Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 1 of 22
`
`THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`DODOTS LICENSING SOLUTIONS LLC,
`
` Plaintiff,
`
` v.
`
`APPLE INC., BEST BUY STORES, L.P.,
`BESTBUY.COM, LLC, and BEST BUY
`TEXAS.COM, LLC,
`
` Defendants.
`
`
`DODOTS LICENSING SOLUTIONS LLC,
`
` Plaintiff,
`
` v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`BESTBUY.COM, LLC, and BEST BUY
`TEXAS.COM, LLC,
`
` Defendants.
`
` Case No.: 6:22-cv-00533-ADA
`
`
`
`
` Case No.: 6:22-cv-00535-ADA
`
`
`
`
`PLAINTIFF DODOTS LICENSING SOLUTIONS LLC’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
`
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 2 of 22
`
`TABLE OF CONTENTS
`
`Introduction. ............................................................................................................ 1
`Technology background.......................................................................................... 1
`Disputed terms. ....................................................................................................... 5
`“is accessible”/ “is available”
`(’083 patent, claims 1, 4, 9, 12; ’407 patent, claims 1, 13) ..................................... 5
`“lacks controls for manually navigating a network”
`(’083 patent, claims 1, 4, 9, 12) .............................................................................. 9
`“frame” (’083 patent, claims 1, 4, 9, 12; ’407 patent, claims 1, 13) ....................... 11
`“web browser readable language”
`(’545 patent, claim 1; ’407 patent, claims 1, 13) .................................................. 13
`“wherein accessing the networked information monitor defined by the
`networked information monitor template results in: transmission ... reception
`... presentation”
` (’407 patent, claim 1) ......................................................................................... 13
`“The method of claim 1, further comprising ...”
`(’407 patent, claim 2) ............................................................................................ 16
`
`A.
`
`B.
`
`C.
`D.
`
`E.
`
`F.
`
`
`
`
`
`i
`
`
`
`
`
`I.
`II.
`III.
`
`
`
`
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 3 of 22
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`
`
`Cases
`
`Geospatial Tech. Assocs., LLC v. United States,
`No. 16-346C, 2023 U.S. Claims LEXIS 159 (Fed. Cl. Feb. 3, 2023) .....................................15
`
`Lenovo Holding Co. v. DoDots Licensing Sols. LLC,
`Nos. 2021-1247, 2021 U.S. App. LEXIS 36126 (Fed. Cir. Dec. 8, 2021) ..........................3, 12
`
`LG Elecs. Inc. v. Straight Path IP Grp., Inc.,
`No. 2015-00196 (P.T.A.B. May 9, 2016) ..................................................................................8
`
`Mastermine Software Inc. v. Microsoft Corp.
`874 F3.d 1307, 1316 (Fed. Cir. 2017)................................................................................14, 15
`
`Novo Indus., L.P. v. Micro Molds Corp.,
`350 F.3d 1348 (Fed. Cir. 2003)................................................................................................17
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................5
`
`Straight Path IP Grp., Inc. v. Sipnet EU S.R.O.,
`806 F.3d 1356 (Fed. Cir. 2015)..............................................................................................8, 9
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`806 F.3d 1356 (Fed. Cir. 2015)..................................................................................................5
`
`UltimatePointer, L.L.C. v. Nintendo Co.,
`816 F.3d 816 (Fed. Cir. 2016)..................................................................................................15
`
`
`
`
`
`ii
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 4 of 22
`
`
`
`I.
`
`Introduction.
`
`The asserted patents – the ’083, ’545, and ’407 patents – have already been the subject of
`
`litigation, and the Federal Circuit and PTAB have construed certain key terms. There should be
`
`little dispute about the scope of the asserted claims. Yet, Defendants seek to redefine the scope of
`
`the claims – injecting ambiguous temporal limitations where none exist, disregarding the
`
`patentees’ own lexicography, contorting the prosecution history, and ignoring the straight-
`
`forward language in the claims and specification. For the reasons discussed below, Defendants’
`
`proposed constructions should be rejected.
`
`II.
`
`Technology background.
`
`A. Overview.
