Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 1 of 24
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`§
`
`§
`Case No. 6:21-cv-00916-ADA
`§
`
`JURY TRIAL DEMANDED
`§
`§
`
`§
`§
`§
`§
`§
`§
`
`
`Defendant.
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`
`
`
`PLAINTIFF RFCYBER CORP.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`RFCYBER CORP.,
`
`
`
`
`v.
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`
`APPLE INC.,
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`
`
`
`
`
`
`
`

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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 2 of 24
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`
`I.
`
`II.
`
`III.
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`IV.
`
`V.
`
`TABLE OF CONTENTS
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`Page(s)
`
`INTRODUCTION .............................................................................................................. 1
`
`THE PATENTS-IN-SUIT .................................................................................................. 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`The ’218, ’855, and ’787 Patents ............................................................................ 2
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`The ’009 Patent ....................................................................................................... 3
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`The ’046 Patent ....................................................................................................... 4
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`The ’724 Patent ....................................................................................................... 5
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`PRIOR LITIGATION ......................................................................................................... 5
`
`LEGAL STANDARD ......................................................................................................... 6
`
`DISPUTED TERMS ........................................................................................................... 6
`
`A.
`
`“e-purse” / “electronic purse” (identified by both parties) ..................................... 6
`
`1.
`
`2.
`
`3.
`
`4.
`
`RFCyber’s position in Google is consistent with its position here ............. 7
`
`The claims and other intrinsic evidence support RFCyber’s
`construction ................................................................................................. 8
`
`Extrinsic evidence does not compel Apple’s construction ....................... 10
`
`Prosecution history disclaimer does not exclude RFCyber’s
`construction ............................................................................................... 10
`
`“e-purse applet” (identified by Apple) .................................................................. 11
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`“payment server” (identified by Apple) ................................................................ 12
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`“security authentication module” / “SAM” (identified by both) .......................... 14
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`“application” (identified by Apple) ...................................................................... 16
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`B.
`
`C.
`
`D.
`
`E.
`
`VI.
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`CONCLUSION ................................................................................................................. 19
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`
`
`i
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`

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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 3 of 24
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Amgen Inc. v. Hoechst Marion Roussel, Inc.,
`314 F.3d 1313 (Fed. Cir. 2003)................................................................................................18
`
`Apple Inc. v. RFCyber Corp,
`IPR2022-00412, Paper No. 1 (P.T.A.B. Jan. 14, 2022) ...........................................................17
`
`August Tech. Corp. v. Camtek, Ltd.,
`655 F.3d 1278 (Fed. Cir. 2011)..................................................................................................6
`
`Cordis Corp. v. Boston Sci. Corp.,
`561 F.3d 1319 (Fed. Cir. 2009)..................................................................................................9
`
`Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc.
`880 F.3d 1356 (Fed. Cir. 2018)................................................................................................11
`
`Hill-Rom Servs., Inc. v. Stryker Corp.¸
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................................6
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995)......................................................................................................6
`
`Omega Eng’g, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003)..................................................................................................9
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .................................................................................6
`
`RFCyber Corp. v. Google LLC,
`No. 2:20-cv-00274-JRG, 2021 WL 5357465 (E.D. Tex. Nov. 17, 2021) ....................... passim
`
`Superguide Corp. v. DirecTV Enters., Inc.,
`358 F.3d 870 (Fed. Cir. 2004)..................................................................................................10
`
`Thorner v. Sony Comput. Ent. Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012)..................................................................................................6
`
`U.S. Surgical Corp. v. Ethicon, Inc.,
`103 F.3d 1554 (Fed. Cir. 1997)................................................................................................19
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)..............................................................................................6, 17
`
`ii
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`

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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 4 of 24
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`Pursuant to the Court’s Scheduling Order (Dkt. 29), Plaintiff RFCyber Corp. (“RFCyber”)
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`hereby submits its Responsive Claim Construction Brief. The asserted patents are U.S. Patent
`
`Nos. 8,118,218 (the “’218 Patent”), 8,448,855 (the “’855 Patent”), 9,189,787 (the “’787 Patent”),
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`9,240,009 (the “’009 Patent”), 10,600,046 (the “’046 Patent”), and 11,018,724 (the “’724 Patent”)
`
`(together, the “Asserted Patents”).
