throbber
Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 1 of 22 PageID #: 15332
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`PACT XPP SCHWEIZ AG,
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`Plaintiff
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`v.
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`INTEL CORPORATION,
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`
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`Defendant
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`Case No. 1:19-cv-01006-JDW
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`
`MEMORANDUM
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`On May 30, 2019, Plaintiff PACT XPP Schweiz AG filed suit against
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`defendant Intel Corporation, alleging infringement of 12 of its patents. The
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`patents relate to multi-core processing systems and, more specifically,
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`reconfigurable data processing architectures. The parties have submitted to the
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`Court for construction 10 terms from eight of the patents in suit, Patent Nos.
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`7,928,763 (“the ’763 patent”); 8,312,301 (“the ’301 patent”); 8,471,593 (“the ’593
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`patent”); 8,819,505 (“the ’505 patent”); 9,075,605 (“the ’605 patent”); 9,170,812
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`(“the ’812 patent”); 9,436,631 (“the ’631 patent”); and 9,552,047 (“the ’047
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`patent”).
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`I.
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`LEGAL STANDARD
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`“It is a bedrock principle of patent law that the claims of a patent define
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`the invention to which the patentee is entitled the right to exclude.” Phillips v.
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`AWS Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quote omitted). Claim
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`construction is a matter of law. See Teva Pharm. USA v. Sandoz, Inc., 135 S. Ct.
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`831, 837 (2015). There is no “magic formula or catechism” for construing a
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 2 of 22 PageID #: 15333
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`patent claim, nor is a court barred from considering “any particular sources or
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`required to analyze sources in any specific sequence.” Phillips, 415 F.3d at 1323.
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`Instead, a court is free to attach the appropriate weight to appropriate sources
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`“in light of the statutes and policies that inform patent law.” Id.
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`A court generally gives the words of a claim their ordinary and customary
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`meaning, which is the “meaning that the term would have to a person of ordinary
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`skill in the art at the time of the invention, i.e., as of the effective filing date of
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`the patent application.” Id. at 1312-13 (quote omitted). Usually, a court first
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`considers the claim language; then the remaining intrinsic evidence; and finally,
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`the extrinsic evidence in limited circumstances. See, e.g., Interactive Gift Exp.,
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`Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001). While “the claims
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`themselves provide substantial guidance as to the meaning of particular claim
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`terms,” a court also must consider the context of the surrounding words. Id. at
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`1314. In addition, the patent specification is “always highly relevant to the claim
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`construction analysis. Usually, it is dispositive; it is the single best guide to the
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`meaning of a disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
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`1582 (Fed. Cir. 1996). But, while a court must construe claims to be consistent
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`with the specification, the court must “avoid the danger of reading limitations
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`from the specification into the claim,” Phillips, 415 F.3d at 1323. This is a “fine”
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`distinction. Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186–
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`87 (Fed.Cir.1998). In addition, “[e]ven when the specification describes only a
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`single embodiment, the claims of the patent will not be read restrictively unless
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`the patentee has demonstrated a clear intention to limit the claim scope using
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`2
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 3 of 22 PageID #: 15334
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`words or expressions of manifest exclusion or restriction. Hill-Rom Svcs., Inc. v.
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`Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (quote omitted).
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`A court may refer to extrinsic evidence only if the disputed term’s ordinary
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`and accustomed meaning cannot be discerned from the intrinsic evidence.
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`Vitronics, 90 F.3d at 1584. Although a court may not use extrinsic evidence to
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`vary or contradict the claim language, extrinsic materials “may be helpful to
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`explain scientific principles, the meaning of technical terms, and terms of art
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`that appear in the patent and prosecution history. . ..” Markman v. Westview
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`Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995). Extrinsic evidence is used
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`“to ensure that the court’s understanding of the technical aspects of the patent
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`is consistent with that of a person of skill in the art.” Phillips, 415 F.3d at 1318.
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`The Federal Circuit has cautioned against relying upon expert reports and
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`testimony that is generated for the purpose of litigation because of the likelihood
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`of bias. Id.; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595, 113
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`S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Expert evidence can be both powerful and
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`quite misleading because of the difficulty in evaluating it.”)
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`Ultimately, the “construction that stays true to the claim language and
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`most naturally aligns with the patent’s description of the invention will be . . .