`
`In the late 1990s, over seven years before the first iPhone was released, the inventors,
`
`John and George Kembel (twin brothers and Stanford University alumnae) developed “dot”
`
`technology – which today is known as the mobile app. The asserted patents disclose the
`
`fundamental technology used in modern-day mobile apps and the stores used to download and
`
`install those apps onto mobile devices (e.g., Apple App Store and Samsung Galaxy Store).
`
`At that time of the invention, accessing Internet content involved the use of downloaded
`
`web browsers running on a personal computer or mobile device. But web browsers were limiting
`
`and hindered the way in which web content was viewed on mobile devices. For example, users
`
`and application developers had limited control over the presentation of internet content; content
`
`was essentially trapped within the frame of the browser. See ’083 patent, 2:5-23. The Kembels
`
`recognized early on that there was dissatisfaction with web browsers and there was a “growing
`
`desire for individual users to fully control the aggregation and presentation of content and web
`
`applications that appear on a client computer.” See ’083 patent, 2:32-35.
`
`
`
`1
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 5 of 22
`
`
`
`The Kembels sought to eliminate the need for web browsers. To do so, they developed an
`
`approach to delivering content over the Internet outside of a normal web browser. Notably, when
`
`the Kembels conceived of their patented technology, there was no word for mobile apps. So, the
`
`Kembels coined the terms “dot” or “Network Information Monitor (NIM)” – which today are
`
`colloquially referred to as an app. These “dots” are “fully configurable frame[s] with one or more
`
`controls” through which content is presented on the display of a device and viewed by the user.
`
`See ’083 patent, 5:41-44.
`
`B. Web browsers.
`
`In the late 1990s, web browsers (e.g., Microsoft Internet Explorer, Netscape Navigator)
`
`were installed on computers and used to retrieve and display websites and their webpages. A
`
`person would manually navigate between the different webpages of a website by e.g., (1)
`
`entering a webpage in a URL entry field, or (2) using forward and backward browsing buttons to
`
`move between webpages.
`
`
`Backward Browsing Button
`
`Forward Browsing Button
`
`URL Entry Field
`
`
`
`2
`
`
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 6 of 22
`
`
`
`C. Patented dots (mobile apps) technology.
`
`As the Federal Circuit noted in Lenovo Holding Co. v. DoDots Licensing Sols. LLC, Nos.
`
`2021-1247, 2021-1521, 2021-1580, 2021 U.S. App. LEXIS 36126, at *2 (Fed. Cir. Dec. 8,
`
`2021), “the three patents at issue relate to a method for accessing and displaying Internet content
`
`in a graphical user interface (“GUI”).” The way the patented technology does that is to use a
`
`“Networked Information Monitor (NIM)” or “dot” as a way to view content in a format other
`
`than the conventional web browser. The NIM or dot (now mobile app) allowed for the display of
`
`content via a data structure that defined the characteristics of the dot called a “NIM template.” Id.
`
`at 4; ’545 patent, 2:35-36; 6:35.
`
`The NIM (mobile app), which is generated by the NIM template, is a “fully configurable
`
`frame with one or more controls; the frame through which content is optionally presented. The
`
`configurable frame utilized in accordance with the invention stands in contrast to present web
`
`browsers, which are branded by the browser vendor and which have limited means by which to
`
`alter the controls associated with the browser.” ’407 patent, 4:54-59. And a NIM developer
`
`(Mobile App Developer) “has full control over all aspects of the appearance and functionality of
`
`NIM frame 137. Thus, a NIM developer has the ability to control, for example, the functionality
`
`located at any corner of frame 137, functionality placed along the top or bottom of the frame, or
`
`on the sides of the frame.” Id. at 17:41-45. Such customizability provided added flexibility over
`
`traditional web browsers.
`
`The asserted patents further describe how a NIM (app) is delivered to users in Figure 11
`
`of the ’407 patent, which is on the next page.
`
`
`
`3
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 7 of 22
`
`
`
`
`
`’407 patent, Figure 11. The process is similar to how users today download apps from the Apple
`
`App Store or the Samsung Galaxy Store. Specifically, a NIM is made available to a user over a
`
`network. When the user “clicks on the name of a NIM” [i.e., the app], a request is sent “to the
`
`applications server 50 via the transmission channel 44 (step 241).” Id.at 20:7-17. The client
`
`computing device then “retrieves the NIM definition from the NIM template database” (app
`
`store), provides the app definition and creates a frame in the display of the user interface.
