Case 1:20-cv-00765-DAE Document 40-11 Filed 10/17/22 Page 1 of 25
`Case 1:20-cv-00765-DAE Document 40-11 Filed 10/17/22 Page 1 of 25
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`EXHIBIT 11
`EXHIBIT 11
`
`

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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`20f I AUG t 5 Ar1 9: 05
`
`CAUSE NO. A-09-CA-593-L Y
`
`BANDSPEED, INC.,
`
`PLAINTIFF,
`
`V.
`
`SONY ELECTORINICS, INC., SONY
`COMPUTER ENTERTAINMENT
`AMERICA, INC., LEGO SYSTEMS,
`INC., PARROT, INC., CAMBRIDGE
`SILICON RADIO LIMITED,
`
`DEFENDANTS.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`MEMORANDUM OPINION AND ORDER REGARDING
`CLAIMS CONSTRUCTION
`
`1.
`
`Introduction
`
`The Court renders this memorandum opinion and order to construe the claims of the
`
`patents-in-suit in this cause, U.S. Patent No. 7,027,418 (the "'418 Patent") and U.S. Patent
`
`No. 7,570,614 (the "'614 Patent"). Plaintiff Bandspeed, Inc. asserts claims against
`
`Defendants Sony Electronics, Inc., Sony Computer Entertainment America, Inc., Lego
`
`Systems, Inc., and Parrot, Inc.! for infringement of the' 418 Patent and the' 614 Patent. The
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`patents are generally related to frequency hopping transmission techniques. In a frequency
`
`hopping communications system, a transmitter periodically changes its carrier frequency
`
`(frequency channel); that is, it changes from one frequency channel to another frequency
`
`channel. The technology underlying the '418 and '614 Patents is sometimes referred to as
`
`1 Cambridge Silicon Radio Limited was allowed to intervene as Defendant in the
`cause on March 5, 2010. (Doc. # 143).
`
`

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`"adaptive frequency hopping." The '418 Patent claims methods of selecting frequency
`
`channels for use in a frequency hopping sequence for data communications. The' 614 Patent
`
`claims methods for selecting and using frequency channels by identifying channels not to be
`
`used in a frequency hopping sequence and a method for managing performance data.
`
`2.
`
`Legal Principles Applicable to Claim Construction
`
`Determining infringement is a two-step process. See Markman v. Westview
`
`Instruments, Inc., 52 FJd 967, 976 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370 (1996)
`
`("[There are] two elements of a simple patent case, construing the patent and determining
`
`whether infringement occurred .... "). First, the meaning and scope of the relevant claims
`
`must be ascertained. Id. Second, the properly construed claims must be compared to the
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`accused device. Id. Step one, claim construction, is the current issue before this Court.
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`Patent claims are construed as a matter of law. Id. at 979. To ascertain the meaning
`
`of claims, the court looks primarily to the intrinsic evidence: the claims, the specification,
`
`and the patent's prosecution history. Phillips v. AWHCorp., 415 FJd 1303, 1314-17 (Fed.
`
`Cir. 2005) (en bane); Markman, 52 FJd at 979. The specification must contain a written
`
`description of the invention that enables one of ordinary skill in the art to make and use the
`
`invention. Markman, 52 FJd at 979; 35 U.S.C. § 112, ~1. A patent claim must always be
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`read or interpreted in light of the specification. Phillips, 415 FJd at 1316. For claim(cid:173)
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`construction purposes, the specification may reveal "a special definition given to a claim
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`term by the patentee that differs from the meaning it would otherwise possess. In such cases,
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`the inventor's lexicography governs." Id. Indeed, the specification's written description
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`"may act as a sort of dictionary, which explains the invention and may define terms used in
`
`2
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`