`
`I.
`
`INTRODUCTION
`
`RFCyber is a pioneer in mobile and electronic payment technology. The Asserted Patents
`
`embody RFCyber’s technology and are directed to various aspects of a mobile payment system.
`
`The Parties have met and conferred and reached agreement on most terms. The only terms
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`in dispute are:
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`• “e-purse” / “electronic purse”;
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`• “e-purse applet”;
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`• “payment server”;
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`• “security authentication module” / “SAM”; and
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`• “application.”
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`For “e-purse” and “electronic purse,” Apple misconstrues the intrinsic record to suggest
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`there was a clear and unmistakable disclaimer that would limit these terms to electronic value.
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`However, a correct reading of the prosecution history shows that no such disclaimer was made;
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`the applicants distinguished the patented invention, which stores information locally, from “an e-
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`wallet system [that] has a user credit-card and personal info at the backend. . .” Ex. 1 at 9. Indeed,
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`in the Google case, Judge Gilstrap considered precisely the same argument and evidence on which
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`Apple relies and found that there was no disclaimer. Apple further seeks to confuse matters by
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`

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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 5 of 24
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`proposing the same construction for e-purse applet. But the patents use “e-purse” and “e-purse
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`applet” differently. An “e-purse applet” is an applet that is a component of an e-purse.
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`For “security authentication module” / “SAM,” Apple seeks to introduce the requirement
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`that the SAM “authenticate transactions of funds or transfers of funds.” Nothing in the intrinsic
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`record imposes such a requirement.
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`Finally, Apple seeks to construe the commonplace terms “application” and “payment
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`server.” Apple’s requested limitations are presumably intended to manufacture a non-
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`infringement defense. A jury can apply these terms without construction.
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`Accordingly, the Court should adopt RFCyber’s constructions for e-purse, e-purse applet,
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`and SAM, and reject Apple’s unsupported constructions.
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`II.
`
`THE PATENTS-IN-SUIT
`
`A.
`
`The ’218, ’855, and ’787 Patents
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`The ’218, ’855, and ’787 Patents share a common specification and are directed to various
`
`aspects of a mobile payment system focusing, in particular, on inventions for “portable devices,
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`functioning as an electronic purse.” (’218 Patent, 1:34-38.)
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`In exemplary embodiments, the invention provides a portable device, such as a cell phone
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`with a smart card module, configured to conduct e-commerce transactions over contactless
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`interfaces and m-commerce transactions over wireless interfaces. (Id. 1:42-2:46.) Figure 2 of the
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`’218 Patent shows an exemplary embodiment of the system:
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`2
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`

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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 6 of 24
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`(’218 Patent, Fig. 2.) The portable device includes an emulator that pretends to be another device
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`or program, such as a payment card, that other components expect to interact with. (Id., 2:9-41,
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`
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`4:35-39.)
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`
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`In exemplary embodiments, a purse manager midlet acts as an agent to conduct transactions
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`with one or more e-purse applets. (Id. 2:9-41, 5:5-16.) To use the device as a payment card, it
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`must be personalized with card details. (E.g., id., 4:4-22, 5:50-6:54.) The electronic purse may be
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`personalized over secure channels, such as secure channels between an applet and a security
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`authentication module. (Id., 5:50-6:65.) The secure channels, in turn, may be established by
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`creating a key or keys used to protect subsequent operations. (Id. 1:65-2:1, 2:9-24, 4:35-46 .)
`
`B.
`
`The ’009 Patent
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`The ’009 Patent is a continuation-in-part of the ’218 Patent and shares portions of its
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`specification. The ’009 Patent is related to “techniques for personalizing a secure element and
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`provisioning an application such as an electronic purse.” ’009 Patent at 1:19-21. In particular, the
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`’009 Patent claims modules and applications that work in conjunction with a secure element.
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`3
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`In exemplary embodiments, the invention provides a portable device, such as a cell phone
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`with a smart card module, configured to conduct transactions using the modules and applications.