`
`Content from a content server is provided “in the viewer, which is enclosed by the frame,
`
`allowing the user to preview the NIM.” Id. at 20:17-50. Put another way, the patent lays out the
`
`process for delivering both the NIM (mobile app) and the content of the NIM.
`
`
`
`
`
`
`
`4
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 8 of 22
`
`
`
`III. Disputed terms.
`
`A.
`
`“is accessible”/“is available”
`(’083 patent, claims 1, 4, 9, 12; ’407 patent, claims 1, 13)
`
`DoDots’ Proposed Construction
`Plain and ordinary meaning
`
`Defendants’ Proposed Construction
`“can be transmitted at the time the content is
`requested”
`
`
`The patent claims include the language “is accessible” and “is available.” These terms are
`
`plain English that a jury can readily understand. The inventors did not ascribe any special
`
`meaning to these terms nor is there any prosecution history limiting these terms. This should end
`
`the inquiry; no construction is needed.1 See Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir.
`
`2005) (“ the ordinary meaning of claim language as understood by a person of skill in the art
`
`may be readily apparent even to lay judges, and claim construction in such cases involves little
`
`more than the application of the widely accepted meaning of commonly understood words.”).
`
`In particular, the claims simply recite from where content for a network information
`
`monitor (NIM) (a mobile app) “is accessible” or “is available” and how the content “is
`
`accessible” (i.e., “via a TCP/IP protocol”). There is nothing in the claims that relates to when the
`
`content must be transmitted in response to receiving a request for content.
`
`’083 patent, claim 1.
`
`
`
`
`
` ’407 patent, claim 1.
`
`
`
`
`
`
`1 Contrary to Defendants’ assertion, DoDots is not trying “to broaden the scope of this term”
`(Defendants Br. at 12). Instead, DoDots is interpreting the disputed terms in the context of the
`surrounding language and claims, which is proper, instead of adding limitations that simply do
`not exist, which is what Defendants do. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138
`(Fed. Cir. 2016) (“[T]he meaning of a term in a claim is clarified by the context in which it is
`used in the surrounding claims.”).
`
`
`
`5
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 9 of 22
`
`
`
`Nevertheless, Defendants improperly seek to redefine the scope of the claims by
`
`imparting a temporal limitation regarding the transmission of content after a request for content
`
`has been received. But, as shown above, the claim language surrounding the terms “is
`
`accessible” and “is available” has nothing to do with the transmission of content based on a
`
`request nor do the claims state or imply any time period for such transmission. In fact, in the
`
`context of the claim language itself, the phrases “is accessible” and “is available” are not tethered
`
`to steps in a process that must be completed in a specific order or at a specific time. Again, the
`
`claims simply recite from where content for a network information monitor (NIM) (a mobile
`
`app) “is accessible” or “is available.” Indeed, Defendants’ use of “at the time” in their proposed
`
`construction injects ambiguity into the claims where none exists. What does “at the time” mean
`
`in Defendants’ construction? Does transmission of the content have to occur within one
`
`nanosecond, 3.1 milliseconds, or sixty seconds from when content is requested? There is no clear
`
`answer because there is nothing in the claims requiring when the content must be transmitted in
`
`response to receiving a request for content.
`
`At bottom, whether content is accessible or available; that is, whether content can be
`
`accessed or available for use or can be obtained, has nothing to do with when content is
`
`transmitted/sent. These are completely different concepts.
`
`Defendants contend that there is support in the specification for their position. See
`
`Defendants’ Opening Claim Construction Brief, Dkt. No. 71 (“Defendants Br.”) at 7-8 (citing
`
`’083 patent, 11:15-21; 13:41-46, 15:23-26, 22:19- 24, 23:20-30, 44-45). Not so. The passages
`
`that Defendants rely on have zero discussion (express or implied) regarding the terms “is
`
`accessible” or “is available” and do not limit those terms to a specific time frame when content
`
`must be transmitted after being requested. And Defendants’ citation of Figures 2, 8 and 10 of the
`
`
`
`6
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 10 of 22
`
`
`
`’802 patent fares no better. Not only does the patent specifically refer to these figures as
`
`“embodiments” (’802 patent, 4:45-47, 64-67; 5:5-8), but Figures 8 and 10 have nothing to do
`
`with the availability and accessibility of the content. Figures 8 and 10 pertain to the transmission
`
`of data after a user request and, even then, these figures do not disclose or inject any particular
`
`time for transmitting content.