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`claims." Markman, 52 FJd at 979. "One purpose for examining the specification is to
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`determine if the patentee has limited the scope of the claims." Watts v. XL Sys., Inc., 232
`
`FJd 877, 882 (Fed. Cir. 2000). Although the specification may indicate that certain
`
`embodiments are preferred, particular embodiments appearing in the specification will not
`
`be read into the claims when the claim language is broader than the embodiment. Electro
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`Med. Sys., SA. v. Cooper Life Scis., Inc., 34 FJd 1048, 1054 (Fed. Cir. 1994). The Court
`
`must be mindful that "when a patentee uses a claim term throughout the entire specification,
`
`in a manner consistent with only one meaning, he has defined that term by implication." Bell
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`Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 FJd 1258, 1271 (Fed. Cir.
`
`2001). However, "case law is clear that an applicant is not required to describe in the
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`specification every conceivable and possible future embodiment of his invention .... [I]n
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`short, it is the claims that measure the invention, as informed by the specification." Rexnord
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`Corp. v. Laitram Corp., 274 FJd 1336, 1344 (Fed. Cir. 2001). It is axiomatic that although
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`claims must be read in light of the specification, limitations from the specification may not
`
`be imported into the claims. Playtex Prods., Inc. v. Proctor & Gamble Co., 400 FJd 901,
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`906 (Fed. Cir. 2005). Furthermore, courts are not required to construe every limitation
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`present in a patent's asserted claims. 02 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
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`521 FJd 1351, 1362 (Fed. Cir. 2008). Rather, claim construction is a matter of resolution
`
`of disputed meanings and technical scope, to clarify and when necessary to explain what the
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`patentee covered by the claims, for use in the determination of infringement. US Surgical
`
`Corp. v. Ethicon, Inc., 103 FJd 1554, 1568 (Fed. Cir.1997).
`
`3
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`

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`The "words of a claim 'are generally given their ordinary and customary meaning. '"
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`Phillips, 415 FJd at 1312 (quoting Vitronics Corpv. Conceptronic, Inc., 90 FJd 1576,1582
`
`(Fed. Cir. 1996)). "[T]he ordinary and customary meaning of a claim term is the meaning
`
`that the term would have to a person of ordinary skill in the art in question at the time of the
`
`invention, i.e., as of the effective date of the patent application." Phillips, 415 FJd at 1313
`
`(citing InnovaiPure Water, Inc. v. Safari Walter Filtration Sys., Inc., 381 FJd 1111, 1116
`
`(Fed. Cir. 2004); Home Diagnostics, Inc. v. LifeScan, Inc., 381 FJd 1352, 1358 (Fed. Cir.
`
`2004); Ferguson Beauregard/Logic Controls v. Mega Sys., LLC, 350 FJd 1327, 1338 (Fed.
`
`Cir. 2003)). There is a "heavy presumption in favor of the ordinary meaning of claim
`
`language." Johnson Worldwide Assoc. v. Zebco Corp., 175 FJd 985,989 (Fed. Cir. 1999).
`
`Although extrinsic evidence, such as dictionaries, may be helpful to the court, such evidence
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`is less reliable than intrinsic evidence. Phillips, 415 F Jd at 1318. Extrinsic evidence may
`
`be useful when considered in the context of the intrinsic evidence, id. at 1319, but it cannot
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`"alter a claim construction dictated by a proper analysis of the intrinsic evidence," On-Line
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`Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 FJd 1133, 1139 (Fed. Cir. 2004).
`
`3.
`
`Discussion
`
`A.
`
`Agreed Terms
`
`Either prior to, during, or after the claims-construction hearing on March 8, 2011, the
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`parties agreed to various claim terms. The following table summarizes the parties'
`
`agreement.
`
`4
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`

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`Claim Term
`
`'418 Patent
`Claims
`
`'614 Patent
`Claims
`
`Construction
`
`a specified [length, 25, 128
`amount] of time
`
`11
`
`[channel]
`identification data
`
`5, 15, 19,21,25, None
`26,27,36,41
`
`channel
`identification data
`
`None
`
`[communications]
`channel
`
`1,5, 10, 12-15,
`19,21-30,33-
`37,40,41,42,
`120, 123-128
`
`1,3,8,25,26,
`35,36,38
`
`None
`
`a predetennined [length,
`amount] of time
`
`No construction
`
`No construction
`
`separate communication
`frequencies
`
`data that identifies None
`a particular
`channel
`
`encrypting the first 18
`identification data
`
`less than a
`specified number
`
`plurality of
`channels
`
`None
`
`None
`
`plurality of
`communications
`channels
`
`1,3,5, 12-15,
`19,23-30,33-
`37,40,41,120
`
`slots
`
`specified number
`
`123, 124
`
`2,6, 9, 14,26,
`34,35,41
`
`specified number
`of votes
`
`6,9
`
`vote
`
`2,6,9
`
`6
`
`No construction
`
`None
`
`No construction
`
`less than a predetennined
`number
`
`plurality of
`communications channels
`
`multiple, separate
`communication
`frequencies
`
`storage locations
`
`predetennined number
`
`predetennined number of
`binary expressions
`
`a binary expression
`
`10,51,62
`
`None
`
`None
`
`None
`
`10,13
`
`None
`
`None
`
`5
`
`

