Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 1 of 28
`1 of 28
`Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page
`
`EXHIBIT 29
`
`EXHIBIT 29
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 1 of 27 PageID #: 3328Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 2 of 28
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`3RD EYE SURVEILLANCE, LLC
`
`Plaintiff,
`
`v.
`
`THE CITY OF FORT WORTH and
`e-WATCH CORPORATION
`
`Defendants.
`
`§
`§
`§
`§
`§ No. 6:14-cv-00725
`§
`§
`§
`§
`§
`
`
`JURY DEMANDED
`
`MEMORANDUM OPINION AND ORDER
`
`Before the Court is Defendant e-Watch Corporation’s Motion for Summary Judgment of
`
`Indefiniteness. (Doc. No. 99). Plaintiff 3rd Eye Surveillance, LLC filed a Response (Doc. No.
`
`102) and Defendant filed a Reply (Doc. No. 105). On May 12, 2016, the Court held a hearing
`
`and heard argument on the Motion. Having considered the parties’ arguments and for the
`
`reasons stated below, the Court DENIES Defendant’s Motion for Summary Judgment (Doc. No.
`
`99).
`
`BACKGROUND
`
`Plaintiff contends that Defendant literally infringes U.S. Patent No. 7,323,980 (“the ’980
`
`Patent”). The ’980 Patent is the only patent in suit, and is entitled “Security System and Method
`
`with Realtime Imagery.” ’980 Patent. The disclosure of the ’980 Patent relates generally to
`
`“provid[ing] secure, realtime video and/or other realtime imagery of a secured location to one
`
`or more emergency response agencies over a high-speed communications link, such as the
`
`internet.” ’980 Patent Abstract. The stated objective of the invention is to allow emergency
`
`response agencies and their personnel to be better informed and prepared in responding to and
`
`
`
`1
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 2 of 27 PageID #: 3329Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 3 of 28
`
`preventing emergencies. ’980 Patent at 2:1–3. The ’980 Patent contains four independent
`
`claims, claims 1, 11, 21, and 31, which recite as follows:
`
`1. A security system comprising:
`
`an imaging device positioned at a secured location;
`a computer system associated with a security system central
`monitoring station, said computer system configured to:
`receive real-time imagery data from said secured location;
`process the received imagery data;
`generate additional information associated with the received
`imagery data;
`identify an appropriate response agency from amongst a plurality
`of response agencies based on at least one of the additional
`information and the imagery data; and
`transmit the received imagery data and the additional information
`to a computer system associated with a response agency.
`
`11. A method of securing a location comprising the steps of:
`
`generating real-time imagery data at a secured location;
`transmitting the real-time imagery data to a security system central
`station over a network connection;
`processing the received imagery data at the security system central
`monitoring station;
`generating additional information associated with the received
`imagery data; and
`transmitting the received imagery data and the additional
`information to response agency over a network connection,
`wherein the response agency is identified from among a
`plurality of response agencies based on at least one of the
`additional information and the imagery data by a computer
`system at the security system central monitoring station.
`
`
`21. A method for providing real-time data to a response agency:
`
`receiving real-time data from a secured location;
`accessing additional information associated with the data;
`identifying at least one response agency from amongst a plurality
`of response agencies based on the data; and
`transmitting the data and the additional information to at least one
`computer system associated with the selected response agency,
`wherein said receiving, accessing, identifying, and transmitting
`are performed by a computer system at a security system
`central monitoring station.
`
`
`
`2
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 3 of 27 PageID #: 3330Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 4 of 28
`
`
`31. A method of securing a location comprising the steps of:
`
`generating real-time imagery of a secured location;
`transmitting the real-time imagery to a security system central
`station over a network connection;
`processing the real-time imagery at the security system central
`station;
`transmitting the real-time imagery from the security system central
`station to a response agency over a network connection; and
`displaying the real-time imagery at the response agency, wherein
`the response agency is identified from amongst a plurality of
`response agencies by a computer system at the security system
`central station.
