Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 1 of 33
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
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`RFCyber CORP.,
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`Plaintiff,
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`v.
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`VISA U.S.A. Inc.,
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`Defendants.
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`CASE NO.: 6:22-cv-00697-ADA
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`JURY TRIAL DEMANDED
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`DEFENDANT VISA U.S.A INC.’S
`OPENING CLAIM CONSTRUCTION BRIEF
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`

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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 2 of 33
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`
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
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`CLAIM CONSTRUCTION STANDARD ......................................................................... 2
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`A.
`
`B.
`
`Claim Construction ................................................................................................. 2
`
`Indefiniteness .......................................................................................................... 2
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`III.
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`PATENT BACKGROUND AND TECHNOLOGY .......................................................... 3
`
`A.
`
`B.
`
`U.S. Patent Nos. 8,118,218, 8,448,855 and 9,189,787 ........................................... 3
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`U.S. Patent No. 9,240,009....................................................................................... 6
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`IV.
`
`AGREED CONSTRUCTIONS .......................................................................................... 7
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`V.
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`DISPUTED CONSTRUCTIONS ....................................................................................... 8
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`A.
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`“fund” and “fund stored in an emulator” ................................................................ 8
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`1.
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`2.
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`3.
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`The Parties Disagree on the Plain and Ordinary Meaning of the
`Term “Fund.” .............................................................................................. 9
`
`The Intrinsic Evidence Distinguishes “Funding” from
`“Purchasing” ............................................................................................. 10
`
`The Extrinsic Evidence Makes Clear That the Plain Meaning of
`“Fund” Is a Sum of Money or Providing Such a Sum .............................. 13
`
`B.
`
`Each Asserted System Claim Is Indefinite for Covering Both an Apparatus
`and a Method of Using the Apparatus .................................................................. 13
`
`1.
`
`2.
`
`3.
`
`’218 Patent Claims 11-18.......................................................................... 14
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`’009 Patent Claims 1-17............................................................................ 15
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`’787 Patent Claims 1-8, 10........................................................................ 15
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`“e-purse SAM originally used to issue the e-purse / existing security
`authentication module (SAM) originally used to issue the e-purse” .................... 16
`
`“an appropriate transformed password based on the keys in the emulator” ......... 19
`
`“contactless interface that facilitates communication between the e-purse
`applet in the smart card and the payment server over a wired network” .............. 21
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`-i-
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`C.
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`D.
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`E.
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`

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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 3 of 33
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`F.
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`“the agent sends commands or receives responses thereto through the
`RFID reader to/from the e-purse applet, and on the other hand, the agent
`composes network requests and receives responses thereto from the
`network server” ..................................................................................................... 25
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`VI.
`
`CONCLUSION ................................................................................................................. 26
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`-ii-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 4 of 33
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Bd. of Regents of the Univ. of Texas Sys. v. BENQ Am. Corp.,
`533 F.3d 1362 (Fed. Cir. 2008)..........................................................................................17
`
`Bushnell Hawthorne, LLC v. Cisco Sys., Inc.,
`813 F. App’x 522 (Fed. Cir. 2020) ....................................................................................17
`
`ERBE Elektromedizin GmbH & ERBE USA, Inc. v. ITC,
`566 F.3d 1028 (Fed. Cir. 2009)..........................................................................................12
`
`Ernie Ball, Inc. v. Earvana, LLC,
`502 F. App’x 971 (Fed. Cir. 2013) ....................................................................................20
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)............................................................................................3
`
`In re Katz Interactive Call Processing Pat. Litig.,
`639 F.3d 1303 (Fed. Cir. 2011)..........................................................................................14
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)................................................................................2, 22, 25
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)................................................................................3, 20, 21
`
`IPXL Holdings, L.L.C. v. Amazon.com, Inc.,
`430 F.3d 1377 (Fed. Cir. 2005)......................................................................................2, 13
`
`Nassau Precision Casting Co. v. Acushnet Co.,
`566 F. App’x 933 (Fed. Cir. 2014) ....................................................................................13
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .............................................................................................2, 3, 21, 25
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)..........................................................................................12
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)........................................................................................1, 2
`
`Sonix Tech. Co., Ltd. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)............................................................................................3
`
`TVnGO Ltd. (BVI) v. LG Elecs. Inc.,
`861 F. App’x 453 (Fed. Cir. 2021) ....................................................................................23
`
`
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`-iii-
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`

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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 5 of 33
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`Wilson Sporting Goods Co. v. Hillerich & Bradsby Co.,
`442 F.3d 1322 (Fed. Cir. 2006)..........................................................................................10
`
`STATUTES
`
`35 U.S.C. § 101 ..............................................................................................................................13
`
`35 U.S.C. § 112 ................................................................................................................................2
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`-iv-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 6 of 33
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`I.