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`B.
`
`Disputed Terms
`
`The parties dispute the construction of fourteen terms. Those terms and the Court's
`
`construction are set forth below.
`
`1.
`
`2.
`
`first
`the
`that
`specifies
`identification data
`"channel
`communications channel is not to be used [by the first
`participant1 for the [first/second1 communication" ('614 Patent,
`Claims 1,3,25)
`AND
`"channel identification data that . . . specifies that the
`[first/fourth] communications channel is not to be used" ('614
`Patent, Claim 36)
`
`Plaintiff contends that no construction is necessary for these terms, but if required,
`
`Plaintiff proposes that "channel identification data specifies that the first communications
`
`channel is not to be used [by the first participant] for the [first/second] communication" be
`
`construed as "channel identification data tells the [first participant/communication device]
`
`to not use the first communications channel for the [first/second] communication" and
`
`"channel identification data that ... specifies that the [first/fourth] communications channel
`
`is not to be used" be construed as "channel identification data tells the [first
`
`participant/second participant/communication device]
`
`to not use the [first/fourth]
`
`communications channel."
`
`Defendants propose the first term be construed as "channel identification data tells
`
`the recipient to not use the first communications channel for only the [first/second]
`
`communication" while the second term should be construed as "channel identification data
`
`tells the recipient to not use the [first/fourth] communications channel."
`
`6
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`

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`The Court finds that the term "channel identification data specifies that the first
`
`communications channel is not to be used [by the first participant] for the [first/second]
`
`communication" means "channel identification data tells the [first participant/communication
`
`device] to not use the first communications channel for the [first/second] communication."
`
`The Court further finds that the term "channel identification data that ... specifies that the
`
`[first/fourth] communications channel is not to be used" means "channel identification data
`
`tells the [first participant/second participant/communication device] to not use the
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`[first/fourth] communications channel."
`
`The parties agree that Defendants ~ use of the "recipient" renders the claims indefinite
`
`by inserting the undefined word. Defendants' assert that "recipient" was added only to aid
`
`the jury and to form a commonality between these terms. Defendants further argue that the
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`use of the word "only" reflects the fact that a person of skill in the art would understand that
`
`the channel "not to be used" in the claims and specification is only for a single, specified
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`communication in the frequency hopping sequence.
`
`Although Defendants argue the use of the word "only" reflects the meaning of the
`
`term "not to be used" to a person skilled in the art at the time of the invention, their proposed
`
`construction fails per the parties agreement on the term "recipient." Furthermore, the
`
`specification teaches that the term "not to be used" is much broader than Defendants~
`
`proposed meaning. See '614 Patent, 9:20-23 ("Informing the participant that the poor
`
`performing channel is not to be used helps to avoid loss of packets over the selected
`
`channel.").
`
`7
`
`