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`the correct construction.” Renishaw PLC v. Marposs Societa’ per Anzioni, 158
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`F.3d 1243, 1250 (Fed. Cir. 1998). It follows that a “claim interpretation that
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`would exclude the inventor’s device is rarely the correct interpretation.” Osram
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`GmbH v. Int’l Trade Comm’n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (quote
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`omitted).
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`3
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 4 of 22 PageID #: 15335
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`II.
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`CONSTRUCTION OF DISPUTED TERMS
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`A.
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`‘763 Patent Terms
`1.
`“A multi-processor chip, comprising” (Preamble of claims
`1, 31)
`
`PACT
`Limiting
`INTEL
`Not limiting
`COURT
`Not limiting
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`Preamble language that “merely states the purpose or intended use of an
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`invention is generally not treated as limiting the scope of the claim.” Pacing Tech.,
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`LLC v. Garmin Intern., Inc., 778 F.3d 1021, 1023-24 (Fed. Cir. 2015) (quote
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`omitted). “However, when limitations in the body of the claim rely upon and
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`derive antecedent basis from the preamble, then the preamble may act as a
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`necessary component of the claimed invention.” Id. (cleaned up; quote omitted).
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`That is, the preamble is limiting if it “recites essential structure or steps, or if it
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`is necessary to give life, meaning, and vitality to the claim.” Catalina Mktg. Int'l,
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`Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (quote omitted).
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`There is no “litmus test” to determine whether preamble language is limiting.
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`Bicon, Inc. v. Straumann Co., 441 F.3d 945, 952 (Fed. Cir. 2006). Whether to treat
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`a preamble term as a claim limitation is “determined on the facts of each case in
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`light of the claim as a whole and the invention described in the patent.” Storage
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`Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 831 (Fed. Cir. 2003).
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`The preamble to these claims does not animate the claims and is not
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`limiting. The body of each claim lacks any reference to the preamble. To the
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`4
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 5 of 22 PageID #: 15336
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`contrary, the body of each claim describes a complete system on its own. The
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`language in the preamble is a descriptor, not a limitation.
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`Pact argues that the preamble must be limiting because two dependent
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`claims, Claims 20 and 50, refer back to it. It is possible that the preamble is
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`limiting as to those dependent claims. That question is not before the Court.
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`However, language in a preamble can be limiting as to a dependent claim but
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`not as to the independent claim from which it derives. See TQ Delta, LLC v.
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`2WIRE, Inc., Civ A. No. 1:13-cv-01835, 2018 WL 4062617, at * 4-5 (D. Del. Aug.
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`24, 2018). So, even if the preamble is limiting as to dependent Claims 20 and
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`50, it is not limiting as to independent Claims 1 and 31.
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`Pact also argues that the specification requires the components to be
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`internal to a single chip and that the preamble provides that specificity. The
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`preamble refers to “a” chip. (D.I.90-8 at Claims 1, 31 (emphasis added).) “[A]n
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`indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’
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`in open-ended claims containing the transitional phrase ‘comprising.’” Baldwin
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`Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008). Pact
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`argues that this rule does not apply to preambles, but it offers no support for
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`that position. The Court sees no reason not to apply the rule to a preamble. Pact
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`also argues that the specification’s reference to external components, such as a
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`hard drive, demonstrates that in this case “a” really means “one.” Pact reads too
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`much into the specification. The claims describe a complete system. There will
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`always be components that are external to that system. That would be true
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`whether the claims require a single chip or permitted multiple chips. Because
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`5
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 6 of 22 PageID #: 15337
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`the claim and specification leave open the possibility of a multi-chip system with
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`all of the claimed elements, the specification does not require deviation from the
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`ordinary rules of construction.
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`2.
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`“Programmably[/dynamically] interconnecting at runtime
`at least one of data processing cells and memory cells and
`one or more of the at least one interface unit” (Claims 1,
`31)
`
`PACT
`Connect at least one data processing cell, at least one memory cell, and at
`least one interface unit with each other at runtime
`
`Programmably and dynamically do not require construction
`INTEL
`Programmably reconfiguring interconnects at runtime/dynamically
`reconfiguring interconnects at runtime
`COURT
`Variably interconnecting at runtime at least one of data processing cells and
`memory cells and one or more of the at least one interface unit
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`The Parties agree that the terms “programmably” and “dynamically” are
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`interchangeable and that the claim language requires reconfigurability. (Tr. at
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`11-12.1) They also agreed during the Markman hearing to construe words after
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`“runtime” according to their plain and ordinary meaning. (Id. at 12-13.) The
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`Court will adopt that agreed-upon construction.