`
`INTRODUCTION
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`
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`Defendant Visa U.S.A. Inc. (“Visa”) and Plaintiff RFCyber Corp. (“RFCyber”) dispute the
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`meaning of several terms within U.S. Patent Nos. 8,118,218 (“the ’218 Patent”); 8,448,855 (“the
`
`’855 Patent”); 9,189,787 (“the ’787 Patent”); and 9,240,009 (“the ’009 Patent”) (the “Asserted
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`Patents”).
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`Visa proposes constructions that are guided by the intrinsic record as well as the relevant
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`extrinsic evidence, including the Declaration of Dr. Michael Shamos (“Shamos Decl.”) as well as
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`textbooks, standards, articles, and dictionaries that were well known to a person of ordinary skill
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`in the art (“POSITA”) at the time of the purported invention(s). See Phillips v. AWH Corp., 415
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`F.3d 1303, 1317-18 (Fed. Cir. 2005). In particular, Visa’s proposed constructions for the “fund”
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`terms are consistent with the intrinsic evidence and the plain and ordinary meaning of the word.
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`Although RFCyber characterizes its position as to these terms as reflecting the “plain and ordinary
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`meaning,” it is quite the opposite; in its infringement contentions, RFCyber seeks to stretch the
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`word “fund” far beyond its ordinary meaning to bring technology, neither invented nor claimed by
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`RFCyber, into the ambit of infringement. Construction is therefore required, and Visa’s proposal
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`should be adopted.
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`In addition, many of the Asserted Claims are indefinite. Certain claims cover both an
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`apparatus and method of using the apparatus. Other claims use terms lacking any antecedent basis,
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`are internally inconsistent, and otherwise fail to inform a person of ordinary skill in the art of their
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`scope with reasonable certainty. These claims should be held invalid as indefinite.
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`-1-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 7 of 33
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`
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`II.
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`CLAIM CONSTRUCTION STANDARD
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`A.
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`Claim Construction
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips, 415 F.3d at 1312 (quoting
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
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`2004)).
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`To ascertain the meaning of claims, the Court looks primarily to the intrinsic evidence: the
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`claims themselves, the specification, and the prosecution history—where the specification “is the
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`single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at 1314-17. The claims
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`must be read or interpreted in the light of the specifications of which they are a part. Id. at 1316.
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`Extrinsic evidence consists of “evidence external to the patent and prosecution history,
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`including expert and inventor testimony, dictionaries, and learned treatises” and may be considered
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`in claim construction as well. Id. at 1317. While extrinsic evidence is less significant than the
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`intrinsic record in determining the legally operative meaning of claim language, the Court can still
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`consider extrinsic evidence where it is helpful “[to] educate [itself] regarding the field of the
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`invention . . . [and to] determine what a [POSITA] would understand claim terms to mean.” Id. at
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`1319.
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`B.
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`Indefiniteness
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`Patent claims must particularly point out and distinctly claim the subject matter regarded
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`as the invention. Pre-AIA 35 U.S.C. § 112 ¶ 2. A claim, when viewed in light of the intrinsic
`
`evidence, must “inform those skilled in the art about the scope of the invention with reasonable
`
`certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014); see also IPXL
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`Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1383-84 (Fed. Cir. 2005). If it does not, the
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`-2-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 8 of 33
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`
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`claim is invalid as indefinite. Nautilus, 572 U.S. at 901. Whether a claim is indefinite is
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`determined from the perspective of one of ordinary skill in the art as of the time the application for
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`the patent was filed. Id. at 911. “Even if a claim term’s definition can be reduced to words, the
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`claim is still indefinite if a person of ordinary skill in the art cannot translate the definition into
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`meaningfully precise claim scope.” Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244,
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`1251 (Fed. Cir. 2008); see also Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed.