`
`Desperate to find some support, Defendants scour the patents looking for something to
`
`imply timing. But Defendants come up short. Defendants point to an embodiment (below)
`
`discussing how a NIM/dot (mobile app) “can” begin to be filled in (populated) immediately.
`
`
`
`Id. at 22:25-28. Not only does this passage say nothing about the claim terms “is available” or “is
`
`accessible” but the passage has nothing to do with the claim language at all.
`
`Moreover, Defendants suggest that use of the words “delivered,” “obtains,” “interacts,”
`
`and “presented” implies a specific timing requirement. See Defendants Br. at 9. But these terms
`
`say nothing about the timing of the delivery of content. Defendants also point to the
`
`specification’s discussion of data being dynamic or dynamically refreshed. But whether data is
`
`dynamic or refreshed also has nothing to do with accessibility or availability of the content for
`
`the NIM (mobile app) as recited in the claims.2 Additionally, Defendants assert that use of the
`
`terms “delivered” and “obtained” in the specification means that the content is being transmitted
`
`when it was requested. Defendants Br. at 11. But, as explained above, there is no temporal
`
`limitation in the specification related to how long after a request is made that content must be
`
`
`2 See Defendants Br. at 9 (citing 14:63-15:1; 18:41-47; 18:64-66; 19:9-17; 21:8-12).
`
`
`
`7
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 11 of 22
`
`
`
`delivered or obtained.
`
`With nothing in the intrinsic record to rely on, Defendants turn to wholly unrelated
`
`extrinsic evidence. In particular, Defendants rely on a Federal Circuit opinion and PTAB
`
`decision related to patents of a company named Straight Path. See Straight Path IP Grp., Inc. v.
`
`Sipnet EU S.R.O., 806 F.3d 1356 (Fed. Cir. 2015); and LG Elecs. Inc. v. Straight Path IP Grp.,
`
`Inc., No. 2015-00196. But the Straight Path patents have nothing to do with the patents,
`
`inventors or technology in this case. At bottom, Defendants seek to randomly apply a
`
`construction from a different patent to the claims in this case. There is no legal support for this.
`
`Notably, Defendants carefully avoid discussing the critical context that led to the
`
`construction in Straight Path. In Straight Path, the claim recited “program code for
`
`transmitting, to the server, a query as to whether the second process is connected to the computer
`
`network.”3 The Federal Circuit construed the term “is connected to the computer network” to
`
`mean “is connected to the computer network at the time that the query is transmitted to the
`
`server.” Straight Path IP Grp., Inc., 806 F.3d at 1365. But, unlike the claims of the DoDots
`
`patents, the claim language in Straight Path has a temporal aspect and refers to transmitting a
`
`query to a server to determine if a process “is” connected to a computer network (i.e.,
`
`currently connected to a network). The DoDots claims, on the other hand, pertain to whether
`
`content is merely accessible/available to a user, not the timing of when content is being
`
`transmitted after receiving a request for content.
`
`Moreover, in the Straight Path PTAB case, the petitioner and patent owner agreed
`
`that, within the context of the Straight Path patent, the term “is accessible” has the same
`
`meaning as “is connected.” Because of those parties’ agreement, the PTAB construed the
`
`
`3 Unless otherwise noted, all emphasis has been added.
`
`
`
`8
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 12 of 22
`
`
`
`term “is accessible” the same as “is connected.” The DoDots claims, however, do not use
`
`the term “is connected” nor did the parties here agree that the term “is accessible” has the
`
`same meaning as “is connected.” Thus, the construction of “is accessible” in the Straight
`
`Path patent is wholly irrelevant here.
`
`For the foregoing reasons, DoDots’ construction should be adopted and Defendants’
`
`construction, which injects an ambiguous temporal limitation into the claims, should be rejected.
`
`B.