`
`
`
`Defendant moves for summary judgment, arguing that claims of the ’980 Patent are
`
`invalid because the following phrases fail to comply with the definiteness requirement of 35
`
`U.S.C. § 112, ¶ 2: (1) “associated with”; (2) “. . . based on at least one of the additional
`
`information and the imagery data . . .”; (3) “process” and “processing” as related to “received
`
`imagery data” and “real-time imagery”; (4) “realtime imagery” and “real-time imagery”;
`
`(5) “real-time data”; (6) “real-time imagery data”; (7)“generating additional information”; and
`
`(8) “assessment of the data” and “automatically generating the additional information.”
`
`LEGAL STANDARD
`
`Summary Judgment Standard
`
`“Summary judgment is appropriate in a patent case, as in other cases, when there is no
`
`I.
`
`
`
`genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
`
`law.” Nike Inc. v. Wolverine World Wide, Inc., 43 F.3d 644, 646 (Fed. Cir. 1994); FED. R. CIV.
`
`P. 56(c).
`
`II.
`
`Indefiniteness
`
`
`
`Indefiniteness is a question of law. Teva Pharms. USA, Inc. v. Sandoz, Inc., 723 F.3d
`
`1363, 1368 (Fed. Cir. 2013). “[D]etermination of claim indefiniteness is a legal conclusion that
`
`
`
`3
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 4 of 27 PageID #: 3331Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 5 of 28
`
`is drawn from the court’s performance of its duty as the construer of patent claims.” Exxon
`
`Research & Eng’g Co. v. United States, 265 F.3d 1371, 1376 (Fed. Cir. 2001) abrogated on
`
`other grounds by Nautilus v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2130 n. 9 (2014).
`
`Indefiniteness is a challenge to the validity of the patent that must be established by clear and
`
`convincing evidence. Nautilus, 134 S.Ct. at 2130, n. 10 (citing Microsoft Corp. v. i4i Ltd.
`
`Partnership,131 S.Ct. 2238, 2242 (2011) for the clear-and-convincing standard applicable to
`
`challenges to invalidity and declining to alter this standard).
`
`
`
`Under 35 U.S.C. § 112 ¶ 2, “[t]he specification shall conclude with one or more claims
`
`particularly pointing out and distinctly claiming the subject matter which the applicant regards as
`
`his invention.” “A lack of definiteness renders invalid ‘the patent or any claim in suit.’”
`
`Nautilus, 134 S.Ct. at 2125 (citing 35 U.S.C. § 282, ¶ 2(3)). Until recently, a claim was
`
`indefinite “only when it [was] not amendable to construction or insolubly ambiguous.” Id. at
`
`2127. The Supreme Court rejected this standard as too imprecise. Id. at 2130.
`
`
`
`Under the new standard, “a patent is invalid for indefiniteness if its claims, read in light
`
`of the specification . . . , and the prosecution history, fail to inform, with reasonable certainty,
`
`those skilled in the art about the scope of the invention.” Id. at 2124 (emphasis added). In
`
`rejecting the prior standard, the court found it insufficient “that a court [could] ascribe some
`
`meaning to a patent’s claims.” Id. at 2130. Reasonable certainty is something more precise than
`
`insolubly ambiguous, but short of absolute precision. Id. at 2129–30. In describing the new
`
`standard the court “mandates clarity.” Id. at 2129.
`
`
`
`The Supreme Court noted the “delicate balance” to the indefiniteness analysis. Id. at
`
`2128. In summarizing this balance post-Nautilus, the Federal Circuit explained that “[t]he
`
`definiteness standard ‘must allow for a modicum of uncertainty’ to provide incentives for
`
`
`
`4
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 5 of 27 PageID #: 3332Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 6 of 28
`
`innovation, but must also require ‘clear notice of what is claimed, thereby appris[ing] the public
`
`of what is still open to them.’” Interval Licensing LLC v. AOL, 766 F.3d 1364, 1370 (Fed. Cir.
`
`2014) (emphasis added) (quoting Nautilus, 134 S.Ct. at 2128–29).
`
`
`
`The Supreme Court did not apply the new standard in Nautilus.1 The Federal Circuit,
`
`however, has both applied the new standard and provided guidance on the level of precision
`
`required. Interval, 766 F.3d at 1369–71. “Although absolute precision or mathematical
`
`precision is not required, it is not enough as some of the language in . . . prior cases may have
`
`suggested, to identify ‘some standard for measuring the scope of the phrase.’” Id. at 1370–71
`
`(quoting Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005)).
