Case 6:21-cv-00569-ADA Document 30 Filed 01/20/22 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`v.
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`GOOGLE LLC,
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`Plaintiff,
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`Defendant.
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`GOOGLE’S REPLY CLAIM CONSTRUCTION BRIEF
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`B.
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`C.
`D.
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`E.
`F.
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`INTRODUCTION ............................................................................................................. 1
`ARGUMENT ..................................................................................................................... 1
`A.
`Term 1: “media player” (’251 Patent, claim 1; ’528 Patent, claims 1, 27,
`28; and ’289 Patent, claims 1, 6)............................................................................ 1
`Term 2: “an association between the personal computing device and the
`[display device / content presentation device]” (’251 Patent, claim 1; ’528
`Patent, claims 1, 27, 28; and ’289 Patent, claims 1, 6) .......................................... 1
`Term 3: “video file” / “video content” (’251 Patent, claims 1, 6, 7) ..................... 2
`Term 4: “converting the command from the personal computing device
`into corresponding code to control the media player” (’251 Patent, claim
`2) ............................................................................................................................ 4
`Term 5: “universal command” (’251 Patent, claim 5) ........................................... 5
`Term 6: “unique identification code assigned to the content presentation
`device” (’289 Patent, claims 1, 6) and “synchronization code assigned to
`the content presentation device” (’528 Patent, claims 1, 27) ................................. 6
`Term 7: “[identify/identifying/include information indicating] a location
`of the particular media player” (’528 Patent, claims 1, 27, 28; and ’289
`Patent, claims 1, 7) ................................................................................................. 8
`Term 8: “action control command being independent of the particular
`media player” (’528 Patent, claims 1, 27, 28; ’289 Patent, claims 1, 6) .............. 10
`Term 9: “identifying, [by the server system,] programming code
`corresponding to the action control command, wherein the programming
`code is for controlling presentation of the content by the content
`presentation device using the particular media player” (’528 Patent, claim
`1, 27, 28; ’289 Patent, claims 1 and 6)................................................................. 12
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`G.
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`H.
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`I.
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`TABLE OF AUTHORITIES
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`Page
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`CASES
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`C.R. Bard, Inc. v. U.S. Surgical Corp.,
`388 F.3d 858, 864 (Fed. Cir. 2004)..............................................................................11, 12, 13
`
`Insituform Techs., Inc. v. Cat Contracting, Inc.,
`99 F.3d 1098 (Fed. Cir. 1996)....................................................................................................3
`
`Merck & Co. v. Teva Pharms. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005)..................................................................................................8
`
`Seachange Int’l, Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2005)..................................................................................................4
`
`Thorner v. Sony Computer Entertainment America LLC,
`669 F.3d 1362, 1365 (Fed. Cir. 2012)......................................................................................11
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`W. H. Wall Fam. Holdings, LLLP v. Celonova Biosciences, Inc.,
`No. 1-18-CV-00303-LY, 2019 WL 4016454 (W.D. Tex. Aug. 26, 2019) ..............................11
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`Case 6:21-cv-00569-ADA Document 30 Filed 01/20/22 Page 4 of 20
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`I.
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`INTRODUCTION
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`Touchstream offers constructions in the guise of “plain meaning” and attorney argument
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`in lieu of support in the intrinsic record. Dkt. 29 (“Resp. Br.”). For the reasons below, Google’s
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`proposed constructions should be adopted by the Court.
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`II.
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`ARGUMENT
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`A.
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`Term 1: “media player” (’251 Patent, claim 1; ’528 Patent, claims 1, 27, 28;
`and ’289 Patent, claims 1, 6)
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`Google’s Proposed Construction
`plain and ordinary meaning
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`Touchstream’s Proposed Construction
`plain and ordinary meaning
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`The parties agree that the term “media player” should be given its plain and ordinary
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`
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`meaning. Resp. Br. at 3. For the reasons set forth in Google’s opening brief (Dkt. 25 (“Op. Br.”)
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`at 3-4), the plain and ordinary meaning of the term does not include just any “computer
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`application” but one that actually displays and controls media as claimed (Resp. Br. at 3). With
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`that understanding, Google agrees that plain and ordinary meaning is appropriate for Term 1.
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`B.