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`Id. at 14:60-15:26. In one embodiment, an application is provisioned following a process where
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`the device sends to a server an identifier that identifies the application, along with device
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`information relating to the secure element. Id. at 3:32-35. A secure channel is then established
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`between the server and secure element, using a key set installed on the secure element. Id. at 3:37-
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`39. The secure element receives data prepared by the server, which enables the application to
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`function as designed. Id. at 3:38-41. As a result of these steps, the application can function with
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`the secure element and be used to perform commerce transactions.
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`C.
`
`The ’046 Patent
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`The ’046 Patent is a continuation-in-part, through parent applications, of the ’218 Patent
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`and shares portions of its specification with the ’218 Patent. The ’046 Patent is related to a “mobile
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`device configured to settle payments.” ’046 Patent at 1:16-20. At the time of the invention,
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`existing payment methods were limited to “a lengthy process that typically takes a couple of
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`minutes or much longer.” Id. at 1:34-36. The inventors realized that “[w]ith the advancement in
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`mobile devices, it is anticipated that many consumers will carry one with them. Thus there is an
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`opportunity of using a mobile device to quickly settle the payment at a point of sale (POS).” Id. at
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`1:40-44. The ’046 Patent discloses and claims such methods; in particular:
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`The present invention is related to techniques for mobile devices configured to
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`support settlement of charges in electronic invoices or bills. According to one
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`aspect of the present invention, a mobile device embedded with a secure
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`element generates or is loaded with an electronic invoice. When the mobile
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`device is brought to a consumer with an NFC mobile device, the data including
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`the electronic invoice and other information regarding the mobile device or an
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`4
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`owner thereof is read off wirelessly into the NFC mobile device. After the user
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`verifies the amount being charged and authorizes the payment, the NFC mobile
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`device communicates with a payment gateway or network for payment that is
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`configured to proceed with the payment in accordance with a chosen payment
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`method.
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`(Id. at 1:54-67.)
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`D.
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`The ’724 Patent
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`The ’724 Patent is a continuation-in-part of the ’218 Patent and shares portions of its
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`specification. The ’724 Patent relates to devices configured to support or function as multiple
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`contactless cards. ’724 Patent at Abstract. Under one of the ’724 Patent’s embodiments, “a mobile
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`device embedded with an emulator is loaded with a plurality of software modules or applications,
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`each emulating or simulating one card or one type of contactless cards.” Id. at 1:54-57. “When
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`the mobile device is to be used as a contactless card to perform a set of monetary functions, a
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`corresponding application is loaded into and executed in the emulator.” Id. at 1:61-64. If a
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`different card is to be used, “a corresponding application is loaded into the emulator to replace the
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`previous application entirely or partially.” Id. at 1:64-2:1.
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`III.
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`PRIOR LITIGATION
`
`RFCyber previously litigated the ’218, ’855, ’787, and ’009 Patents in the Eastern District
`
`of Texas against Google LLC, Samsung Electronics Co. Ltd., and Samsung Electronics America,
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`Inc. RFCyber Corp. v. Google LLC, No. 2:20-cv-00274 (E.D. Tex.). The Eastern District
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`construed “e-purse”, “security authentication module”, and “payment server,” among other terms.
`
`RFCyber Corp. v. Google LLC, No. 2:20-cv-00274-JRG, 2021 WL 5357465, at *6-9, *11-13,*17-
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`18 (E.D. Tex. Nov. 17, 2021) (“Google”). The Court considered, and rejected, many of the same
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`arguments that Apple makes now. Id.
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`5
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 9 of 24
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`IV.