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`The ‘763 patent specification indicates that reconfigurable architecture
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`refers to “units [] having a plurality of elements whose function and/or
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`interconnection is variable during run time.” (D.I. 90-8 at 1:26-28.) The Court’s
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`construction assigns a single meaning to the terms “programmably” and
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`1 Citations to “Tr.” refer to the Transcript of the Markman hearing on June 10,
`2020.
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 7 of 22 PageID #: 15338
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`“dynamically,” consistent with the specification’s mandate that interconnection
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`be “variable.” See Vitronics, 90 F.3d at 1582 ("The specification acts as a
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`dictionary when it expressly defines terms used in the claims."). At the same
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`time, the Court’s construction maintains the claim language’s mandate that the
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`variable interconnection occur at “runtime,” and it preserves the elements that
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`are subject to interconnection. The Court’s construction also eliminates potential
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`confusion from the fact that the two claims use two different words—
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`“programmably” and “dynamically”—to mean the same thing.
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`Intel’s proposal would have the Court add the word “reconfiguring” to the
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`construction of “programmably” and “dynamically.” Doing so would not add
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`anything. The Court’s construction already requires a variable interconnection
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`at runtime. That necessarily means there will be reconfiguration. Adding the
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`word “reconfiguring” does not change anything. It only introduces ambiguity
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`because it suggests that there is some additional requirement above and beyond
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`the variable interconnection.
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`3.
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`“Data processing cells, each adapted for sequentially
`executing” (Claims 1, 31)
`
`PACT
`Plain and ordinary meaning; no construction necessary
`INTEL
`Reconfigurable processor function cells adapted for sequentially executing
`COURT
`Plain and ordinary meaning; no construction necessary
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`This claim language does not require construction. There is no ambiguity
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`in what is disclosed, nor is it subject to multiple possible interpretations. It is a
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`basic principle of patent law that the patent claims define the invention to which
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`7
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 8 of 22 PageID #: 15339
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`the patentee is entitled the right to exclude. Thus, “a claim construction analysis
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`must begin and remain centered on the claim language itself, for that is the
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`language the patentee has chosen to particularly point out and distinctly claim
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`the subject matter which the patentee regards as his invention.” Innova/Pure
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`Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir.
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`2004) (cleaned up).
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`Intel argues that the Court should introduce the word “reconfigurable” to
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`the construction. But nothing in the patent suggests that the data processing
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`cells themselves must be reconfigurable. Quite the opposite. The specification
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`explains that the “term reconfigurable architecture is understood to refer to units
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`[] having a plurality of elements whose function and/or interconnection is
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`variable during run time.” (D.I. No. 90-8 at 1:26-28 (emphasis added).) This
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`language demonstrates that the data processing cells themselves do not have to
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`be reconfigurable. The interconnection can be, instead. In other places, the
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`specification reiterates that something other than the data processing cells can
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`satisfy the reconfigurability requirement. (E.g., id. at 7:22-25 (describing ways to
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`enable sequencer-type data processing but omitting any requirement that
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`function cells be reconfigurable).) While “[i]t is entirely proper to use the
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`specification to interpret what the patentee meant by a word or phrase in the
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`claim,” it is improper to add an extraneous limitation appearing in the
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`specification into a claim “wholly apart from any need to interpret what the
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`patentee meant by particular words or phrases in the claim.” E.I. du Pont de
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`Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988)
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`8
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 9 of 22 PageID #: 15340
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`(quote omitted); Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)(“To
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`avoid importing limitations from the specification into the claims, it is important
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`to keep in mind that the purposes of the specification are to teach and enable
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`those of skill in the art to make and use the invention and to provide a best mode
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`for doing so.”) But that is exactly what Intel would have this Court do.
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`Intel also points to Figure 1 of the ‘763 patent, for which the specification
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`makes clear that “the particular functions of function cells are configurable.”