`
`“lacks controls for manually navigating a network”
`(’083 patent, claims 1, 4, 9, 12)
`
`DoDots’ Proposed Construction
`Plain and ordinary meaning
`
`Defendants’ Proposed Construction
`“lacks controls for manually navigating a
`network (e.g., a forward browsing button, a
`backward browsing button, a URL entry
`field, and/or other manual navigation
`controls)”
`
`
`As discussed in Section II.B above, prior to the invention, web browsers had controls that
`
`were used to manually navigate a network (e.g., for “browsing” a website) – going to a website
`
`and moving between webpages of that website. The asserted claims, on the other hand, are
`
`directed to a NIM/dot (a mobile app). Unlike a web browser, a NIM/dot does not have controls
`
`for “browsing” a website (navigating a network). The claim language clearly reflects this
`
`difference, specifically stating that the interface of NIM/dot (mobile app) “lacks controls for
`
`manually navigating a network.”4 This phrase is clear and unambiguous, and it should be given
`
`its plain and ordinary meaning. No further construction is necessary. Indeed, Defendants
`
`effectively concede this point because they provide no definition for the phrase “lacks controls
`
`
`4 Forward and backward buttons (a type of manual controls) used in a NIM/dot (mobile app)
`would navigate through various screens (graphical user interfaces) of the NIM/dot itself as
`opposed to navigating a network. Indeed, the specification envisions the use of controls
`(including buttons) for use with a NIM/dot. ’083 patent, 4:20-24, 14:44-53.
`
`
`
`9
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 13 of 22
`
`
`
`for manually navigating a network.” This should end the inquiry.
`
`Instead, Defendants gratuitously tack-on a non-exhaustive list of controls – “(e.g., a
`
`forward browsing button, a backward browsing button, a URL entry field, and/or other manual
`
`navigation controls)” – to their proposed construction. Defendants are trying to add their
`
`exemplary list under the guise of a disavowal during prosecution. But doing so is wrong and
`
`misses the point of the patentee’s arguments during prosecution.
`
`During prosecution (and consistent with the patent specification5), the patentee simply
`
`distinguished a NIM/dot (mobile app) from prior art web browser technology. Whereas the prior
`
`art reference that had “controls for manually navigating a network” (related to web browsers),
`
`the patentee distinguished the prior art by limiting the claims to a system that “lacks controls for
`
`manually navigating a network.” In other words, any alleged disavowal is already reflected in the
`
`claims themselves with the language “lacks controls . . . .”6 The language that Defendants seek to
`
`tack-on does not clarify the claim scope and would only serve to confuse the jury.
`
`That Defendants are merely adding a non-exhaustive list of controls to claim language
`
`that otherwise has a plain and ordinary meaning speaks volumes as to Defendants’ true intent.
`
`Defendants are trying to support a non-infringement defense and argue that a mobile app, which
`
`has any type of backward and forward button does not infringe. But web browsing buttons are
`
`
`5 See ’083 patent, 5:51-53 (“According to the preferred embodiment, the present invention
`renders, displays, and updates Internet data without the use of a browser.”), 5:49-6:5 (section
`entitled “Absence of Web Browser”), 5:44-48 (“The fully configurable frame utilized in
`accordance with the invention stands in contrast to present web browsers . . .”), 6:1-5 (“the
`present invention is not designed to provide user web navigation and page control typically
`provided by a web browser.”); see also id. at 2:5-4:35, 5:51- 53, 8:61-62, 9:26-29.
`6 The controls themselves are not what is relevant here. This is why the patentee only provided
`exemplary controls. What is important is that controls are used by a web browser to navigate a
`network. A NIM/dot does not operate this way and the claim already captures this with the
`language “lacks controls . . . .”
`
`
`
`10
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 14 of 22
`
`
`
`completely different from buttons/controls used in mobile apps. Defendants’ argument ignores
`
`the fundamental distinction between web browsing buttons and controls for mobile apps, and are
`
`hoping that this important distinction would be lost on the jury with its proposed contruction.
`
`For the foregoing reasons, DoDots’ construction should be adopted.
`
`C.
