Case 6:22-cv-00697-ADA Document 51 Filed 11/30/23 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`RFCYBER CORP.,
` Plaintiff,
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`v.
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`VISA U.S.A, INC.,
` Defendant.
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`W-22-CV-00697-ADA
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`CLAIM CONSTRUCTION ORDER AND MEMORANDUM
`Before the Court are the Parties’ claim construction briefs: Defendant Visa U.S.A. Inc.’s
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`(“Visa”) Opening Claim Construction Brief (ECF No. 41), Plaintiff RFCyber Corp.’s (RFCyber)
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`Reply Claim Construction Brief (ECF No. 43), Visa’s Reply Claim Construction Brief (ECF No.
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`44), RFCyber’s Sur-Reply Brief (ECF No. 45), and the Parties Joint Claim Construction Statement
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`(ECF No. 46). The Court held a Markman hearing on October 25, 2023 when it informed the
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`parties that the Court would maintain the preliminary constructions it had emailed the parties prior
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`to the hearing.
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`I. Description of the Asserted Patents
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`The Asserted Patents are U.S. Patent Nos. 8,448,855 (“the ’855 patent”) and 9,189,787 (“the
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`’787 patent”). The ’855, and ’787 Patents share a common specification and are directed to aspects
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`of a mobile payment system focusing on inventions for “portable devices, functioning as an
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`electronic purse.” Before the Markman Hearing, the Court severed and stayed all litigation of U.S.
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`Patent No. 9,240,009 due to the Patent Trial and Appeal Board finding all claims unpatentable
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`under 35 U.S.C. § 103(a). ECF No. 48. Furthermore, many of the claim construction disputes first
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`raised in Visa’s Opening Claim Construction Brief were resolved by RFCyber’s withdrawal of its
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`Case 6:22-cv-00697-ADA Document 51 Filed 11/30/23 Page 2 of 8
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`infringement assertions against Visa as to all claims of U.S. Patent 8,118,218 and claim 1 of the
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`’787 Patent. See ECF No. 45 at 1. With those contentions resolved, the only disputed terms before
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`the Court are “fund” “fund stored in the emulator” “funded” and “funding” as used in claim 9 of
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`the ’855 Patent and claims 1 and 11 of the ’787 Patent. Id. at 2–5.
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`II. Legal Standard
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`a. General Principles
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`The general rule is that claim terms are generally given their plain-and-ordinary meaning.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.
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`CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds, 575 U.S. 959, 959
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`(2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in the
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`relevant community at the relevant time.”) (internal quotation omitted). The plain-and-ordinary
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`meaning of a term is the “meaning that the term would have to a person of ordinary skill in the art
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`in question at the time of the invention.” Phillips, 415 F.3d at 1313.
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`The “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain-and-ordinary meaning are when the patentee (1) acts as his/her own lexicographer or
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`(2) disavows the full scope of the claim term either in the specification or during prosecution.
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`Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). The Federal Circuit
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`has counseled that “[t]he standards for finding lexicography and disavowal are exacting.” Hill-
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`Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). To act as his/her own
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`lexicographer, the patentee must “clearly set forth a definition of the disputed claim term” and
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`“‘clearly express an intent’ to [define] the term.” Thorner, 669 F.3d at 1365.
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`“Like the specification, the prosecution history provides evidence of how the PTO and the
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`inventor understood the patent.” Phillips, 415 F.3d at 1317. “[D]istinguishing the claimed
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`Case 6:22-cv-00697-ADA Document 51 Filed 11/30/23 Page 3 of 8
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`invention over the prior art, an applicant is indicating what a claim does not cover.” Spectrum Int’l,
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`Inc. v. Sterilite Corp., 164 F.3d 1372, 1379 (Fed. Cir. 1998). The doctrine of prosecution disclaimer
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`precludes a patentee from recapturing a specific meaning that was previously disclaimed during
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`prosecution. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). “[F]or
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`prosecution disclaimer to attach, our precedent requires that the alleged disavowing actions or
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`statements made during prosecution be both clear and unmistakable.” Id. at 1325–26. Accordingly,
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`when “an applicant’s statements are amenable to multiple reasonable interpretations, they cannot
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`be deemed clear and unmistakable.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315,
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`1326 (Fed. Cir. 2013)
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`. A construction of “plain and ordinary meaning” may be inadequate when a term has more
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`than one “ordinary” meaning or when reliance on a term’s “ordinary” meaning does not resolve
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`the parties’ dispute. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed.