`

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`The Court construes the term "channel identification data specifies that the first
`
`communications channel is not to be used [by the first participant] for the [first/second]
`
`communication"
`
`to mean "channel
`
`identification data
`
`tells
`
`the
`
`[first
`
`participant/communication device] to not use the first communications channel for the
`
`[first/second] communication," and the term "channel identification data that ... specifies
`
`that the [first/fourth] communications channel is not to be used" to mean "channel
`
`identification data tells the [first participant/second participant/communication device]
`
`to not use the [first/fourth] communications channel."
`
`3.
`
`"[channel] performance data" ('418 Patent, Claims 12, 13, 15, 19,
`24-30,33,34,35,40,41; '614 Patent, Claims 30, 35,36)
`
`Plaintiff proposes that the term "[channel] performance data" be construed as "data
`
`that, at least, indicates performance." Defendants propose the term be construed as "a result
`
`of a measurement of performance, distinct from a result of classifying." The Court finds the
`
`term "[channel] performance data" to mean "data that, at least, indicates performance."
`
`Plaintiff contends that the specification teaches that "according to one embodiment
`
`ofthe invention, channel performance is monitored using one or more channel performance
`
`measurement techniques" such as "special test packets containing known content." '418
`
`Patent, 10:2-4, 17-18. Plaintiff continues that Claim 15 ofthe '418 Patent contains a broader
`
`definition of performance data (data that at least indicates performance) while Claims 28 and
`
`29, dependent from Claim 15, contain a narrower definition of performance data (data that
`
`at least indicates a measurement of performance). See '418 Patent, 28:34-36, 31 :4-11, 31 :17-
`
`25. In both the broader and narrower interpretation, Plaintiff argues, performance data is data
`
`8
`
`

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`that at least indicates performance. Plaintiff asserts that nowhere in the patent is there any
`
`suggestion that performance data be limited to "a result."
`
`Defendants argue that Plaintiff s proposed construction of "performance data" is over
`
`broad and should be rejected. Defendants contend that it encompasses far more data than is
`
`disclosed in, or enabled by, the specifications, including data that is not useful for the
`
`claimed inventions. Defendants assert that Claim 8 of the '418 Patent supports their position
`
`because it demonstrates that performance data indicates the performance of the channels, not
`
`a theoretical attribute such as a performance target. '418 Patent, 27:24-29.
`
`In this instance, the specification teaches that the performance data can be both a
`
`known preamble or the result ofa performance test. See '418 Patent, 10:17-20. Neitherthe
`
`specification nor the claims limit the performance data to results.
`
`The Court construes the term "[channel] performance data" to mean "data that, at
`
`least, indicates performance."
`
`4.
`
`"[channel] selection criteria" ('418 Patent, Claims 1,2,6,9, 14,
`24,120)
`
`Plaintiff contends that no construction is necessary for this term. Defendants assert
`
`that the term means "one or more rules for selecting channels." The Court finds that the term
`
`"[channel] selection criteria" means "one or more standards on which a decision for selecting
`
`channels can be made."
`
`Plaintiff contends that the patents, in referencing the term "criteria" 98 times, gave
`
`it a well developed meaning and hence, no construction is necessary. Plaintiff further argues
`
`9
`
`

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`that neither of the patents use the term "rule" and the word "rule" provides no better
`
`understanding or clarity for a jury than "criteria."
`
`Defendants contend that a person of skill in the art would understand
`
`"criterion/criteria" to mean "rule/rules." Additionally, Defendants argue that since
`
`"criterion/criteria" is not a term of art and in light of the confusing and incorrect grammatical
`
`use of the term in the patent, a construction consistent with the definition of the term at the
`
`time of the patent is appropriate.
`
`Because "criterion/criteria" is used in a grammatically incorrect manner within the
`
`patent, the jury would be aided by construing the term.
`
`In this instance, the term
`
`"criterion/criteria" could be interpreted to mean "rule/rules" by one skilled in the art.
`
`However, although "criterion/criteria" could be a rule, in the context of its use in the patent,
`
`it is a set of standards used to determine which channels to select.
`
`The Court construes the term "[channel] selection criteria" to mean "one or more
`
`standards on which a decision for selecting channels can be made."
`
`5.
`
`6.
`
`"classifying" ('418 Patent, Claims 24, 40; '614 Patent, Claims 9,
`10,37)
`AND
`"determining classification" ('418 Patent, Claim 41)
`
`Plaintiff contends that no construction is necessary for these terms. Defendants assert
`
`that the term "classifying" means "assigning a class to a channel based on the performance
`
`of the channel and one or more criteria" and the term "determining classification" means
`
`"classifying." The Court finds that the terms "classifying" and "determining classification"
`
`10
`
`