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`(D.I. No. 90-8 at 7:56-57) Figure 1 is only one of the many embodiments in the
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`patent. The Federal Circuit has warned against “read[ing] limitations from the
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`specification into claims” when “the only embodiments, or all of the
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`embodiments, contain a particular limitation.” Thorner v. Sony Computer Entm't
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`Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012).
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`B.
`
`‘593 Patent Term—“A data processor on a chip comprising”
`(Preamble of claims 1, 16)
`
`PACT
`Limiting
`INTEL
`Not limiting
`COURT
`Limiting as to “data processor”
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`The preamble to these claims refers to a “data processor on a chip
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`comprising . . ..” (D.I. No. 90-8 at 12:19.) The claim then describes, among other
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`things, “at least one interface unit for providing at least one communication
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`channel between the data processor and external memory.” (Id. at 12:28-30
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`(emphasis added).) The term “data processor” in the preamble provides
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`antecedent basis for the term “data processor” in the body of the claim.
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`9
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`Therefore, that term is limiting. See Pacing Tech., at 778 F.3d at 1024. Although
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`the term “data processor” is limiting, neither party seems to think that the term
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`requires anything other than its plain and ordinary meaning, and the Court
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`agrees.
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`Pact goes one step further and contends that (a) the entire preamble is
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`limiting and (b) the phrase “on a chip” means that the patent is limited to a single
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`chip. The Court disagrees. A court does not have to construe an entire preamble
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`just because it construes a portion of it. See TomTom, Inc. v. Adolph, 790 F.3d
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`1315, 1323 (Fed. Cir. 2015). Here, nothing in the body of the claim indicates that
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`the phrase “on a chip” is limiting. It does not animate or give life to any aspect
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`of the body of the claim.
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`Even if the phrase “on a chip” were limiting, it would not help Pact. Pact
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`contends that the phrase indicates that there must be a single chip. But as with
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`the ‘763 Patent, nothing about the claim language or the specification
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`demonstrates that there must be only one chip. The specification’s reference to
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`external components only stands for the non-controversial proposition that some
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`components will be external to the system disclosed in the claim. Those external
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`components could exist if there is a single-chip system or a multi-chip system.
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`The specification’s reference to external components therefore does not offer a
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`reason to deviate from the normal rules of construction concerning the use of
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`the article “a.”
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`10
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 11 of 22 PageID #: 15342
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`C.
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`‘631 Patent Term—“A plurality of bus segments for each
`processor of the multiprocessor system” (Claim 1)
`
`PACT
`No construction necessary; plain and ordinary meaning
`INTEL
`A plurality of bus segments for each processor of the multiprocessor system,
`each bus segment connected to only one of the processors
`COURT
`Plain and ordinary meaning; no construction necessary
`
`The parties agree that, on its face, this language contemplates multiple
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`bus segments for each processor. Intel, however, claims that the prosecution
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`history demonstrates that each bus segment can connect only to a single
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`processor. “The doctrine of prosecution disclaimer . . . preclud[es] patentees from
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`recapturing through claim interpretation specific meanings disclaimed during
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`prosecution.” Mass. Inst. of Tech. v. Shire Pharm., Inc., 839 F.3d 1111, 1119 (Fed.
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`Cir. 2016) (quote omitted). “The party seeking to invoke prosecution history
`
`disclaimer bears the burden of proving the existence of a ‘clear and
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`unmistakable’ disclaimer that would have been evident to one skilled in the art.”
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`Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1063–64 (Fed. Cir. 2016) (quote
`
`omitted). The Federal Circuit has declined to find a prosecution disclaimer
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`“[w]here the alleged disavowal is ambiguous, or even ‘amenable to multiple
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`reasonable interpretations.’” Mass. Inst. of Tech., 839 F.3d at 1119 (quote
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`omitted).
`
`During prosecution, the examiner initially rejected Claim 1 of the ‘631
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`patent on the grounds that it was obvious in light of US Patent No. 5,905,875
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`(the “Takahashi” reference). Pact distinguished Takahashi by explaining that
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`“each of the bus segments. . . [in] Fig. 1 of Takahashi[] are not provided for each
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`11
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 12 of 22 PageID #: 15343
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`processor, but are rather each connected to multiple processors.” (D.I. 90-12 at
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`933 (emphasis in original). Pact contended to the examiner that “Takahashi fails
`
`to disclose ‘a plurality of bus segments for each processor of the multiprocessor
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`system comprising a plurality of flexible data channels to each processor of the
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`multiprocessor system.’” (Id.) Intel interprets Pact’s statement as limiting the
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`claim such that “each of the claimed bus segments connects to only one
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`processor.” (D.I. 90 at 32).