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`Term 2: “an association between the personal computing device and the
`[display device / content presentation device]” (’251 Patent, claim 1; ’528
`Patent, claims 1, 27, 28; and ’289 Patent, claims 1, 6)
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`Google’s Proposed Construction
`one-to-one mapping between the personal
`computing device and the [display device /
`content presentation device]
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no
`construction needed
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`Touchstream agrees with Google that an “association” according to the Asserted Patents
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`
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`is a connection between two particular devices. See Resp. Br. at 4 (“An ‘association,’ according
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`to the patents-in-suit, is simply a ‘connection’ or ‘correspondence’ between two things.”). As
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`Touchstream points out, the specification makes clear that the record that stores the association
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`between the personal computing device and display device uniquely connects (i.e., maps) the two
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`devices so that signals may be sent between the devices via the server. See, e.g., id. at 5 (“[The]
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`‘connection’ between the personal computing device (a ‘mobile phone’ in this embodiment) and
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`the display device . . . . is used to facilitate messaging between the personal computing device
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`and the display device so that the user can control playback of content on the display device
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`using a media player.”). Indeed, for the server to identify the proper devices to send signals
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`between, the recorded “association” between the personal computing device and the display
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`device must be a unique, one-to-one relationship between the specific devices, not any
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`relationship.
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`Touchstream asserts that Google’s construction excludes embodiments in which the
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`claimed association connects multiple personal computing devices to one display device, one
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`personal computing device to multiple display devices, and multiple personal computing devices
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`to multiple display devices. Id. at 7–8. Those embodiments, however, are not recited in the claims.
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`The claims recite that the claimed “association” is “between the personal computing device and
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`the [display device / content presentation device].” ’251 patent, claim 1 (11:33-34). The term
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`“device” is used only in the singular in all claims of the Asserted Patents. The claims thus recite
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`only a single-phone/single-display embodiment. Google’s construction would therefore help the
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`jury understand this specific claimed “association,” consistent with the specification.
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`For these reasons, Google’s proposed construction should be adopted.
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`C.
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`Term 3: “video file” / “video content” (’251 Patent, claims 1, 6, 7)
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`Google’s Proposed Construction
`indefinite
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no construction needed
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`Touchstream relies solely on attorney argument, with no support in the intrinsic or
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`
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`extrinsic record, to assert that “a person of ordinary skill in the art―and even a lay
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`person―would readily understand the distinction between a video ‘file’ and the video ‘content’
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`stored thereon” (Resp. Br. at 9) and that the claimed “file” is merely a “container that stores
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`‘content’” to be played at the display device (id. at 10). Touchstream’s unsupported assertions
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`should be disregarded. See Insituform Techs., Inc. v. Cat Contracting, Inc., 99 F.3d 1098, 1106
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`(Fed. Cir. 1996) (holding that “attorney argument cannot control [in construing a claim] in light
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`of the language of the claim”).
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`Touchstream’s argument also misses the mark – the issue is not the meaning of these
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`individual terms apart from the claims; as Google previously explained, the inconsistent and
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`disconnected usage or connection of the terms in the claims is what causes the terms (and
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`independent claim 1) to be indefinite. Op. Br. at 7-8. Indeed, as Touchstream points out, the
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`“file” is specified by the personal computing device in one or more signals to the server system,
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`and the “content” is ultimately intended “for playing” by the media player. However,
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`Touchstream ignores that the claims themselves do not show that “the video content” originates
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`from the claimed “video file.” “Video content” is instead introduced in the preamble, within the
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`concept of a “machine-implemented method of controlling presentation of video content.” See
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`’251 patent, claim 1. Thereafter, the claim merely further recites that “the video content” is
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`associated with playback on the display device while the origin of the content is left undefined.
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`The specification passage and figure cited by Touchstream (Resp. Br. at 10) also do not relieve
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`this ambiguity, as “content” is not even mentioned other than in the context of a content provider
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`(i.e., the entity or server that provides the video file).
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`Now, Touchstream asks the Court to apply an implicit construction to avoid
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`indefiniteness despite what the claim actually recites. Indeed, the patentee of the Asserted
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`Patents likely noticed this deficiency in later patents, including in the ’289 patent, where the
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`claims instead expressly recite “playing content from the specified file.” But similar language is
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`notably missing from the ’251 patent and, for this reason, the term and claim are indefinite.
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`D.
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`Term 4: “converting the command from the personal computing device into
`corresponding code to control the media player” (’251 Patent, claim 2)
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`Google’s Proposed Construction
`indefinite
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no construction needed
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`Touchstream argues that claim 2 is not indefinite only based on the presumption that,
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`because claim 2 is a dependent claim, it should be narrower and of different scope than claim 1.