`
`“The claims, when read in light of the specification and the prosecution history, must provide
`
`objective boundaries for those of skill in the art.” Id at 1371 (emphasis added) (relying on
`
`Nautilus, 134 S.Ct. at 2130 & n. 8). In noting the necessity for objective boundaries, the Federal
`
`Circuit relied on the finding in Halliburton Energy Servs., Inc. v. M–I LLC that “[e]ven if a claim
`
`term’s definition can be reduced to words, the claim is still indefinite if a person of ordinary skill
`
`in the art cannot translate the definition into meaningfully precise claim scope.” Id. (emphasis
`
`added) (relying on Halliburton, 514 F.3d 1244, 1251 (Fed. Cir. 2008)).
`
`
`
`Other parts of the indefiniteness inquiry remain the same. Indefiniteness is still
`
`“evaluated from the perspective of someone skilled in the relevant art at the time the patent was
`
`filed.” Nautilus, 134 S.Ct. at 2128. Claims must also still “be read in light of the patent’s
`
`specification and prosecution history.” Id. at 2128.
`
`
`1 The court declined to apply the new “reasonable certainty” standard to the claim language at
`issue in Nautilus, “mounted . . . in spaced relationship with each other.” Nautilus, 134 S.Ct. at
`2131. The language describes the location of two electrodes on a cylinder held in the user's
`hand. Id. at 2127. In concluding the language was not indefinite, the reversed Federal Circuit
`decision had concluded the spaced relationship could not be greater than the width of a user's
`hand. Id. at 2127.
`
`
`
`5
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 6 of 27 PageID #: 3333Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 7 of 28
`
`DISCUSSION
`
`I.
`
`“associated with” (Claims 1, 2, 3, 5, 7, 9, 10, 11, 14, 15, 19, 10, and 21)
`
`Defendant argues that “associated with” is invalid because the patent does not specify
`
`how the elements it has identified are associated and that in order to avoid invalidity, the
`
`patentee would have had to use a term describing the functional relationship between each of the
`
`elements. The Court disagrees. Reading the patent, a POSITA would be able to determine with
`
`reasonable certainty the relationship between the different “associated” elements. Claim 1, for
`
`example, states “[a] security system comprising: . . . a computer system associated with a
`
`security system central station, said computer system configured to: . . . generate additional
`
`information associated with the received imagery data; . . . and transmit the received imagery
`
`data and the additional information to a computer system associated with a response agency.”
`
`’980 Patent at 12:37–52. One of skill in the art could ascertain that each use of “associated with”
`
`in Claim 1 references a relationship between two elements ((1) a computer system and a security
`
`system central station, (2) additional information and received imagery data, and (3) a computer
`
`system and a response agency) and could determine with reasonable certainty what the
`
`relationship between the two elements is from the claim language alone. Further, one skilled in
`
`the art would also be able to determine the “association” between the various elements described
`
`throughout the specification.2
`
`In light of the information disclosed in the ‘980 patent, one skilled in the art would
`
`understand that “associated with” as used in the claims simply describes a link or connection
`
`
`2 In many instances throughout the specification, “associated with” is used to discuss a computer system that is
`associated with a central station, a response agency, or the secured location. ’980 Patent at 2:27–28, 2:37–38, 2:40–
`44, 4:21–33, 4:58–59, 5:43–48, 5:66–67, 6:46–47, 6:54–61, 7:19–20, 7:25–26, 7:31–33, 7:39–40, 7:53–54, 8:1–2,
`9:17–18, 9:39–42, 9:59–62, 10:1–2, 10:21–22, 11:39-40. Additionally, the specification discusses various
`associations with a secured location. Id. at 6:5–6, 6:12, 6:17–23, 10:31–32, 12:4–5. The specification also uses this
`term when discussing the response agency, stating “the central monitoring station may be associated with a private
`security service or a governmental agency.” Id. at 4:2–5. Additionally, the specification refers to hardware or
`software that is “associated with the server.” Id. at 5:42–44.