`
`Cir. 2014) (“The claims, when read in light of the specification and the prosecution history, must
`
`provide objective boundaries for those of skill in the art.”). “Indefiniteness must be proven by
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`clear and convincing evidence.” Sonix Tech. Co., Ltd. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377
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`(Fed. Cir. 2017).
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`III.
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`PATENT BACKGROUND AND TECHNOLOGY
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`The Asserted Patents are directed to various aspects of a mobile payment and, in particular,
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`the personalization, loading, and use of an electronic purse (“e-purse”) on a smart card in a portable
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`device to conduct secure transactions.
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`A.
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`U.S. Patent Nos. 8,118,218, 8,448,855 and 9,189,787
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`The ’218, ’855, and ’787 Patents share a common specification and describe an e-purse on
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`a smart card mobile phone or other portable device, which allows the device to conduct secure
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`payment transactions with a payment server. ’218 Patent at 1:6-22, 1:34-38, FIG. 2.1 The Asserted
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`Patents refer to an e-purse as a “single functional card” having “stored values,” i.e., electronic
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`money, for performing “micro payment transactions.” Id. at 1:14-17, 1:23-27, 3:51-55, 3:61-63,
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`
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`1 Because these three Asserted Patents share a specification, references to the ’218 Patent
`specification and figures encompass the corresponding portions of the other two as well unless
`otherwise specified.
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`-3-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 9 of 33
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`4:2-7, 4:62-64. The Asserted Patents acknowledge that “[s]ingle functional cards have been
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`successfully used in enclosed environments such as transportation systems” and highlight the
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`MIFARE card as a widely used e-purse. Id. at 1:13-22. They assert, however, that “such enclosed
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`systems are difficult to be expanded into other areas such as e-commerce and m-commerce because
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`stored values and transaction information are stored” in a way that is “protected by a set of keys,”
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`and “the keys need to be delivered to the card for authentication before data can be accessed during
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`a transaction.” Id. at 1:23-29. The Asserted Patents assert that there is “a need for a mechanism
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`in devices, especially portable devices, functioning as an electronic purse (e-purse) to be able to
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`conduct transactions over an open network with a payment server without compromising security.”
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`Id. at 1:34-38.
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`The Asserted Patents’ purported solution is to provide “a mechanism to be embedded” in
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`the portable device to function as an e-purse and provide the necessary security. Id. at 2:42-46.
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`That “mechanism” is a smart card. Id. at 2:10-41. The smart card comes with a preloaded
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`operating system, such as Java Card Open Platform (“JCOP”), which provides “a general security
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`framework,” such as the GlobalPlatform standard, for “card personalization.” Id. at 4:8-22, 4:41-
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`46, 4:50-56. The operating system’s security “control[s] the access to the smart card (e.g., an
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`installation of external applications into the smart card).” Id. at 4:47-50.
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`The Asserted Patents explain that “multiple application smart cards”—including the well-
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`known SmartMX smart card by Philips—can also come “pre-loaded with an emulator,” such as a
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`MIFARE emulator, allowing the multi-application smart card to mimic (or “emulate”) single
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`functional cards such as a MIFARE transit card for use with MIFARE readers. Id. at 2:14, 2:27-
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`28, 3:51-60, 4:62-64, FIG. 2.