`
`“frame” (’083 patent, claims 1, 4, 9, 12; ’407 patent, claims 1, 13)
`
`Defendants’ Proposed Construction
`Plain and ordinary meaning
`
`DoDots’ Proposed Construction
`“area upon a display of the Dot instantiation
`in which data may be rendered”
`
`or
`
`“area upon a display of the NIM instantiation
`in which data may be rendered
`
`
`
`DoDots’ construction comes directly from a section in the specification where the
`
`patentee defines terms and provides lexicography:
`
`
`
`’083 Patent, 10:46-48. This lexicography controls.
`
`
`
`To keep terms broad for their invalidity case, Defendants seek to avoid this clear
`
`lexicography. Instead, Defendants argue that “’frame’ is a well-known term of art in the context
`
`of web development and Internet technologies” and should be given its plain and ordinary
`
`meaning. Defendants Br. at 16. But Defendants cite extrinsic evidence (dictionary definitions) to
`
`support their position. That extrinsic evidence is irrelevant in the face of the patentee’s clear
`
`lexicography. The term “frame” does not have a plain and ordinary meaning in the claim.
`
`Instead, as noted above, “frame” has the meaning the patentee ascribed to it. Thus, Defendants’
`
`construction, which relys attorney argument and extrinsic definitions, should be rejected.
`
`
`
`11
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 15 of 22
`
`
`
`
`
`Realizing the weakness of their position, Defendants attempt to recharacterize DoDots’
`
`reliance on an explicit definition as “depart[ing] from the plain and ordinary meaning for a term
`
`as straightforward as ‘frame’. . . .” Id. Defendants then assert that DoDots’ lexicography based
`
`construction is problematic because it allegedly renders the claims indefinite. Id. In particular,
`
`Defendants assert that the phrase “the Dot instantiation” is “disconnected from the surrounding
`
`claim language, with no other claim term referring to a ‘Dot.’” Id. Not so. The Federal Circuit
`
`has already considered this very issue. As the Federal Circuit made clear (and Defendants
`
`conveniently ignore), a “dot” is just another name for a “networked information monitor” (NIM):
`
`“Whereas the ’407 and ’545 patents speak exclusively in terms of the NIM and NIM template,
`
`the ’083 patent also uses the analogous terms “Dot” and “Dot definition.” See Lenovo Holding
`
`Co. v. DoDots Licensing Sols. LLC, 2021 U.S. App. LEXIS 36126, at *3 n.1. Further, the term
`
`“networked information monitor” is used in the claims. Thus, a POSITA would understand that
`
`an “area upon a display of the Dot instantiation in which data may be rendered” is an “area upon
`
`a display of the NIM instantiation in which data may be rendered.” And again, this is consistent
`
`with what the Federal Circuit made clear about the term “Dot” being the same as the term “NIM”
`
`in the asserted patents.
`
`Accordingly, there is nothing indefinite about DoDots’ construction (which is the
`
`patentee’s lexicography). But to the extent it would be clearer for the jury, DoDots proposes an
`
`alternative construction for “frame” – “area upon a display of the NIM instantiation in which
`
`data may be rendered.” By using the term NIM, which is found in the claims and is (as the
`
`Federal Circuit noted) analogous to the term Dot, there can be no reasonable argument that the
`
`term is indefinite or not connected to the words of the claims.
`
`For the foregoing reasons, DoDots’ construction should be adopted.
`
`
`
`12
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 16 of 22
`
`
`
`D.
`
`“web browser readable language” (’545 patent, claim 1; ’407 patent, claims 1,
`13)
`
`DoDots’ Proposed Construction
`“standard Internet content that is capable of
`being parsed by a browser”7
`
`Defendants’ Proposed Construction
`“standard Internet content that is capable of
`being parsed by a browser, such content
`including HTML, Java script, XML, CSS,
`streaming media, Flash, HTTPS, cookies, etc.”
`
`
`The parties’ constructions are nearly the same with the exception that Defendants’
`
`construction includes a non-exhaustive list of Internet content.
`
`Though the agreed-upon portions of the parties’ proposed construction is pulled directly
`
`from the ’083 patent specification, Defendants’ construction includes additional non-limiting
`
`examples which are neither useful nor proper. Specifically, including the language “such content
`
`including HTML, Java script, XML, CSS, streaming media, Flash, HTTPS, cookies, etc.” as part
`
`of the claim construction will only serve to confuse the jury. This non-exhaustive list injects
`
`unnecessary ambiguity into the case. Indeed, the list ends with “etc.,” which creates, rather than
`
`eliminates, confusion as to the complete scope of the claim.