`
`
`
`6
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 7 of 27 PageID #: 3334Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 8 of 28
`
`between two items. Contrary to Defendant’s argument, nothing in the patent requires that the
`
`term “associated with” specify how elements are associated or describe a functional relationship.
`
`In effect, rather than considering what is disclosed, Defendant elevates possible alternatives or
`
`additions to argue that this term is indefinite. But possible alternatives or additions do not
`
`necessarily impede a POSITA from considering what is claimed and disclosed and ascertaining
`
`the scope of a term or phrase with reasonable certainty.3
`
`The intrinsic record, therefore, provides meaningful guidance that would allow one of
`
`skill in the art to determine, with reasonable certainty, the scope of the disputed term. See
`
`Nautilus, 134 S. Ct. at 2124. Accordingly, this term is not indefinite and needs no further
`
`construction. See id.
`
`II.
`
`“based on at least one of the additional information and the imagery data”
`
`(Claims 1 & 11)
`
`
`
`In their briefing, the parties break this term down into three parts: (1) “based on at least
`
`one of”, (2) “additional information,” and (3) “imagery data.” The parties’ argument concerning
`
`this term hinges primarily on the first portion of the term: “based on at least one of.”
`
`A. “Based on at least one of”
`
`
`
`Defendant asserts that there are multiple ways to interpret the phrase “based on at least
`
`one of the additional information and the imagery data” because Courts have interpreted “based
`
`on at least one of” in multiple ways: (1) a single piece of information can satisfy the condition
`
`(either one additional information or one imagery data); (2) at least one piece of data from each
`
`category (one additional information and one imagery data) is required to satisfy the condition;
`
`
`3 Indeed, it is difficult to conceive of any situation where there is an absence of alternatives or additions to claim
`language. But this alone has little to do with whether a term’s scope can be ascertained with reasonable certainty
`from what is disclosed. See Nautilus, 134 S. Ct. at 2124.
`
`
`
`
`
`7
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 8 of 27 PageID #: 3335Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 9 of 28
`
`or (3) at least one piece of data from additional information and some/all of the imagery data is
`
`required. Doc. No. 99 at 10. Defendant believes this phrase is indefinite because it is unclear
`
`which interpretation the inventor of the ’980 Patent intended and it is further indefinite because if
`
`the inventor intended the third option, it is unclear how much of the imagery data is required to
`
`satisfy the condition. Id. at 10–11.
`
`
`
`Plaintiff argues that because all portions of this disputed term can be defined, the term is
`
`not indefinite. Doc. No. 102 at 18. In its Response, Plaintiff points out that the Federal Circuit,
`
`District Courts, and the PTAB have all published decisions regarding the phrase “at least one
`
`of,” and that the requirements of that phrase depend on “the facts and how it is used.” Id. at 15.
`
`Plaintiff asserts that the phrase can either be conjunctive, requiring at least one type of data from
`
`each category (one additional information and one imagery data), or it can be disjunctive,
`
`requiring at least one piece of data from at least one of the categories (either one additional
`
`information or one imagery data). Id. at 15–17. Plaintiff argues that here, the phrase is intended
`
`to be used in the disjunctive. Id. at 17 (comparing this case to Radware Ltd. v. A10 Networks,
`
`Inc., No. C-13-02024-RMW, 2014 WL 1572644, at *6–7 (N.D. Cal. Apr. 18, 2014). In other
`
`words, one would meet the limitation if he used either one “additional information” or one
`
`“imagery data” to identify a response agency. To support its argument, Plaintiff states “[o]ne of
`
`the inventive features of the ’980 Patent is that the security system has the ability to take one
`
`piece of data (either ‘additional information’ or ‘imagery data’) and select the appropriate
`
`response agency. If the additional information is toxicity levels or presence of chemical
`
`compounds in the air, the claim limitation is that the security system contacts FEMA, the
`
`appropriate agency. If the imagery data is the trigger for contacting an appropriate agency, then a
`
`piece of data, such as ‘the image was taken under water,’ is the condition for contacting a
`
`
`
`8
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 9 of 27 PageID #: 3336Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 10 of 28
`
`response agency dealing with flooding which, in this instance, could be FEMA again.” Id. at 18,
`
`citing ’980 Patent at 10:45–47.