`
`Intel’s proposed interpretation is a reasonable one. Pact’s argument to the
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`examiner about Takahashi could limit Claim 1 so that each bus segment could
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`connect to one processor. That interpretation would distinguish the ‘631 Patent
`
`from Takahashi, which contemplates connection to multiple processors. But
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`Intel’s proposed interpretation is not the only reasonable interpretation of Pact’s
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`arguments to the examiner. Pact’s position could also mean that the ‘631 Patent
`
`discloses a system in which each bus segment connects to each processor. Pact’s
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`argument to the examiner could be read to disclose more connections than
`
`Takahashi, not fewer.
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`The Court does not have to determine which reading is correct. It just has
`
`to determine that Pact’s statement was not a clear and unmistakable disavowal.
`
`Pact’s argument is a reasonable interpretation of the file history. As Pact pointed
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`out during the Markman hearing, Takhashi does not show one bus segment for
`
`each processor. It shows multiple bus segments connected through bus extender
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`mechanisms that link to many processors, but not necessarily all. In addition,
`
`Figures 5 and 6 of the ‘631 Patent disclose each bus segment connected to many
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`12
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`processors, not just one. While Pact cannot reclaim in the specification what it
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`disavowed, the fact that the specification contemplates an invention that is
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`consistent with Pact’s interpretation of the file history at least suggests that
`
`Pact’s interpretation is a reasonable one. The Court concludes that both Intel’s
`
`and Pact’s readings of the file history are reasonable. That vagueness dooms
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`Intel’s disavowal argument.
`
`D.
`
`’812 Patent Term—“Instruction dispatch unit . . . configured to
`dispatch software threads to the array data processor for
`parallel execution by the parallel processing arithmetic units”
`(Claim 12)
`
`PACT
`Plain and ordinary meaning
`INTEL
`Subject to 35 U.S.C. § 112 ¶ 6
`
`Function: Dispatch software threads to the array data processor for
`parallel execution by the parallel processing arithmetic units
`
`Structure: Fig. 80A, configuration unit (CT)
`COURT
`Plain and ordinary meaning; § 112 ¶ 6 does not apply
`
`The parties dispute whether the term “instruction dispatch unit” conveys
`
`a structure that a person skilled in the art would have understood at the time of
`
`the application (Pact’s view) or whether it is defined by its function under 35
`
`U.S.C. § 112, ¶ 6.2 Courts presume that claim terms without the word “means”
`
`do not invoke Section 112, ¶ 6. See Williamson v. Citrix Online, LLC, 792 F.3d
`
`
`2 The America Invents Act recodifies Section 112, ¶ 6 as 35 U.S.C. § 112(f), but
`the pre-AIA statute applies here.
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 14 of 22 PageID #: 15345
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`1339, 1348 (Fed. Cir. 2015) (en banc).3 The presumption is not strong. To rebut
`
`it, a challenger must demonstrate that a claim term either fails to “recite
`
`sufficiently definite structure” or recites “function without reciting sufficient
`
`structure for performing that function.” Id. at 1349. A challenger does not have
`
`to show that the limitation is devoid of anything that can be construed as
`
`structure. Instead, it only has to show that the structure is not “sufficient.” Id.;
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`see also Egenera, Inc. v. Cisco Sys., Inc., -- F.3d --, 2020 WL 5084288, at * 3 (Fed.
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`Cir. Aug. 28, 2020). The essential inquiry is “whether the words of the claim are
`
`understood by persons of ordinary skill in the art to have a sufficiently definite
`
`meaning as the name for structure.” MTD Prod. Inc. v. Iancu, 933 F.3d 1336,
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`1341 (Fed. Cir. 2019) (quote omitted).
