Case 8:19-cv-02192-GW-AS Document 55 Filed 09/21/20 Page 1 of 29 Page ID #:1334
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`John P. Schnurer, Bar No. 185725
`JSchnurer@perkinscoie.com
`Yun (Louise) Lu, Bar No. 253114
`LLu@perkinscoie.com
`Kyle R. Canavera Bar No. 314664
`KCanavera@perkinscoie.com
`PERKINS COIE LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130-2080
`Telephone: 858.720.5700
`Facsimile: 858.720.5799
`
`Attorneys for Defendants
`TCT Mobile (US) Inc., Huizhou TCL Mobile
`Communication Co., Ltd., and Shenzhen TCL
`Creative Cloud Technology Co., Ltd.
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`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`ANCORA TECHNOLOGIES, INC.,
`Plaintiff,
`
`v.
`TCT MOBILE (US) INC., HUIZHOU
`TCL MOBILE COMMUNICATION
`CO. LTD., and SHENZHEN TCL
`CREATIVE CLOUD TECHNOLOGY
`CO., LTD.,
`
`
`
`Defendants.
`
`
`
`Case No. 8:19-CV-02192-GW-ASx
`(LEAD CASE)
`Case No. 2:20-cv-01252-GW-ASx
`(CONSOLIDATED CASE)
`Judge: Hon. George H. Wu
`Judge: Hon. Alka Sagar
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`TCL’S RESPONSIVE CLAIM
`CONSTRUCTION BRIEF
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`TCL’S OPENING CLAIM
`CONSTRUCTION BRIEF
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`Case 8:19-cv-02192-GW-AS Document 55 Filed 09/21/20 Page 2 of 29 Page ID #:1335
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`TABLE OF CONTENTS
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`I. 
`II. 
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`Page
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`INTRODUCTION ........................................................................................... 1 
`CLAIM TERMS IN DISPUTE ....................................................................... 1 
`A. 
`“Memory of the BIOS” ......................................................................... 1 
`1. 
`Applicant’s Comments During Prosecution Described the
`Claimed Invention, Not Just the Prior Art. ................................. 2 
`a. 
`The ’941 Patent’s Purported Invention Is License
`Information in the BIOS Memory and an “Agent”
`to Put It There, Not a New BIOS Memory. ..................... 3 
`The ’941 Patent Explicitly States that It Uses a
`Conventional BIOS Module. ............................................ 6 
`The Legal Authorities Cited by Ancora Do Not
`Support Its Position. ......................................................... 7 
`The Western District of Texas Ruling Provided No
`Rationale to Support Ancora’s Position. .................................... 8 
`Ancora’s Argument that “Memory of the BIOS” Is so
`Simple that It Does Not Need Construction Ignores the
`Fact that It Was the Extensive Prosecution Arguments
`that Imbue that Simple Language with Extensive
`Limitations. ................................................................................. 8 
`Ancora’s Distinction Between Memory Storing BIOS
`versus Memory “Associated with” BIOS Is Incorrect. .............. 9 
`Ancora’s Footnote Remark Regarding Memory “Area”
`Does Not Change the Disclaimer. ............................................ 10 
`“Set Up a Verification Structure” ....................................................... 12 
`B. 
`“License Record” ................................................................................ 15 
`C. 
`“Selecting a Program Residing in the Volatile Memory” .................. 19 
`D. 
`“Volatile Memory” ............................................................................. 20 
`E. 
`“First Non-Volatile Memory Area of the Computer” ......................... 22 
`F. 
`Claim 8 Language ............................................................................... 24 
`G. 
`III.  CONCLUSION ............................................................................................. 25 
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`b. 
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`c. 
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`2. 
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`3. 
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`4. 
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`5. 