`
`For the foregoing reasons, DoDots’ construction should be adopted.
`
`E.
`
`“wherein accessing the networked information monitor defined by the
`networked information monitor template results in: transmission ...
`reception ... presentation” (’407 patent, claim 1)
`
`DoDots’ Proposed Construction
`plain and ordinary meaning
`
`The disputed claim phrase is not indefinite. Defendants’ argument simply ignores the
`
`Defendants’ Proposed Construction
`Indefinite
`
`context of the disputed phrase in the claim.
`
`In particular, Defendants assert that claim 1 of the ’407 patent is directed to both a system
`
`and a method, and because of this, the claim is indefinite. To the contrary, the claim is directed to
`
`
`7 To reduce the number of issues for the Court to consider, DoDots updated its construction.
`
`
`
`13
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 17 of 22
`
`
`
`an apparatus, “a client computing device” that is capable of performing certain functions. This
`
`type of claim (structure with functional language) is commonplace, and the Federal Circuit has
`
`consistently held that this type of claim does not run afoul of the definiteness requirement.
`
`Indeed, Defendants ignore most of the claim’s language which makes clear that the claim is
`
`directed to structure (an apparatus), which is “configured to” access content and perform
`
`specified functions:
`
`1. A client computing device configured to access content over a network . . . comprising:
`
`***
`
`
`one or more processors configured to execute one or more computer program modules,
`the one or more computer program modules being configured to access the networked
`information monitor defined by the networked information monitor template,
`
`wherein accessing the networked information monitor defined by the networked
`information monitor template results in:
`
`transmission, over a network to a web server at a network location, of a content request . .
`.
`reception, over the network from the web server at the network location, of content . . .
`
`presentation, on the display, of the viewer graphical user interface . . .
`
`presentation, on the display within the frame of the viewer graphical user interface . . . of
`the time-varying content . . . .
`
`’407 Patent, claim 1.
`
`Only by ignoring the claim’s recitation of a device and module that are “configured to”
`
`perform certain functions, can Defendants manufacture their indefiniteness argument. And
`
`Defendants also ignore Federal Circuit precedent explaining exactly why the claims here are not
`
`indefinite.
`
`In Mastermine Software Inc. v. Microsoft Corp, the Federal Circuit found that claims
`
`were not indefinite even though the claims included active verbs such as “presents,” “receives,”
`
`
`
`14
`
`
`
`

`

`Case 6:22-cv-00533-ADA Document 88 Filed 04/12/23 Page 18 of 22
`
`
`
`and “generates” because these verbs represent permissible functional language used to describe
`
`capabilities of the claimed module. Mastermine Software Inc. v. Microsoft Corp. 874 F.3d 1307,
`
`1316 (Fed. Cir. 2017). The Federal Circuit held that an “apparatus claim can have functional
`
`language so long as “the functional language does not appear in isolation, but rather, is
`
`specifically tied to the physical structure” of the apparatus.8 Id. As in Mastermine, the functional
`
`language here is not recited in isolation but is specifically tied to structure – a device having
`
`modules. When, as here, the claims are not a series of steps performed by the user (rather than
`
`the device), the functional language merely defines the limitations and capacity of what the
`
`apparatus can do – and the claim is not indefinite.
`
`Looking for something to hang their hat on, Defendants point to claim 2 which begins
`
`with “the method of claim 1” and asserts that this language demonstrates that claim 1 is directed
`
`to a method. But as discussed in Section III.F below, the use of the term “method” in claim 2 is
`
`nothing more than a clear typographical error and, thus, does not support Defendants’ position.
`
`For the foregoing reasons, the phrase is not indefinite and should be given its plain and
`
`ordinary meaning.
`
`
`
`
`
`
`8 See also UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 827 (Fed. Cir. 2016) (claims
`held definite because “the ‘data generating’ limitations only indicate that the associated
`structures have this capability (for example, the image sensor and processor in claim 1) and do
`not require that any data be actually generated by the user.”); Geospatial Tech. Assocs., LLC v.
`United States, No. 16-346C, 2023 U.S. Claims LEXIS 159, at *18-19 (Fed. Cl. Feb. 3, 2023