`
`The Court concludes that the term “instruction dispatch unit” recites a
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`definite structure to one skilled in the art. The term is not used in the patent’s
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`lengthy specification, so the intrinsic evidence does not shed any light on its
`
`meaning or structure. The extrinsic evidence does, though. Pact has identified
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`patents and treatises that use the term. Intel points out that none of those
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`sources defines the term “instruction dispatch unit.” But their repeated use of
`
`the term indicates that a person skilled in the art would have understood it,
`
`including its structure. In that regard, it is notable that at least some of the
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`sources on which Pact relies do not define “instruction dispatch unit” by its
`
`
`3 An en banc Federal Circuit joined the portion of the Williamson decision
`discussing the applicability of Section 112. See Williamson, 892 F.3d at 1347-
`49 & n.3.
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`14
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`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 15 of 22 PageID #: 15346
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`function. Instead, those sources appear to assume that a person skilled in the
`
`art will understand the structure of such a unit. (E.g., D.I. at 2:55-57.)
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`In addition, Pact’s expert Andrew Wolfe explains in his Declaration that an
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`instruction dispatch unit has a structure that a person skilled in the art would
`
`understand. Dr. Wolfe provides his understanding of an instruction dispatch
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`unit, and he points to sources on which he bases his opinion. Intel and its expert
`
`Todd Mowry criticize Dr. Wolfe’s opinion, but they do not do enough to overcome
`
`it, given that Intel bears the burden of proving that Section 112, ¶ 6 applies. Dr.
`
`Mowry criticizes the litany of sources on which Dr. Wolfe relies, but the Court is
`
`persuaded that the wide use of the term in the literature indicates that a person
`
`skilled in the art would have understood it at the time. Because the term
`
`“instruction dispatch unit” has a known meaning, the case is unlike the one
`
`before the Federal Circuit decision in Deibold, where the patent used a term with
`
`no known structure or meaning. See Diebold Nixdorf, Inc. v. Int’l Trade Comm’n,
`
`899 F.3d 1291, 1298-99 (costruing “cheque standby unit”).
`
`Intel’s other arguments for the application of Section 112, ¶ 6 also fail to
`
`satisfy its burden of proof. For example, Intel asserts that the references on
`
`which Pact and Dr. Wolfe rely focus on the area of general, rather than
`
`reconfigurable, processors. The idea that there is a distinction between the two
`
`is the nub of Intel’s defense to many of the infringement claims in this case. And
`
`it might be true. But Intel has not, at this stage, offered evidence from which the
`
`Court can determine that the distinction renders Pact’s authorities inapplicable.
`
`It would have to offer such evidence to carry its burden of proof.
`
`15
`
`

`

`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 16 of 22 PageID #: 15347
`
`So too with
`
`Intel’s distinction between processing threads and
`
`instructions. Dr. Mowry asserts, in conclusory fashion, that there is a
`
`distinction, and Intel makes the argument that there is. But the Court does not
`
`have any evidence, other than Dr. Mowry’s say-so, that the distinction matters
`
`here. Notably, the patent’s specification calls the distinction into doubt. The
`
`patent defines threads as “finely granular applications and/or application parts”
`
`that are distributed among resources within the processor. (D.I. No. 90-13 at
`
`19:63-65) Nothing in the record suggests that these applications or application
`
`parts cannot constitute a set of instructions that an instruction dispatch unit
`
`can distribute throughout the processor. To the contrary, extrinsic evidence in
`
`the record refers to threads as a series of instructions. (E.g., D.I. 90-6 at 25:46-
`
`47 (“Such an instruction may be a single instruction within a thread represented
`
`by multiple strands.”), 25:59-61 (“A thread may include multiple strands such
`
`that instructions of different strands may depend upon each other.”)). Without
`
`more, Intel has not met its burden. Nor do Intel’s other arguments suffice to
`
`carry its burden of showing that the “instruction dispatch unit” either lacks
`
`structure or lacks a structure to carry out a particular function.
`
`E.
`
`‘047 Patent Terms
`1.
`
`Preambles in ‘047 Patent (Claims 1, 19)
`
`PACT
`Limiting
`INTEL
`Not limiting
`COURT
`Not limiting
`
`16
`
`

`

`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 17 of 22 PageID #: 15348
`
`Claim 1 of this patent describes a “multiprocessor system,” and claim 19
`
`describes a “mobile device.” In each case, the body of the claim then lays out all
`
`elements of the claimed system. Nothing in the body of the claims refers back to
`
`the preamble. Nor is there anything in the body of the claims that gets life or
`
`animation from the preamble. While it is true that certain dependent claims refer
`
`back to these preambles, that establishes, at most, that the preamble is limiting
`
`as to those dependent claims. It does not provide a basis to deviate from the
`
`ordinary rule that preambles are not limiting.