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`See Resp. Br. at 11. In support of this, Touchstream merely recites both “converting” steps
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`recited in independent claim 1 and dependent claim 2. Id. Touchstream, however, disregards
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`that the “converting” limitations in claims 1 and 2 are substantially identical (except for
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`antecedent basis issues discussed in Google’s opening brief (Op. Br. at 10)). Compare claim 1
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`(“converting, by the server system, the universal playback control command into corresponding
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`programming code to control playing of the video content on the display device by the
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`particular media player”) with claim 2 (“converting the command from the personal computing
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`device into corresponding code to control the media player) (emphasis added). For the
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`dependent claim to have a different scope than the independent claim, it must actually be
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`different from the limitation in claim 1. See Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361,
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`1368 (Fed. Cir. 2005) (“The doctrine of claim differentiation stems from the common sense
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`notion that different words or phrases used in separate claims are presumed to indicate that the
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`claims have different meanings and scope.”) (internal quotations omitted) (emphasis added). It
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`is not, so claim 2 is invalid.
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`Touchstream’s response is flawed for two additional reasons. First, as Google explained,
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`the limitation includes multiple terms that lack antecedent basis to both independent claim 1 and
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`claim 2. Op. Br. at 10. Second, Touchstream suggests that the plain meaning of the limitation in
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`claim 2 is that there are two converting steps. However, Touchstream does not explain how this
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`would be supported by the specification (because it is not) nor how the same “command”
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`(recited as “the command” in claim 2) received from the personal computing device can be
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`converted to a programming code twice with both codes used to control playback of the display
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`device. Indeed, in its response to Google’s indefiniteness argument for Term 5 (i.e., claim 5 of
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`the ’251 patent), Touchstream acknowledges that the command from the personal computing
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`device is the only command converted per the purported invention described in the specification.
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`See Resp. Br. at 13.
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`Thus, Term 4 (and claims including it) should be found indefinite.
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`E.
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`Term 5: “universal command” (’251 Patent, claim 5)
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`Google’s Proposed Construction Touchstream’s Proposed Construction
`indefinite
`plain and ordinary meaning - no construction needed
`Alternatively, plain and ordinary meaning, which is “a
`standard command used for controlling playback of
`media content such as play or pause”
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`Google maintains that Term 5 (and claim 5 of the ’251 patent) is indefinite and that
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`Touchstream’s proposed alternate construction is erroneous and improperly renders language in
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`the claim superfluous. See Op. Br. at 11-12; Resp. Br. at 12-13.
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`However, to the extent the term is not found to be indefinite, the Court could construe
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`“universal command” (and the purportedly related “universal playback control command”) as “a
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`standard command that is converted into a specific command recognized by a particular media
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`player.” This would be consistent with Touchstream’s arguments as to why the term is not
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`indefinite:
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`[T]he specification makes it clear that the “universal command” recited in
`claim 5 is the same as the “universal playback control command” of claim
`1 . . . For example, when discussing a particular embodiment, the
`specification describes the “universal command” as a command that is
`converted into a specific command recognized by a media player. (E.g.,
`’251 patent at 5:58-62, “[I]n the illustrated implementation, a universal
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`adapter 26 is provided to interpret and convert a standard or universal
`command (e.g., play, pause, etc.) into the specific command recognized by
`the media player.”). The “universal playback control command” is the only
`command that is “converted” for use “by the particular media player” in
`claim 1.
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`Resp. Br. at 13.
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`F.
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`Term 6: “unique identification code assigned to the content presentation
`device” (’289 Patent, claims 1, 6) and “synchronization code assigned to the
`content presentation device” (’528 Patent, claims 1, 27)
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`Google’s Proposed Construction
`[unique identification / synchronization] code
`assigned by the server system to the content
`presentation device
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no construction
`needed. Alternatively, plain and ordinary
`meaning, which is “[unique identification
`code] / [synchronization code] associated with
`a content presentation device.”