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`-4-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 10 of 33
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`The Asserted Patents teach that a smart card, including an e-purse applet or emulator in the
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`smart card, can be personalized using a GlobalPlatform card manager to enable a secure channel
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`to be established between the e-purse and a server. Id. at 4:11-22, 5:50-54. Personalization
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`involves loading a specific user’s data into the e-purse, e.g., the user’s account information,
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`“operation keys (e.g., a load key and a purchase key), default PINs, administration keys (e.g., an
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`unblock PIN key and a reload PIN key), and passwords (e.g., from Mifare).” Id. at 5:54-59. Smart
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`cards that comply with the GlobalPlatform standard have at least one security domain that
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`“includes three 3DES keys,” which are encryption keys that are “used to generate session keys for
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`a secured session between two entities,” i.e., a security channel. Id. at 6:29-47, FIG. 3C. The
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`security domain and encryption keys are “installed by a card issuer.” Id. at 6:48-54. Another set
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`of keys can also be generated and distributed to the e-purse applet to secure subsequent operations.
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`Id. at 6:55-7:9, FIG. 3C.
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`The Asserted Patents also describe a process for “funding” the e-purse—a necessary step
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`in using it to conduct transactions. Id. at 7:10-13, 8:7-12, FIGs. 4A-4C. After a valid PIN entry,
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`a midlet initiates an over-the-air (“OTA”) “top off request,” sending a request to the e-purse applet.
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`Id. at 7:22-28, FIG. 4A. The e-purse applet composes a response to the request, which is sent via
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`the midlet to “a payment network and server over a wireless network.” Id. at 7:29-32, FIG. 4A.
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`The response is verified and a bank account at a financial institution is then verified. Id. at 7:35-
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`44, FIG. 4A. A response is then sent back to the midlet, after which commands are extracted from
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`the response and sent to the e-purse. Id. at 7:45-48, FIG. 4B. The e-purse verifies the commands
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`and then updates the emulator and transaction logs to reflect the updated stored value. Id. at 7:48-
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`51, FIG. 4B.
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`-5-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 11 of 33
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`B.
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`U.S. Patent No. 9,240,009
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`The ’009 Patent is a continuation-in-part of the ’218 Patent and describes mobile devices
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`with “secure element[s]” that can securely host “an application such as an electronic purse” for
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`conducting secured transactions over a network. ’009 Patent at 1:18-24. The ’009 Patent includes
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`the disclosures found in the ’218, ’855, and ’787 Patent specifications, as well as additional
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`disclosures and figures.
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`The ’009 Patent states:
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`[T]here is a need to provide techniques to personalize a secure element in a
`contactless smart card or an NFC-enabled mobile device so that such a device is so
`secured and personalized when it comes to financial applications or secure
`transactions. With a personalized secure element in an NFC-enabled mobile device,
`various applications or services, such as electronic purse or payments, can be
`realized.
`
`Id. at 2:10-17. The ’009 Patent teaches that, when a mobile device is obtained, the secure element
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`(“SE”) “is installed with a set of default keys (e.g., an Issuer Security Domain (ISD) key set by the
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`SE manufacturer).” Id. at 6:55-58, 8:46-48. “[A] standard-compliant secure element comes with
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`one issuer security domain (ISD) and an option for one or more supplemental security domains
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`(SSD). Each of these domains includes a set of keys.” Id. at 7:1-4.
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`The ’009 Patent explains that the “SE 102 needs to go through a personalization process
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`before it can be used.” Id. at 7:13-14. “The personalization process can be done either physically
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`in a service center or remotely via a web portal by a TSM server.” Id. at 7:49-51. A “TSM,
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`standing for Trusted Service Management, is a collection of services” that can “help service
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`providers securely distribute and manage contactless services for their customers using the
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`networks of mobile operators.” Id. at 7:35-39. The default “device information (e.g., ISD) of the
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`SE” can be used to derive personalized keys to personalize the SE. Id. at 8:57-9:23. “After the
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`personalization, the SE can only be accessed using the personalized ISD key of the SE issuer.
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`-6-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 12 of 33
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`Depending on the security requirement of each service provider, the TSM can create additional
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`SSDs for the various providers to personalize their respective applications (e.g., the modules 104
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`or 106 of FIG. 1A).” Id. at 9:24-29.