`

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`mean "assigning a class to a channel based on the performance of the channel and one or
`
`more criteria."
`
`Defendants argue that the term "classifying" is defined within the claims of the
`
`patents. For example, Claim 24 of the' 418 Patent states "classifying" is "based on the first
`
`performance data and one or more classification criteria that includes at least the first
`
`performance criteria."
`
`'418 Patent, 29:57-61. Claim 40 of the '418 Patent states that
`
`"classifying" is "based on the first performance data and at least the first performance
`
`criteria."
`
`'418 Patent, 32:51-52. Similarly, Claim 41 of the '418 Patent states that
`
`"determining classification" is "based on the first performance data and at least a first
`
`performance criterion." '418 Patent, 33:5-6. Additionally, the '614 Patent contains similar
`
`language defining "classifying." See '614 Patent, 33:18-22, 37:56-60.
`
`Plaintiff contends that the terms are clearly understandable to Defendants' expert, Dr.
`
`Goodman, therefore, no construction is necessary.
`
`Although the Court is mindful not to add complexity where it is not necessary and
`
`the terms "classifying" and "determining classification" are defined within the patents-in(cid:173)
`
`suit, the Court will construe the terms to avoid confusion.
`
`The Court construes the terms "classifying" and "determining classification" to mean
`
`"assigning a class to a channel based on the performance of the channel and one or
`
`more criteria."
`
`11
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`

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`7.
`
`"default set of two or more communications channels" ('418
`Patent, Claims 23,125-128)
`
`Defendants contend that no construction is necessary for this term. Plaintiff asserts
`
`that the term means "a set of communications channels from which default selection occurs."
`
`The Court finds that the term "default set of two or more communications channels" means
`
`"an original set of communication channels."
`
`Plaintiff relies on the specification of the' 418 Patent for its construction of the term
`
`"default set of two or more communications channels." For example, the '418 Patent
`
`specification refers to "default" as the "original ... set of communication channels." '418
`
`Patent, 18:43. However, the Court sees no support for Plaintiffs construction of "a set of
`
`communications channels from which default selection occurs." The specification indicates
`
`that when a participant is unable to use one of the selected good performing channels, "some
`
`participants may communicate with each other using the original or default set of
`
`communications channels while other participants communicate using a selected set of good
`
`channels."
`
`'418 Patent, 18:39-45. There is no default selection. When unable to
`
`communicate over the good channels selected, the communications revert to an original set
`
`of communication channels, which is the default set of two or more communication
`
`channels.
`
`The Court finds the specification instructive and construes the term "default set of
`
`two or more communication channels" to mean "an original set of communication
`
`channels."
`
`12
`
`

`

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`8.
`
`"[first/second/third] performance [criterion/criteria]" ('418
`Patent, Claims 15, 19,22,24-27,40,41)
`
`Plaintiff contends that no construction is necessary for this tenn. Defendants assert
`
`that the tenn means "each of the first, second and third perfonnance criteria could be the
`
`same as or different from each other." The Court finds that no construction is necessary for
`
`the tenn "[first/second/third] perfonnance [criterion/criteria]."
`
`Defendants argue that the perfonnance criteria could be the same or different from
`
`each other. For example, Claim 22 ofthe '418 Patent states "the first perfonnance criterion
`
`is different than the second perfonnance criterion." '418 Patent, 29:41-42. Defendants
`
`further contend that since Claim 22 is dependant from Claim 19, which is dependant from
`
`Claim 15, there is a presumption that Claims 15 and 19 do not include the restriction that the
`
`first perfonnance criterion is different from the second perfonnance criterion, because Claim
`
`22 adds that limitation to the claims from which it depends. '418 Patent, 28:35-36, 29:3-6;
`
`see Phillips, 415 F Jd at 1315 ("[T]he presence of a dependent claim that adds a partiCUlar
`
`limitation gives rise to a presumption that the limitation in question is not present in the
`
`independent claim.").
`
`Plaintiff contends that by principles of claim differentiation, Claims 15 and 19 must
`
`indicate that the first perfonnance criteria can be the same as the second perfonnance criteria.
`
`'418 Patent, 28:35-36, 29:3-6. Hence, depending on the claim, the first/second perfonnance
`
`criteria can be the same as or different from each other. Therefore, Plaintiff argues, it is
`
`impennissible to add Defendants' proposed qualifier since it is only correct as to some
`
`claims, but not all claims.
`
`13
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`