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`Touchstream ignores that the server system is the only component assigning the unique
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`
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`identification / synchronization code to the content presentation device and the importance of
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`providing that understanding to the jury. See Op. Br. at 13-14; Resp. Br. at 14-15. Including “by
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`the server system” in the construction allows the jury to understand the structure used in
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`describing the merely functional language of “assigning of the [unique identification /
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`synchronization] code.” The only component that the specification describes as performing the
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`assigning is the server system. For example, the specification notes that “in some
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`implementations, the synchronization code is . . . assigned to the display device 22 each time it
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`connects to the server system 24.” ’251 patent at 5:22-25. While this passage notes “in some
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`implementations,” this is the only implementation indicating any actor that performs the
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`assigning, and therefore use of the phrase “in some implementations” is inconsequential.
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`Further, Touchstream speculates about other actors (i.e., entities other than the server
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`system) that could assign the unique identification / synchronization code, and, in doing so,
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`downplays the import of the “assigning” limitation. See Resp. Br. at 15. Such speculation fails
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`to give deference to the fact that, when the claims and specification are read together, the server
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`system is the component that assigns the code. For example, every asserted claim of the Asserted
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`Patents, including the ’289 and ’528 patents, recite a “method of controlling presentation of
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`content on a content presentation device.” The steps in the body of the claim recite steps
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`performed by a “server system.” Therefore, the patentee’s intent was to claim controlling by the
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`server system. The assignment by the server system, as is also supported by the patent
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`specification (see, e.g., ’251 patent at 5:22-25, as noted above), would allow the server system to
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`control the presentation of content on the content presentation device, consistent with the
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`patentee’s aforementioned intent.
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`Finally, Touchstream erroneously infers that the unique identification / synchronization
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`code can be an IP address or MAC address. Touchstream notes several specification passages,
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`but they actually strongly suggest that the code should not be an IP address or MAC address—
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`(1) “[t]he synchronization code can be different from an IP address associated with the display
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`device and/or a [MAC] address associated with the display device,” as noted in the Summary
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`section, and (2) a preferred embodiment describing that “[p]referably, the synchronization code
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`is different from the IP address associated with the device 22” (’251 patent at 2:22-25, 5:23-24).
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`Further, even if assumed, for the sake of argument, that the specification supports the
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`synchronization code being the same as the IP address, that does not imply that the IP address
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`cannot be assigned by the server system. Moreover, in instances where the IP address itself is
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`not assigned by the server system and the synchronization code has the same value as the IP
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`address, this does not in any way imply that the synchronization code must be assigned by the
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`same entity that assigns the IP address.
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`G.
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`Term 7: “[identify/identifying/include information indicating] a location of the
`particular media player” (’528 Patent, claims 1, 27, 28; and ’289 Patent, claims
`1, 7)
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`Google’s Proposed Construction
`[identify/identifying/including information
`indicating] an Internet address from where the
`media player is obtained by the content
`presentation device
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`Touchstream’s Proposed Construction
`Plain and ordinary meaning, which is,
`provide information that locates or may be
`used to locate the particular media player
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`Unlike Google’s construction, Touchstream’s arguments for Term 7 fail to give proper
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`weight and meaning to the word “location” in the context of the claims and specification.1 First,
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`it is well established that all claim terms must be given patentable weight. See Merck & Co. v.
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`Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005). Focusing on patentable weight
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`for the claim term “location” does not indicate Google’s intent to not give patentable weight to
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`other terms such as identify, identifying, or including information indicating. Op. Br. at 15-17.
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`Google simply submits that the term “location” must be accorded patentable weight, rather than
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`be ignored, as Touchstream seems to suggest.
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`Second, Touchstream attempts to ignore the claimed “location” by indicating that the
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`claim term is directed to the mere identifying of the media player (which is a separate
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`requirement in the claims). See Resp. Br. at 19. But the claim term is directed to identifying a
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`location of the media player, as explicitly noted in the claim language, rather than merely
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`identifying the media player. Indeed, Touchstream’s purported plain and ordinary meaning
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`construction dramatically misconstrues (and broadens) the subject matter of this limitation by
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`arguing that identifying a location of a component is equivalent to providing information that can
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`be used to locate that component (with no direction as to how this is to be accomplished).
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`1Touchstream also fails to rebut Google’s assertion that claim construction is necessary for this
`term and therefore concedes that the term should be affirmatively construed.
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`Touchstream’s construction is logically and grammatically incorrect and would provide little
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`guidance to one of skill studying the patent. Certain claims, such as in the ’251 patent, do not
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`include this limitation. Those that include it should not be broadened such that the expressly
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`stated limitation becomes irrelevant.