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`TABLE OF AUTHORITIES
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`Page
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`CASES
`Ancora Techs., Inc. v. Apple, Inc.,
`744 F.3d 732 (Fed. Cir. 2014) ................................................................. 4, 5, 9, 21
`Ancora Techs. Inc. v. HTC Am. Inc.,
`908 F.3d 1343 (Fed. Cir. 2017) ............................................................. 5, 9, 17, 20
`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017) ............................................................................. 1
`Facebook, Inc. v. Pragmatus AV, LLC,
`582 F. App’x 864 (Fed. Cir. 2014) ........................................................................ 9
`Howmedica Osteonics Corp. v. Zimmer, Inc.,
`822 F.3d 1312 (Fed. Cir. 2016) ........................................................................... 14
`In re Tex. Holdings Corp.,
`498 F.3d 1290 (Fed. Cir. 2007) ........................................................................... 16
`Lilly & Co. v. Teva Parenternal Medicines, Inc.,
`845 F.3d 1357 (Fed. Cir. 2017) ........................................................................... 14
`Linear Technology Corp. v. International Trade Commission,
`566 F.3d 1049 (Fed. Cir. 2009) ............................................................................. 7
`Markovich v. Secretary of Health & Human Servs.,
`477 F.3d 1353 (Fed. Cir. 2007) ........................................................................... 22
`Omega Engineering, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003) ............................................................................. 7
`Poly-America, L.P. v. API Industries, Inc.,
`839 F.3d 1131 (Fed. Cir. 2016) ............................................................................. 9
`Purdue Pharma L.P. v. Endo Pharmaceuticals Inc.,
`4389 F.3d 1123 (Fed. Cir. 2006) ........................................................................... 7
`Techronic Industries Co. Ltd. v. International Trade Commission,
`944 F.3d 901 (Fed. Cir. 2019) ........................................................................... 8, 9
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`I.
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`INTRODUCTION
`Defendants (“TCL”) file this brief in response to Plaintiff’s (“Ancora”)
`opening claim construction brief (Dkt. No. 52) (“Ancora’s Opening Brief”). For
`the reasons described in TCL’s opening brief (Dkt. No. 53) (“TCL’s Opening
`Brief”) and for the reasons discussed below, TCL requests that the Court adopt its
`constructions of the disputed terms.
`II. CLAIM TERMS IN DISPUTE
`Seven claim terms are in dispute, the first five of which relate to the only
`asserted independent claim, claim 1.
`A.
`“Memory of the BIOS”
`
`Claim
`1
`
`Ancora’s Construction
`plain and ordinary meaning
`
`TCL’s Construction
`a memory that: (i) stores the BIOS;
`(ii) is not recognized by an operating
`system as a storage device; and (iii)
`does not have a file system
`As TCL explained in its opening brief, the applicant for the ’941 Patent made
`a clear, unambiguous disclaimer of the scope of “memory of the BIOS.” (See
`TCL’s Opening Brief at 9–14.) The applicant disclaimed from the scope of
`“memory of the BIOS” any storage device that is recognized by the operating
`system as a storage device or that has a file system. (Id.) In its infringement
`contentions, Ancora now tries to reclaim that disclaimed scope, accusing as the
`“memory of the BIOS” the primary storage device used by the operating system,
`and in fact the storage device that the operating itself is stored on. This is precisely
`the situation that the application of prosecution disclaimer is designed to prevent.
`Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1360 (Fed. Cir. 2017)
`(“Ultimately, the doctrine of prosecution disclaimer ensures that claims are not
`‘construed one way in order to obtain their allowance and in a different way against
`accused infringers.’” (quoting Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d
`1570, 1576 (Fed. Cir. 1995)).
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`Ancora’s primary argument to the contrary is that the comments made during
`prosecution characterized only the prior art, and not the claimed invention.
`(Ancora’s Opening Brief at 16–20.) This is incorrect as seen from the specification
`and the prosecution history. Ancora’s arguments do not and cannot explain away
`the explicit and unambiguous disclaimer made during prosecution, as discussed
`further below.
`1.
`
`Applicant’s Comments During Prosecution Described the
`Claimed Invention, Not Just the Prior Art.
`As discussed in TCL’s Opening Brief, the applicant argued during
`prosecution that it was non-obvious to store license information in BIOS memory
`because:
`
`Moreover, the present invention proceeds against conventional
`wisdom in the art. Using BIOS to store application data such as that stored in
`Misra’s local cache for licenses is not obvious. The BIOS area is not
`considered a storage area for computer applications. An ordinary skilled
`artisan would not consider the BIOS a storage medium to preserve
`application data for at least two reasons.
`First, OS does not support this functionality and is not recognized as a
`hardware device like other peripherals. . . . There is no OS support
`whatsoever to write data to the system BIOS. . . .
`Second, no file system is associated with the BIOS. Every writable
`device connected to the PC is associated with an OS file system to arrange
`and manage data structures. An example for such a file system would be
`FAT, FAT32, NTFS, HPFS, etc. that suggests writing data to the writable
`device. No such file system is associated with the BIOS. This is further
`evidence that OS level application would not consider the BIOS as a storage
`medium for license data.
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`(Dkt. No. 53-5 at 6.) The examiner relied on these arguments and allowed the
`claims. (See TCL’s Opening Brief at 13; Dkt. No. 53-6 at 4.)