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`LEGAL STANDARD
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`Claim construction is a question of law to be decided by the Court. Markman v. Westview
`
`Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995). In construing claim terms, courts begin with
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`an examination of the claim language itself. August Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278,
`
`1284 (Fed. Cir. 2011). The terms used in the claims are generally given their “ordinary and
`
`customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)
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`(citations omitted). This is the meaning as understood by a person of ordinary skill in the art at
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`the time of the invention. Id. at 1313. “There are only two exceptions” to the general rule that a
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`claim term is given its plain and ordinary meaning: “1) when a patentee sets out a definition and
`
`acts as his own lexicographer, or 2) when the patentee disavows the full scope of a claim term
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`either in the specification or during prosecution.” Thorner v. Sony Comput. Ent. Am. LLC, 669
`
`F.3d 1362, 1365 (Fed. Cir. 2012)); accord Hill-Rom Servs., Inc. v. Stryker Corp.¸ 755 F.3d 1367,
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`1371 (Fed. Cir. 2014) (“We depart from the plain and ordinary meaning of claim terms based on the
`
`specification in only two instances: lexicography and disavowal.”). Accordingly, “although the
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`specification often describes very specific embodiments of the invention, [the Federal Circuit]
`
`ha[s] repeatedly warned against confining the claims to those embodiments.” Phillips, 415 F.3d
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`at 1323. That being said, a construction that excludes a preferred embodiment is “rarely, if ever,
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`correct.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).
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`V.
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`DISPUTED TERMS
`
`A.
`
`“e-purse” / “electronic purse” (identified by both parties)
`
`Term
`
`RFCyber’s Construction
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`Apple’s Construction
`
`“e-purse”
`“electronic purse”
`
`“software that stores electronic
`financial information in a local
`device”
`
`“software that stores
`electronic financial
`information, including
`electronic value, in a local
`portable device”
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`6
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 10 of 24
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`
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`The Parties are in general agreement that an e-purse or electronic purse is software that
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`stores electronic financial information in a local device. Apple seeks to add an additional
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`limitation: that the electronic financial information “include[es] electronic value.” There is no
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`dispute that an e-purse can include some sort of stored value; but there is no support for Apple’s
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`additional limitation that requires the e-purse to include electronic value.
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`An “e-purse” is exactly what its name implies: an electronic version of a purse. Like any
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`purse, it can include cash or credit cards or both. Several dictionary definitions support this
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`reading. For example, the Dictionary of Banking and Finance states that an “e-purse” is the same
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`as a “digital wallet” that is a “piece of personalised software . . . that contains, in coded form, such
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`items as credit card information, digital cash. . . .” (Ex. A.) Similarly, Newton’s Telecom
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`Dictionary defines it as “an electronic monetary transaction card being proposed by several
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`government agencies.” (Ex. B.) Neither definition limits an e-purse to one that stores “electronic
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`value.”
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`1.
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`RFCyber’s position in Google is consistent with its position
`here
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`Apple argues that RFCyber has changed its position since the Google case. (Apple Br. at
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`13-15.) As explained above, an e-purse can store money, but it is not required to store money.
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`This is entirely consistent with RFCyber’s position in the Google case. In that case, Samsung
`
`argued, similar to Apple’s arguments here, that an e-purse was limited to one that “stores electronic
`
`money locally.” RFCyber explained that an e-purse can store money, but was not limited to such
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`storage, and “can store credit card numbers and other financial-related materials.” (Ex. 4 at 4.)
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`The Court in that case agreed with RFCyber and rejected Samsung’s attempt to limit the
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`invention. Google, 2021 WL 5357465, at *6-*9. The Court rejected Samsung’s argument that
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`7
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 11 of 24
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`there was a disclaimer in the prosecution history, and further rejected Samsung’s citation to the
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`same embodiments Apple now cites.
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`2.
`
`The claims and other intrinsic evidence support RFCyber’s
`construction
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`The claims of the Asserted Patents make clear that the e-purse is not limited to one that
`
`stores electronic value. For example, Claim 7 of the ’218 Patent requires the payment server to
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`communicate with a financial institution to authorize a transaction. (’218 patent at cl. 7.) Claim 8
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`of the ’855 Patent includes a similar limitation. (’855 Patent at cl. 8.) Authorization would not be
`
`required if the invention were limited to value stored in the local device.
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`Apple primarily relies on one portion of the prosecution history. (Apple Br. at 10.) During
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`prosecution of the ’218 Patent, the Examiner rejected the claims over the Shmueli and Atsmon
`
`references. (Ex. 1, ’218 File History, 12/31/2010 Resp, at 7.) As the Applicants explained,
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`Atsmon described a type of “e-wallet” that “has a user credit-card and personal info at the
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`backend.” Id. at 9. Under the Atsmon system, “an e-card in the e-wallet system is used as an
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`identity card for logging in into the system.” Id. When a user seeks to make a purchase, “the e-
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`card can be used to identify the user to retrieve the info and submit the info to the merchant site.”