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`Cir. 2008). In that case, the Court must describe what the plain-and-ordinary meaning is. Id.
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`“Although the specification may aid the court in interpreting the meaning of disputed claim
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`language . . ., particular embodiments and examples appearing in the specification will not
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`generally be read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571
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`(Fed. Cir. 1988). “[I]t is improper to read limitations from a preferred embodiment described in
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`the specification—even if it is the only embodiment—into the claims absent a clear indication in
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`the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v.
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`Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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` Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
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`in determining ‘the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317
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`(quoting C.R. Bard, Inc. v. United States Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
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`Technical dictionaries may be helpful, but they may also provide definitions that are too broad or
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`not indicative of how the term is used in the patent. Id. at 1318. Expert testimony may also be
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`helpful, but an expert’s conclusory or unsupported assertions as to the meaning of a term are not.
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`Id.
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`III. Agreed Constructions
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`Below are constructions of certain claim terms from the asserted patents that the Parties have
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`agreed to. ECF No. 46 at 1–2. The Court adopts the Parties’ agreed constructions in their entirety.
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`Term
`“PIN”
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`Patent(s) and Claims
`’855 Patent, All Claims
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`“e-purse” /
`“electronic purse”
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`’855 Patent, All Claims ’787
`Patent, All Claims
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`“e-purse applet”
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`“smart card preloaded with
`an
`emulator” / “a
`SmartMX (SMX)
`module pre-loaded
`with the emulator”
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`“security
`authentication
`module” and “SAM”
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`“emulator”
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`’855 Patent, All Claims ’787
`Patent, All Claims
`’855 Patent, Claims 2 and
`11
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`’855 Patent, All Claims ’787
`Patent, Claim 16
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`’855 Patent, All Claims ’787
`Patent, All Claims
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`Agreed Construction
`“personal identification
`number”
`“software that stores
`electronic financial
`information in a local
`device”
`“applet for use with an e-
`purse”
`“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”
`“hardware or software
`module containing data
`necessary to authenticate
`transactions”
`“a hardware device or a
`program that pretends to be
`another particular device or
`program that other
`components expect to
`interact with”
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`IV. Legal Analysis
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`The Parties’ Positions
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`ECF No. 46 at 2.
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`The chart above demonstrates that the Parties disagree on the meaning and scope of the
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`claim terms reflecting both verb and noun forms of “fund” (the “fund” terms). Visa argues that the
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`RFCyber’s infringement contentions reflect a construction of the above terms that exceed their
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`plain and ordinary meanings. ECF No. 41 at 9. The essence of the dispute is whether “consumable
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`keys and tokens” can constitute a “fund” as the term is used in the’855 and ’787 Patents.
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`Visa’s Position:
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`Visa requests that the court construe the “fund” terms as “money balance” or “add / added
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`/ adding money balance to.” ECF No. 41 at 9. Visa’s chief concern is rooted in RFCyber’s
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`infringement contention which may require the term “fund” to include tokens, consumable keys,
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`or other objects which allow a user to make purchases. ECF No. 44 at 2. Visa sees the “fund” terms
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`as distinct from the term “purchase” as it is used in the two patents at issue. ECF No. 41 at 10.
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`Visa argues that their construction is “necessary to avoid allowing RFCyber to “construe
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`claim language to be inconsistent with the clear language of the specification” to support
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`RFCyber’s infringement positions.” Id. (citing ERBE Elektromedizin GmbH & ERBE USA, Inc. v.
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`ITC, 566 F.3d 1028, 1034 (Fed. Cir. 2009); O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
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`521 F.3d 1351, 1361 (Fed. Cir. 2008). Visa cites the shared specification of the ’855 and ’787
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`patents and asserts that the “fund” terms never appear in the context of making a purchase or other
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`transaction. It follows, according to Visa, that “fund,” as it is used in the patents-in-suit, cannot
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`mean storing credit card numbers, bank account numbers, or payment tokens that in turn might be
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`used to transfer money—all of which would extend the meaning of “fund” (i.e., money balance)
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`beyond its plain and ordinary meaning. Visa also uses extrinsic evidence in the form of two
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`dictionary definitions to try to bolster its construction. The first definition defines “fund” to mean
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`“store” or “sum of money intended for a special purpose.” ECF No. 41-3. The second definition
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`defined the term as a “supply of money or monetary resources as for some purpose” or a “supply”
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`or “stock.” ECF No 41-4.