`Ancora now argues that these arguments described only the BIOS memory
`used in the prior art, and not the BIOS memory recited in the claims. This is
`demonstrably false for the reasons described below.
`a.
`The ’941 Patent’s Purported Invention Is License
`Information in the BIOS Memory and an “Agent” to
`Put It There, Not a New BIOS Memory.
`The ’941 Patent did not address the shortcomings of the prior art BIOS
`memory by providing a new BIOS memory that was recognized by the operating
`system as a storage device and that had a file system. Instead, the invention of the
`’941 Patent has repeatedly been characterized as the use of the “agent” to allow
`storage of license information in that same, imperfect BIOS memory known in the
`prior art.
`In allowing the claims to issue, the examiner observed that it was the “agent”
`that distinguished over the prior art.
`More specifically, the closest prior art systems, singly or collectively,
`do not teach extracting licensing information from a software program,
`encrypting the information and storing it in the BIOS. Further, it is well
`known to those of ordinary skill of the art that a computer BIOS is not
`setup to store license information. The present invention overcomes this
`difficulty by utilizing an agent to verify the application software program
`using the license information stored in the erasable, writable, non-volatile
`memory of the BIOS.
`(Dkt. No. 53-6 at 4 (emphasis added).) Thus, the examiner recognized that
`conventional BIOS memory was not equipped to store license information. And
`the claims allegedly overcame the prior art by providing an agent that could
`perform access to the BIOS memory. The Western District of Texas court
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`construed “agent” as simply “a software program or routine” at Ancora’s urging.
`(Dkt. No. 53-12 at 3.)
`The Federal Circuit has twice characterized the invention of the ’941 Patent
`as being storage of information in conventional BIOS memory with all of its
`shortcomings, not the creation of a new BIOS memory that eliminates those
`shortcomings. In the Federal Circuit’s first occasion considering the ’941 Patent,
`the court explained that the invention was grounded in the difficulty involved in
`accessing the BIOS memory:
`[The ’941 Patent] states that, while the contents of the BIOS memory
`space may be modified, the level of programming expertise needed to do so
`is unusually high, and the risk of accidentally damaging the BIOS and
`thereby rendering the computer inoperable ‘is too high of a risk for the
`ordinary software hacker to pay.’”
`Ancora Techs., Inc. v. Apple, Inc., 744 F.3d 732, 733 (Fed. Cir. 2014) (quoting ’941
`Patent at 3:4–14).
`If the ’941 Patent had provided a new BIOS memory that had a file system
`and was recognized as a storage device by the operating system, then it could have
`been modified just like any other storage device, such as the hard disk. And that
`was precisely the prior art technique that the ’941 Patent criticized. ’941 Patent at
`1:19–26 (criticizing prior art techniques that store a “license signature onto the
`computer’s volatile memory (e.g. hard disk)” because this was “very vulnerable to
`attack at the hands of skilled system’s programmers (e.g. ‘hackers’)”).
`The Federal Circuit confirmed that the invention was not a new memory
`module, but rather the use of an existing one in a new way:
`Thus, the inventors stated that their method makes use of the existing
`computer hardware (eliminating the expense and inconvenience of using
`additional hardware), while storing the verification information in a space
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`that is harder and riskier for a hacker to tamper with than storage areas used
`by earlier methods.
`Ancora v. Apple, 744 F.3d at 733–34 (emphasis added).
`In its second occasion considering the ’941 Patent, the Federal Circuit again
`confirmed that the invention used conventional BIOS memory with its conventional
`shortcomings in accessibility:
`Using BIOS memory, rather than other memory in the computer,
`improves computer security, the patent indicates, because successfully
`hacking BIOS memory (i.e., altering it without rendering the computer
`inoperable) is much harder than hacking the memory used by the prior art to
`store license-verification information.
`Ancora Techs. Inc. v. HTC Am. Inc., 908 F.3d 1343, 1345 (Fed. Cir. 2017).
`In this way, the claim addresses a technological problem with
`computers: vulnerability of license-authorization software to hacking. It
`does so by relying on specific and unique characteristics of certain aspects
`of the BIOS that the patent asserts, and we lack any basis for disputing, were
`not previously used in the way now claimed, and the result is a beneficial
`reduction of the risk of hacking. The prosecution history reinforces what the
`patent itself indicates about the change in previous verification techniques for
`computer security. See J.A. 283 (examiner stating reasons for allowance,
`summarizing patent's solution of “using an agent to set up a verification
`structure in the erasable, non-volatile memory of the BIOS”); Ancora, 744
`F.3d at 735-36 (quoting applicants' arguments to examiner).