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`Id. The user’s information, such as a credit card number, is stored in the backend server, and not
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`on the local device. Id.
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`In contrast, the invention of the ’218 Patent stores financial information locally in the
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`device. “[A]n e-purse in the instant application describes about electronic money in a local
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`portable device.” Id.
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`8
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 12 of 24
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`
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`(Id. (emphasis added).) Thus, the distinction the Applicants made between Atsmon and the ’218
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`Patent was where the information was stored; not the type of information stored.1 Accordingly,
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`there was no “clear and unmistakable” disclaimer of scope. Cordis Corp. v. Boston Sci. Corp.,
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`561 F.3d 1319, 1329 (Fed. Cir. 2009) (“A disclaimer must be ‘clear and unmistakable,’ and unclear
`
`prosecution history cannot be used to limit claims.”). Indeed, the Eastern District of Texas
`
`considered the exact arguments and evidence Apple presents and determined “The patentee thus
`
`distinguished Shmueli and Atsmon based on the claimed invention using information stored
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`locally rather than retrieving information from somewhere else.” Google, 2021 WL 5357465, at
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`*8.
`
`
`
`The remainder of the intrinsic record similarly neither amounts to a disclaimer nor limits
`
`the term to require “electronic value.” Apple cites scattered passages that refer to embodiments
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`with “balances” that can be “topped off” or discuss “funding.” (Apple Br. at 11.) But reference
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`to a “balance” or topping off that balance does not require that every e-purse actually stores value.
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`Google, 2021 WL 5357465, at *8 (“The disclosures relied upon by Defendants, however, do not
`
`
`1 Apple’s interpretation of Atsmon is not relevant. (See Apple Br. at 10, 15.) It is the patentee’s
`words that control the meaning of claim terms. E.g., Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d
`1314, 1326 (Fed. Cir. 2003) (“[O]ur precedent requires that the alleged disavowing actions or
`statements made during prosecution be both clear and unmistakable.”).
`
`9
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 13 of 24
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`‘clearly set forth a definition’ for ‘e-purse’ but rather describe the e-purse used in particular
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`embodiments.”); Superguide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004)
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`(“a particular embodiment appearing in the written description may not be read into a claim when
`
`the claim language is broader than the embodiment.”). And Apple does not cite any evidence that
`
`“funding” an e-purse requires storing value in the e-purse.
`
`
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`Apple next relies on disclosures in the ’009 and ’046 Patents to attempt to impose its
`
`limitation on each of the Asserted Patents. (Apple Br. At 11.) But the claims of the Asserted
`
`Patents explicitly recite a “balance” when called for. For example, the claims of the ’046 Patent
`
`each recite that the e-purse has “a balance” and comparing that balance to a payment request. (’046
`
`Patent at cl. 1, 12, 18). The specification’s description of that process does not impose a balance
`
`limitation on the claims that do not recite a balance. Google, 2021 WL 5357465, at *8 (noting that
`
`the ’046 Patent “includes different claim language . . . such as the recital of ‘a balance in the e-
`
`purse’”).
`
`3.
`
`Extrinsic evidence does not compel Apple’s construction
`
`Apple cites to four extrinsic sources as supporting its construction. However, as noted
`
`above, other dictionary definitions support RFCyber’s position. The competing definitions “at a
`
`minimum raise[] doubts about Defendants’ assertion that Defendants’ proposed construction
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`represents a well-established meaning of ‘e-purse’ in the relevant art.” Google, 2021 WL 5357465,
`
`at *9.
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`4.
`
`Prosecution history disclaimer does not exclude RFCyber’s
`construction
`
`Apple finally argues that the doctrine of prosecution disclaimer compels its construction.