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`Third, Touchstream incorrectly notes an embodiment where the media player is allegedly
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`already located on the content presentation device, and is therefore not on the Internet at all. See
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`Resp. Br. at 21. This assertion is unfounded for the following reasons. The use of the term
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`“already” does not indicate that the media player was not previously located on the Internet,
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`especially in light of the specification’s disclosure that the content presentation device obtains
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`the particular media player over a network from a content provider, as Touchstream
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`acknowledges. See, e.g., ’251 patent at 6:37-40 (“the display device 22 requests and obtains a
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`copy of the appropriate media player 40 and a copy of the video file 42 from a content provider
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`30”). Further, nowhere does the specification state that the media player is only permanently
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`resident at the content presentation device nor that the “location” of the media player refers to the
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`location of the content presentation device (or a location thereon). Indeed, such an interpretation
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`would ignore the context of the device communication disclosed in the patent (and as claimed).
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`The personal communication device has no knowledge of whether the media player has already
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`been obtained over the Internet and loaded on the content presentation device, which is why the
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`claims require provision of the location of the player.
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`Fourth, Touchstream incorrectly uses claim differentiation across the ’528 and ’289
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`Patents to infer that the meaning of “location” is the same in both patents. See Resp. Br. at 19-
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`20. However, to do so, Touchstream erroneously assumes that if certain claims do not expressly
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`recite that the “media player is obtained over a network from a content provider” (which is
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`recited explicitly in ’528 patent, but not so in ’289 patent), then all claims allow for the media
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`player to be permanently resident on the content presentation device. This assumption is merely
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`attorney argument, would vitiate several additional limitations of the ’528 patent, and would be
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`inconsistent with the specification as discussed in Google’s brief. Likewise, unasserted claims
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`10 (independent) and 11 (dependent) also do not support Touchstream’s argument for claim
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`differentiation (Resp. Br. at 19-20) as claim 10 merely adds an additional claim limitation in the
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`case where the media player has already been obtained over the Internet. Even with the addition
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`of this dependent claim, it cannot obviate the requirement that the “location” of the media player
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`(as required by the claim language) must still be provided by the personal computing device to
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`the computer system.
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`H.
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`Term 8: “action control command being independent of the particular media
`player” (’528 Patent, claims 1, 27, 28; ’289 Patent, claims 1, 6)
`
`Google’s Proposed Construction
`action control command being in a standard
`format that must be converted for use by the
`particular media player
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no
`construction needed
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`Touchstream proposes plain and ordinary meaning for Term 8 but also proposes a
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`
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`construction, arguing that the term “simply means that an action control command is not specific
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`(i.e., is not dependent upon) a particular media player.” Resp. Br. at 23. While this may be true
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`in part, it ignores that the command, in the context of the claims and specification, must be in
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`standard format and must be converted (as discussed in Op. Br. at 24-26 and below).
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`Touchstream primarily disputes the difference between a “standard command” and a
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`“standard format.” However, it is clear from the specification that the commands received from
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`the personal computing device are “standard.” Op. Br. at 25-26. Touchstream’s objection to
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`Google’s use of “standard format” in its construction is therefore unpersuasive. Indeed,
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`Touchstream’s construction for a related term (Term 5) similarly uses “standard,” and
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`Touchstream’s rationale for why that term is not indefinite substantially mirrors Google’s
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`construction. See W. H. Wall Fam. Holdings, LLLP v. Celonova Biosciences, Inc., No. 1-18-CV-
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`00303-LY, 2019 WL 4016454, at *2 (W.D. Tex. Aug. 26, 2019) (“terms are normally used
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`consistently throughout the patent”).
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`Touchstream otherwise ignores Google’s construction requiring the command to be
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`“converted,” other than erroneously claiming that Google is importing an embodiment from the
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`specification. As Touchstream implicitly admits, the conversion step is necessary for the
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`invention to operate. This is made clear in the Summary of the Invention, which Touchstream
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`admits “describe[s] the invention as a whole.” Resp. Br. at 24-25.2 In particular, as
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`Touchstream itself quotes, the Summary of the Invention in the specification describes the
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`invention consistent with Google’s construction: “[I]n response to receiving the message, to
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`convert the command into a corresponding command recognizable by the media player . . . .” Id.