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`The ’009 Patent describes “an e-token enabled device,” such as “a single functional card
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`or a portable device enabled with an e-purse” that “may represent e-money, e-coupon, e-ticket, e-
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`voucher or any other forms of payment tokens in a device.” Id. at 20:44-50. Transactions using
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`the e-token device may occur in “real time” and “offline (i.e., without the portable device
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`connecting to a backend POS transaction server[].” Id. at 20:51-58; see also id. at FIGs. 6A-6D.
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`FIG. 6D depicts “a flowchart illustrating an exemplary process [] of conducting m-commerce using
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`a portable device.” Id. at 22:48-56, FIG. 6D. The ’009 Patent explains that transactions using the
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`e-purse may be evaluated against the value stored on the e-purse to determine whether to approve
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`or deny the transaction or to allow the user to “top-up” and attempt re-processing. Id. at 22:57-
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`23:32, FIGs. 6C and 6D.
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`IV. AGREED CONSTRUCTIONS
`
`The parties met and conferred on August 4, 2023 and exchanged emails on August 7, 2023,
`
`agreeing to constructions for the following terms:
`
`No. Claim Term
`
`Agreed Construction
`
`1.
`
`“PIN”
`
`“personal identification number”
`
`’218 Patent, Claims 2, 13
`’855 Patent, All Claims
`’787 Patent, Claim 7
`
`2.
`
`“e-purse” / “electronic purse”
`
`“software that stores electronic financial
`information in a local device”
`
`’218 Patent, All Claims
`’855 Patent, All Claims
`’787 Patent, All Claims
`’009 Patent, Claim 3
`
`
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`-7-
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`

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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 13 of 33
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`No. Claim Term
`
`Agreed Construction
`
`3.
`
`“smart card pre-loaded with an
`emulator” / “a SmartMX (SMX)
`module pre-loaded with the
`emulator”
`
`“smart card with an emulator loaded prior to the
`smart card being provided” / “a SmartMX (SMX)
`module with an emulator loaded prior to the SMX
`being provided”
`
`’218 Patent, All Claims
`’855 Patent, Claims 2 and 11
`
`4.
`
`“security authentication module”
`and “SAM”
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`“hardware or software module containing data
`necessary to authenticate transactions”
`
`’218 Patent, All Claims
`’855 Patent, All Claims
`’787 Patent, Claims 6 and 16
`
`5.
`
`“emulator”
`
`’218 Patent, All Claims
`’855 Patent, All Claims
`’787 Patent, All Claims
`
`“a hardware device or a program that pretends to
`be another particular device or program that other
`components expect to interact with”
`
`6.
`
`“e-purse applet”
`
`“applet for use with an e-purse”
`
`’218 Patent, All Claims
`’855 Patent, All Claims
`’787 Patent, All Claims
`
`V.
`
`DISPUTED CONSTRUCTIONS
`
`A.
`
`“fund” and “fund stored in an emulator”
`
`Term and Claims
`“fund” / “fund stored in the
`emulator”
`
`’855 Patent, Claim 9
`’787 Patent, Claims 1 and 11
`“fund” / “funded” / “funding”
`
`’218 Patent, Claims 10, 18
`’855 Patent, Claim 1, 4, 13
`
`
`
`
`
`
`
`
`Visa’s Construction
`“money balance” / “money
`balance stored in the
`emulator”
`
`RFCyber’s Construction
`Plain and ordinary meaning
`except for “emulator”
`
`“add / added / adding money
`balance to”
`
`Plain and ordinary meaning
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`-8-
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`

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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 14 of 33
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`The term “fund” appears in the following claims:
`
`Claim Number
`
`Claim Language
`
`’218 Patent, Claims 10 and 18
`
`“the e-purse is funded2 through a financial institution that
`maintains an account for a user”
`
`’855 Patent, Claims 1 and 9
`
`“A method for funding an e-purse”
`
`“a fund transfer request is initiated by the server to the
`financial institution” / “initiating a fund transfer request by a
`server with a financial institution”
`
`“responding to the fund transfer request”
`
`’855 Patent, Claims 4 and 13
`
`“to regulate or control data exchange between the server and
`the portable device for funding the e-purse therein”
`
`’787 Patent, Claims 1 and 11
`
`“to perform electronic commerce with the e-purse applet
`against a fund stored in the emulator”
`
`“to perform mobile commerce with a payment server via an
`application against the fund stored in the emulator” /
`“performing mobile commerce via a second interface with a
`payment server via an application against the fund stored in
`the emulator”
`
`
`
`1.