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`(Apple Br. At 14-15.) As discussed above, there was no disclaimer that would limit the claims as
`
`Apple prefers. The patentee distinguished the Atsmon reference “based on the claimed invention
`
`10
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 14 of 24
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`using information stored locally rather than retrieving information from somewhere else.” Google,
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`2021 WL 5357465, at *8. “This prosecution history therefore does not amount to a definitive
`
`statement by the patentee that the term ‘e-purse’ requires money stored locally.” Id. With no
`
`disclaimer of relevant scope, prosecution disclaimer does not attach.
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`Apple further relies on its own interpretation of Atsmon to impose a broad disclaimer on
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`RFCyber. (Apple Br. at 15.) But it is the applicants’ words and actions that generate a disclaimer,
`
`not the content of the prior art being distinguished. E.g., Core Wireless Licensing S.A.R.L. v. LG
`
`Elecs., Inc. 880 F.3d 1356, 1367 (Fed. Cir. 2018) (“The doctrine of prosecution disclaimer
`
`precludes patentees from recapturing the full scope of a claim term only when the patentee clearly
`
`and unmistakably disavows a certain meaning in order to obtain the patent.” (emphasis added)).
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`Accordingly, the Court should construe “e-purse” and “electronic purse” as “software that
`
`stores electronic financial information in a local device.”
`
`B.
`
`“e-purse applet” (identified by Apple)
`
`Term
`
`RFCyber’s Construction
`
`Apple’s Construction
`
`“e-purse applet”
`
`
`No construction necessary other than
`“e-purse”
`
`
`
`“software that stores
`electronic financial
`information, including
`electronic value, in a local
`portable device”
`
`Apple seeks to conflate “e-purse applet” with “e-purse.” But the claims make clear that an
`
`e-purse applet is a component of an e-purse. For example,’855 Patent claim 1 recites “sending the
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`response by the e-purse applet over a wireless network to a server administrating the e-
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`purse,” thus clearly denoting that the two are not identical. (’855 Patent, cl. 1.) “E-purse,” when
`
`used as part of “e-purse applet” thus is an adjective modifying “applet.” (See also ’855 Patent cl.
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`1 (discussing “e-purse SAM”).)
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 15 of 24
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`Accordingly, to avoid confusing the jury, the Court should adopt RFCyber’s construction.
`
`C.
`
`“payment server” (identified by Apple)
`
`Term
`
`RFCyber’s Construction
`
`Apple’s Construction
`
`“payment server”
`
`
`
`
`Plain and ordinary meaning
`
`“server for payment
`transactions”
`
`“Payment server” is easily understandable and requires no construction. Apple offers no
`
`justification, much less any clear and unmistakable reason, to turn “payment server” into “server
`
`for payment transactions.” And while Apple’s construction, on its face, seems similar to the term
`
`itself, Apple’s brief construes its own construction as a server “capable of facilitating or processing
`
`payments.” (Apple Br. At 15.)
`
`The patents do not limit “payment server” to one that facilitates or processes payments,
`
`rather they broadly use “payment server” in a variety of contexts. Notably, the patents describe
`
`that the payment server’s primary role as personalization of e-purse applets; the personalization
`
`enables subsequent payments, but does not itself involve any payment transaction at all. For
`
`example, the payment server may be “associated with an issuer of the e-purse” not a merchant or
`
`other third party. (’218 Patent, 2:36-36.) Indeed, the specification describes an application where
`
`“a card issuer provides a SA module 212 that is used to enable and authenticate any transactions
`
`between a card and a corresponding server (also referred to as a payment server).” (Id., 5:18-22.)
`
`The specification primarily discusses the use of the payment server during personalization. (Id.,
`
`6:11-25.)
`
`Similarly, exemplary claims of the Asserted Patents recite a payment server in the context
`
`of the process of downloading, installing, and personalizing an e-purse applet without imposing
`
`any requirement for payment transactions: “the e-purse applet is downloaded and installed in the
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`smart card when the smart card is in communication with the payment server,” (Id., cl. 1),
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`“wherein, when said personalizing the e-purse applet is done over a wireless network, the midlet
`
`in the portable device is configured to facilitate communications between the e-purse and the
`
`payment server,” (id., cl. 5 (emphasis added)), and “the e-purse SAM configured to enable the e-
`
`purse applet, wherein an SAM is behind the payment server and in communication with the e-
`
`purse applet when the e-purse applet is caused to communicate with the payment server via the
`
`midlet.” (Id., cl. 11). In contrast, when the payment server is required to process a transaction, the
`
`claim explicitly recites as much. (E.g., id., cl. 7 (“wherein the payment server further
`
`communicates with a financial institution to authorize a transaction therewith” (emphasis added);
`
`cl. 15 (same)). Thus, the payment server’s primary role is personalization of e-purse applets (e.g.
