to the claims,
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`they repeatedly use the phrase “outside” in a manner that is not synonymous with surface. Flasck
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`Opp. Dec.¶ 52.
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`In sum, the claim phrase should not be disturbed or construed as Defendants propose.
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`This Court should reject their flawed proposal and accept Neodron’s correct one.
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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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`The dispute here is similar to the previous one in that it centers on one word. That is, should
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`Defendants’ Proposed Construction
`“an area defined by the sensing electrodes”
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`the “sensing area” be (a) “an area defined by the sensing cells” or (b) “an area defined by the
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`sensing electrodes.” Defendants’ responses fail—and if anything, they confirm that (a) is the only
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 11 of 22
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`correct answer that is faithful to the claims and other intrinsic evidence. And it is the only one that
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`does not render the “sensing cells” recited in the claims essentially superfluous.
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`Having no convincing answer to the real dispute shown above, Defendants suggest that
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`this Court’s attention to shift to another one. They contend that “the real dispute” is not what we
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`all see in the table above, but “whether the sensing area has a clear bound set by the sensing
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`electrodes, or extends beyond the sensing electrodes by some undefined and unspecified amount.”
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`Resp. Br. at 16. This fails, for several reasons.
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`First, to a POSITA—or even a lay person with the patent in hand—the claimed “sensing
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`area” is not “undefined” or “unspecified,” without even applying any proposed construction. As
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`its name already implies, is an area within which “the position of an object (e.g., a finger or stylus)
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`adjacent the sensor may be determined. ’502 Patent at 5:36-57. One fatal problem with
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`Defendants’ construction is that it attempts to limit the outer bounds of this “sensing area” right
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`where the final electrode is. But this defies physical reality, because the sensing capability of the
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`“sensing area” is not so strictly limited. To the contrary, as any POSITA would understand,
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`especially with the patent in hand, “the presence of the finger in the vicinity of the position sensor…
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`affects the capacitance of each of the rows and columns of sensing electrodes differently depending
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`on the position of the finger within the sensing area.” ’502 Patent at 9:3-6.
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`Second, the claim language itself resolves this dispute—and does so in Neodron’s favor.
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`The 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 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,
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 12 of 22
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`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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`Third, though none is required, Neodron’s construction provides some additional clarity
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`anyway. With Neodron’s construction, which Neodron provided to help crystallize the relatively
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`binary dispute between the parties, there can be no legitimate debate that a POSITA would view
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`the bounds of “sensing area” to be insufficiently defined or specified.
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`And for these three reasons, there is no merit whatsoever to Defendants’ vague accusations
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`that “Neodron’s constructions would render the claim indefinite because it offers no guidance to
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`where the boundary of the sensing area should be drawn.” E.g., Defs.’ Resp. Br. at 21. As a
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`procedural matter, this meritless contention is obviously flawed—and fatally so—as Defendants
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`have not once raised this issue before. Indeed, it is hard to take this allegation seriously when
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`Defendants have not once made this argument—one of summary judgment of invalidity—before
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`their response brief, which does contain several other meritless invalidity assertions they actually
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`did make before the procedural deadline for doing so.
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`Defendants also argue that their construction is true to the claim language. But that is also
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`just not true. For their part, Defendants give one sentence of argument and “support” for this
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`contention on page 16 of their brief, but tellingly spend the rest of that page and the remaining
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`pages of their response on this disputed term making incorrect contentions about examples in the
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`specification. And at any rate, one look at the claim language shows that it does not help
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`Defendants. As shown above, the contextual claim language makes clear that presence of
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 13 of 22
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`electrodes, namely column sensing electrodes and row sensing electrodes, define the array of
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`sensing cells. But it is the sensing cells resulting from the intersection of those electrodes that
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`define the disputed “sensing area”—because those sensing cells are arranged in columns and rows
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`to form the sensing area. This evidence, which proves Neodron right, carries significant weight—
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`because, as we all know, “the claims themselves provide substantial guidance as to the meaning
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`of [] terms.” Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005).
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`On the specification, Defendants are also wrong. With attorney argument and hard-to-
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`understand characterizations of the patent specification, Defendants distort the record to contend
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`that all the teachings of the patent prove their point. But they do not. The specification describes
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`the relationship among the sensing cells and their role in defining the sensing area. See, e.g., ’502
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`Patent at 3:48-51 (“The sensing cells may be arranged into three or four columns. This can provide
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`a position sensor with sufficient resolution over a typically sized sensing area for most
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`applications.). (emphasis added). 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
`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 “need not extend” to the “very edge” of the sensing
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`area. ’502 Patent at 7:3-10 (emphasis added); Flasck Opp. Dec. ¶¶ 55-59.