`
`The Parties Disagree on the Plain and Ordinary Meaning of the Term
`“Fund.”
`
`The plain claim language of the Asserted Patents demonstrates that “fund” means adding
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`to a money balance (as a verb) or a money balance itself (as a noun). Although RFCyber contends
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`the term “fund” should receive its “plain and ordinary meaning,” its infringement contentions
`
`reflect a wholly unsupportable construction. See RFCyber Infringement Contentions, ’787 Claim
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`Chart at 58, element 1[d]. RFCyber contends, for example, that “consumable keys or tokens” can
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`constitute a “fund” despite the fact that those keys or tokens do not reflect any money, balance, or
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`
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`2 All emphasis herein is added, and all internal citations and quotations are omitted unless
`otherwise noted.
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`-9-
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 15 of 33
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`anything else falling within the ordinary meaning of the term. Id.; see also Wilson Sporting Goods
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`Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1331 (Fed. Cir. 2006) (The “court may refer to the
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`accused product or process for [] context” for “breadth of the claim construction analysis and the
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`most useful terms to facilitate that defining process”). Visa’s proposed constructions are consistent
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`with the plain and ordinary meaning of the word “fund” and the intrinsic evidence, and therefore
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`should be adopted.
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`2.
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`The Intrinsic Evidence Distinguishes “Funding” from “Purchasing”
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` In the ’787 Patent, independent claims 1 and 11 both use the term “fund stored in the
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`emulator.” In the ’855 Patent, independent claims 1 and 9 both recite “a method for funding an
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`e-purse” that involves “a fund transfer request” initiated by “a server with a financial institution
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`administrating the e-purse when the request is successfully verified.” Thus, these claims describe
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`a “fund” that is transferred and then stored on an emulator and/or for use with the e-purse.
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`The plain claim language of the ’218 Patent also demonstrates that “fund” means a money
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`balance or adding to a money balance. In the ’218 Patent, only two claims use the term: dependent
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`claims 10 and 18. Whereas the other claims, including independent claims 1 and 11, describe a
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`method and system for providing an e-purse without requiring that the e-purse be “funded,” claims
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`10 and 18 specifically require that the “e-purse is funded through a financial institution that
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`maintains an account for a user being associated with the portable device.” This meaning is further
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`supported by the remaining use of the term “fund” in the claims of the ’855 Patent. Dependent
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`claims 4 and 13 of the ’855 Patent describe “funding the e-purse,” not, for example, enabling a
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`purchase as “funding.” Accordingly, “funding” an e-purse means adding or storing a money
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`balance in the e-purse and does not encompass merely enabling a transfer of money from one
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 16 of 33
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`financial institution to another or a purchase. It is clear from the claims themselves that an actual
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`balance of money is being transferred and/or stored as claimed.
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`The shared specification of the ’218,’855, and ’787 Patents makes clear that this was the
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`intended meaning of the term “fund”: a money balance or to add to a money balance. Each of the
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`three times the term “fund” is used in the shared specification, it describes adding a balance to the
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`e-purse: “The user desires to fund the e-purse from an account associated with a bank. . . . If the
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`account does exist, a fund transfer request is initiated. . . [T]he process 400 is described as funding
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`the e-purse.” ’218 Patent at 7:10-8:8. The specification further confirms the e-purse has a
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`“balance.” Id. at 5:16-18 (describing “viewing a purse balance”). It never appears in the context
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`of making a purchase or another transaction. In the description of this funding process, the transfer
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`of funds only occurs between the user’s bank and the user’s e-purse; there is no reference to another
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`party to any transaction, such as a merchant, that would suggest that “funding” could mean
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`something other than adding to the money balance of the e-purse. Indeed, the shared specification
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`clearly describes “funding the e-purse” as a distinct process from “making a purchase.” Id. at 8:7-
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`12 (“Although the process 400 is described as funding the e-purse. Those skilled in the art can
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`appreciate that the process of making purchasing [sic]over a network with the e-purse is
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`substantially similar to the process 400, accordingly no separate discussion on the process of
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`making purchasing is provided.”). Therefore, the inventor unequivocally distinguished the process
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`of “funding” from the process of “purchasing.” If the patent applicants had wanted to claim
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`“purchasing,” they could have used that term or a broader term than “funding” in the claims.