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`(quoting ’251 patent at 2:3-7). Accordingly, Touchstream’s attempt to distinguish Google’s case
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`law fails because the “Summary of the Invention” describes the claim language in similar terms
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`(i.e., the command is “converted for use by the particular media player”) to the Detailed
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`Description of the specification (and with Google’s construction). See Op. Br. at 25-26.
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`Touchstream also erroneously argues that the “Detailed Description” purportedly
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`describes an “illustrated implementation,” in an attempt to distinguish Google’s case law.
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`2Touchstream argues, citing Thorner v. Sony Computer Entertainment America LLC, 669 F.3d
`1362, 1365 (Fed. Cir. 2012), that Google’s construction is invalid because “there is no
`lexicography or disavowal in the record.” Resp. Br. at 23. However, it later concedes that
`language from the specification that describes the invention as a whole may also warrant
`construing claim language accordingly. Id. at 24 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp.,
`388 F.3d 858, 864 (Fed. Cir. 2004)).
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`Case 6:21-cv-00569-ADA Document 30 Filed 01/20/22 Page 15 of 20
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`However, as discussed above (and in Touchstream’s brief), the Detailed Description is wholly
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`consistent with the Summary of the Invention in describing the invention as a whole. In
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`addition, Touchstream ignores that the Detailed Description also states that the language in
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`Google’s construction is performed “each time” at the server. See id. at 25. Once again, this is
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`describing the invention as a whole rather than a preferred embodiment. See C.R. Bard, 388
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`F.3d at 864.
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`Finally, Google does not argue that the prosecution history provides a disclaimer to the
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`claim language. Rather, along with the fact that the claims describe both the “action control
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`command” and the “programming code” in similar terms, the prosecution shows why
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`construction of this term is necessary. See Op. Br. at 23-24. The Applicant noted the import of
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`this limitation to avoid prior art during prosecution, and now Touchstream appears to be
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`implicitly ignoring this during litigation—as shown by its arguments that a command that must
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`be converted for use by the particular media player is not representative of the invention as a
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`whole. Google’s construction, instead, is necessary and is consistent with the specification and
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`the claim language.
`
`I.
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`the server system,] programming code
`[by
`Term 9: “identifying,
`corresponding to the action control command, wherein the programming code
`is for controlling presentation of the content by the content presentation device
`using the particular media player” (’528 Patent, claim 1, 27, 28; ’289 Patent,
`claims 1 and 6)
`
`Google’s Proposed Construction
`by the server system, identifying the specific
`media player that is being requested and
`converting the incoming commands into the
`correct programming code used by the content
`presentation device to control the specific media
`player
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`Touchstream’s Proposed Construction
`plain and ordinary meaning - no
`construction needed. Alternatively, plain
`and ordinary meaning for “programming
`code,” which is “instructions that the
`media player can recognize and execute,”
`otherwise plain and ordinary meaning - no
`construction needed
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`As with Term 8 above, Touchstream erroneously claims that this term only requires a
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`Case 6:21-cv-00569-ADA Document 30 Filed 01/20/22 Page 16 of 20
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`plain and ordinary construction because there is purportedly no disclaimer or lexicography.
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`However, in the response, Touchstream (1) ignores that the “Summary of the Invention” and
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`“Detailed Description” of the specification both describe the purported invention as a whole; (2)
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`fails to acknowledge that the use of “identify” throughout the claims creates ambiguity in the
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`claim language further requiring construction; and (3) proffers flawed implicit constructions
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`under the guise of plain and ordinary meaning.
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`First, Touchstream claims that Google is importing preferred embodiments into the
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`construction. See Resp. Br. at 28-29. However, as discussed in the opening brief, Google’s
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`construction is supported by the specification, which describes the invention as a whole. In
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`particular, the “Summary of the Invention” clearly describes Term 9 as “converting” the action
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`control command into the corresponding programming code. ’251 patent at 2:3-7 (“[I]n response
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`to receiving the message, to convert the command into a corresponding command recognizable
`
`by the media player . . . .”). Touchstream erroneously claims that the Summary of the Invention
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`describes this step in broader terms than Google’s construction. See Resp. Br. at 28 (quoting
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`’251 patent at 2:7-11). This language that purportedly describes the whole of the invention
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`merely states that the programming code (after conversion from the action control command) is
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`ultimately provided to and executed by the display device. See id. This language has nothing to
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`do with Term 9, and, notably, the portion of the specification cited by Touchstream follows
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`directly after the “converting” step cited above and in the opening brief (Op. Br. at 29)