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`Unsatisfied with their distortion of the intrinsic record, Defendants also try to distort
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`Neodron’s proposed construction. They argue that “combining” the two constructions gives you
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`the same result. Defs’ Resp. Br., Dkt. 66 at 16-17. But this flawed argument is premised on a
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`construction within the constructions—of the term “define.” Relying on never-before-disclosed
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 14 of 22
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`extrinsic evidence, Defendants’ assert that the term should mean “to determine or fix the
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`boundaries or extent of.” Id. at 17 n.3. This still does not help them or render the parties’
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`constructions the same. And it also leaves out the fact that Defendants’ own dictionary makes clear
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`the word “define” should encompass to make clear the outline or form of.” Ex. N to Defs.’ Opp.
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`Br., Dkt. 66-2 at 5. To be consistent with the claims themselves and not read out any words, this
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`is what Neodron’s construction covers—as the claims themselves also make clear that the “array
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`of sensing cells arranged in columns and rows to form a capacitive sensing area of the sensor,”
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`Regardless, the most noteworthy point about Defendants’ discussion of the specification is
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`something they never say. Defendants do not contend that there is lexicography or disclaimer for
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`this disputed phrase, either. The insurmountable legal hurdle for defendants is: without clear and
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`unambiguous disclaimer or lexicography, courts “do not import limitations into claims from
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`examples or embodiments appearing only in a patent’s written description, even when a
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`specification describes very specific embodiments of the invention or even describes only a single
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`embodiment.” See JVW Enters., 424 F.3d at 1335 (emphasis added). This, too, is independently
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`dispositive.
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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. And Defendants have no real response for this.
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`Beyond the grammatical errors inherent in that proposal, it is also strongly disfavored as a
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`matter of law because it would render “sensing cells” superfluous. E.g., Pause Tech., LLC v. Tivo,
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`Inc., 419 F.3d 1326 1334 (Fed. Cir. 2005) (“By arguing that the ‘time interval’ can vary after the
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`determination is made and the buffer begins receiving signals, Pause attaches no significance to
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`the word ‘predetermine.’ In construing claims, however, we must give each claim term the respect
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`9
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 15 of 22
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`that it is due.”). But again, that runs right into contrary Federal Circuit law, which holds that a
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`“claim construction that gives meaning to all the terms of the claim is preferred over one that does
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`not do so.” Merck & Co., Inc. v. Teva Pharm, USA, Inc., 395 F3d 1364, 1372 (Fed. Cir. 2005).
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`II.
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`UNDISPUTED TERM FOR THE ’574 PATENT
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`A. “conductive mesh [of] conductive material” (’574 Patent, claims 1, 8, 15)
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`Agreed Construction
`“conductive mesh of conductive material excluding transparent conductive materials such as
`indium tin oxide (ITO)”
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`The parties agree that the term “conductive mesh [of] conductive material” in the ’574
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`patent should be construed as “conductive mesh of conductive material excluding transparent
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`conductive materials such as indium tin oxide (ITO).”
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`III. UNDISPUTED TERMS FOR THE ’960 PATENT
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`A. “conductive mesh of conductive material” (’960 Patent, claims 1, 9, 17)
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`Agreed Construction
`“conductive mesh of conductive material excluding transparent conductive materials such as
`indium tin oxide (ITO)”
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`The parties agree that the term “conductive mesh of conductive material” in the ’960 patent
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`should be construed as “conductive mesh of conductive material excluding transparent conductive
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`materials such as indium tin oxide (ITO).”
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`B. “interconnecting mesh segments” (’960 Patent, claims 1, 9, 17)
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`Agreed Construction
`“interconnecting lines of conductive electrode material forming a mesh pattern, instead of a
`continuous layer of conductive electrode material”
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`Case 1:19-cv-00819-ADA Document 73 Filed 06/05/20 Page 16 of 22
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`The parties agree that the term “interconnecting mesh segments” in the ’960 patent should
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`be construed as “interconnecting lines of conductive electrode material forming a mesh pattern,
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`instead of a continuous layer of conductive electrode material.”
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`IV. UNDISPUTED TERM FOR THE ’770 PATENT
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`A. “generally straight line” (’770 Patent, claim 7)
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`Agreed Construction
`Plain and ordinary meaning; no construction necessary.
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`The parties agree that the term “generally straight line” is not indefinite.
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`V.
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`DISPUTED TERMS FOR THE ’784 PATENT
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`A. “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, 2,
`3)
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`Neodron’s Proposed Construction
`Plain and ordinary meaning; no construction
`necessary: “wherein the plurality of drive
`electrodes are substantially area filling within
`the sensing region relative to the plurality of
`sense electrodes.”
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`Defendants’ Proposed Construction
`Indefinite.
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`There seems to be broad agreement among the parties about this term:
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`• Amazon and Neodron agree that this term has “two halves,” i.e. “the plurality of
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`drive electrodes are substantially area filling within the sensing region” and
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`“relative to the plurality of sense electrodes.” Doc. 66 at 6.