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`The Court
`
`finds Defendant's construction does not clarify
`
`the
`
`tenn
`
`"[first/second/third] perfonnance [criterion/criteria]." The claims construction, although it
`
`supports Defendants' position that the perfonnance criteria could be the same or different,
`
`requires no construing. The Court will not construe the tenn.
`
`9.
`
`"hop" ('418 Patent, Claims 1, 14, 15,41)
`
`Defendants contend that no construction is necessary for this tenn. Plaintiff asserts
`
`that the tenn means "interval between frequency changes." The Court finds that the tenn
`
`"hop" means "the switch from one frequency to another frequency."
`
`, "
`
`Defendants originally argued that Plaintiff s initial construction ("switch among
`
`frequencies") failed because in both patents all communications occur while both the master
`
`and slave are operating on a particular channel, not while switching between channels. The
`
`claim language confinns that "at each hop in the hopping sequence, only one
`
`communications channel is used for communications between a pair of participants." '418
`
`Patent, 26:43-45. Defendants further argued that the construction fails because it would
`
`require communicating during a transition period-that is, while switching among frequency
`
`channels-rather than while at a particular frequency. At the claims-construction hearing,
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`Plaintiff relented and agreed with Defendants' expert, Dr. Goodman, that the proper
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`construction would be "interval between frequency changes."
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`Defendants now argue that "interval between frequency changes" is not compatible
`
`with the specification which states:
`
`With the [frequency hopping] approach, the frequency band is broken up into
`separate frequencies, often referred to as "channels." The FH system
`transmits data on one channel, hops to the next channel in the hopping
`
`14
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`sequence to transmit more data, and continues by transmitting data on
`subsequent channels in the hopping sequence.
`
`'418 Patent, 1 :59-63 (emphasis added). Defendants contend that although "interval between
`
`frequency changes" would be compatible with the claim language, the specification clearly
`
`defines "hop" as the "switch among frequencies." This incompatibility, Defendants argue,
`
`renders the claims invalid as a matter oflaw. See Allen Eng'g Corp. v. Bartell Indus., Inc.,
`
`299 FJd 1336, 1349 (Fed. Cir. 2002) (patent claims were indefinite when specification
`
`taught contrary meaning of term than manner it was used in claims).
`
`Although the specification teaches that the term "hop," when used as a verb, means
`
`"switch among frequencies," the specification also teaches that the term "hop," when used
`
`as a noun, means "the switch from one frequency to another frequency." See '418 Patent,
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`12:4-5 (stating "the frequency hopping rate is 1,600 hops per second"). This definition of
`
`the term is compatible with the claim language which states that "at each hop in the hopping
`
`sequence, only one communications channel is used for communications between a pair of
`
`participants." Patent, '418,26:43-45 (emphasis added).
`
`The Court construes the term "hop" to mean "the switch from one frequency to
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`another frequency."
`
`10.
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`"indicates a measurement of performance" ('418 Patent, Claims
`28,29,30)
`
`Plaintiff contends that no construction is necessary for this term, but if required,
`
`Plaintiffproposes: "indicates performance measurement." Defendants propose the term be
`
`construed as: "indicates the result of a performance measurement." The Court finds that the
`
`15
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`term "indicates a measurement of performance" means "indicates the results of channel
`
`performance testing."
`
`Plaintiff asserts that the word "result" is not required and that there is no support
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`within the '418 Patent to suggest that a "result" is necessary to define a measurement.
`
`Defendants' argue that use of the word "result" properly excludes data, for example, that
`
`merely indicates that a performance measurement will be made or has been made.
`
`The specification of the '418 Patent teaches that "[c]hannels may be classified by
`
`comparing the test results to the performance criteria." '418 Patent, 6: 18·19. Furthermore,
`
`the specification teaches that "a channel may be classified as 'good' or 'bad' based on the
`
`results of the channel performance testing by applying one or more performance
`
`measurements to specified performance criteria." '418 Patent, 14:35·38. The term at issue
`
`appears in Claim 28 as "data that indicates a measurement of performance of [] at least one
`
`communications channel ... based on transmitting ... data over at least one communications
`
`channel." '418 Patent, 31: 7·11. Read in light of the specification, "data that indicates a
`
`measurement of performance" is data that is based on the results of channel performance
`
`testing. The Court consludes "measurement of performance" is meant to be "the results of
`
`channel performance testing."
`
`The Court construes the term "indicates a measurement of performance" to mean
`
`"indicates the results of channel performance testing."
`
`16
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`