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`Additionally, in referencing an “OTA top off request,” the details of the embodiment
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`provided in the specification for “funding the e-purse” further confirms that the term “fund” means
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`a money balance or adding to a money balance:
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 17 of 33
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`The user desires to fund the e-purse from an account associated with a bank. At
`402, the user enters a set of personal identification numbers (PIN). Assuming the
`PIN is valid, a purse manger in the device is activated and initiates a request (also
`referred to an OTA top off request) at 404. The midlet in the device sends a
`request to the e-purse applet at 406, which is illustrated in FIG. 4C where the e-
`purse manager midlet 434 communicates with the e-purse applet 436.
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`Id. at 7:20-28. A “top off” is the act of refilling the money balance on the card. See Shamos Decl.
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`¶ 51. Like “topping off” a gas tank, it means to actually add to the card; it does not refer to any
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`and every activity that could relate to a card being used in a transaction.
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`The specification further explains the process for a “fund transfer request”:
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`If the response can be verified, the process 400 moves to 412 where a corresponding
`account at a bank is verified. If the account does exist, a fund transfer request is
`initiated. At 414, the bank receives the request and responds to the request by
`returning a response. In general, the messages exchanged between the payment
`network and server and the bank are compliant with a network protocol (e.g., HTTP
`for the Internet).
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`’218 Patent at 7:36-44. Again, “fund” is used to mean adding a money balance to the device. The
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`“messages exchanged” are only between “the payment network and server and the bank” so that
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`the bank can transfer funds to the device. There is no discussion of a fund transfer request being
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`a request to complete a purchase made using the e-purse because, as the specification made clear,
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`funding is separate and distinct from purchasing.
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`Adopting Visa’s proposed construction is necessary to avoid allowing RFCyber to
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`“construe claim language to be inconsistent with the clear language of the specification” to support
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`RFCyber’s infringement positions. See ERBE Elektromedizin GmbH & ERBE USA, Inc. v. ITC,
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`566 F.3d 1028, 1034 (Fed. Cir. 2009); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech.
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`Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008) (“A determination that a claim term ‘needs no
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`construction’ or has the ‘plain and ordinary meaning’ may be inadequate . . . when reliance on a
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`term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”).
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`Case 6:22-cv-00697-ADA Document 41 Filed 08/21/23 Page 18 of 33
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`3.
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`The Extrinsic Evidence Makes Clear That the Plain Meaning of
`“Fund” Is a Sum of Money or Providing Such a Sum
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`As demonstrated above, none of the claims or the specification describe a fund as being
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`used in any other manner than the common meaning of the word, which is a sum of money or to
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`supply such a sum. See Ex. 1 (VISA_USA_00009148 at -9148) (“1: store 2: sum of money”); see
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`also Ex. 2 (VISA_USA_00009158 at -9164) (“a supply of money or monetary resources”). There
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`is no discussion of “fund” meaning storing credit card numbers, bank account numbers, or payment
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`tokens that in turn might be utilized to transfer money. That is simply not what a “fund” or
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`“funding” means. The inventor should not be able to retroactively redefine the term to capture
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`technology that is clearly neither described nor claimed in the Asserted Patents. The extrinsic
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`evidence is consistent with Visa’s proposed construction, which the Court should adopt.
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`B.
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`Each Asserted System Claim Is Indefinite for Covering Both an Apparatus
`and a Method of Using the Apparatus
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`The Federal Circuit “has long warned that apparatus and method claims ‘are directed
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`toward different classes of patentable subject material under 35 U.S.C. § 101’ and that the
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`distinction should not be blurred.” Nassau Precision Casting Co. v. Ac