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`RFCyber’s Position:
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`RFCyber asks the court to construe the “fund” terms according to their plain and ordinary
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`meanings and contends that Visa’s requested construction seeks to import a meaning of the “fund”
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`terms that improperly limits their scope to a specific type of stored value. ECF No. 43 at 5.
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`RFCyber points out that Visa did not identify any lexicography, disclaimer, or prosecution history
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`evidence to support their construction. Id. Rather, RFCyber argues that Visa’s construction illogical
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`because all electronically stored funds are at some level a representation of a “fund” and Visa’s
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`construction would require the “fund” be mean some kind of physical money. Id.
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`Next, RFCyber asserts that, if the court were to adopt Visa’s construction, it would exclude
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`embodiments disclosed in the specification of the patents-in-suit. As an example, the ’855 Patent
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`describes an embodiment of a “purchase key” whereby it can be “personalized into the purse.” Id.
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`at 6;’855 Patent at 5:62-67. RFCyber argues that this embodiment would be excluded under Visa’s
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`construction because the process of personalization of a purchase key is realized by requests and
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`responses through “an application protocol data unit [ADPU] for communication with a smart card
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`and include message data fields with up to 255 bytes that support all forms of smart card
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`purchases.” ECF No. 43 at 6 (citing ’855 Patent, 5:30-37). This embodiment, RFCyber asserts,
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`allows for types of “funding” and e-purse that would not be covered by Visa’s “money balance”
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`construction.
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`Finally, RFCyber addresses the fact that the term “funding” appears in the preamble of
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`claims 1 and 9 on the ’855 Patent, such that adopting Visa’s construction would treat those
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`preambles as limiting. Id. at 7. Pointing out that the Eastern District of Texas has previously held
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`the same preambles as non-limiting, RFCyber argues that this court should follow that ruling and
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`similarly find the term “funding” as a statement of purpose or intended use. Id; ECF No. 43-2 at
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`44–45.
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`V. Discussion and Final Construction
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`Term
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`“fund” / “fund
`stored in the
`emulator”
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`“fund” / “funded” /
`“funding”
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`Patent(s) and
`Claims
`’855 Patent, Claim
`9
`’787 Patent,
`Claim 11
`’855 Patent, Claim
`1, 4, and 13
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`The Court’s Final Construction
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`Plain and ordinary meaning that includes money or
`other representation of value
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`Plain and ordinary meaning that includes
`add/added/adding money or other representation of
`value to
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`The Court adopts the construction displayed in the chart above. First, the Court finds that
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`Visa failed to present a compelling argument that the patentee “(1) act[ed] as his/her own
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`lexicographer or (2) disavow[ed] the full scope of the claim term either in the specification or
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`during prosecution” with respect to the “fund” terms. Thorner, 669 F.3d at 1365. Further, Visa
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`made no argument related to disclaimer of the terms during the ’855 or ’787 Patents’ prosecution.
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`Visa’s argument that its construction is needed to avoid confluence of the terms “purchase” and
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`“fund” is does not show that the patentee “‘clearly express[ed] an intent’ to [define] the term.”
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`Thorner, 669 F.3d at 1365. The extrinsic dictionary evidence defendant cites is similarly
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`unpersuasive. See Phillips, 415 F.3d at 1317 (warning that dictionary definitions can provide a
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`definition that does not reflect the way a term is used in a patent). While the definition of “fund”
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`found in both dictionaries cited by Visa reflects common sense meanings of “fund,” this does not
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`support a construction that results in a restrictive reading of the term as it is used in the patents-in-
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`suit—especially one that might exclude an embodiment in the specification.
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`That said, the Court agrees with Visa that the dispute over the “fund” terms presents a
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`situation where, if the Court adopted the terms’ plain and ordinary meanings, such meaning would
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`not resolve the parties’ dispute. O2 Micro, 521 F.3d at 1362. To maintain the plain and ordinary
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`meaning absent lexicography or scope disavowal, the Court’s claim construction clarifies such that
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`the plain and ordinary mean includes money or other representations of value. Visa argues that
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`“‘consumable keys or tokens’ [cannot] constitute a ‘fund’ [because]… those keys or tokens do not
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`reflect any money, balance, or anything else falling within the ordinary meaning of the term.” ECF
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`No. 41 at 15. Left unresolved, this dispute would likely improperly allow the parties to argue the
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`terms’ meaning to the jury. The Court’s construction, however, clarifies the “fund” terms such that
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`if those items (keys or tokens) are money or other representation of value, they fit within the plain
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`and ordinary meaning of the “fund” terms.
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`SIGNED this 30th day of November, 2023.
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