`
`
`
`In further support of its assertion that “. . . based on at least one of the additional
`
`information and the imagery data . . .” was meant to be used in the disjunctive, Plaintiff points to
`
`several recent cases. Doc. No. 102 at 17. Plaintiff refers to Radware Ltd. v. A10 Networks, Inc.,
`
`where the court construed “based on at least one of” in the disjunctive because the patent in that
`
`case only involved selecting from a set of two categories (hops and latency). Radware Ltd. v.
`
`A10 Networks, Inc., No. C-13-2021-RMW, 2014 WL 1572644, at *7 (N.D. Cal. Apr. 18, 2014).
`
`The court stated, “[t]he inventors used ‘at least one of’ hops and latency as a shorthand for hops,
`
`or latency, or hops and latency. If the inventors had limited their claims to only ‘hops and
`
`latency,’ the phrase ‘at least one of’ would be unnecessary: the claim could simply read ‘wherein
`
`said network controller determines proximities based on hops and latency.’” Id.
`
`
`
`Defendant argues that this case is different from Radware because here, “additional
`
`information” refers to “a set of multiple types of information, any of which may satisfy the
`
`condition,” but in Radware, the patent referred to “hops” and “latency,” both of which were
`
`references “to the value[s] of [ ] single variable[s].” Doc. No. 105 at 7. Defendant contends that
`
`this case more closely resembles SuperGuide. In SuperGuide, the Court construed “at least one
`
`of” as requiring “at least one of each desired criterion.” SuperGuide Corp. v. DirecTV
`
`Enterprises, Inc., 358 F. 3d 870, 885 (Fed. Cir. 2004). The Court stated that each of the four
`
`categories consisted of many possible values, and “[t]he phrase ‘at least one of’ precedes [the]
`
`series of categories of criteria, which connotes a conjunctive list.” Id. at 886. The Court
`
`“conclud[ed] that nothing in the specification rebut[ted] the presumption that the [ ] patentee
`
`intended the plain and ordinary meaning” of the phrase, and “[e]very disclosed embodiment
`
`
`
`9
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 10 of 27 PageID #: 3337Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 11 of 28
`
`[taught] that the user must choose a value for each designated category.” Id. at 887. Further, the
`
`court noted that the “patentee never explicitly stated that ‘and’ should [have] been interpreted as
`
`‘or’ in the claim language.” Id. at 886.
`
`
`
`Plaintiff points to caselaw stating that SuperGuide did not create a “universal rule” that
`
`“based on at least one of” is conjunctive. Doc. No. 102 at 15. For instance, the Northern District
`
`of Illinois decided that construing a claim term in the conjunctive under the case-specific
`
`analysis discussed in SuperGuide would, in that case, “render claim language superfluous and
`
`would be inconsistent with the specification, which teaches that, at least sometimes, certain fields
`
`may be blank.” Rowe Intern. Corp. v. Ecast, Inc., 500 F. Supp. 2d 891, 909 (N.D. Ill. 2007)
`
`(discussing the “fields” (or categories) of song title, song category, song address, song size,
`
`graphics address, graphics size, and play count). In Rowe Intern. Corp., each category could only
`
`have a maximum of one record (i.e., each song only had one title, one song category, etc.).
`
`
`
`Another court has construed “based on at least on of” in the disjunctive. Joao v. Sleepy
`
`Hollow Bank, 348 F. Supp. 2d 120, 123–24 (S.D.N.Y. 2004) (discussing the phrase “wherein the
`
`banking transaction is at least one of a clearing transaction, a check clearing transaction, an
`
`account charging transaction, and a charge-back transaction”). The court in Joao construed this
`
`phrase to mean “[o]ne or more of one or more of the items contained in the list.” Id. at 124. The
`
`court noted that to be grammatically correct, one would need to construe this phrase in the
`
`conjunctive, which is the “plain and ordinary meaning” of the claim. Id. However, the court
`
`pointed out that reading this phrase in the conjunctive in the context of the patent in that case
`
`“would render the claims utter nonsense” because one banking transaction cannot be all four of
`
`the categories listed. Id. In other words, a banking transaction is either a clearing transaction, a
`
`check clearing transaction, an account charging transaction, or a charge-back transaction. Id.