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`• Amazon and Neodron agree that there is no validity challenge arising from the first
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`half of the term in isolation; this is not a dispute whether the term of degree
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`“substantially” makes the evaluation indefinite, or what it means for the drive
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`electrodes to substantially fill the area of the sensing region. Doc. 66 at 5, 7.
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`• Amazon and Neodron agree that the second half, the subphrase “relative to…,”
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`requires a comparison. Doc. 66 at 7.
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`There is not much remaining room for disagreement, much less for Amazon to show
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`indefiniteness by clear and convincing evidence sufficient to support summary judgment of
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`invalidity at this stage.
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`Amazon’s primary argument had been that it is unclear whether both halves of the claim
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`were required, or only one. See Defs.’ Opening Br., Doc. 60 at 11 (“There is nothing to clarify
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`whether the comparative language adds a requirement (e.g., that the drive electrodes be both
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`substantially area filling and more area filling than the sense electrodes) or lowers the threshold
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`(e.g., requiring only that the drive electrodes be area filling compared to the sense electrodes,
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`regardless of whether they are area filling on their own.)”). That question has an easy answer: both
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`halves of the term are limiting, and both must be met; reading the term otherwise would contradict
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`the specification and render the subphrase “substantially area filling” superfluous. See Neodron’s
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`Resp. Br., Dkt. 69 at 30-33.
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`In its responsive brief, Amazon largely abandons its initial theory, instead focusing on the
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`comparative “relative to” element and calling on Neodron to provide a “framework for identifying
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`what that comparison requires.” Defs.’ Resp. Br., Dkt. 66 at 5. Amazon is begging the question.
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`There is no evidence, much less clear and convincing evidence, that a POSITA would need some
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`additional “framework” or would have difficulty applying the “relative to” element, and its
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`required comparison, under the plain and ordinary meaning of the claim term. Instead of evidence,
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`Amazon provides hypotheticals: What about 40% vs. 10%? What about 40% vs. 35%? What about
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`70% vs. 40%? See Defs.’ Opening Br., Dkt. 60 at 11; Defs.’ Resp. Br., Dkt. 66 at 5-6. These are
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`all easy comparisons: yes, in each case the comparative sub-element would be met. Notably,
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`Amazon provides no evidence that a POSITA would have difficulty making these comparisons.
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`Its opening brief cites paragraph 90 of Dr. Silzars’s declaration for the proposition that a POSITA
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`would be unable to determine “what the ‘relative to’ language means.” Doc. 60 at 12. Because
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`Amazon points to nothing in the claim language or intrinsic record showing an ambiguity, the
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`theory rests entirely on attorney argument and Dr. Silzars’s declaration. But it is instructive to
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`review exactly what Dr. Silzars does and does not say. Here is paragraph 90 in its entirety:
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`Each of the above interpretations yields different results. For
`example, if the drive electrodes occupied 40% of the area of the
`sensing region and the sense electrodes occupied 10% of the sensing
`region, the drive electrodes would not seem to be “substantially area
`filling,” but they would be more area filling than the sense
`electrodes. It is unclear whether they would be “much” more area
`filling than the sense electrodes.
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`Silzars Decl., Dkt. 62-3 at 33. Dr. Silzars has no difficulty making the comparison between 40%
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`and 10%: 40% is more than 10%. Dr. Silzars likewise agrees that the 40% area filling electrodes
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`are not “substantially area filling” and therefore fail the first half of the limitation. Where, then, is
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`the ambiguity?
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`Dr. Silzars frames the “problem” much more explicitly than Amazon’s attorneys do: in his
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`telling, the ambiguity is whether the claim require “more” or “much more.” And that does seem to
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`be the thrust of Amazon’s argument: does “relative to” require just a comparison (as both sides
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`agree it does), or does it require more; does it require some particular degree of comparison? But
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`that ambiguity is invented; Amazon is importing an unstated limitation (“much”) and objecting
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`that the claim is indefinite because of the very argument for its improper “much more”
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`construction. There is no basis in the patent claim, the patent specification, the file history, or
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`anywhere else to import the modifier “much.” Other than Dr. Silzars’s unsupported
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`pronouncement in the previous paragraph of his declaration, there is no evidence that a POSITA
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`would be confused as to whether “relative to” means “much more.” And there is no authority for
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`the notion that indefiniteness can be proven by clear and convincing evidence merely by Amazon
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`positing the existence of a claim construction dispute—much less a dispute that the parties are not
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`even contesting.
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`Amazon’s and Dr. Silzars’s “ambiguity” can only be resolved in one way: The claim
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`requires that the drive electrodes be more area-filling than the sense electrodes, not “much.”
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`Amazon has provided no evidence or argument for adding the “much more” limitation, and there
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`is none.
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`In both of its theories, Amazon asserts that the existence of two possible interpretations
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`renders the claim invalid for indefiniteness. There is no legal support for that argument, and it
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`makes little sense; otherwise the mere existence of a claim construction dispute—or for that matter
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`a disp