`
`during the course of adding new payment cards to an e-purse), not “facilitating or processing”
`
`transactions.
`
`The portions of the specification to which Apple cites do not support its construction.
`
`(Apple Br. at 16 (citing ’218 Patent at 1:65-2:1, 2:20-24).) The cited section from 1:65-2:1 does
`
`not state that the claimed payment server must facilitate or process a payment in every case, merely
`
`that it is involved in a transaction. (Id. at 1:65-2:1.) Similarly, the section from 2:20-24 merely
`
`states that operation keys are “used to establish a secured channel between the e-purse and a SAM
`
`or a payment server.” (Id. at 2:20-24.) And the process described at 7:29-62 and Figs. 4A-4C
`
`involves communications with a “payment network and servers” but does not disclose, or require,
`
`that that payment network and server facilitate or process a payment.
`
`In the Google case, Samsung proposed a similar construction as Apple does now: “server
`
`for settling a payment.” Google, 2021 WL 5357465, at *11. While Apple’s construction does not
`
`explicitly recite “settling,” its statement that a payment server must process a payment imposes
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`similar scope. In Google, as here, RFCyber contended that the term be given its plain and ordinary
`
`meaning. Id. The Court agreed with RFCyber, finding no requirement that the payment server be
`
`involved in settling a transaction, and that no construction was necessary. Id. at 13.
`
`Apple cites the Google case to complain that RFCyber proposed an alternative construction
`
`there: “server for enabling a payment.” (Apple Br. at 17-18.) While RFCyber believed and
`
`believes in both Google and in this case that the term needs no construction, should the Court find
`
`construction necessary, it should adopt that alternative construction which is consistent with the
`
`specification as discussed above.
`
`D.
`
`“security authentication module” / “SAM” (identified by both)
`
`Term
`
`RFCyber’s Construction
`
`Apple’s Construction
`
`“security
`authentication
`module” / “SAM”
`
`
`“hardware or software module
`containing data necessary to
`authenticate transactions”
`
`“hardware or software
`module containing data to
`authenticate transactions of
`funds or transfer of funds”
`
`The Parties agree that “security authentication module” should be construed as a “hardware
`
`
`
`
`
`or software module containing data necessary to authenticate transactions.”2 The Parties’ only
`
`dispute is whether the Court should accept Apple’s request to further limit those transactions to
`
`“transactions of funds or transfer of funds.” The Court should decline to do so.
`
`At the outset, the claims recite that the e-purse applet and the e-purse SAM are used to
`
`personalize the e-purse applet. (’218 Patent, 9:53-67.) Personalization is a type of data transaction3
`
`and is not related to funds. (Id. at 6:62-65 (“Via the new purse SAM306, a set of e-purse operation
`
`
`2 The Eastern District of Texas adopted this construction in the Google case. Google, 2021 WL
`5357465, at *18.
`3 The specification makes clear (and, by seeking this construction, Apple tacitly admits) that
`transactions are not always related to funds. (Id. at 4:32-34 (discussing “data transactions”).)
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`Case 6:21-cv-00916-ADA-DTG Document 54 Filed 05/10/22 Page 18 of 24
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`keys and pins are generated for data transactions between the new e-purse SAM and the e-purse
`
`applet to essentially personalize the e-purse applet at 358.” (emphasis added)). See also id. at 2:5-
`
`8 (“During a transaction, the security keys are used to establish a secured channel between an
`
`embedded e-purse and an SAM (Security Authentication Module) or backend server.”), 6:11-25.)
`
`Thus, Apple’s construction directly contradicts the claims of the Asserted