`Ancora v. HTC, 908 F.3d at 1349 (emphasis added). In other words, the ’941
`Patent does not replace the conventional BIOS memory with its accessibility
`shortcomings. Rather, the ’941 Patent leverages those shortcomings to make
`sensitive information less hackable. And it is the “software program or routine”
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`embodied in the “agent” that makes storage possible in that difficult-to-access
`conventional BIOS memory.
`Ancora’s own briefing confirms that the invention is an agent accessing
`conventional BIOS memory, not a new type of BIOS memory. (Ancora’s Opening
`Brief at 1; see also id. at 2–3.)
`In sum, Ancora’s attempt to now distance the claims from the
`characterizations made during prosecution is incorrect. The claimed “memory of
`the BIOS” has and utilizes the two accessibility shortcomings of conventional
`BIOS memory to provide the supposed benefit of the invention and necessitate the
`allegedly inventive “agent.” The claimed BIOS memory must have those
`conventional accessibility shortcomings for the invention to distinguish the prior
`art. The applicant disclaimed any other scope through its arguments made during
`prosecution.
`
`b.
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`The ’941 Patent Explicitly States that It Uses a
`Conventional BIOS Module.
`It is further clear that the characterizations of conventional BIOS memory
`apply to the claims of the ’941 Patent because the ’941 Patent itself says that it uses
`conventional BIOS.
`In the very first example describing the alleged invention, the ’941 Patent
`makes clear that its BIOS memory is the conventional type already known to those
`of skill in the art:
`
`SUMMARY OF THE INVENTION
`The present invention relates to a method of restricting software
`operation within a license limitation. This method strongly relies on the use
`of a key and of a record, which have been written into the non-volatile
`memory of a computer.
`For a better understanding of the underlying concept of the invention,
`there follows a specific non-limiting example. Thus, consider a
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`conventional computer having a conventional BIOS module in which a key
`was embedded at the ROM section thereof, during manufacture. The key
`constitutes, effectively, a unique identification code for the host computer. It
`is important to note that the key is stored in a non-volatile portion of the
`BIOS, i.e. it cannot be removed or modified.
`’941 Patent, 1:37–52 (emphasis added). The specification then goes on to explain
`the full invention using that “conventional BIOS module.” See ’941 Patent, 1:52–
`2:26.
`
`The ’941 Patent by its own admission uses a conventional BIOS. Thus,
`when the applicant later argued during prosecution that storage of license
`information in conventional BIOS memory was non-obvious because conventional
`BIOS memory was not recognized as a storage device by the operating system and
`did not have a file system, those arguments characterized the BIOS memory in the
`claims and not just in the prior art.
`c.
`The Legal Authorities Cited by Ancora Do Not
`Support Its Position.
`None of the legal authorities cited by Ancora actually support its ultimate
`position.
`Ancora cites Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314
`(Fed. Cir. 2003), and Linear Technology Corp. v. International Trade Commission,
`566 F.3d 1049 (Fed. Cir. 2009), for the proposition that a negative limitation is
`inappropriate in a claim construction unless there is an express disclaimer or
`independent lexicography. (See Ancora’s Opening Brief at 17.) But that simply
`begs the ultimate question. For the reasons described above, the applicant did make
`an express disclaimer during prosecution, so these cases are not relevant.
`Ancora cites to Purdue Pharma L.P. v. Endo Pharmaceuticals Inc., 4389
`F.3d 1123, 1136 (Fed. Cir. 2006) for the rule of law that a disclaimer must be “clear
`and unmistakable.” (See Ancora’s Opening Brief at 19.) That is exactly what we
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`have in this case. The applicant made two clear, unmistakable, absolute statements
`about the characteristics of then-conventional BIOS memory. Neither the
`specification nor the prosecution history suggests anything other than the use of
`conventional BIOS memory. The supposed invention is what information is put
`into that conventional BIOS memory and an agent to do so. The specification and
`every subsequent interpretation thereof have indicated that it is precisely for those
`limiting characteristics of BIOS memory that the ’941 Patent’s invention provides
`its supposed anti-tampering benefit. This is a case of clear and unmistakable
`disclaimer of claim scope during prosecution, just as contemplated by Purdue
`Pharma.
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`2.
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`The Western District of Texas Ruling Provided No Rationale
`to Support Ancora’s Position.