`
`
`
`10
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 11 of 27 PageID #: 3338Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 12 of 28
`
`
`
`According to SuperGuide, there is a presumption to construe this phrase according to its
`
`plain and ordinary—conjunctive—meaning; however, the patent can rebut the presumption and
`
`require a different construction. See SuperGuide Corp., 358 F. 3d 870. The court in Pinpoint Inc.
`
`v. Amazon.com found that although SuperGuide construed “at least one of” to mean requiring at
`
`least one item from each category, the prosecution history of the patent at issue “explicitly
`
`asserted” a disjunctive construction. Pinpoint Inc. v. Amazon.com, No. 03-C-4954, 2004 WL
`
`5681471, at *16 (N.D. Ill. Sept. 1, 2004). Here, as in Joao and Pinpoint Inc., the patent’s
`
`description of “based on at least one of” rebuts the presumption that the Court should apply the
`
`conjunctive reading this of the term.
`
`
`
`In the claims of the ’980 Patent, the term “based on at least one of the additional
`
`information and the imagery data” is discussed in the context of choosing the appropriate
`
`response agency. In other words, a response agency is chosen based on those two categories of
`
`information. SuperGuide instructs this Court to look to the plain and ordinary meaning of this
`
`phrase first, which is the grammatically correct—conjunctive—reading. SuperGuide Corp., 358
`
`F. 3d at 885–88. Then, because the construction of this phrase is specific to the patent at hand,
`
`the Court must look to the specification to determine if it rebuts the presumption that the phrase
`
`should be given its plain and ordinary meaning. Based on the claims, specification, and the
`
`caselaw discussed above, the Court concludes that this phrase was meant to be understood in the
`
`disjunctive because the “specification rebuts the presumption that the language should be given
`
`its plain and ordinary meaning,” as it specifically provides for the possibility of using only the
`
`“additional information” when identifying a response agency. See Joao v. Sleepy Hollow Bank,
`
`348 F. Supp. 2d 120, 123–24 (S.D.N.Y. 2004).
`
`
`
`11
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 12 of 27 PageID #: 3339Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 13 of 28
`
`
`
`The specification states that when the central station receives the alarm signal, “realtime
`
`video information” is displayed along with other potentially helpful information, and “[u]pon
`
`receiving the alarm notification signal at the central station [ ], a number of emergency response
`
`agencies associated with the secured location [ ] are identified.” ’980 Patent at 6:7–18. This
`
`language, although it does discuss the “realtime video information,” indicates that “additional
`
`information” may be used to identify a response agency, even in the absence of “imagery data”
`
`because the language clearly states that the identification happens “upon receiving the alarm
`
`notification signal,” not upon receiving “imagery data.” See id. In fact, that preferred
`
`embodiment only refers to the imagery data to state that it is displayed at the time of the alarm
`
`signal. Id.
`
`
`
`“Although the specification may aid the court in interpreting the meaning of disputed
`
`language in the claims, particular embodiments and examples appearing in the specification will
`
`not generally be read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d
`
`1560, 1571 (Fed. Cir. 1988); see also Phillips, 415 F.3d at 1323. However, “[a] claim
`
`interpretation that excludes a preferred embodiment from the scope of the claim ‘is rarely, if
`
`ever, correct.” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362 F.3d 1367, 1381
`
`(Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). If the Court were to construe this
`
`term in the conjunctive, it would be excluding the preferred embodiment that a response agency
`
`is identified “[u]pon receiving the alarm notification signal at the central station.” See ’980
`
`Patent at 6:7–18.
`
`
`
`Further, Plaintiff correctly points out that the manner in which this term is used in the
`
`’980 Patent is similar to the patent in Radware, where there were only two categories following
`
`the phrase “at least one of” (which were hops and latency in that case). The court stated:
`
`
`
`12
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 13 of 27 PageID #: 3340Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 14 of 28
`
`“the phrase ‘at least one of’ in the claims of the [ ] Patent is only used to select
`between two parameters separated by ‘and.’ The inventors used ‘at least one of’
`hops and latency as a shorthand for hops, or latency, or hops and latency. If the
`inventors had limited their claims to only ‘hops and latency,’ the phrase ‘at least
`one of’ would be unnecessary: the claim could simply read ‘wherein said network
`controller determines proximities based on hops and latency.’”