`
`2.
`
`“Data processing unit” and/or “data processing units . . .
`adapted for sequentially processing data” (Claims 1-5, 8,
`10, 15, 19, 22, 24)
`
`PACT
`No construction required, except that “sequentially processing data” means
`“passing results onto one or more other data processing units which are
`subsequently processing data”
`INTEL
`Reconfigurable and sequential data processors where the data results from one
`processor are fed to another, for each processor to perform a separate
`computation
`COURT
`Sequential data processors that pass results to one or more additional data
`processing units to perform additional computations
`
`During the prosecution of this patent, Pact limited its invention to
`
`sequential data processors. To operate as a disclaimer, the statement in the
`
`prosecution history must be clear and unambiguous, and constitute a clear
`
`disavowal of scope. See Trivascular, 812 F.3d at 1063-64; Verizon Servs. Corp. v.
`
`Vonage Holdings Corp., 503 F.3d 1295, 1306 (Fed. Cir. 2007). The examiner
`
`rejected all claims in the ‘047 Patent in light of prior art, Kikinis (U.S. Pat. No.
`
`17
`
`

`

`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 18 of 22 PageID #: 15349
`
`5,502,838). Pact then amended its application to distinguish Kikinis with the
`
`following explanations:
`
` “Kikinis does not disclose a multiprocessor system comprising
`
`sequential data processors. All the Kikinis processors are
`
`conventional processors and all the same architecture;”
`
` “Applicant respectfully submits that the claims are limited to
`
`sequential data processors that have register sets for storing data
`
`for sequential data processing, and neither are disclosed in Kikinis;”
`
`and
`
` “These limitations are significant and define over Kikinis.”
`
`(D.I. 90-21 at 14-15 (emphasis added).)
`
`These statements to the examiner constitute a clear, unequivocal
`
`disclaimer of scope. Pact’s use of definitive language contradicts Pact’s argument
`
`that these statements are too vague to constitute a disclaimer. Pact also argues
`
`that the Court should adopt its interpretation of “sequentially processing data”
`
`because the interpretation comes from the patent’s specification. Pact also
`
`argues that its proposed construction should prevail because it is consistent with
`
`the patent’s specification. But Pact made representations to the examiner to
`
`secure the ‘047 Patent. It cannot now contradict those representations and use
`
`the specification to claw back subject matter that it gave up during prosecution.
`
`See Mass. Inst. Of Tech., 839 F.3d at 1119; Omega Eng’g, Inc. v. Raytek Corp.,
`
`334 F.3d 1314, 1324-28 (Fed. Cir. 2003).
`
`18
`
`

`

`Case 1:19-cv-01006-JDW Document 191 Filed 09/30/20 Page 19 of 22 PageID #: 15350
`
`The Parties offer similar definitions of “sequentially processing data.” They
`
`agree that one data processor performs a computation, and then passes its
`
`results on to another processor, which also performs a computation. Pact takes
`
`issue with Intel’s description of subsequent data processors performing
`
`“separate” computations. According to Pact, the word “separate” could cause
`
`confusion because it might suggest that there are no dependencies between the
`
`data processor calculations. In order to avoid any confusion, the Court refers to
`
`“additional” computations, rather than “separation” computations. The word
`
`“additional” allows subsequent computations to be independent or dependent of
`
`the earlier computations.
`
`As with the ‘763 Patent, Intel seeks to define the data processors as
`
`“reconfigurable.” As with that patent, the Court declines to include that term
`
`because it ignores the possibility that the interconnections, rather than the cells
`
`themselves, can be reconfigurable.
`
`F.
`
`‘605 Patent Terms
`1.
`
`“Data processing unit” and/or “data processing units . . .
`adapted for sequentially processing data” (Claim 1)
`
`The parties briefed this claim term in conjunction with the similar terms
`
`for the ‘047 Patent, which is part of the same family. The

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