`Ancora relies on the ruling of the Western District of Texas finding that this
`claim language did not require construction. (Ancora’s Opening Brief at 11.) That
`court’s order on this term is quoted in full here: “This term does not require
`construction.” (Dkt. No. 53-12 at 3.) That court did not address this term in its
`supplemental claim construction order. (See Dkt. No. 53-13.) As such, while that
`court reached the outcome that Ancora seeks here, that court provided no reasoning
`on which this Court should find even informative authority.
`The Northern District of California court, the only other court to construe the
`terms of the ’941 Patent, was not presented with a dispute on “memory of the
`BIOS” and did not enter a construction of that term. (See Dkt. No. 53-11.)
`3.
`Ancora’s Argument that “Memory of the BIOS” Is so
`Simple that It Does Not Need Construction Ignores the Fact
`that It Was the Extensive Prosecution Arguments that
`Imbue that Simple Language with Extensive Limitations.
`Ancora critiques TCL’s proposed construction because it seeks “extensive
`construction” of what Ancora suggests is a simple phrase. (Ancora’s Opening Brief
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`at 16.) Ancora then goes on to extract “BIOS” from the phrase because the parties
`have agreed to a construction of that term, and Ancora thereby focuses only on
`“memory of the.” (Id.) Ancora breaks this down further and focuses on the
`singular word “of.” (Id. at 17.) Ancora’s construction-by-dissection approach is
`meaningless here, where the limitation on claim scope was imbued by applicant’s
`extensive arguments made during prosecution, not based on the plain meaning of
`the individual words themselves.
`Short terms can often be construed into a longer form in the case of a
`disclaimer. In Techronic Industries Co. Ltd. v. International Trade Commission,
`944 F.3d 901 (Fed. Cir. 2019), the court construed “wall console” as “wall-mounted
`control unit including a passive infrared detector” based on a disavowal of any
`broader scope in the specification and prosecution. See id. at 910. In Poly-
`America, L.P. v. API Industries, Inc., 839 F.3d 1131 (Fed. Cir. 2016), the court
`affirmed a construction of “short seal” as “a seal that inseparably welds or joins the
`first and second elastic drawstrings and the first and second panels of the bag” for
`the same reason. Id. at 1135, 1137.
`On the other hand, Ancora’s citation to Facebook, Inc. v. Pragmatus AV,
`LLC, 582 F. App’x 864, 867 (Fed. Cir. 2014) as some sort of example of the
`construction of “of” is not relevant, because that case was decided based on the
`plain meaning of the word, not based on specific prosecution arguments forming a
`prosecution disclaimer, and definitely not based on the specific arguments made in
`the prosecution history of the patent at issue in this case. See id. at 866–68.
`4.
`Ancora’s Distinction Between Memory Storing BIOS versus
`Memory “Associated with” BIOS Is Incorrect.
`Ancora critiques TCL’s proposed construction because supposedly the
`“memory of the BIOS” need not actually store the BIOS, but rather may just be
`“associated with” the BIOS. (Ancora’s Opening Brief at 17 (referring to TCL’s
`construction of memory that “(i) stores the BIOS”).)
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`Ancora reaches that position, not by citing anything in the specification or
`prosecution history, but by cherry-picking a single sentence from the first appeal to
`the Federal Circuit. (See Ancora’s Opening Brief at 17.) The court, in that
`instance, was not even considering the meaning of “memory of the BIOS.” See
`Ancora v. Apple, 744 F.3d at 733–34 (emphasis added). Moreover, relying on
`extrinsic evidence, such as statements by the court in the appeals, particularly the
`cherry-picking, goes both ways. In the second appeal to the Federal Circuit, the
`court said that the BIOS memory in fact does store the BIOS programs. See Ancora
`v. HTC, 908 F.3d at 1345 (“BIOS memory is typically used for storing programs
`that assist in the start-up of a computer . . . [.]”). Furthermore, Ancora does not
`attempt to explain what it would even mean for a memory to be “associated” with a
`program other than storing it.
`Ancora’s cherry-picking from a passing reference in one appellate decision
`considering different issues only serves to confuse matters and distract from
`Ancora’s attempt to reclaim the disavowed claim scope of parts (ii) and (iii) of
`TCL’s proposed construction.
`5.
`Ancora’s Footnote Remark Regarding Memory “Area”
`Does Not Change the Disclaimer.
`Ancora makes an oblique critique of TCL’s construction somehow related to
`the different usage of “memory of the BIOS” and “memory area of the BIOS.”