`
`Radware Ltd., 2014 WL 1572644, at *7. Similarly, if this phrase in the ’980 Patent was meant to
`
`be used in the conjunctive, “at least one of” would be an unnecessary addition to this phrase, and
`
`instead, the claims should read “the response agency is identified from among a plurality of
`
`response agencies based on the additional information and the imagery data.” Although the
`
`categories in Radware only consisted of single variables, the case is no less on point. Here, as in
`
`Radware, there were only two categories, and if the patentee had intended to require both
`
`“additional information” and “imagery data” to identify a response agency, it could have simply
`
`been written in that manner. Additionally, although Defendant contends that the ’980 Patent
`
`more closely resembles the patent in SuperGuide, the court in SuperGuide explicitly stated that
`
`nothing in the specification rebutted the presumption to construe the phrase in the conjunctive.
`
`Here, a preferred embodiment makes clear that a response agency can be identified by using only
`
`additional information. See Globetrotter, 362 F. 3d at 1381.
`
`B. “Additional information” and “Imagery data”
`
`
`
`Defendant states that the patent describes multiple types of “additional information” and
`
`“imagery data” and “the two are always discussed as separate and distinct from each other.” Doc.
`
`No. 99 at 9. Defendant argues indefiniteness issues arise, however, when attempting to analyze
`
`“additional information” and “imagery data” individually. In its Motion, Defendant stated that
`
`“additional information” is not indefinite, but in its Reply, Defendant clarified that because
`
`Plaintiff believes “additional information” includes video, and because Defendant disagrees,
`
`“additional information” must be indefinite. Doc. Nos. 99 at 9 & 105. at 4. Defendant also
`
`
`
`13
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 14 of 27 PageID #: 3341Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 15 of 28
`
`believes that the specification defines “additional information,” ‘real-time imagery data,” and
`
`“real-time data” the same, which creates an indefiniteness issue with this term. Doc. No. 105 at
`
`5.
`
`
`
`Defendant argues that the term “imagery data” is also indefinite and “it is impossible for
`
`a POSITA to know how to identify a response agency ‘based on … the imagery data …’ because
`
`there is no definition of ‘imagery data’ or teaching on identification of an appropriate response
`
`agency based on the imagery data.” Doc. No. 99 at 12. Defendant further argues that a POSITA
`
`could not determine whether the “imagery data” used to identify a response agency is the
`
`“received imagery data” or the “processed imagery data,” which makes this term further
`
`indefinite. Id. at 12–13.
`
`
`
`Plaintiff bases its definition of “additional information” on the specification and contends
`
`the phrase means:
`
`“video; information other than realtime images; the type of alarm such as fire,
`unauthorized entry, medical emergency; whether one or more individuals appear
`at a secured location; data relating to the secured location such as structural
`attributes, building layout, floor plan, locations of cameras positioned throughout
`the secure location; escape routes; entrance and exit points of a building; items
`maintained at the secured location such as hazardous materials; conditions at the
`secured location such as temperature, pressure, toxicity levels, presences of
`chemical compounds in the air; data about a particular person detected from the
`realtime imagery; the identity of the individual; and a sound in the form of voice
`data.”
`
`Doc. No. 102 at 14–15 (internal citations omitted). Additionally, in response to Defendant’s
`
`assertion that “imagery data” is indefinite because it is undefined, Plaintiff attempts to provide a
`
`definition to this phrase:
`
`“the geophysical coordinates of the imagery; the elevation of the imagery; the
`degree above or below sea-level of the imagery; whether the imagery is under
`water; whether the imagery is of a terrestrial scene or taken in space; the time that
`the imagery was captured (if not real-time); and physiological characteristics of a
`scanned object, such as a fingerprint.”
`
`
`
`14
`
`

`

`
`
`Case 6:14-cv-00725-JDL Document 120 Filed 06/08/16 Page 15 of 27 PageID #: 3342Case 6:20-cv-01131-ADA Document 61-1 Filed 09/24/21 Page 16 of 28
`
`
`Doc. No. 102 at 14–15, citing Doc. No. 103 (decl