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`11.
`
`"participants" ('418 Patent, Claims 1,2,5,6,9,14,15,18,19,21,
`23,25-30,32,35,36,37,120,123,124,125,127,128; '614 Patent,
`Claims 1, 3, 6, 8, 25, 28, 30, 35, 36, 38)
`
`Defendants contend that no construction is necessary for this term. Plaintiff asserts
`
`that the term means 44devices that communicates [sic] with other devices." The Court finds
`
`the term 44participants" to mean 4'devices or mechanisms that communicate with other
`
`devices or mechanisms."
`
`The term Hparticipant" is plainly defined in the specifications: "[a]s used herein, the
`
`term 'participant' refers to a device or mechanism that communicates with other devices or
`
`mechanisms." '418 Patent, 1:29-31; '614 Patent, 1:34-36.
`
`The Court construes 44participants" to be "devices or mechanisms that communicate
`
`with other devices or mechanisms."
`
`12.
`
`13.
`
`"performance [of/for a channel]" ('418 Patent, Claims 1, 12-15,
`19,22-30,33,34,35,40,41,120; '614 Patent, Claims 1, 7, 8, 9,13,
`25,28,30,35,36,37)
`AND
`"data that indicates [the] performance" ('418 Patent, Claims 15,
`19,25,26,27; '614 Patent, Claims 8, 30, 36)
`
`Defendants propose that the term "performance [of/for a channel]" be construed as
`
`"the quality with which a channel carries communications" and the term "data that indicates
`
`[the] performance" be construed as " data that indicates the quality with which a channel
`
`carries communications." Plaintiff proposes these terms not be construed. The Court finds
`
`these terms do not need construction.
`
`Plaintiff argues that the term "performance" has a broad meaning when read in the
`
`context of the patent specification that goes beyond subjective "quality." See '418 Patent,
`
`17
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`3:17-20, 7:26-33; '614 Patent, 2:47-50, 10:19-20. Plaintiff further contends that using
`
`Defendants' proposed construction is vague and indefinite as to the tenn "quality." See 35
`
`U.S.C. § 112, ~1. Relying on PureChoice, Inc. v. Honeywell Int 'I, Inc., Plaintiff argues that
`
`the tenn "quality" "does not infonn the public what qualities the invention is concerned with,
`
`and is overbroad." 333 Fed. Appx. 544, 547 (Fed. Cir. 2009).
`
`Defendants contend that the tenns "quality" and "perfonnance" are intertwined.
`
`Defendants point to the specification of the '614 Patent: "[a] common problem for
`
`communications systems is poor transmission quality of communications channels, also
`
`referred to as poor channel perfonnance ... poor channel perfonnance may increase the bit
`
`rate error ... leading to reduced transmission quality." '614 Patent, 2:46-51. Defendants
`
`conclude then that both patents and their specifications use the tenn "perfonnance" to refer
`
`to channel quality.
`
`With reference to Plantiff s indefiniteness argument, Defendants assert that "[i]f a
`
`claim is indefinite, the claim, by definition, cannot be construed." Enzo Biochem, Inc. v.
`
`Applera Corp., 599 FJd 1325,1331 (Fed. Cir. 2010). In addition, Defendants point out that
`
`a claim tenn is not indefinite merely because it has a subjective component, as long as
`
`persons skilled in the art would understand its meaning. See Source Search Techs., LLC v.
`
`Lending Tree, LLC, 588 FJd 1063, 1076 (Fed. Cir. 2009) (subjective tenns are definite if
`
`capable of being understood by skilled artisans). Therefore, Defendants conclude that since
`
`the tenn b