`(See Ancora’s Opening Brief at 16, n. 3.) To the best that TCL can understand the
`critique, Ancora seems to be arguing that TCL is focusing on some rarely used
`terminology (“memory of the BIOS”) to the exclusion of some more commonly
`used terminology (“memory area of the BIOS”). But it is actually quite the
`opposite.
`The body of claim 1 refers to “memory of the BIOS”—the term that TCL
`proposes for construction—twice, and refers to “memory area of the BIOS” zero
`times. See ’941 Patent, 6:65, 7:2–3. Claim 1 uses “memory area of the BIOS” only
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`in the preamble. Thus, TCL’s proposed term for construction is the one that occurs
`more frequently and is without a doubt limiting on the scope of claim 1.
`In any case, claim 1 and the rest of the ’941 Patent appear to make no
`distinction between a “memory” and a “memory area.” So TCL’s proposed
`construction would apply equally to either usage. For example, claim 1 uses
`“memory of the BIOS” in such a way that implies that its antecedent basis is a
`previous usage of “memory area of the BIOS.” See ’941 Patent, 6:65, 6:61.
`Dependent claims 3, 7, and 9 switch back to the “memory area of the BIOS” usage.
`Id. at 7:19–20, 7:44–45, 7:58–59. Dependent claim 12 switches back to the
`“memory of the BIOS” usage. Id. at 8:3–4. Claim 16 switches back to the
`“memory area of the BIOS” usage. Id. at 8:25. Similarly, the specification uses
`“non-volatile memory area” and “non-volatile memory” interchangeably. See, e.g.,
`id. at 5:9–16 (using “first non-volatile memory area” and “second non-volatile
`memory area”), 5:19–34 (using “first non-volatile memory” and “second non-
`volatile memory”). Compare id. at Fig. 1 (showing “1st Non-Volatile Memory (4)”
`with “2nd Non-Volatile Memory (5)”) with id. at 5:9–16 (using “first non-volatile
`memory area (4)” and “second non-volatile memory area (5)”). If Ancora is trying
`to now discern a meaningful distinction between “memory of the BIOS” and
`“memory area of the BIOS,” then it is a distinction that the ’941 Patent itself does
`not make.
`TCL’s proposed construction is of the actual language that is used in the
`body of claim 1, and Ancora has identified no impropriety in that proposal.
`*
`*
`*
`In the end, despite Ancora’s attempts at deflection, the prosecution history
`makes manifestly clear that the applicant was describing the actual BIOS memory
`used in the claimed invention when the applicant made its extensive
`characterizations of BIOS memory’s accessibility limitations. Even though the
`examiner need not have relied on the arguments for prosecution disclaimer to
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`attach, the examiner in fact did. It is only because of the applicant’s explicit and
`extensive disavowal of features of the BIOS memory that the claims issued.
`Ancora should not now be allowed to undo that deal and redefine BIOS memory
`contrary to its prior disclaimer.
`B.
`“Set Up a Verification Structure”
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`Claim
`1
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`Ancora’s Construction
`plain and ordinary meaning
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`TCL’s Construction
`store information encrypted with a
`key unique to the computer
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`As TCL explained in its opening brief, the ’941 Patent describes the
`invention as requiring a key and a record. (See TCL’s Opening Brief at 14–18.)
`The entire specification is consistent with the use of a key and a record. The
`applicant made similar characterizations in the prosecution history as to the use of a
`key and a record in the claimed invention. What is clear throughout is that the
`invention stores a record that is encrypted with a key unique to the computer. The
`specification’s explicit characterization of the invention, along with the subsequent
`consistent statements establish a disavowal of any claim scope not using a key.
`Ancora makes various attempts to show why the invention does not require an
`encryption with a unique key, but none of them achieve the intended result.
`Ancora argues that the specification discloses an embodiment that is outside
`the bounds of TCL’s proposed construction. (See Ancora’s Opening Brief at 11
`(citing ’941 Patent, 6:18–22).) This argument is flawed for several reasons.
`First, the cited passage describes sub-steps that can be included in the step of
`“[s]etting up (18) the verification structure.” ’941 Patent, 6:18–19 (referring to
`item (18) in Figure 2). But this only begs the question: what does the principal
`step and its “verification structure” entail. The answer follows in the next line after
`the cited passage: a license record is encrypted using the key. ’941 Patent, 6:22–
`27. Ancora acts as if this is a wholly separate step. (Ancora’s Opening Brief at
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